Could Will Smith Still Face Criminal Charges Even Without Chris Rock Filing a Police Report?

“A slap is not a felony,” one lawyer explains, but could be considered a misdemeanor and draw attention from the LA City Attorney

Though the Los Angeles Police Department said Sunday that Chris Rock had declined to file a police report against Will Smith after the actor slapped the comedian on stage at the Oscars, there’s a chance that he’s not out of the woods when it comes to legal liability or criminal charges.

In terms of what action the LAPD could take, criminal defense attorney Lara Yeretsian says that if Rock is uninterested in charges being filed, it would take the LAPD claiming something like disturbing the peace for them to bring charges, but such a move would be “highly unlikely.”

“Law enforcement is going to walk away from this. Not with a non-cooperating witness. They need him,” Yeretsian told TheWrap.

And while any other criminal charges would be considered a huge surprise, that doesn’t mean it’s impossible.

The idea of “pressing charges” is something of a legal misconception, explains Neama Rahmani, president of West Coast Trial Lawyers and a former federal prosecutor, and whether Rock chooses to bring a civil lawsuit has little to do with whether any prosecutor for the state decides they want to bring charges against Smith.

Smith stormed the Oscars stage during the live show on Sunday and struck Rock for making a joke about Smith’s wife, Jada Pinkett Smith. But in this case, “a slap is not a felony,” Rahmani says, and the highest charge that could be brought would be considered a misdemeanor. Jurisdiction would then fall not to Los Angeles District Attorney George Gascon but to LA City Attorney Mike Feuer. And both Rahmani and Yeretsian agree it would likely be up to Feuer’s office to obtain a warrant for a misdemeanor arrest should they want to prosecute.

“It’s certainly possible. You can’t have people slapping each other and battering each other. This is a pretty high profile case, so I’m assuming a prosecution is possible,” Rahmani said. “It’s really up to his office to pursue it. It’s not up to Chris Rock.”

Feuer’s office did not respond to TheWrap’s request for comment.

Rahmani also adds that for a misdemeanor arrest to occur without a warrant, there would have to be a complaining victim, (in this case, Rock, who isn’t cooperating), or the battery or assault would have had to have occurred within the presence of a police officer, and “seeing it on video or a TV, that’s not enough.”

Battery is punishable by a fine not exceeding $2000 or by imprisonment in a county jail not exceeding six months, which is even lower than a typical misdemeanor charge, which can bring charges of one day shy of a year. What’s more, Yeretsian adds that Smith’s comments, in which he twice shouted at Rock, “Keep my wife’s name out your f—ing mouth,” don’t rise to the level of being able to prosecute based on criminal threats.

Gascon’s office however also has a policy that certain types of misdemeanor charges are not filed, and Yeretsian argues that even if something were ultimately filed, the case would “go away” and not stay on Smith’s record, potentially with an informal hearing between the two to work anything out.

“In the current political and legal criminal justice system atmosphere, in LA, in California, in Southern California and in the county of LA, this is not something that’s going to get filed,” Yeretsian adds. “Now if this happened years ago, maybe things would’ve been different. And if Chris Rock was interested in filing, they would’ve been filed, 100%, but he’s just not cooperating. He’s letting it go.”