APPEAL from the Circuit Court of Cook County; the Hon. DAVID
CERDA, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Janice Perry, was charged in two complaints with battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-3), and disorderly conduct (Chicago, Ill., Code (1973), ch. 193, par. 193.1). After a bench trial, defendant was found not guilty of disorderly conduct but guilty of battery. Defendant appeals from the finding of guilty on the charge of battery.
The facts underlying the instant appeal need only be briefly summarized. Defendant was a resident of the Henry Horner Project of the Chicago Housing Authority (CHA). Early on the evening of June 1, 1973, defendant and a group of men and women were playing baseball on the grounds of the Henry Horner Project. CHA rules prohibit the playing of baseball on project grounds. Consequently, two security guards, Aaron Jones and Sherman Ballentine, employed by Wells Fargo, a private company, and by the CHA, *fn1 arrived to break up the game. Both Jones and Ballentine were dressed in uniforms similar to the Chicago Police except for Wells Fargo patches and badges.
Jones and Ballentine identified themselves as CHA security guards and persuaded the baseball players to disband. Although there is some dispute as to why, an argument then erupted between defendant and Jones and Ballentine. Jones and Ballentine then placed defendant under arrest for disorderly conduct and requested her to accompany them to the project's office. After defendant refused to go to the office, Ballentine endeavored to handcuff defendant. Defendant resisted, and a struggle ensued during which defendant admittedly kicked Jones.
Defendant was subsequently charged with battery and disorderly conduct. Defendant was acquitted of disorderly conduct but found guilty of battery. This appeal follows.
The sole issue raised is whether defendant's conduct was committed without legal justification. Specifically, defendant contends that Jones and Ballentine had no authority beyond that of a private citizen and thus, were not empowered to make an arrest for disorderly conduct, an ordinance violation. Consequently, their attempt to handcuff defendant was a battery itself which defendant was justified in resisting.
• 1 Defendant was charged with the offense of battery. In relevant part, battery is defined as follows:
"A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual * * *." (Ill. Rev. Stat. 1973, ch. 38, par. 12-3.)
The burden is on the State to prove all essential elements of the crime, including that the battery was committed without legal justification. See People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897.
If Jones and Ballentine were, in fact, peace officers, they were justified in using all reasonable force, not including deadly force, to effect the arrest for disorderly conduct. (Ill. Rev. Stat. 1973, ch. 38, par. 7-5.) In that case, defendant would not have been justified in resisting the arrest, even if unlawful. (Ill. Rev. Stat. 1973, ch. 38, pars. 7-7, 31-1; People v. Carroll, 133 Ill. App.2d 78, 272 N.E.2d 822.) Consequently, the admitted kicking of Jones would not have been justified, and all essential elements of a battery would have been proven.
• 2 If, however, Jones and Ballentine were merely private citizens and not peace officers, they would have no authority to use force to effect an arrest for disorderly conduct because they would have no authority to effect an arrest at all. For section 107-3 of the Code of Criminal Procedure specifically prohibits a private person from arresting another for an ordinance violation. (Ill. Rev. Stat. 1973, ch. 38, par. 107-3.) Since disorderly conduct is an ordinance violation, *fn2 Jones and Ballentine, as private citizens, would have had no authority to arrest defendant. Therefore, their attempt to handcuff defendant would have been a battery itself and consequently, defendant would have been justified in resisting the unlawful force. (Ill. Rev. Stat. 1973, ch. 38, par. 7-1.) In that case, the State would have failed to prove that defendant's conduct was without legal justification. *fn3
Resolution of the instant appeal will thus turn on the status of Jones and Ballentine at the time of defendant's arrest. The State contends that Jones and Ballentine had the authority to arrest for an ordinance violation for either of two separate reasons.
First, the State points to the definition of "peace officer" as found in section 2-13 of the Criminal Code:
"`Peace officer' means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all offenses or is limited to ...