Assault
Nevada criminal assault splits into two completely separate routes, and the single most common mistake is treating them as one.
1. Assault
The Nevada FLE tests Nevada’s basic definition of criminal assault: “unlawfully attempting to use physical force against another person” or “intentionally placing another person in reasonable apprehension of immediate bodily harm.” NRS 200.471. 39
- There are two bases of liability for assault: (a) an unlawful attempt to use physical force against another person or (b) intentionally placing another person in reasonable apprehension of immediate bodily harm.
- An “unlawful attempt” is one that lacks legal justification (such as self-defense).
- Both bases of liability require proof of intent:
- For the first basis, the defendant must attempt to use physical force against another person. It is not sufficient that the defendant attempts to use physical force in a manner that might have accidentally or negligently affected another person.
- For the second basis, the defendant must intend to place the other person in reasonable apprehension of immediate bodily harm. It is not sufficient that the defendant did an act that happened to invoke that apprehension in another person.
- Liability for the second type of assault requires an apprehension that is reasonable.
- Liability for the second type of assault also requires that the apprehended bodily harm be “immediate.”
Nevada criminal assault splits into two completely separate routes: an unlawful attempt to use physical force, or intentionally placing another in reasonable apprehension of immediate bodily harm. Figure out which route you are on, then run only that route's elements.
The single most common mistake is treating the two routes as one. A defendant can be guilty under either, and the facts almost always point cleanly at one of them, so the first job is to figure out which route you are on.
Route one is the attempt route. The defendant has to actually try to use physical force on the other person: a swing, a thrown punch that misses, a lunge. It has to be an attempt to use force, not a careless act that could have hurt someone by accident. An attempt is an intentional thing, so a defendant who makes a wild gesture and merely happens to come near someone, with no intent to make contact, is not attempting to use force. The intent runs to the use of force itself.
- 1Intent: the defendant must mean to cause the fear; it is not enough that the defendant did something that happened to frighten the other person.
- 2Reasonable: the apprehension must be reasonable, judged from the position of the person placed in fear, so a wildly irrational fear no ordinary person would share does not count.
- 3Immediate: the harm apprehended must be immediate, not a threat of harm at some later time. A threat to come back next week and hurt someone, however frightening, is not an apprehension of immediate harm.
One more thread runs through both routes: the conduct must be unlawful, meaning it lacks legal justification. A person acting in lawful self-defense is not committing an unlawful attempt, so that conduct is not assault even if it would otherwise fit the elements.
two routes, never one.
Route 1 = attempt to use physical force.
Route 2 = intend to cause reasonable apprehension of immediate bodily harm.
Pick the route first, then run only that route's elements.
Route 2 has three locks: intent to scare + reasonable fear + immediate harm.
Knock out any one and route 2 fails.
A future threat fails on 'immediate'; an irrational fear fails on 'reasonable'; an accident fails on 'intent.'
Both routes demand intent, never accident or negligence.
'Might have accidentally affected' and 'happened to frighten' are the two scope phrases that signal a No. And 'unlawful' means no legal justification, so lawful self-defense is not assault.
A driver, furious after a fender bender, jumps out of the car, balls a fist, and swings hard at the other motorist's head, but the motorist ducks and the punch sails past without landing.
Run the routes. This is the attempt route: the driver attempted to use physical force against another person, and the attempt was intentional, so an actual landing is unnecessary. Nothing in the facts shows legal justification, so the attempt is unlawful. That is assault under the first basis.
The driver does not swing; instead the driver raises a fist and snarls 'I am going to break your jaw right now,' meaning to frighten, and the motorist reasonably believes a blow is about to land. That satisfies route two: an intent to place the other person in reasonable apprehension of immediate bodily harm.
The driver, calming down, says 'I will find you next month and make you pay.' Frightening, yes, but the harm threatened is not immediate, so route two fails on the immediacy element, and there was no attempt to use force, so route one fails too. No assault.
An option that requires actual contact or actual injury for assault, or labels the conduct generally 'violent' without naming a route.
Neither route requires contact or harm; the attempt route is complete on the unlawful intentional attempt, and the apprehension route on the intended reasonable fear of immediate harm.An option that lets accident or negligence satisfy assault, or that finds liability on a genuine but unreasonable, idiosyncratic fear.
Both routes require intent; the apprehension route also requires that the apprehension be reasonable. An act that merely happened to frighten, or a fear no ordinary person would share, is not enough.An option that treats a threat of future harm ('one of these days,' 'next week') as assault under the apprehension route.
The apprehended bodily harm must be IMMEDIATE; a threat of later harm fails on the immediacy trigger.A sympathetic 'No' resting on 'the blow never landed' or 'the victim was not hurt.'
Contact and injury are not elements; the attempt or the intended immediate apprehension completes the crime.someone swings, lunges, or threatens, and the question asks whether it is assault.
pick the route.
If the defendant tried to use force on the person, you are on the attempt route, and you do not need contact or injury; you need an intentional attempt that lacks justification.
If the defendant instead tried to scare the person, you are on the apprehension route, and you run three checks: did the defendant intend to cause the fear, was the fear reasonable, and was the harm apprehended immediate?
Watch for the scope tells: 'might have accidentally affected' and 'happened to frighten' both signal that the intent element is missing, and a threat of future harm signals that immediacy is missing.
If a legal justification like self-defense appears, the attempt is not unlawful.
During a heated argument outside a coffee shop, one customer drew back a fist and threw a hard punch at a second customer's face, fully intending to strike him. The second customer leaned back at the last instant, and the punch passed an inch from his nose without touching him. The first customer had no legal justification for swinging. The second customer was unhurt and his clothing was undisturbed.
Is the first customer guilty of assault?
A street performer was juggling heavy clubs near a crowded sidewalk. Careless about the people around him, he let one club fly out of his grip, and it whirled close to a passing pedestrian's head before clattering to the ground. The performer had not noticed the pedestrian at all and had no wish to strike or frighten anyone; he was simply inattentive to where the club might go. The startled pedestrian briefly feared the club would hit her.
Is the performer guilty of assault?
Angry that a neighbor had reported him to the homeowners' association, a resident leaned over the fence, glared, and said in a calm, deliberate voice, 'One of these days, when you least expect it, I am going to come back and hurt you.' He meant the words to frighten the neighbor, and they did. The resident made no move toward the neighbor, kept his hands at his sides, and then walked back into his house. The neighbor understood the threat to be about some future occasion, not the present moment.
Is the resident guilty of assault?
A homeowner returned to find a stranger forcing open her back door. Reasonably fearing she was about to be attacked, the homeowner picked up a heavy flashlight and swung it toward the intruder to drive him off, intending to strike him if he advanced. The swing was a measured response to the immediate threat the intruder posed, and it was reasonably necessary to protect herself. The intruder later claimed the homeowner had assaulted him by swinging the flashlight.
Is the homeowner guilty of assault?
A movie buff with a well-known and unusual phobia believed that anyone who pointed an ordinary umbrella in his direction was about to cast a curse on him. At a bus stop, another commuter, with no ill intent, simply opened her closed umbrella and tilted it toward the buff to check it for rain damage. The buff, alone among the people present, felt a surge of terror that he was about to be supernaturally harmed. No ordinary person in his position would have feared any bodily harm from the commuter's act.
Is the commuter guilty of assault?