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Second Degree Assault

Second degree assault is a Maryland crime that encompasses the common law offenses that used to be charged as “assault,” “battery,” and “assault and battery.” Although assault in the second degree is a misdemeanor, it carries hefty penalties of up to 10 years of incarceration and/or a fine of up to $2,500. One can be found guilty of this crime in a variety of ways: intending and causing offensive physical contact with another person (i.e., punching another person); attempting to cause offensive physical contact on another person although not succeeding (i.e., taking a swing and missing); and intentionally placing someone in fear of immediate physical harm. The commission of a second degree assault can be serious and technical. For example, someone who is cut off by another driver might get out of his car and repeatedly punch the other driver in the face resulting in relatively serious injuries. Such an offender may be at risk for serving a significant period of incarceration. Or an employer who is frustrated with an employee who is always late and disrespectful to customers might grab the employee by the arm and yell, “You need to get your act together.” Although the employee suffered no harm, technically, the employer committed an offensive physical touching of the employee. The employer might not be at risk for jail time, but the employer may not want to risk getting a conviction that could adversely affect his or her career and reputation in the community.

One common mistake that we see, probably because of scenarios depicted in movies, television shows, and sporting events, is the erroneous belief that if someone assaults you, you get to assault that person in back. For example, a pitcher intentionally hits a batter with a pitch; the batter then goes to the mound and punches the pitcher. The pitcher, technically speaking, committed an assault on the batter by intentionally hitting the batter with the pitch (if it could be proven that the pitcher intended to hit the batter). Getting hit by the pitch does not give the batter the legal justification to go out to the mound and punch the pitcher, although many baseball fans might consider that action “part of the game.” The law of self-defense in Maryland allows the batter to use only the amount of force necessary to defend himself from further harm. Thus, there was no need, for defense purposes, for the batter to charge the mound. (A more complicated question of self-defense may occur when the pitcher throws the next pitch at the batter). For more common scenarios, it is important to remember that if you are the victim of an assault, the law allows you to use no more force than is reasonably necessary to defend yourself in light of the threatened or actual harm. Often, our client is not the initial aggressor but the original victim who, in response to the threat, ended up inflicting serious harm on the attacker. Far too often, the person who gets charged is not the person with the malicious intent who started the fight; it is the person who was just defending himself or others but inflicted the most damage.

How an assault charge gets resolved depends on a wide variety of factors. What is the history between the parties that led to the altercation? Were they friends once, or is this a stranger on stranger event? Who is the true bad actor in the event? Did someone have racist or hateful motivations? Does the alleged “victim” have a history of similar incidents? Was the client reasonably defending himself, someone else, or his or her property? Are there any medication or mental health issues that need to be investigated and addressed on either side? Is this a situation that can be mediated without going to court? Was someone injured? If someone was injured, was it serious? Could there be a civil suit coming after the criminal charges are resolved? Might we want to file a civil suit for a false allegation and malicious prosecution? Is the prosecutor someone who is going to care about who was truly at fault, or is the prosecutor someone who is just going to prosecute the person who was charged by the police? Do we want to disclose to the prosecutor all the information we have learned about the “alleged victim” or save it for trial?

Aside from the risk of jail and probation, a conviction for second degree assault can have other consequences. For example, second degree assault is a disqualifying crime that will prohibit the defendant from possessing regulated firearms in Maryland. Also be aware that the laws regarding expungement have changed in recent years. Therefore, if you have an old conviction for assault, battery, assault and battery, or second degree assault, you may be able to get the case expunged, especially if you have had no other convictions for serious criminal or traffic matters. If you are confronting a situation or case involving allegations of assault, you may want to call us for a free consultation by phone or in our office.

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