State of Utah, in the interest of S.S.

----ooOoo----

State of Utah, in the interest of S.S.,
a person under eighteen years of age.
______________________________

S.S.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010444-CA

F I L E D
February 28, 2002 2002 UT App 60 -----

Third District Juvenile, Salt Lake Department
The Honorable Sharon P. McCully

Attorneys:
Kendall S. Peterson and Michael A. Stout, Salt Lake City, for Appellant
Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Greenwood.

PER CURIAM:

Appellant S.S. appeals an adjudication of delinquency based upon a conditional admission to Assault Against a Police Officer, in violation of Utah Code Ann. § 76-5-102.4(1) (1999), a class A misdemeanor if committed by an adult.

For purposes of appeal, S.S. concedes that she assaulted a police officer with knowledge that he was a police officer, but contends that defenses to criminal responsibility were available to her. The court directed briefing on the claimed defenses and ruled, in relevant part, that an officer's use of excessive force can never equate to an officer acting outside the "scope of his authority as a peace officer." Utah Code Ann. § 76-5-102.4(1) (1999). S.S. challenges this portion of the juvenile court's ruling. The State concedes that the court's ruling "that evidence of excessive force may never defeat the State's claim that the arresting officer was acting within the scope of his authority is overbroad" and should be reversed. It is the State's burden to establish all elements of the offense, including the element that the officer was acting within the scope of his or her authority. If the State fails to do so, the assault on the officer is justified based upon the prosecution's failure to establish all elements of the offense. This case is before the court on a conditional admission entered following the juvenile court's pretrial ruling on the availability of the claimed defenses. Accordingly, no facts were established at a trial. Both parties acknowledge that the case must be remanded for further proceedings to allow consideration of the defense claim that the officer used excessive force and thus acted outside the scope of his authority.(1) See State v. Alonzo, 973 P.2d 975, 981 (Utah 1998) (approving instruction stating use of excessive force in arrest is "acting beyond the scope of [officer's] authority and defendants are justified to use reasonable force in protecting themselves or others"). The State does not concede that the evidence would support a finding that the officer used excessive force in this case.

We reverse the juvenile court's ruling that a peace officer's use of excessive force can never constitute acting outside the scope of authority, and we remand the case for further proceedings consistent with this decision. On remand, the case may proceed to trial to allow presentation of evidence on the issues of excessive force and the scope of authority, and for a determination on the merits of the delinquency petition.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. At this time, we decline to adopt the State's proposed definition of "scope of authority" for a peace officer, which is based upon the civil assault case of Clark v. Pangan, 2000 UT 37,¶¶24-25, 998 P.2d 268. Issues pertaining to the legal standard for determination of "excessive force" and "scope of authority" must first be presented to the juvenile court on remand for a ruling.