General Categories > Laws and Legislation
Fighting words
SemperFiGuy:
OK
Let's review the applicable statute on Assault in the Third Degree (least serious assault situation)
=======================
28-310.
Assault in the third degree; penalty.
(1) A person commits the offense of assault in the third degree if he:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or
(b) Threatens another in a menacing manner.
(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor.
============================
1(b) above indicates why you don't want to "sass back". By doing so, the victim is now committing Third Degree assault on the perpetrator. Equally guilty.
Now........suppose you are chased and grabbed and/or hit, shoved, touched while retreating.
Now your right to personal self-defence kicks in, including the possibility of using lethal force.
Here are some annotations to 28-310 which help clarify some things: (especially note #6, below)/b]
1. Bodily injury
Bodily injury may be inferred from evidence that defendant intentionally struck the victim, even though the victim testified that blow did not cause physical pain. State v. Waltrip, 240 Neb. 888, 484 N.W.2d 831 (1992).
This section does not require proof of serious bodily injury. Proof of facts from which bodily injury may be inferred is sufficient. State v. Goodon, 219 Neb. 186, 361 N.W.2d 537 (1985).
2. Constitutionality
This is a serious offense for which a jury trial is constitutionally required, unless expressly and intelligently waived by the defendant. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).
Statute neither unconstitutionally vague nor overbroad. In re Interest of Siebert, 223 Neb. 454, 390 N.W.2d 522 (1986).
3. Generally
A violation of subsection (1)(b) of this section requires an intentional act, and it is error to give an instruction using the lesser standards of culpability in subsection (1)(a), "knowingly" and "recklessly". State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).
Adult bodybuilder who dunked 9-year-old boy's head into urinal could be convicted of third degree assault under this section. State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992).
Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).
4. Lesser-included offense
Third degree assault under subsection (1)(b) of this section is not a lesser-included offense of terroristic threats under subsection (1)(a) of section 28-311.01. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).
Assuming that third degree assault under this section may, under certain circumstances, be a lesser-included offense of third degree assault on a peace officer under section 28-931, it is not prejudicial error to fail to instruct upon a lesser-included offense when the evidence entirely fails to show an offense of a lesser degree than that charged in the information. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).
One of the forms of third degree assault, intentionally or knowingly causing bodily injury to another person, is a lesser-included offense of first degree assault. State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986).
Third degree assault is a lesser-included offense of assault by a confined person, because the elements of the two offenses are identical, except that the greater offense, assault by a confined person, requires the assault to be committed by someone who is legally confined. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).
5. Mutual consent
The language of subsection (2) of this section requires mutual consent for a fight or scuffle in order to render an assault a Class II misdemeanor. State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).
When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).
6. Recklessly
The pointing of a gun at another is a reckless act within the contemplation of subsection (1)(a) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).
7. Requisite mental state
The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).
8. Sentencing
The sentencing court did not abuse its discretion by sentencing defendant to a six-month term for a third degree assault and a four-month term for a second degree assault arising out of the same incident. Both sentences were within the statutory limits set for Class III felonies and Class II misdemeanors, respectively. The third degree assault involved an aggravating factor. State v. Hatwan, 208 Neb. 450, 303 N.W.2d 779 (1981).
9. Double jeopardy
In applying Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932), to separately codified criminal statutes which may be violated in alternative ways, only the elements charged in the case at hand should be compared in determining whether the offenses under consideration are separate or the same for purposes of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
Third degree assault and the making of terroristic threats are separate offenses for the purpose of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
10. Penalty
This section creates one offense of third degree assault, punishable by two different ranges of penalties depending on whether the assault was committed in a fight or scuffle entered into by mutual consent. Whether a fight or scuffle entered into by mutual consent occurred is not an element of the offense of third degree assault. Rather, it is a mitigating factor, the existence of which determines which of the two penalties is to be imposed—whether the defendant will receive a lesser penalty instead of the ordinary penalty. Whether a fight or scuffle was entered into by mutual consent is not a factual issue that must be submitted to a jury. State v. Stahla, 13 Neb. App. 79, 688 N.W.2d 641 (2004).
NE Bull:
--- Quote from: SemperFiGuy on February 18, 2017, 01:30:58 PM ---OK
Let's review the applicable statute on Assault in the Third Degree (least serious assault situation)
=======================
28-310.
Assault in the third degree; penalty.
(1) A person commits the offense of assault in the third degree if he:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or
(b) Threatens another in a menacing manner.
(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor.
============================
1(b) above indicates why you don't want to "sass back". By doing so, the victim is now committing Third Degree assault on the perpetrator. Equally guilty.
Now........suppose you are chased and grabbed and/or hit, shoved, touched while retreating.
Now your right to personal self-defence kicks in, including the possibility of using lethal force.
Here are some annotations to 28-310 which help clarify some things: (especially note #6, below)/b]
1. Bodily injury
Bodily injury may be inferred from evidence that defendant intentionally struck the victim, even though the victim testified that blow did not cause physical pain. State v. Waltrip, 240 Neb. 888, 484 N.W.2d 831 (1992).
This section does not require proof of serious bodily injury. Proof of facts from which bodily injury may be inferred is sufficient. State v. Goodon, 219 Neb. 186, 361 N.W.2d 537 (1985).
2. Constitutionality
This is a serious offense for which a jury trial is constitutionally required, unless expressly and intelligently waived by the defendant. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).
Statute neither unconstitutionally vague nor overbroad. In re Interest of Siebert, 223 Neb. 454, 390 N.W.2d 522 (1986).
3. Generally
A violation of subsection (1)(b) of this section requires an intentional act, and it is error to give an instruction using the lesser standards of culpability in subsection (1)(a), "knowingly" and "recklessly". State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).
Adult bodybuilder who dunked 9-year-old boy's head into urinal could be convicted of third degree assault under this section. State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992).
Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).
4. Lesser-included offense
Third degree assault under subsection (1)(b) of this section is not a lesser-included offense of terroristic threats under subsection (1)(a) of section 28-311.01. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).
Assuming that third degree assault under this section may, under certain circumstances, be a lesser-included offense of third degree assault on a peace officer under section 28-931, it is not prejudicial error to fail to instruct upon a lesser-included offense when the evidence entirely fails to show an offense of a lesser degree than that charged in the information. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).
One of the forms of third degree assault, intentionally or knowingly causing bodily injury to another person, is a lesser-included offense of first degree assault. State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986).
Third degree assault is a lesser-included offense of assault by a confined person, because the elements of the two offenses are identical, except that the greater offense, assault by a confined person, requires the assault to be committed by someone who is legally confined. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).
5. Mutual consent
The language of subsection (2) of this section requires mutual consent for a fight or scuffle in order to render an assault a Class II misdemeanor. State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).
When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).
6. Recklessly
The pointing of a gun at another is a reckless act within the contemplation of subsection (1)(a) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).
7. Requisite mental state
The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).
8. Sentencing
The sentencing court did not abuse its discretion by sentencing defendant to a six-month term for a third degree assault and a four-month term for a second degree assault arising out of the same incident. Both sentences were within the statutory limits set for Class III felonies and Class II misdemeanors, respectively. The third degree assault involved an aggravating factor. State v. Hatwan, 208 Neb. 450, 303 N.W.2d 779 (1981).
9. Double jeopardy
In applying Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932), to separately codified criminal statutes which may be violated in alternative ways, only the elements charged in the case at hand should be compared in determining whether the offenses under consideration are separate or the same for purposes of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
Third degree assault and the making of terroristic threats are separate offenses for the purpose of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
10. Penalty
This section creates one offense of third degree assault, punishable by two different ranges of penalties depending on whether the assault was committed in a fight or scuffle entered into by mutual consent. Whether a fight or scuffle entered into by mutual consent occurred is not an element of the offense of third degree assault. Rather, it is a mitigating factor, the existence of which determines which of the two penalties is to be imposed—whether the defendant will receive a lesser penalty instead of the ordinary penalty. Whether a fight or scuffle was entered into by mutual consent is not a factual issue that must be submitted to a jury. State v. Stahla, 13 Neb. App. 79, 688 N.W.2d 641 (2004).
--- End quote ---
Re; the Westboro Baptists protestors. Their MO is to verbally or thru action 'piss off' the patriotic law abiding citizen into reacting physically. As most are lawyers, they understand they can make lots of money of your reaction in court.
GreyGeek:
"But speech can be criminalized under this section if it tends to or is likely to provoke violent reaction"
So, a "triggered" SJW can claim your words provoked him/her and therefore you are the criminal?
That's sets the bar extremely low. Perhaps that's where the word "triggered" came from. Clever leftist lawyers?
Ninering57:
--- Quote from: GreyGeek on February 18, 2017, 06:07:40 PM ---"But speech can be criminalized under this section if it tends to or is likely to provoke violent reaction"
So, a "triggered" SJW can claim your words provoked him/her and therefore you are the criminal?
That's sets the bar extremely low. Perhaps that's where the word "triggered" came from. Clever leftist lawyers?
--- End quote ---
I would guess that the "Reasonable Man" standard would come to bear in this example, at least in court. If you are dealing with HR or the educational system, all bets are off.
SemperFiGuy:
But Wait, There's More:
NineRing57 seemed to be getting at the issue of (a) then just when may legal force be used by the victim and (b) exactly how much?
Here 'tis:
=================
28-1409.
Use of force in self-protection.
(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(b) The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411; or
(c) The actor believes that such force is necessary to protect himself against death or serious bodily harm.
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(5) Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.
=============================
One More Time:
When confronted by an aggressor and there's any opportunity to safely get away from the situation,
TAKE IT!!!
Stay Safe.
sfg
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