Rains Lucia Stern St. Phalle & Silver

California's premier full-service law firm with an emphasis on the representation of peace officers in disciplinary, criminal, labor, workers' compensation, personal injury and other civil matters.

  • About Us
  • Practice Areas
    • Labor Representation
    • Civil Litigation
    • Personal Injury
      • Example of Case Results
    • Workers’ Compensation
    • Maritime Law
    • Estate Planning
    • DOE Security Clearance Hearings
    • Peace Officers
    • Firefighters
    • EMS Agency Investigations
    • Criminal Defense
    • CalPERS Appeals
  • Our Team
  • Classes
  • Media
    • Bulletins
    • RLS in the News
  • Resources
    • Links
    • Resources
    • Newsletters
  • Clients
  • Career Opportunities
  • Contact Us
  • Disclaimer

RLS Wins Major Appellate Victory: Felony Excessive Force Conviction Reversed

October 25, 2017 by Hien Nguyen

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.”

Click to View Court of Appeal Decision

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.

Disclaimer: Case law and analysis can change over time. The information in this article is accurate as of the date the article was written and should not constitute legal advice. Always consult with an attorney.

Filed Under: Bulletins Tagged With: dylan-schaffer, harry-s-stern

Consultation Form

Offices across California to serve you.
Contact us now to schedule a consultation.
Contact form not loading? Click here!
Rains Lucia Stern St. Phalle & Silver, PC publishes this website as a service to our clients and other friends for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of information through this website is not intended to create an attorney-client relationship between sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

© 2023 Rains Lucia Stern St. Phalle & Silver, PC. All Rights Reserved. | Disclaimer

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept”, you consent to the use of ALL the cookies.
Do not sell my personal information.
Cookie settingsACCEPTREJECT
Privacy & Cookies Policy

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Non-necessary
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
SAVE & ACCEPT
  • Contact Us

  • News Alerts

Official logo for Rains Lucia Stern St. Phalle & Silver
Rains Lucia Stern St. Phalle & Silver Logo
  • About Us
  • Practice Areas
    ▼
    • Labor Representation
    • Civil Litigation
    • Personal Injury
      ▼
      • Example of Case Results
    • Workers’ Compensation
    • Maritime Law
    • Estate Planning
    • DOE Security Clearance Hearings
    • Peace Officers
    • Firefighters
    • EMS Agency Investigations
    • Criminal Defense
    • CalPERS Appeals
  • Our Team
  • Classes
  • Media
    ▼
    • Bulletins
    • RLS in the News
  • Resources
    ▼
    • Links
    • Resources
    • Newsletters
  • Clients
  • Career Opportunities
  • Contact Us
  • Disclaimer
Hotline phone numbers. Northern California: 925-609-1699. Southern California: 310-393-1486.