Why isn't Alabama police officer charged with a felony for assaulting a 57-year-old grandfather from India?

Officer Eric Parker

An Alabama police officer faces a charge of third-degree assault, a misdemeanor, for body slamming a 57-year grandfather from India. But our analysis of applicable law indicates officer Eric Parker should be charged with either second- or first-degree assault, both felonies that call for potential prison time.

Is the Alabama legal establishment trying to protect Parker, even though his body slam of Sureshbhai Patel near a Madison sidewalk has drawn international news coverage? The answer appears to be yes.

Ironically, news broke this afternoon that Parker had pleaded not guilty to the charges against him. One could argue that is appropriate because the misdemeanor charge is improper; it should be a felony.

Assaults are covered under Code of Alabama 13A-6-(20-22). Third-degree assault is a Class A misdemeanor, second-degree assault is a Class C felony, and first-degree-assault is a Class B felony.

The dividing line between misdemeanor and felony assault is the presence of "serious physical injury." That clearly is present in the Patel case, so Parker must be charged with felony assault.

How badly was Patel injured? According to news reports, he has been hospitalized for several days, he has been partially paralyzed, he has undergone spinal-fusion surgery, and he faces months of physical therapy. Does that amount to "serious physical injury"? Let's look at Alabama law.

A case styled Brock v. State, 555 So. 2d 285 (Ala. Crim. App, 1989) is instructive. It states:

"Serious physical injury" is "[p]hysical injury [impairment of physical condition or substantial pain] which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Section 13A-1-2(9).

Mr. Patel received an injury to his spine, which clearly involves "protracted impairment of health." The violence with which he was slammed on his head also created a "substantial risk of death."

It's hard to see how anyone could seriously argue that the Patel case does not involve "serious physical injury." Because of that, under Alabama law, the charge against Parker must be a felony--either second- or first-degree assault.

Code of Alabama 13A-6-21 (Assault in the Second Degree) states, in part:

(a) A person commits the crime of assault in the second degree if the person does any of the following:

(1) With intent to cause serious physical injury to another person, he or she causes serious physical injury to any person.

(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.

(3) He or she recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

Under Alabama law, (2) involves only "physical injury," so that would not apply to the assault on Sureshbhai Patel. But Nos. (1) and (3) would. No. (1) involves straightforward infliction of "serious physical injury," which is present here. No. (3) involves infliction of such injury by use of a "deadly weapon or dangerous instrument."

Sureshbai Patel

What does that mean? Alabama law has held that various body parts, including hands and fists, can meet the definition of deadly weapon or dangerous instrument. A case styled Hollis v. State, 417 So. 2d 617 (Ala. Crim. App., 1982) involved charges of an adult male using his fists to beat his 81-year-old mother. From Hollis:

The indictment charged that appellant caused serious physical injury to Dixie Hollis "by means of a deadly weapon, or a dangerous instrument, to-wit: by beating her with his fists." In Stewart v. State, 405 So.2d 402 (Ala.Cr.App.1981) this court stated the following:

"Certainly the use of an adult man's fists to beat a seventeen month child may appropriately allow those fists to be classified as a deadly weapon or dangerous instrument." 405 So.2d at 405.

In our judgment, the same classification is appropriate when an adult man uses his fists to beat his eighty-one-year-old mother, and under the facts of this case, we hold that appellant's fists were a "deadly weapon" or "dangerous instrument," Stewart v. State, supra.

Under the facts and the law, Officer Parker used a "dangerous instrument" (his hands) to inflict "serious physical injury" on Mr. Patel. That points to a felony--second-degree assault.

What about the intent required in a felony assault? That's not as difficult to prove as you might think. From Wells v. State, 768 So. 2d 412 (Al. Crim. App., 1999):

Intent may be presumed from the use of a deadly weapon, the character of the assault, and other attendant circumstances surrounding the assault.

Case law also has held:

"Further, `"[i]ntent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."'

The facts, as made clear on video, make it likely that intent easily could be proven, under the law.

Could this be a case of first-degree assault, under Alabama law? I believe the answer is yes. Code of Alabama 13A-6-20 (Assault in the First Degree) states, in part:

(a) A person commits the crime of assault in the first degree if:

(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; or

(2) With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such an injury to any person; or

(3) Under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person;

The law classifies Parker's hands as "deadly weapons" or "dangerous instruments," so I believe No. (1) applies. A solid case also could be made for No. (3).

Why can this not be a misdemeanor assault? Because the law on third-degree assault involves only cases that result in "physical injury" (as opposed to "serious physical injury.")  "Physical injury" has been defined, in a case styled Vo v. State, 612 So. 2d 1323 (Al., Crim. App., 1992):

A "physical injury" is "[i]mpairment of physical condition or substantial pain." § 13A-1-2(8), Code of Alabama 1975.

Courts have held that cuts, scrapes, bruises, and abrasions can qualify as "physical injuries." The damage to Mr. Patel went way beyond those.

The bottom line? Someone in Alabama's legal hierarchy classified this as a misdemeanor case when it is, in fact, a felony case.

What difference does it make? With a misdemeanor assault conviction, Parker likely would face probation and a relatively small fine. Incarceration of up to one year is possible, but my research indicates that is extremely unlikely.

A felony conviction could bring imprisonment of 1 to 20 years and a fine ranging from $15,000 to $30,000.

The difference is substantial--a felony charge says this is being treated as a serious matter; a misdemeanor means, more or less, that "the officer didn't really mean to do it, and spinal surgery isn't all that serious anyway." Not sure what kind of person could view the facts and the law here, and make that kind of statement with a straight face.

So far, it appears that someone is trying to do a favor for Officer Parker. The public should not stand for it.