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.
ASSAULT
in the
THIRD
DEGREE
Philosophy 22B



An Honest and Reasonable Belief or Assault in the Third Degree?

On a Friday afternoon at about 4:40, Detectives Corey and Flintoff observed an argument between a driver of a brand new Chevy Impala and MacDuff in front of 224 West 94th Street.

Corey and Flintoff were not in uniform. The driver of the car had pulled up at the curb and was sitting in his car with the engine running. MacDuff was in the middle of the street, arguing with the driver, trying to get him to "move out," "buzz off," or to "get a move-on," said in terms less polite than that.

The driver refused to "buzz off," to put it politely, and MacDuff became increasingly agitated. He also continued to occupy a place in the middle of the street and traffic was building up behind him. Corey and Flintoff tried to chase MacDuff out of the middle of the street to allow traffic to pass. But MacDuff refused to budge.

His refusals and Corey's and Flintoff's efforts to get him to get out of the roadway attracted a crowd. Meeting with little success, Flintoff identified himself and his partner Corey to MacDuff as members of New York City's finest, and placed MacDuff under arrest. MacDuff resisted. A scuffle ensued.

Then (suddenly) out of the crowd came one John Elway from behind Flintoff, so Flintoff could not see him coming, and punched Corey with his fist and pulled Flintoff away from MacDuff. A bigger struggle now ensued involving Corey, Flintoff and Elway, a struggle which ended with Elway on top of Flintoff and Corey on top of Elway: one big heap in the middle of the street.

Corey's jaw was dislocated and Flintoff injured his kneecap. Elway had a few bruises and nothing else. Now Elway along with MacDuff was placed under arrest. At the station house Elway was charged with assaulting a police officer or, as it is sometimes called "assault in the third degree." Elway said he had not known or thought prior to his arrest that Corey and Flintoff were police officers.

At trial Elway testified that as he was walking along 94th Street he saw two "white guys" who appeared (to him) to be about 45 or 50 years old, pushing and shoving "some Hispanic kid," of about 18, whom he, Elway, did not know. These two "white guys," Elway said, "had just about pulled this kid's pants off and," he added, "the kid was crying."

Elway admitted that he knew nothing about what had transpired between MacDuff and the officers and that he made no inquiries at the time to find out what was or had been going down. He just came along, saw what these "white guys" were doing to this kid, punched Corey and flattened Flintoff.

Elway was convicted of assault in the third degree. And the New York Court of Appeals upheld the trial court's decision, saying that "one who intervenes in a struggle between strangers under the mistaken but reasonable belief that he is protecting another whom he assumes is being unlawfully beaten is [not] thereby exonerated from criminal liability. . . . One who goes to the aid of a third person does so at his peril."

The Appeals Court opined that "while there may be some support for the view that a defendant who reasonably believed he was lawfully assisting another is not guilty of a crime, such a policy would not be conducive to an orderly society," adding that "whatever may be the public policy where the felony charged requires proof of a specific intent and the issue is justifiable homicide, it is not relevant in a prosecution for assault in the third degree where it is only necessary to show that the defendant knowingly struck a blow. In this case there can be no doubt that the defendant intended to assault the police officers in civilian dress. The resulting assault was forceful. Hence motive or mistake of fact is of no significance [since] the defendant was not charged with a crime requiring such intent of knowledge. To be guilty of third degree assault it is sufficient that the defendant voluntarily intended to commit the unlawful act of touching. Since in these circumstances the aggression was inexcusable, the defendant was properly convicted."

What do you think? Would you defend or prosecute Elway for assaulting a police officer?

Would you overturn or uphold Elways conviction?

Click HERE to read the decision in THE ACTUAL CASE..

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Page last edited: February 1, 2000