28-930. Assault on an officer, an emergency responder, certain employees, or a health care professional in the second degree; penalty.
(1) A person commits the offense of assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the second degree if:
(a) He or she:
(i) Intentionally or knowingly causes bodily injury with a dangerous instrument:
(A) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;
(B) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or
(C) To a health care professional; or
(ii) Recklessly causes bodily injury with a dangerous instrument:
(A) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;
(B) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or
(C) To a health care professional; and
(b) The offense is committed while such officer, firefighter, emergency care provider, or employee is engaged in the performance of his or her official duties or while the health care professional is on duty at a hospital or a health clinic.
(2) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the second degree shall be a Class II felony.
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Pepper spray is a dangerous instrument, as it is an object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury. State v. Simmons, 23 Neb. App. 462, 872 N.W.2d 293 (2015).
In determining whether an off-duty officer working in a secondary employment capacity is performing official duties within the meaning of this section, one should examine the nature of the acts the officer is performing at the time of the incident as well as the circumstances surrounding those acts and the secondary employment. State v. Wilen, 4 Neb. App. 132, 539 N.W.2d 650 (1995).
There is no crime in this state for attempted reckless assault on a peace officer in the second degree. State v. Hemmer, 3 Neb. App. 769, 531 N.W.2d 559 (1995).