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Criminal Law

Assault in the Second Degree

Have Our Legislators Done Enough?

Peter L. Casciano T

here is an inherent unfairness in the maximum sentence permitted for second degree assault. Our Maryland legislature must work to reconcile this unfairness. Te

inequity is apparent when compared to the maximum sentence for fourth degree sexual offense, when compared to pertinent case law, when viewed in light of the relevant legislative history, when compared to other states’ codification of assault, and when the Maryland Sentencing Guidelines are examined. Tis article attempts to explore this unfairness and offer possible solutions as to how to fix this problem. Tis is not merely an intellectual or philosophical question. Clients walk into our offices on a regular basis and want to know why they are up against a possible ten year prison sentence for a “bar fight,” or similar altercation without injury. Tis unfairness in the Code should be rectified.

Current Status of Assault in Maryland Second degree assault is considered a misdemeanor

and upon conviction the Defendant is subject to a term of imprisonment of 10 years and/or a $2,500 fine. Second degree assault is defined by common law to be an intentional, harmful physical contact with the victim that is not legally justified. See Foy v. Giant Food Inc., 298 F.3d 284 (2002). We begin and end with this broad, amorphous definition. Surely, we have ways to pare down for our judges and juries, the definition of this crime. Te answer is not really, but “Assault” in Maryland is clarified statutorily in several of the following ways. If a gun or firearm is used in the course of the assault, the

crime is defined as a first degree assault. First degree assault is considered a felony and carries a maximum 25 year sentence. Te Maryland Code, Criminal Law § 3-203(a)(2) defines firearm as (i) a handgun, antique firearm, rifle, shotgun, short- barreled shotgun, or short-barreled rifle; (ii) assault pistol; (iii) machine gun; and (iv) regulated firearm.

If the assault causes or attempts to cause “serious physical

injury to another,” the crime is defined as first degree assault. First degree assault is considered a felony and carries a maximum 25 year sentence. Te Maryland Code, Criminal Law § 3-201(d) defines “serious physical injury” as injury that (1) creates a substantial risk of death; or (2) causes permanent or protracted serious (i) disfigurement; (ii) loss of the function of any bodily member or organ; or (iii) impairment of the function of any bodily member or organ. If the assault is committed on a law enforcement officer, and that assault intentionally causes physical injury, excluding minor injury, the crime is still considered a second degree assault, but defendant is guilty of a felony and subject to imprisonment of 10 years and/or a $5,000 fine. According to the Maryland 90 Day Report, 2005 Session,

Part E, Crimes, Corrections and Public Safety, Senate Bill 47 was passed establishing maximum penalties felony second degree assault of a police officer of 15 years and/or a $5,000. Tis was done due to an FBI report which indicated that 3,742 law enforcement officers were assault victims in the line of duty in 2003. Tis number is striking and definitely warranted a reaction by the legislature to punish those individuals assaulting our police officers in record numbers. Te legislature realized the need to properly protect our

police officers, who by the very nature of their occupation are placed in danger regularly. However, at some point between the

Trial Reporter / Summer 2011 35

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