28-931 Assault on an officer in the third degree; penalty. - Nebraska Statutes

28-931. Assault on anofficer in the third degree; penalty.(1) A personcommits the offense of assault on an officer in the third degree if:(a) He or she intentionally, knowingly, or recklesslycauses bodily injury:(i) To a peace officer, aprobation officer, or an employee of the Department of Correctional Services; or(ii) To an employee of the Departmentof Health and Human Services if the person committing the offense is committedas a dangerous sex offender under the Sex Offender Commitment Act; and(b) The offense is committed whilesuch officer or employee is engaged in the performance of his or her officialduties.(2) Assault on an officer in the third degree shall be a ClassIIIA felony. SourceLaws 1982, LB 465, § 5; Laws 1997, LB 364, § 11; Laws 2005, LB 538, § 3; Laws 2010, LB771, § 6.Effective Date: July 15, 2010 Cross ReferencesSex Offender Commitment Act, see section 71-1201. AnnotationsThe status of the victim under this section is an element of the crime and is not a subsequent offense penalty enhancement. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).In prosecutions for assaulting a peace officer, obstructing a peace officer, or resisting arrest, a trial court must instruct the jury on the issue of self-defense when there is any evidence adduced which raises a legally cognizable claim that the peace officer used unreasonable force in making the arrest. State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997).For purposes of this section, the State must prove that the victim assaulted was a peace officer engaged in the performance of his or her official duties, but is not required to prove that the defendant was so aware. State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).Evidence that defendant hit a police officer with his right forearm and poked the officer in the eye when the officer attempted to prevent defendant from leaving an interviewing room while under arrest was sufficient to sustain the jury's guilty verdicts. Proof that the officer sustained bruises or other visible injuries is not required to prove third degree assault on an officer under this section. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992).A deputy sheriff is a peace officer. Assault on a peace officer in the third degree is committed when an on-duty deputy sheriff is slapped, and the deputy sheriff suffers physical pain. State v. Melton, 239 Neb. 576, 477 N.W.2d 154 (1991).A police officer is a peace officer for purposes of this section. State v. Fly, 236 Neb. 408, 461 N.W.2d 421 (1990).Jury properly advised that only reasonably necessary force may be used when making an arrest and that a person attacked so as to cause fear of bodily injury may use reasonable necessary force in defense. State v. Wallace, 223 Neb. 465, 390 N.W.2d 530 (1986).An employee of the Douglas County Board of Corrections is considered a jailer and, therefore, a peace officer for the purposes of this section. State v. Parks, 8 Neb. App. 491, 596 N.W.2d 712 (1999).