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Battery to Peace Officer, § 940.20(2) – Elements: Officer Need Not Act “Lawfully”

State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney

Issue/Holding: In a battery-to-officer prosecution, it is no defense that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element:

¶11      The flaw in Haywood’s contention, however, is that a law-enforcement officer need not be acting “lawfully” for what he or she does to be done in the officer’s “official capacity.”  Rather, the officer need only be acting within his or her jurisdiction as an officerState v. Barrett, 96 Wis. 2d 174, 180, 291 N.W.2d 498, 500–501 (1980), and not on some “personal frolic” unrelated to the officer’s law-enforcement responsibilities, State v. Schmit, 115 Wis. 2d 657, 665, 340 N.W.2d 752, 756 (Ct. App. 1983) (inner quotation marks and quoted source omitted).  The confluence of Barrett and Schmit are instructive.

¶12      First, as we see from Wis. Stat. § 940.20(2), there is no requirement that the officer/victim be acting lawfully when he or she is hit by a defendant.  “[T]he existence of a peace officer’s lawful authority is an element of the crime of resisting or obstructing an officer under sec. 946.41, Stats.  It is not an element of the crime of battery to a peace officer.”  Barrett, 96 Wis. 2d at 181, 291 N.W.2d at 501 (footnote added). …

¶14      Here, in contrast to both Barrett and Schmit, Officer Post was not on a “personal frolic” when Haywood hit him, but rather, was doing something “within the scope of what [Post] is employed to do.”  Accordingly, Haywood’s contention that the lawfulness of Post’s presence in the house where Haywood hit him was material to his violation of Wis. Stat. § 940.20(2) is without merit. Therefore, he is not entitled to discretionary reversal under Wis. Stat. § 752.35.


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