A lawyer for a San Francisco sheriff’s deputy whose assault conviction was overturned earlier this week said Thursday that the ruling in the case clears a cloud that might have made officers reluctant to make arrests.
Harry Stern, a lawyer for Deputy Michael Lewelling, said in a statement:
“I believe I speak on behalf of all law enforcement when I express appreciation for the court’s guidance in this important area.”
On Tuesday, a three-judge panel of the state Court of Appeal in San Francisco reversed Lewelling’s 2015 conviction in San Francisco Superior Court for the crime of assault by a police officer “without legal necessity.”
The victim of the assault was a disabled homeless man, Fernando Guanill, who was sleeping in a chair in the emergency room of San Francisco General Hospital early in the morning of Nov. 3, 2014. Three nurses, who said Guanill was abusive and belligerent before he fell asleep, asked Lewelling to remove him.
Prosecutors alleged that when Guanill started to get up, using his cane to leave, Lewelling pushed him back in his chair and started to choke him.
After being convicted of assault, Lewelling was sentenced by Superior Court Judge Ellen Chaitin to three years of probation and 100 hours of community service.
The appeals court overturned the conviction on the ground that Chaitin’s jury instructions were “misleading – if not downright wrong” because they allowed the jurors to believe that assault without legal necessity was defined as illegal detention combined with touching a suspect, as opposed to using more force than necessary.
Stern said the conviction was based on what he called:
“… the novel theory that a peace officer commits a felony if he or she even slightly touches a suspect, if it is later claimed that the officer was mistaken about the grounds for detaining him. … This untenable standard would have led to the reluctance by the police to stop and detain criminals.”
Lewelling was acquitted in the 2015 trial of additional charges of assault with intent to create great bodily injury and filing a false police report in which he said Guanill had tried to attack him with his cane.
Prosecutors said surveillance video showed that Guanill did not raise his cane in a threatening way.
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