Assault by Police

Penal Code 149 PC - Unlawful Assault by a Public Officer

Police officers in California are given relatively broad authority to enforce the law, using force if necessary. However, when an officer abuses that power and assaults or beats someone under “color of law” without legal justification, it's a crime under Penal Code 149 PC.

It's a misdemeanor offense when a public officer who, under color of authority, without lawful necessity, assaults or beats someone.

Penal Code 149 PC makes it illegal for public officers to assault someone without a lawful necessity.

Simply put, public officers, such as the police, have no authority to physically touch or hurt somebody unless they have a “lawful necessity.”

Some common examples of when a police officer would have a lawful necessity to assault someone includes when they are acting in self-defense or the officer is acting in defense of others.

Suppose someone is participating in a riot and causing property damage. In that case, the police are authorized to stop them before they cause further damage or injuries. “Lawful necessity” means a police officer had a legally valid reason for assaulting someone.

PC 149 says, “Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.”

If you're an officer of the law and convicted of this crime, you can face serious consequences. Let's review this state law in more detail below.

PC 149 Explained

California Penal Code 149 outlines the crime of assault by a public officer, which occurs when the officer “under color of authority, without lawful necessity, assaults or beats any person...” PC 149 is categorized as an “offense against public justice.”

To convict you under PC 149, the prosecution must prove these elements beyond a reasonable doubt:

• You unlawfully assaulted or beat another person;
• You were acting as a public officer at the time;
• You acted under the color of authority; and
• Your actions were not necessary to perform your lawful duties.

Defining a Public Officer 

A public officer refers to an individual employed by the government to enforce the law, including, but not limited to, peace officers, police officers, sheriffs, California Highway Patrol officers, etc.

Penal Code 149 PC is a misdemeanor crime.

Unlawful Assault or Beating

Unlawful assault or beating occurs when the officer intentionally applies force to another person without legal justification or the person's consent.

Acting Under Color of Authority

Public officers act “under color of authority” when they abuse their power or position to commit an unlawful act. This element does not require the officer to be on duty, but they must use their official capacity to facilitate the crime.

Without Lawful Necessity

The term “without lawful necessity” means that the officer had no legal justification for their actions. This could be because they acted for personal reasons or went beyond what was necessary to perform their lawful duties. This element considers the officer's intent and whether reasonable force was required.

What is the difference between PC 149 PC and police brutality?

Penal Code 149 PC is a specific statute that criminalizes law enforcement officers' use of excessive force. Police brutality is a broader term that refers to any instance of excessive force or abuse of power by law enforcement personnel, regardless of whether it results in criminal charges.

What Are Some Examples?

EXAMPLE 1: David is a traffic cop who pulls over someone on suspicion of DUI. The suspect cooperates with David in the field sobriety test, but he makes a passing racial slur toward David. Enraged, David tackles the man without warning and beats him. David can be charged with unlawful assault under PC 149.

EXAMPLE 2: George and Fred are officers responding to a domestic dispute. While talking to the couple, the man lunges at George and physically assaults him. George grapples with the man and strikes him to the ground so Fred can cuff him, at which point George steps away. George has a valid defense against PC 149 charges because he used only the amount of force necessary to subdue his assailant.

What Are the Related Crimes?

Several California laws are related to Penal Code 149 PC assault by a public officer, such as the following:

• Penal Code 148 PC – resisting arrest;
• Penal Code 69 PC – resisting an executive officer;
• Penal Code 217.1(a) PC – assault on a public official;
• Penal Code 243b PC – battery on a police officer;
• Vehicle Code 2800.1 VC – evading a police officer;
• Penal Code 240 PC – assault;
• Penal Code 242 PC – battery;
• Penal Code 241 PC - assault on police.

What Are the Penalties for PC 149?

Penal Code 149 is a misdemeanor in California. A conviction may result in the following:

• Imprisonment in county jail for up to one year
• A fine of up to $10,000
• Both imprisonment and a fine

The judge has the latitude to weigh the circumstances of the case and impose summary probation instead of jail time.

A conviction may also impact the officer's employment and professional reputation.

What Are the Defenses for PC 149?

There are several strategies a California criminal defense lawyer may use to challenge a PC 149 charge, as discussed below.

Perhaps we can argue that you acted in self-defense or defense of others. If you or someone else were under attack, your attorney might argue that your actions were necessary to protect yourself or someone else from imminent harm.

Contact our law firm to review the case details.

Perhaps we can argue that you used only the amount of force that was lawfully necessary. The charges may be dismissed if your attorney can prove that you used only the force required to enforce law and order.

Perhaps you were not acting under the color of law. For example, maybe your assault was a personal beef with someone that occurred while you were off duty, and you were not asserting your authority as an officer at the time.

This defense might result in lesser assault and battery charges, but you would avoid the potentially higher penalties under PC 149.

Perhaps through prefiling negotiating, we can persuade the prosecutor not to file formal criminal charges in the first place. You can contact us for a case review by phone or through the contact form. Eisner Gorin LLP is located in Los Angeles, CA.