In Nevada, battery on a protected person is knowingly using unlawful physical force on police, firefighters, correction officers, judicial officers, or certain state or civilian employees. Examples of this crime include:
- Punching a Nevada Highway Patrol officer,
- Throwing an object at a volunteer fireman,
- Spitting on a jailer, or
- Kicking a bailiff.
Battery on a peace officer or other protected person carries harsher penalties than simple battery if you know – or should know – that the victim is an on-duty protected person. As the following table shows, the punishments turn on whether the protected person sustained substantial bodily harm or if deadly weapons were involved.
| Nevada Sentence for Battery on a Protected Person | |
| Protected person did not sustain serious injuries or strangulation | Gross misdemeanor: Up to $2,000 and/or up to 364 days in jail |
| Protected person did sustain serious injuries or strangulation OR a deadly weapon was involved | Category B felony: Up to $10,000 and/or 2 to 10 years in Nevada State Prison |
| Protected person did sustain serious injuries or strangulation AND a deadly weapon was involved | Category B felony: Up to $10,000 and/or 2 to 15 years in Nevada State Prison |
In many cases, however, we have been able to plea bargain a “battery on a peace officer” charge down to “simple battery.” This is only a misdemeanor carrying:
- Up to $1,000 in fines, and/or
- Up to 6 months in jail.
In this article, our Las Vegas criminal defense attorneys address the following topics re. battery on a peace officer and other protected persons.
1. Elements
For you to be convicted of “battery on a protected person” in Nevada, prosecutors must prove the following three elements beyond a reasonable doubt:
- You committed battery on the victim;
- The victim was a protected person; and
- The protected person was on active duty, and you knew (or should have known) this.
Each of these elements is discussed below.
1) You Committed Battery on the Victim
Battery is the willful and unlawful use of force or violence on another person, such as shoving, biting, or throwing objects at. Physical touching constitutes battery only if you did it intentionally.
The following graphic shows different kinds of battery.
2) The Victim was Protected Person
In Nevada, “protected persons” include:
- Sports officials,
- School employees,
- Taxicab drivers,
- Transit operators,
- Utility workers,
- Health care providers, and
- Peace officers.
“Peace officers,” in turn, comprise the following occupations:
- Police officers (also called peace officers),
- Firefighters (including volunteers),
- Correction officers, including jailers, guards, and matrons,
- Judicial officers, such as judges, hearing masters, commissioners, and referees,
- Any state employee whose job includes making home visits,
- Certain civilian employees and volunteers of law enforcement agencies, firefighting agencies, Nevada, and political subdivisions of Nevada.
3) The Protected Person Was on Active Duty, and You Knew (or Should Have Known) This
The final element of the Nevada crime of battery on a peace officer is, in turn, two-fold:
- The battery occurred while the protected person was in the course of performing their duties, and
- You knew -or should have known – that the alleged victim was a protected person.
Therefore, your state of mind is critical to determining whether “battery on a peace officer or other protected person” may have occurred.1
Example: John is storming down the Strip angry over losing his job. An active-duty plain-clothes officer yells at him to slow down since the street is crowded with pedestrians. This sets off John, who punches the officer in the nose.
The officer then arrests him for battery on a peace officer. Though since John had no idea the officer was an officer — let alone on active duty — he may be convicted of battery but should not be convicted of battery on a peace officer. Had the officer been wearing a uniform, then John would have had reasonable notice that he was dealing with police.
Hitting a peace officer carries harsher penalties than hitting a civilian.
2. Defenses
Here at Las Vegas Defense Group, we have represented literally thousands of people charged with battery, including against peace officers and other protected persons. In our experience, the following four defenses have proven very effective with judges, juries, and prosecutors at getting these charges reduced or dismissed.
1) No Battery Occurred
It is not battery on a peace officer to yell at an officer or to run away from them. If we can show the prosecutor that no violence took place, then you may instead face charges for committing breach of peace or even resisting arrest but not battery on a protected person.
2) The Incident Was an Accident
Battery on a protected person is an intent crime. Therefore, you can be found guilty only if the D.A. can prove that you deliberately used unlawful physical force against the peace officer.
Example: Douglas is a bystander at a crowded political rally in Laughlin. At one point a fight breaks out, and someone knocks into Douglas, who then falls onto an on-duty police officer paroling the area. The police officer immediately arrests Douglas for battery on a peace officer.
Fortunately, another bystander had the whole incident on iPhone video. Once the prosecutor saw that Douglas was at no fault for falling on the officer, he dropped the charges.
In short, purely accidental touching is not a crime.
3) The Protected Person Was Not on Active Duty, or You Did Not Know They Were Protected
If we can show that the protected person was not on duty at the time of the incident – or that you had no reason to know they were an on-duty protected person – then you may face lesser charges for battery but not battery on a protected person.
Typical evidence in these cases includes surveillance video and eyewitness accounts.
4) You Acted in Lawful Self-Defense
If the protected person overstepped their bounds and unlawfully caused you to fear for your physical safety, you may be able to claim self-defense.
Example: A police officer is patrolling the streets when he spots Max, who is having an affair with the officer’s wife. The officer starts beating up Max, who fights back. Here, Max can claim self-defense because the officer had no lawful justification for using physical force on Max. The issue was personal, and the officer was not acting in the course of his duties.
Surveillance video and eyewitness accounts are also key evidence in these cases.
A potential defense to “battery of an officer” is that you did not know they were an officer.
3. Record Seals
The wait time to seal a gross misdemeanor conviction of battery on a peace officer or other protected person is two years from the time the case is closed. (There is also a two-year wait time to seal simple battery convictions, which are only misdemeanors.)
Meanwhile, there is a ten-year wait time to seal a felony conviction of battery on a protected person.
However, if your charge gets dismissed (meaning there is no conviction), you can pursue a record seal immediately in Nevada.2
Related Offenses
- Assault (NRS 200.471)
- Assault with a deadly weapon (NRS 200.471)
- Battery domestic violence (NRS 200.485)
- Battery with a deadly weapon (NRS 200.481)
- Battery with intent to commit a crime (NRS 200.400)
- Battery with substantial bodily harm (NRS 200.481)
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Aggravated Battery – The Fist or Teeth as a Dangerous Weapon – Louisiana Law Review.
- Territorial Aggression – Expanding California’s Penal Code Regarding Assault and Battery of Code Enforcement Officers – McGeorge Law Review.
- What’s Reasonable: Self-Defense and Mistake in Criminal and Tort Law – Lewis & Clark Law Review.
- Defending Battered Women’s Self-Defense Claims – Oregon Law Review.
- Assault and Battery – Injury Sustained in Prize Fight – Consent as a Bar to Civil Liability – Vanderbilt Law Review.
Legal References:
- NRS 200.481 – Battery: Definitions; penalties
1. As used in this section:
(a) “Battery” means any willful and unlawful use of force or violence upon the person of another.
(b) “Child” means a person less than 18 years of age.
(c) “Fire-fighting agency” has the meaning ascribed to it in NRS 239B.020.
(d) “Officer” means:
(1) A person who possesses some or all of the powers of a peace officer;
(2) A person employed in a full-time salaried occupation of fire fighting for the benefit or safety of the public;
(3) A member of a volunteer fire department;
(4) A jailer, guard, matron or other correctional officer of a city or county jail or detention facility;
(5) A prosecuting attorney of an agency or political subdivision of the United States or of this State;
(6) A justice of the Supreme Court, judge of the Court of Appeals, district judge, justice of the peace, municipal judge, magistrate, court commissioner, master or referee, including, without limitation, a person acting pro tempore in a capacity listed in this subparagraph;
(7) An employee of this State or a political subdivision of this State whose official duties require the employee to make home visits;
(8) A civilian employee or a volunteer of a law enforcement agency whose official duties require the employee or volunteer to:
(I) Interact with the public;
(II) Perform tasks related to law enforcement; and
(III) Wear identification, clothing or a uniform that identifies the employee or volunteer as working or volunteering for the law enforcement agency;
(9) A civilian employee or a volunteer of a fire-fighting agency whose official duties require the employee or volunteer to:
(I) Interact with the public;
(II) Perform tasks related to fire fighting or fire prevention; and
(III) Wear identification, clothing or a uniform that identifies the employee or volunteer as working or volunteering for the fire-fighting agency; or
(10) A civilian employee or volunteer of this State or a political subdivision of this State whose official duties require the employee or volunteer to:
(I) Interact with the public;
(II) Perform tasks related to code enforcement; and
(III) Wear identification, clothing or a uniform that identifies the employee or volunteer as working or volunteering for this State or a political subdivision of this State.
(e) “Provider of health care” has the meaning ascribed to it in NRS 200.471.
(f) “School employee” means a licensed or unlicensed person employed by a board of trustees of a school district pursuant to NRS 391.100 or 391.281.
(g) “Sporting event” has the meaning ascribed to it in NRS 41.630.
(h) “Sports official” has the meaning ascribed to it in NRS 41.630.
(i) “Strangulation” means intentionally applying sufficient pressure to another person to make it difficult or impossible for the person to breathe, including, without limitation, applying pressure to the neck, throat or windpipe that may prevent or hinder breathing or reduce the intake of air, or applying any pressure to the neck on either side of the windpipe, but not the windpipe itself, to stop the flow of blood to the brain via the carotid arteries.
(j) “Taxicab” has the meaning ascribed to it in NRS 706.8816.
(k) “Taxicab driver” means a person who operates a taxicab.
(l) “Transit operator” means a person who operates a bus or other vehicle as part of a public mass transportation system.
(m) “Utility worker” means an employee of a public utility as defined in NRS 704.020 whose official duties require the employee to:
(1) Interact with the public;
(2) Perform tasks related to the operation of the public utility; and
(3) Wear identification, clothing or a uniform that identifies the employee as working for the public utility.
2. Except as otherwise provided in NRS 200.485, a person convicted of a battery, other than a battery committed by an adult upon a child which constitutes child abuse, shall be punished:
(a) If the battery is not committed with a deadly weapon, and no substantial bodily harm to the victim results, except under circumstances where a greater penalty is provided in this section or NRS 197.090, for a misdemeanor.
(b) If the battery is not committed with a deadly weapon, and either substantial bodily harm to the victim results or the battery is committed by strangulation, for a category C felony as provided in NRS 193.130.
(c) If:
(1) The battery is committed upon:
(I) An officer, school employee, taxicab driver, transit operator or utility worker who was performing his or her duty;
(II) A provider of health care while the provider of health care is performing his or her duty or is on the premises where he or she performs that duty; or
(III) A sports official based on the performance of his or her duties at a sporting event;
(2) The officer, provider of health care, school employee, taxicab driver, transit operator, utility worker or sports official suffers substantial bodily harm or the battery is committed by strangulation; and
(3) The person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator, utility worker or sports official,
–> for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.
(d) If the battery:
(1) Is committed upon:
(I) An officer, school employee, taxicab driver, transit operator or utility worker who is performing his or her duty;
(II) A provider of health care while the provider of health care is performing his or her duty or is on the premises where he or she performs that duty; or
(III) A sports official based on the performance of his or her duties at a sporting event; and
(2) The person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator, utility worker or sports official,
–> for a gross misdemeanor, except under circumstances where a greater penalty is provided in this section.
(e) If the battery is committed with the use of a deadly weapon, and:
(1) No substantial bodily harm to the victim results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.
(2) Substantial bodily harm to the victim results or the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $10,000.
(f) If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee, without the use of a deadly weapon, whether or not substantial bodily harm results and whether or not the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years.
(g) If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee, with the use of a deadly weapon, and:
(1) No substantial bodily harm to the victim results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years.
(2) Substantial bodily harm to the victim results or the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.
- NRS 179.245. NRS 179.255.