Felony Fourth Degree Assault of Peace Officer Requires Proof of Both a "Physical Assault" and Intentional Throwing/Transferring of Fluids At or Upon Officer

State v. Struzyk, Minn.S.Ct., 8/26/2015.  Officers had to taze Mr. Struzyk in order to arrest him.  Afterwards, he smeared some of the blood from the Taser onto the uniform of the arresting officer.  For this act of defiance the state charged Mr. Struzyk with felony assault in the fourth degree.

Here's what the fourth degree assault against a peace officer statute says, Minn.Stat. 609.2231, Subd. 1:

Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the assault inflicts demonstrable bodily harm or the person intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer, the person is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.

Justice Wright, for the entire court (although Justice Stras wrote a concurrence), had to answer the question whether the intentional act of transferring the blood was, itself, the "physical assault" that the statute requires.  The Justice hauls out both the dictionary and rules of grammar to answer that question, no.  The court concludes that to be convicted of felony fourth degree assault of a peace office the state must prove both a "physical assault" and the intentional throwing or transferring of bodily fluids or feces at or onto the officer. Justice Wright says that the italicized words, "the assault, "the person," and "the officer" all refer to the beginning phrase "whoever physically assaults".  So, the statute creates the baseline gross misdemeanor offense for physically assaulting a peace officer in the first sentence.  In the second sentence, the statute provides for the enhancement of the baseline gross misdemeanor to a felony by proof of one of two additional requirements: either demonstrable physical harm, or the intentional throwing/transferring fluids/feces at/upon the officer.

Justice Wright concedes that it doesn't take much to find an assault: some pain or discomfort would suffice.  However, she rejected the state's argument that the potential of contracting a disease from contact with fluids or feces was enough.  Rather, that disease from the contact must be proven and it must have caused either pain or discomfort.  

Justice Stras wrote a concurrence.  He agreed that the statute required proof of a "physical assault" in order to make the crime a felony.  However, he agreed with the state that the act of throwing/transferring fluids/feces was such a "physical assault".