State v. Brown

Madsen, J.

(concurring) — As a result of today’s opinion, an assailant who commits an otherwise misdemeanor assault on a person he believes to be his or her compatriot in crime, may nevertheless be convicted of a felony if the victim is per chance an undercover law enforcement officer. From a deterrent and retributive perspective, I believe this is illogical and unjust. RCW 9A.36.031 was enacted by the Legislature to deter attacks on certain specified persons who are targeted by an assailant who is aware of their status. Consistent with this purpose, I would require the State to prove that an assailant knew, or reasonably should have known, that a victim was a law enforcement officer before a conviction under RCW 9A.36.031(l)(g) may lie. The jury instructions in this case adequately conveyed this statement of the law. 68 Therefore, I concur in the result of the majority.

Several states have enacted statutes providing enhanced penalties for assaults against law enforcement officers. The rationale behind these provisions is easily discerned:

These statutes have a twofold purpose: to reflect the societal gravity associated with assaulting a public officer and, by providing an enhanced deterrent against such assault, to accord to public officers and their functions a protection greater than that which the law of assault otherwise provides to *472 private citizens and their private activities. Consonant with these purposes, the accused’s knowledge that his victim had an official status or function is invariably recognized by the States as an essential element of the . . . offense.

United States v. Feola, 420 U.S. 671, 698 , 95 S. Ct. 1255 , 43 L. Ed. 2d 541 (1975) (footnotes omitted) (Stewart, J., dissenting).

In many states, an assailant’s knowledge of the victim’s status is expressly required by statute. See Ariz. Rev. Stat. Ann. § 13-1204 (A)(5) (West 1989); Ark. Code Ann. § 5-13-202 (4)(a)(A) (Michie 1997); Cal. Penal Code § 243 (West 1999); Colo. Rev. Stat. § 18-3-201 (1999); Idaho Code § 18-915 (1997); III. Comp. Stat. § 720, para. 5/12-2(a)(6) (1998); Iowa Code Ann. § 708 .3A(1) (West Supp. 2000); La. Rev. Stat. Ann. § 14:34.2 (West 1997). In others, courts have read an implied knowledge requirement into their state’s statutory provisions. D.C. Code Ann. § 22-505 (a) (2000); Fletcher v. United States, 335 A.2d 248, 251 (D.C. App. 1975); Nelson v. United States, 580 A.2d 114, 118 (D.C. App. 1990); Me. Rev. Stat. Ann. tit. 17-A, § 752-A (West Supp. 1999), State v. Morey, 427 A.2d 479 (Me. 1981).

With a requirement that the assailant know the victim’s status, these laws further the twin aims of criminal law: deterrence and retribution. See In re Personal Restraint of Young, 122 Wn.2d 1, 22 , 857 P.2d 989 (1993) (“retribution and deterrence . . . are the goals of criminal law”). Without a knowledge requirement, they do not. Indeed, I cannot “understand why an individual who commits an assault on a person he does not know to be an official is any more blameworthy than one who commits an assault punishable under [a lesser assault statute] and is thus any more deserving of the greater punishment for an offense of a higher class.” State v. Morey, 427 A.2d at 483 .

The majority has failed to take into account what RCW 9A.36.031 was designed to accomplish. In so doing they have disavowed the basic tenet that “[i]n interpreting a statute, th[is] court seeks to foster the purposes for which it was enacted.” State v. Coyle, 95 Wn.2d 1, 5 , 621 P.2d *473 1256 (1980) (citing In re Personal Restraint of Lehman, 93 Wn.2d 25, 27 , 604 P.2d 948 (1980); Burlington N., Inc. v. Johnston, 89 Wn.2d 321, 326 , 572 P.2d 1085 (1977)). RCW 9A.36.031’s purpose is obvious. Assaults on law enforcement officers, and other persons acting on behalf of the public good, represent a greater affront to public order than assaults against private persons. The latter is an attack on an individual, while the former is not only a personal attack, but also an act of aggression against the very persons enlisted to secure public order, and is in this sense an attack of much broader significance and scope. As such, the former is definitely a much more serious offense, justifying its treatment as a felony. There is no doubt that one of the principal purposes of our State’s criminal statutes is to “differentiate on reasonable grounds between serious and minor offenses, and to prescribe proportionate penalties for each.” RCW 9A.04.020(l)(d).

Strict criminal liability is strongly disfavored in the law. State v. Bash, 130 Wn.2d 594 , 925 P.2d 978 (1996). While RCW 9A.36.031 is not a pure strict liability statute — the mental element for the actus reus of assault contemplates knowing or purposeful conduct, State v. Hopper, 118 Wn.2d 151 , 822 P.2d 775 (1992); State v. Wilson, 125 Wn.2d 212, 218 , 883 P.2d 320 (1994) — it nevertheless, under the majority’s interpretation, contains a strict liability element. 69 Given the “nature of the crime as a felony and the harshness of the potential punishment, legislative intent to dispense with a mental element should be clear before the *474 court concludes the statute defines a strict liability crime.” 70 Bash, 130 Wn.2d at 610 . The majority has failed to cite any evidence of legislative intent in this case.

Indeed, legislative intent in this case points directly to the conclusion that an assailant’s knowledge of the victim’s status was intended to be an element of RCW 9A.36.031. It is axiomatic that when construing a statute subject to more than one interpretation, our principal aim is to give effect to the intent of the Legislature. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 6 , 721 P.2d 1 (1986). The Legislature’s intent in heightening the punishment for attacks against law enforcement officers was to deter such attacks. In the House Bill Report, this point is made clear:

A number of police officers are assaulted in the line of duty. The bill would deter assaults on police officers because the bill increases the crime to a felony offense.

H.B. Rep. 1258, at 2 (Wash. 1989). Without a requirement that the assailant have knowledge of the victim’s status, assaults against law enforcement officers are not deterred to any greater degree than other simple assaults.

It is also true that “[w]e presume the Legislature is familiar with past judicial interpretations of its enactments.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789 , 719 P.2d 531 (1986). “The Legislature is deemed to acquiesce in the interpretation of the court if no change is made for a substantial time after the decision.” State v. Coe, 109 Wn.2d 832, 846 , 750 P.2d 208 (1988). Beginning with State v. Allen, 67 Wn. App. 824 , 840 P.2d 905 (1992), which was decided in 1992, the courts of this state uniformly have held that knowledge of the status of the victim was a prerequisite to a third degree assault conviction. See also State v. Filbeck, 89 Wn. App. 113 , *475 952 P.2d 189 (1997). During this period the Legislature met each year, amending RCW 9A.36.031 on four separate occasions. Laws of 1996, ch. 266, § 1; Laws of 1997, ch. 172, § 1; Laws of 1998, ch. 94, § 1; Laws of 1999, ch. 328, §1.1 believe that this, coupled with the statute’s legislative history, provides a strong indication that the Legislature intended knowledge of the victim’s status to be a requirement of RCW 9A.36.031(l)(g). I would so hold.

Johnson and Sanders, JJ., concur with Madsen, J.

I agree with the majority’s conclusion that the State need not show an assailant’s knowledge that the victim is engaged in “official duties.” Majority at 470. In my opinion, once an assailant has formed a reasonable belief that a victim is a law enforcement officer the assailant is on notice that the officer may be engaged in “official duties.” RCW 9A.36.031(l)(g). See Lande v. Menage Ltd. Partnership, 702 A.2d 1259 (D.C. App. 1997) (even off-duty police officers can be engaged in official functions).

Professors LaFave and Scott appear to take a position antithetical to that of the majority. As stated in their treatise:

The distinctions now drawn between various kinds of crimes in terms of their seriousness, as reflected by the punishments provided for them, would lose much of their significance if an intent to cause any one specific type of harm would suffice for conviction as to any other type of harm which is criminal when intentionally caused.

Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 34, at 243 (1972).

By the terms of the Model Penal Code (MPC), the majority’s interpretation of RCW 9A.36.031 also fails. Under the MPC an assault victim’s status, if included in the definition of the crime, would be considered a material element of the offense, justifying an implied mental element. 1 American Law Institute Model Penal Code §§ 1.13, 2.02 (1985).