RLS managing principal Harry Stern and highly-regarded appellate attorney Dylan Schaffer combined to deliver a significant victory for San Francisco Sheriff’s Deputy Michael Lewelling. In so doing, they also prevented an attempt to greatly expand criminal liability for peace officers.
California Penal Code section 149 (assault under color of authority) has been on the books since 1872 but there has been scant jurisprudence analyzing its elements.
Last Tuesday, the First District Court of Appeal issued a published opinion reversing the conviction of Deputy Michael Lewelling.
Lewelling had been attempting to escort an unruly person (with a lengthy history of abusive and assaultive behavior) out of the lobby of San Francisco General Hospital at the request of the medical staff, when a physical confrontation ensued.
The videotaped encounter led to felony and misdemeanor charges against Deputy Lewelling. A jury acquitted Lewelling of four charges but convicted him of a felony violation of Penal Code section 149.
The Court of Appeal reversed the conviction, finding that the jury had been improperly instructed, turning what should have been a question of whether excessive force was used into a technical determination of whether a detention was proper.
Dylan Schaffer of Kerly Schaffer (and Of Counsel to RLS) wrote and argued the authoritative briefs. Harry Stern tried the case and assisted on the appeal.
Stern stated that, “Mr. Gascon’s office prosecuted Deputy Lewelling under the entirely novel theory that a peace officer commits a felony if he or she even slightly touches a suspect, if it is later claimed that the officer was mistaken about the grounds for detaining him. This untenable standard would have led to the understandable reluctance by the police to stop and detain criminals. Deputy Lewelling’s alleged crime was attempting to prevent a disruptive street person from attacking a nurse at San Francisco General Hospital. I believe I speak on behalf of all law enforcement when I express appreciation for the court’s guidance in this important area.”
Harry Stern is the managing principal at RLS and a trial lawyer in the Legal Defense Group. Dylan Schaffer is a tremendously experienced appellate and complex litigation attorney. He is “Of Counsel” to the firm and has worked with RLS on all of our most high-profile cases.