Spittin' On A Cop? That's 35 Years

[Captain_Amazing]

@drachillix

Plenty of people still to this day believe even touching bare skin on an HIV+ person is dangerous. The level of medical ignorance in the general population is astounding.

Sure, some people believe that, but does that mean that an HIV+ person should be charged with assault with a deadly weapon if he touches someone else? You can kill someone with a hammer, and you can kill someone with a syringe, but you can’t kill someone with spit (unless you submerge their heads in it and drown them or something, but that would take a LOT of spit)

[UltraVires]

If you are on a street corner selling baggies full of baking soda pretending that they are cocaine, do the cops:

1. leave you alone because there is no crime against selling baking soda
   or
2. charge you will selling cocaine

?

[Argent_Towers]

I think it’s attempted murder, and I would be happy if the guy responsible never saw the light of day again.

[zagloba]

@jtgain

If you are on a street corner selling baggies full of baking soda pretending that they are cocaine, do the cops:

1. leave you alone because there is no crime against selling baking soda
   or
2. charge you will selling cocaine

?

Arrest you for fraud?

[UltraVires]

@zagloba

Arrest you for fraud?

That’s a good third choice, but I believe that you are charged with selling and/or possession of the real deal…

[Bricker]

@jtgain

If you are on a street corner selling baggies full of baking soda pretending that they are cocaine, do the cops:

1. leave you alone because there is no crime against selling baking soda
   or
2. charge you will selling cocaine

?

Well, typically there’s a law that covers that situation, for precisely this reason. In Virginia, § 18.2-248 provides: “…it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance.”

[buttonjockey308]

@Bricker

Hypo:

Suppose you’re a particularly credulous person - someone who believes in voodoo. I make a voodoo doll of you, and threaten to stab it with a needle and then set it on fire unless you give me money.

Crime?

Correct me if I’m wrong, but doesn’t 90% of this type of law boil down to intent? If by hocking a lunger at the good officer, the bum INTENDED to pass on the aids, then he’s guilty, which seems clear by the taunting afterward.

[buttonjockey308]

@Bricker

Hypo:

Suppose you’re a particularly credulous person - someone who believes in voodoo. I make a voodoo doll of you, and threaten to stab it with a needle and then set it on fire unless you give me money.

Crime?

Yep. Assault, menacing, or some similar crime.

[Airman_Doors_USAF]

This isn’t substantively different than when a boxer gets into a fight on the street and is charged with Assault with a Deadly Weapon. The ability to inflict great harm exists, so all that remains is intent. If the hypothetical boxer is the assailant, he gets charged. If he is defending himself, he shouldn’t be charged.

This guy intended to hurt the police officer, so in spite of the fact that he has no knowledge of how AIDS is spread he’s still responsible for his attempt to inflict grievous harm upon the police officer, so I’m fine with the finding of ADW.

[Bill_Door]

But the fact remains that the Texas penal code as quoted by Captain Amazing up there states that a deadly weapon is:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Saliva is neither of these things. Now, if someone wanted to make a charge of attempted murder, or assault, no problem, but ADW without the deadly weapon is just silly.

[Tristan]

@Bill Door

But the fact remains that the Texas penal code as quoted by Captain Amazing up there states that a deadly weapon is:

Saliva is neither of these things. Now, if someone wanted to make a charge of attempted murder, or assault, no problem, but ADW without the deadly weapon is just silly.

If I attack you with a knife, stab you in the abdonmen (taking care to avoid the liver) and tell you as I’m stabbing you that you won’t die, do you still want me to be hit with ADW?

At what point does intent overpower the substance of the attack?

[Simplicio]

@Tristan

If I attack you with a knife, stab you in the abdonmen (taking care to avoid the liver) and tell you as I’m stabbing you that you won’t die, do you still want me to be hit with ADW?

A knife is a deadly weapon, according to the definition provided in the relevant Texas law. What you do with it is irrelevant, it need only be capable of causing death.

Similarly, the spittle of an HIV patient is not a deadly weapon by said definition.

[brickbacon]

@Airman Doors

This isn’t substantively different than when a boxer gets into a fight on the street and is charged with Assault with a Deadly Weapon. The ability to inflict great harm exists, so all that remains is intent. If the hypothetical boxer is the assailant, he gets charged. If he is defending himself, he shouldn’t be charged.

I don’t think the bolded part is true. The cases I’ve found seem to indicate that such a charge would not hold up in most jurisdictions.

[Airman_Doors_USAF]

@brickbacon

I don’t think the bolded part is true. The cases I’ve found seem to indicate that such a charge would not hold up in most jurisdictions.

You’d be wrong, that from Texas, no less.

The court affirmed that hands can be considered deadly weapons. The specific charge was murder.

[Captain_Amazing]

There’s actually a case from Ohio, State v Price, which also deals with the question “Is spit from an HIV-positive person a ‘deadly weapon’?” Here’s the appelate finding that it is:
http://bulk.resource.org/courts.gov/states/Ohio.Ct.App.05/2005-ohio-4150.pdf

[brickbacon]

@Airman Doors

You’d be wrong, that from Texas, no less.

The court affirmed that hands can be considered deadly weapons. The specific charge was murder.

Actually, I am not wrong considering I said most jurisdictions. Your initial statement seemed to imply that this was a regular thing as opposed ot something that may happen in extraordinary circumstances. As it says here:

In 1999, North American Boxing Federation super-middleweight champ Scott Pemberton was charged with “assault and battery with a dangerous weapon” for punching a man, but this was later reduced to simple assault and battery.

Legal definitions of “deadly weapons” vary state to state, but are generally very broad and can include just about anything, depending on use. Automobiles, heavy boots and toilet-plunger handles have all been deemed deadly weapons. (Note that you don’t have to register toilet plungers.)

Ohio’s definition is “any instrument, device, or thing capable of inflicting death, and designed or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon.”

This would seem to cover the human hand. Indeed, in a landmark 1960 case, it was ruled that hands could be considered deadly weapons. But in fact, legal interpretation is unclear.

In recent years Ohio appellate courts have issued contradictory rulings on the subject. A 1999 ruling said “there is no question” that fists can be deadly weapons; a 2000 ruling affirmed a lower court’s jury instruction that fists can’t be considered deadly weapons. And a 1996 ruling said that “while human fists may not be deadly weapons per se,” it was reasonable to consider them as such in a specific beating case (incidentally, one involving a former boxer).

For comparison, in 1992 a Florida court shot down fists-as-weapons, saying it was an unconstitutionally overbroad reading that would make every assault/battery case a deadly-weapon one. However, it specifically left open the question of whether a trained fighter’s hands and feet could be deemed weapons.

In any case, few (if any) people convicted of a deadly weapon assault with their hands are trained fighters.

Here:

First, in the United States at least, the question of whether hands (or other body parts) of a boxer, martial artist or any other person even qualifies as a “deadly” or “lethal” weapon depends largely upon how “deadly weapon,” “lethal weapon,” or “deadly force” is defined (usually by statute, which is then interpreted by the courts). See, e.g., Vitauts M. Gulbis, “Parts of the Human Body, Other Than Feet, as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery,” 8 A.L.R.4th 1268 (1981 and supplements); Christpher Vaeth, “Kicking as Aggravated Assault, or Assault With Dangerous or Deadly Weapon,” 19 A.L.R.5th 823 (1995 and supplements). Most statutes have been interpreted to require an object external to the human body before a “deadly weapon” element can be met. For example, in Minnesota v. Bastin, 572 N.W.2d 281 (Minn. 1997), the Minnesota Supreme Court overruled the trial court’s conclusion that the left fist of the defendant, a former licensed professional prize fighter, was a “deadly weapon.”

I stand by my statement that such a charge would not hold up in most jurisdictions.

[Airman_Doors_USAF]

Wow, what a great out you constructed for yourself there. You said I was wrong, then you qualified it so you couldn’t be.

You must be a lawyer.

[Simplicio]

@Captain Amazing

There’s actually a case from Ohio, State v Price, which also deals with the question “Is spit from an HIV-positive person a ‘deadly weapon’?” Here’s the appelate finding that it is:
http://bulk.resource.org/courts.gov/states/Ohio.Ct.App.05/2005-ohio-4150.pdf

Actually, they found that spit from a person with HIV and heomphilia is a deadly weapon, because such a person has adequate blood in their spit to possibly infect a person. Indeed I’d say that case supports the idea that our homeless person from the OP’s case did not commit assault with a deadly weapon, because it states that the pertinent question is whether the alleged weapon can cause death (not merely if the attacker thinks it can cause death). According to the experts in the Ohio case, the spit of a person with HIV and hemophilia can do so. According to the CDC, the spit of a person with only HIV cannot.

ETA: the accused in the Ohio state also not only spat on his victim, but also bit him as well, again making transmission possible, while in the Texas case it was not.

[brickbacon]

@Airman Doors

Wow, what a great out you constructed for yourself there. You said I was wrong, then you qualified it so you couldn’t be.

You must be a lawyer.

Right :dubious: . Not to mention your own cite doesn’t back up your initial claim that those determinations were based on him being a boxer.

Appellant argues that the evidence is legally insufficient to show the use of a deadly weapon because

[t]here was no testimony at trial regarding any special training, strength, or special ability possessed by the defendant. No one testified that Mr. Otero had training in karate, for example, or competitive boxing, or any other sport or activity that would render his hands particularly or unusually dangerous.

I don’t see any evidence that he was charged because of his special knowledge or training. Either way, I don’t want to further sidetrack the debate at hand.

[Airman_Doors_USAF]

@brickbacon

Right :dubious: . Not to mention your own cite doesn’t back up your initial claim that those determinations were based on him being a boxer.

I didn’t assert that it did,nor did I say that such things always happened, nor did I say that they happened with any sort of regularity. What I said was “This isn’t substantively different than when a boxer gets into a fight on the street and is charged with Assault with a Deadly Weapon. The ability to inflict great harm exists, so all that remains is intent. If the hypothetical boxer is the assailant, he gets charged. If he is defending himself, he shouldn’t be charged.”

It was an example, and why you decided to run with that as if it were the norm is beyond me. Yet you told me that ADW cannot involve fists, and I demonstrated that it could, so you gave me the qualifier, as if I didn’t already understand that qualification.

Top notch work right there.