Example: While saying words, D raises his fist, or steps menacingly towards P – that’s enough of an overt act to prevent the “words alone” rule from applying, so that there is an assault.
+ Imminent contact: The contact must (in P’s mind) be “imminent.” (Example: P’s fear of being beaten tomorrow isn’t enough.)
+ Apprehension: The sub-issues relating to whether P has suffered the requisite “apprehension” are often tested in assault fact-patterns:
o Awareness of danger: Remember that P must be aware of the danger before it happens, and it’s not enough that contact eventually does happen. Be on the lookout for fact patterns that tell you that something is happening behind P’s back, or happening just before P comes on the scene – these are typically a tip-off that P may not have seen the contact coming in advance, thus negating assault.
Example: D aims at P from behind, shoots and misses; P then realizes that he was almost hit – there’s no assault.
o Contact with P’s loved one not enough: Here’s a point profs especially love to test: P’s apprehension must be that there will be a contact with herself, not a contact with a loved one.
Example: D shoots at X, while X’s mother, P, looks on. If P feared only that the bullet would hit X, not that it would hit P herself, P has not been assaulted.
o Apprehension of natural event: P must be apprehensive of a “harmful or offensive contact,” but not necessarily apprehensive of a “battery.” That is, if P thinks the contact is some natural event or some unintentional human event, that can still be enough to satisfy the “apprehension” requirement.
Example: P sees a “tarantula” that he thinks is real, and that he thinks will bite him. It’s really a fake put there by D to scare P. Even though P doesn’t think a human was involved, and thus doesn’t think that this is an attempt at “battery,” it’s still an assault because P has been put in apprehension of a harmful or offensive contact.
+ Privilege: As with battery, consider the possibility of assault whenever someone exceeds the scope of a privilege.
Example: D, a homeowner, shoots at P, who D knows is an unarmed burglar. D misses. Since D wasn’t permitted to use deadly force here, he had no defense of self-defense or defense of land, so he has committed garden-variety assault.