Is a toy gun or a prop used in shows considered an assault even if the intent was to scare and not to hurt?

A person trespassing on my land is asked to get off. He refuses and I tell him if you dont I’ll go to my house and get my gun. He says to “go ahead and get your gun” which I do. He was an off duty police officer He baited me into this situation. Is that worth getting sentenced to five years to serve? Does this punishment fit the crime?

Asked on May 31, 2009 under Criminal Law, California

Answers:

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You need to get a tough, experienced criminal defense attorney, right away.  One place to find qualified lawyers is our website, http://attorneypages.com

Assault includes an attempt to scare, and if the toy or prop looks real enough, under the circumstances, it doesn't make any difference.

However, there may be some help in the law of self-defense, and defense of property, since you didn't actually shoot and didn't actually place the individual in any danger of harm.  This area of the law is very fact-sensitive, and I'm not a California lawyer (which matters).  You need to explore this with your attorney, in confidence (not on the internet!).

And I don't know if you've filed trespassing charges against the police officer.  You should discuss that, too, with your lawyer, before doing or saying anything more.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.