Assault and battery

In

this project I am going to discuss assault and

battery under torts. First of all let us try and understand what tort is. A tort usually refers to a civil wrong, tort law applies when a person's behavior causes someone else to suffer or when harm is being caused. It is not necessary that that the wrong should be illegal, it is enough if the wrong causes harm to another person. A claim in tort may be brought by anyone who has suffered loss caused by a civil wrong. ASSAULT and BATTERY In law, assault is a wrong which involves causing a harm to another person by the way of violence. Assault is often confused with battery, which involves physical contact. For example : When a person throws a stone at another person intending for it to hit him it is said to be battery, when the stone misses the other person it is said to be an assault. The specific reason of assault varies between countries, but can refer to an act that causes another person to use immediate and personal violence, or in a more

confined it is the use of threat of violence caused by immediate show of action. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. Because assault requires intent, it is considered an intentional tort,, as opposed to a tort of negligence tort negligence.. Actual ability to carry out the apprehended contact is not necessary. As distinguished from battery battery,, assault need not involve actual contact—it only needs intent and the resulting apprehension. However, assault requires more than words alone. For example, wielding a knife while shouting threats could be construed as assault if an apprehension was created. A battery can occur without a preceding assault, such as if a person is struck in the back of the head. Fear is not required, only anticipation of subsequent battery.

Three elements must be established in order to establish tortious assault:

1) the plaintiff apprehended immediate physical contact

2) the plaintiff had reasonable apprehension (the requisite state of mind) and

3) the defendant's act of interference was intentional (the defendant intended the resulting apprehension). But intent for purposes of civil assault can be either general or specific. Specific intent means that when the defendant acted, he or she intended to cause apprehension of a harmful or unwanted contact. General intent means that the defendant knew with substantial certainty that the action would put someone in apprehension of a harmful or unwanted contact. Battery is usually accompanied with assault. The elements of battery include : 1) a violation violation act - An act is a violation if it is done deliberately or purposely. For example : If a person who has restless leg syndrome kicks his wife during sleep, the contact although, harmful, would not constitute battery because the act was not willful. 2) done for the purpose of causing a harmful or offensive contact with another person or under circumstances that make such a contact substantially certain to occur - this means that the person does the act directly for causing harm or the situation in which the

defendant is involved in leads to the use of such a contact. In our case we are going to discuss how the use of assault and battery in treated in Los Angeles, USA and compare it with Indian treatment of the same. Assault is defined in different ways in different countries, but it is usually said to be the intentional physical contact with another person without their consent. Differences in the acts and provisions relating to assault and battery in Indian and United states of American law. American common law has defined assault as an attempt to commit a battery battery.. Assault is typically treated as a misdemeanor ( minor offense) and not as a felony (unless it involves a law enforcement officer). The more serious crime of aggravated assault is treated as a felony. f elony. Four elements were required at common law: The apparent, present ability to carry out; An unlawful attempt; To commit a violent injury; Upon another.

Simple assault can be distinguished without the intent of injury upon another person. The violation of one's personal space or touching in a way the victim deemed inappropriate can be simple assault. In common law states an assault is not committed by merely, for example, swearing at another; without threat of battery, there can be no assault. As the criminal law evolved, element one was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states. Modern American statutes define assault as: an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or, negligently causing bodily injury to another with a deadly weapon.. weapon Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury. States vary on whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense. offense. In some states, consent is a complete defense to

assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor . In New York State assault as defined in the New York State Penal Code Article 120, requires an actual injury. Other states define this as battery. There is no crime of battery in New York. The threat of imminent injury without physical contact in New York is called Menacing. New York also has specific laws against Hazing when such threats are made as requirement to join an organization. Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. Some possible examples of defenses, mitigating circumstances, or failures of proof are: A defendant could argue that since he was drunk, he could not form the specific intent to commit assault. This defense would most likely fail since only involuntary intoxication is accepted as a defense in most American jurisdictions.

A defendant could also argue that he was engaged in mutually consensual behavior.

India  The Indian Penal Penal Code covers the punishments punishments and types of assault in s.351 through s.358. Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. — s.351 of the Indian Penal Code  The Code further explains explains that "mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault." Assault is in Indian criminal law an attempt to use criminal force (with criminal force being described in s.350). The attempt itself has been made an offence in India, as in other states.

 THE KING CASE CASE .. On March 3, 1991, in LA, California, several police cars chased Rodney G.King, a robbery parolee who was allegedly speeding. Two of  his friends were with him in the car when the incident occurred. King, a construction worker and his two friends were said to be going back home after watching a basketball game at his friend's residence. It was said that he was drunk and was driving rashly when the police men asked King and his friends to pull over, when King did not do so as per the orders of  the police men the police chase started. King, during the chase drove through several intersections against the red lights. After a couple of minutes of police chase King was forced to stop. After the car stopped, both of King's friends complied with the request of the police officers to exit the car with minor resistance while on the other hand King refused to exit the car so he was physically assisted by the police in doing so. Immediately after the three men exited the car two of King's passengers were taken into custody without incident. After King exited the car he started giggling, patting the ground and waving to the police helicopter overhead. King then grabbed his buttocks which Office Melanie thought he was trying to

reach for some weapon, immediately she drew her pistol and pointed it at King, ordering him to lie down on the ground. When King complied, officer Singer with the drawn gun approached King preparing to effect an arrest Sergeant Stacey Koon cautioned Officer Singer to be careful with her weapon. LAPD officers are taught not to approach a suspect with a drawn gun, as there is a risk that a suspect may gain control of it if an officer gets too close. Koon then ordered the four other LAPD officers at the scene, Briseno, Powell, Solano, and Wind, to subdue and handcuff King using a technique called a "swarm." This involves multiple officers grabbing a suspect with empty hands, in order to quickly overcome potential resistance. As the officers attempted to restrain King, King resisted, standing to remove Officers Powell and Briseno from his back. Koon ordered the officers to fall back.  The officers later testified that they believed believed King was under the influence of the dissociative drug phencyclidine (PCP), although King's toxicology tested negative for the drug. After Koon ordered officers to stand clear of  King, King stood, unresponsive to Koon's commands to cease resisting. Koon discharged a Taser into King's back, and King momentarily fell to his knees. King then stood again, and

yelled for approximately five seconds.

 The point at which which Rodney King was struck struck by Koon's Taser is the approximate start of the George Holliday videotape of the incident. In the tape, King is seen on the ground. He rises and moves toward Powell.Taser wire can be seen in King's body. As King moves forward, Officer Powell strikes King with his baton baton.. The blow strikes King in the head, and King is knocked to the ground. Powell strikes King several more times with his baton. Briseno moves in, attempting to stop Powell from striking again, and Powell stands back. Koon reportedly said, "That's enough." Rodney King then rises again, to his knees, Powell and Wind are then seen hitting King with their batons. Koon acknowledged ordering the continued use of batons, directing Powell and Wind to strike King with "power strokes." According to Koon, Powell and Wind used "bursts of power strokes, then backed off." In the videotape, King continues to try and stand again. Koon orders the officers to "hit his joints, hit the wrists, hit his elbows, hit his knees, hit his ankles."After a recorded 56 baton blows and six kicks, several officers again, "swarm" King, and place him in handcuffs and cordcuffs, restraining his arms and legs. King is dragged on his abdomen to the side of the road to

await the arrival of emergency medical rescue. George Holliday's videotape of the incident was shot from his apartment near the intersection of Foothill Blvd and Osborne St. in Lake View Terrace. Terrace. He contacted the police about his videotape of the incident but was ignored. He then went to KTLA television with his videotape, which broadcast it in its entirety. The footage became an instant media sensation. Portions of it were aired numerous times, and it, "turned what would otherwise have been a violent, but soon forgotten, encounter between the Los Angeles police and an uncooperative suspect into one of the most widely watched and discussed incidents of its kind." On March 15, 1991, three police officers -Laurence Powell, Timothy Wind and Theodore Briseno -- and police sergeant Stacey Koon, were indicted by a Los Angeles grand jury in connection with the beating. All four were charged with "assault by force likely to produce great bodily injury and a deadly weapon" and with assault "under color of authority". The deadly weapons involved were police batons or nightsticks, except in the case of Briseno, who was charged only with using his feet to kick King. Powell and Koon also were charged with filing false reports, and Koon was charged with being an accessory. Koon did not actively participate in

the beating but allegedly aided and asked the other police officers to do it. Prior to the trial on these charges, the accused sought to obtain a change of venue for the trial to a county other than Los Angeles County. The change of venue application, originally denied at trial, was granted on appeal. The California Court of Appeal, Second District, approved the change of venue application, given the extensive pre-trial publicity surrounding the case, the fact that the defendants' being police officers had caused a high level of indignation and outrage, and political factors involving criticism of the then Chief of Police, Daryl Gates. The trial site chosen was Simi Valley in Ventura County. Simi Valley is a predominantly white, middleclass community 35 miles from downtown Los Angeles. The jury comprised ten white persons, one Hispanic person, and one Asian person. On April 29, 1992, the jury rendered its verdicts, generally finding the accused not guilty of the charges. The result of the verdicts was immediate: rioting, which resulted in loss of life and extensive damage to property (more than 50 dead and upwards of one billion dollars in damage). Many legal commentators argued that a major reason for the verdicts of not guilty was the change of venue to a location that was not comparable demographically to Los Angeles County.  These acquittals acquittals on state state criminal charges,

however, did not end the matter. Under federal law, the officers could also be prosecuted for violation of Rodney King's constitutional rights. In August 1992, a federal grand juryreturned a twocount indictment charging that Stacey Koon, Laurence Powell, Timothy Wind and Theodore Briseno, while under colour of law, deprived Rodney King of his federally protected civil rights.  The first count count of the indictment indictment charged three of  the defendants -- Powell, Wind, and Briseno -with violating King's federal constitutional rights by wilfully using unreasonable force against him while arresting him. The second count of the indictment charged Koon, then a sergeant of the Los Angeles Police Department, with violating King's federal constitutional rights by wilfully permitting the three other officers to unlawfully assault him, thereby wilfully depriving him of his right to be kept free from harm while in official custody. Both counts charged violations of 18 U.S.C. 242, which, if injury results to the victim, is punishable by a maximum term of ten years' imprisonment imprisonment and a $250,000 fine. As previously noted, section 242 generally makes it a crime for anyone under colour of law to deprive any inhabitant of any state, territory or district of any rights protected by the Constitution Constitution or laws of the United States. The jury in this instance was composed of nine white persons, two black persons and one Hispanic person. On Friday, April 17, 1993, the jury rendered its

verdicts on these prosecutions. Two police officers, Stacey Koon and Laurence Powell, were found guilty of the charges against them. The other two officers, Theodore Briseno and Timothy Wind, were found not guilty. Unlike the previous trial, no riots broke out as a result of the verdicts. Instead, there appeared to be a collective sigh of  relief. On August 4, 1993, these officers were sentenced to two and a half years in prison for the beating of Rodney King. Although the Rodney King beating and the subsequent acquittals at the first state trial clearly raised in the public's mind the issue of  racism in American society, none of the prosecutions specifically alleged racial motivation. Indeed, it was only at the later federal trial that Rodney King, taking the stand for the first time, initially testified that the officers had made racial epithets at the time of  his beating; even then, he later had to admit that he was unsure that the police did in fact use such epithets. How is it that, after generally being acquitted at trial on state criminal charges, the police officers responsible for beating Rodney King were able to be prosecuted again under federal law? In the United States, the courts have applied a "dual sovereignty doctrine" that generally allows a state to prosecute a person under state law after the person has been prosecuted under federal law, or allows the federal government to

prosecute a person under federal law after the person has been prosecuted under state law, even though the state or federal violation arises out of the same act and even though the state and federal offences are substantially substantially the same. However, the dual sovereignty doctrine has been limited somewhat by federal policy and by various state statutes. In the context of federal civil rights prosecutions, this means that there is no constitutional double  jeopardy bar to launching launching a federal criminal prosecution in the event that, at an earlier state trial, an accused was acquitted of the crime charged. There has been criticism of this approach. For example, the American Civil Liberties Union recently voted to oppose as unconstitutional unconstitutional the federal civil rights trial of the officers who beat Rodney King, saying it violates the officers' right not to be tried twice for the same offence.