The State appeals a dismissal of a third degree assault charge arising when the defendant, Jerold Williams, struck a policeman to avoid a warrantless arrest. The trial court held defendant could not have committed the offense charged because the third degree assault statute, RCW 9A.36.030, applies only to assaults "committed with intent to prevent or resist the execution of any lawful process or mandate of any court officer, or the lawful apprehension or detention of a person by appropriate order or direction of a court officer." In other words, the court held the statute applies only to an arrest pursuant to warrant or other court process. We disagree and reverse.
The parties agree that the defendant was arrested by
Upon dismissal of the assault charge, defendant pleaded guilty to two traffic violations which were also charged. No appeal is taken therefrom.
Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.36.030, p. 835
The defendant raised two arguments in the trial court: (a) the statute was unconstitutionally vague; and (b) to be constitutional, the phrase "lawful apprehension or detention of ... [a] person" must relate to apprehension or detention by order of a court officer or judicial officer, and did not apply to warrantless arrest by any law enforcement officer. The trial court declined to find the statute constitutionally vague, but agreed with the defendant's second argument.
First, Williams contends the statute is void for vagueness because under RCW 9A.16.020
State v. Thompson, 38 Wn.2d 774, 777, 232 P.2d 87 (1951). Thus, he contends that the first two clauses of RCW 9A.36.030 relate to "execution of any lawful process" and "mandate of any court officer." The third, supposedly more general phrase, "lawful apprehension or detention" is limited
This argument fails for several reasons. That doctrine is intended to apply to enumerations — lists of specific terms which are preceded or followed by a more general term associated with the list of specifics. 2A C. Sands, Statutory Construction § 47.20, at 114 (4th ed. 1973 & Supp. 1980). Here, the terms are equally general and the presence of the disjunctive "or" suggests the final clause was to be distinguished from, rather than associated with, the prior clauses. Dean v. McFarland, 81 Wn.2d 215, 500 P.2d 1244, 74 A.L.R.3d 378 (1972); see also State v. Tiffany, 44 Wn. 602, 87 P. 932 (1906).
Williams next argues the rule of expressio unius est exclusio alterius, meaning the expression of one thing in a statute excludes implication of things not expressed. Omissions are deemed exclusions. He contends the absence of the term "peace officer" from the third clause requires that it relate back to a court-mandated or ordered arrest. We disagree. Lawful apprehension or detention of necessity must be carried out by a law enforcement or peace officer as defined in RCW 9A.04.110(15),
We conclude a charge of third degree assault may arise when a person assaults a law enforcement officer during the course of a lawful apprehension or detention whether that act is committed with or without a warrant.
The order dismissing the charge of third degree assault is reversed; the case is remanded for trial.
McINTURFF, C.J., and GREEN, J., concur.
"The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
"(1) Whenever necessarily used by a public officer in the performance of a legal duty, ...
"(2) Whenever necessarily used by a person arresting one who has committed a felony ...
"(3) Whenever used by a party about to be injured, ... in preventing or attempting to prevent an offense against his person, or a malicious trespass, ...
"(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, ...
"(5) Whenever used in a reasonable and moderate manner by a parent or his authorized agent, a guardian, master, or teacher in the exercise of lawful authority, to restrain or correct his child, ward, apprentice, or scholar;
"(6) Whenever used by a carrier of passengers ... in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, ...
"(7) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to himself or another, ..."