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What is Assault, Anyway?

I want to begin by thanking Donald Trump’s campaign manager. Just when I was wondering what new legal issues were floating around that were relevant to criminal law, there it was. Assault! Campaign Aides Gone Wild! Or not…

Which is what this is going to be about:

What, exactly, happened in that video that is all over TV news shows this week, showing some sort of physical altercation between Trump’s campaign manager and a reporter?


Where do Assault Charges Come From?

This election cycle, or whatever they call it, has been a great source for criminal law discussions – which is at least somewhat ironic when you consider that it is supposedly all about electing the Leader of the Free World. You wouldn’t expect that to have much to do with criminal law. Well, as long as you ignore Kennedy’s connections to organized crime, or Nixon’s taping antics, or Reagan’s Iran Contra escapades, or Clinton’s pardoning of wealthy cronies, or… come to think, I guess the Office of the President is a lot more involved with criminal law issues than you might expect!

In these recent campaigns, we have seen various topics that segue nicely with discussions of criminal law: Rand Paul’s focus on mandatory minimums, everyone’s focus on heroin addiction in rural America, the way Chris Christie trotted out his ex-prosecutor trial skills to skewer Rubio in that debate. There is plenty of criminal law to go around here.

But this latest issue goes right to the heart of the matter. The heart of what criminal lawyers do all day: figure out what really happened and what it should be called.

I have lots of clichés I use to explain how criminal law works in practice. For example, I tell my clients, “My job is to prepare for the worst, not hope for the best and sit back. That way we aren’t unpleasantly surprised by anything.” Or, “Justice delayed is NOT justice denied, it’s Justice. Period.” That’s because we need enough time to exhaustively scrutinize every single legal and factual aspect of a case before we can even begin to try to obtain a good outcome.

My saying when it comes to explaining to my clients how they came to be charged with a particular crime is:  “Charges don’t just grow on trees. Some prosecutor somewhere decides whether a crime occurred, and what to call it.” And, as we all know, prosecutors are just people. They are not infallible. Which is where criminal defense attorneys (and jury trials and proof beyond a reasonable doubt) come in.

The charging decision goes to the heart of criminal law. It is all very subjective, like it or not. People, not God, decide whether a crime occurred and, if so, what name to give it.


So… Back to That Video. Is it Assault?

Here, the issue is whether the campaign manager, Corey Lewandowski, assaulted reporter Michelle Fields, who was apparently trying to talk to Trump during an event in Florida. The video is all over the Internet, so have a look for yourself.

What exactly happened there? I, for one, am not sure. The facts seem to be right there on the video, but, despite what Sergeant Friday used to say on Dragnet, it is not a question of “Just the facts, Ma’am.” It’s also about “Just The Law, Ma’am.”

So, what is the law? Our first lesson: I don’t know for sure. That is because every state has its own laws defining crimes. What is an assault in Florida is not necessarily an assault in Washington. I can look up the law in Florida, but since I’m from Washington I’ll talk about whether this would be a criminal assault here. The answer is, it might be.

What do I base that on? Simple. Simple assault that is, which is defined in the law.

Sort of.

Our next lesson: Laws are not always as simple as you might expect. Assault is a perfect example of that fact. Let’s see what the Washington misdemeanor assault statute says:

“A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.” RCW 9A.36.041

Huh? Exactly. It is not exactly exact is it? Does this statute help anyone figure out whether Mr. Lewandowski assaulted Ms. Fields? No. In order to figure that out you’ll need some more law. You see, statutes are often in need of actual interpretation, no matter how much the Originalists don’t like that.

You have to read the case law to fully understand what statutes mean. Case law comes from opinions written by appellate judges, interpreting and expanding those darn vague statutes.

In Washington, the common law definition of “assault” encompasses:

“(1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm.” State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992).

There are a lot of moving parts in that definition. Assaults can be committed in several ways: assault can be a mere attempt, where no contact actually occurred, or it can be offensive touching IF there was criminal intent, or it can be just scaring someone, even if you had no intent to follow through.

It’s complicated, to say the least. But it arguably comes down to the definition of offensive touching in this case.

 “ [A] touching may be unlawful because it was neither legally consented to nor otherwise privileged, and was either harmful or offensive.” State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034 (1978).

This is a well-settled common law definition.

What About Self-Defense?

Of course I haven’t mentioned self defense or defense of others. How does that work here?

That is a very interesting (and hotly disputed) question in Washington, as it turns out. We lawyer types argue about whether “absence of self-defense” is an element of the crime of assault, which the prosecutor must prove beyond a reasonable doubt, or whether it is an affirmative defense that must be proved. Either way, if you are reasonably protecting someone that might mean you are not guilty of committing the crime of assault.

Here is how this issue looks in an actual trial brief:

“When the defendant raises the issue of self-defense and produces some evidence supporting it, the absence of self-defense becomes another element that the State must prove beyond a reasonable doubt. State v. Acosta, 101 Wn.2d 612, 615-16 (1984). Evidence of self-defense is evaluated both objectively and subjectively, from the standpoint of the reasonably prudent person knowing all the defendant knows and seeing all the defendant sees. State v. Walden, 131 Wn.2d 469, 474 (1997), quoting State v. Janes, 121 Wn.2d 220, 238 (1993).  “Accordingly, the degree of force used in self-defense is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant.” Walden, 131 Wn.2d at 474.  “In cases not involving death, the use of force is justified if the defendant reasonably believed he was about to be injured.” State v. Woods, 138 Wn.App. 191, 201 (2007); State v. L.B., 132 Wn.App. 948, 953 (2006).”

There’s more. Trump has apparently already asked whether he can have Fields charged for grabbing him. He may have a point, under these facts. Did Fields grab or try to grab Trump? IF Lewandowski reasonably believed that his boss’ safety was at risk, did that mean he could grab Fields’ arm to get her away from Trump?

I am not here to answer these questions. That is not the point. The point is that, at least in Washington State, these are the kinds of questions that some prosecutor, sitting in some little office somewhere, with files piled high all around them (or at least stored on their hard drive), must answer before deciding whether to charge anyone with a crime, and if so, which crime?

Plus, there are more facts out there. Here is a photo Ms. Fields posted of her alleged injuries:

What is Assault? - Seattle Criminal Lawyer Blog

If these injuries were received during this incident (something else that must be determined), it is relevant to the degree of force that was used if there is a claim of “defense of others”. The force used must be necessary, not excessive, compared to the harm being defended against – RCW 9A.16.020(3).  The degree of force is also relevant to whether the touching was offensive.

So, you see? It’s complicated, just like everything lawyers do, whether or not the Originalists and lawyer-hating trolls want to accept that. Because, at the end of the day, it is indeed just the facts and the law, ma’am.

With a healthy dose of human decision-making, flawed as it is.