Glenn Greenwald has a post up at Salon regarding the incident where Rep. Bob Etheridge (D-NC) attacked a student outside a Nancy Pelosi fundraiser on June 9th. Here’s one of the two original, unedited videos of the incident:
I agree completely with Glenn in almost every way. What Rep. Etheridge did was completely unacceptable. The politics of student in the video, and whether he may have been a “minion” of Andrew Breitbart (or any other conservative leader), are absolutely irrelevant to any discussion of the incident. Rep. Etheridge chose to be a public figure, and he has no right to assault anyone who asks him questions on the street, regardless of their motivation. Frankly, this would be true even had he not chosen to be a public figure, though his reaction may have been more understandable then, if not acceptable. If the Representative felt the questioner may have been intending to use the video for some nefarious purpose, the simplest solution would have been to simply ignore him and keep walking! And, I also completely agree with Glenn when he says:
The only reason I think this is worth noting is this: imagine what would have happened to those students if this situation had been reversed, and it was they who had physically assaulted Rep. Etheridge, rather than the other way around. How quickly would they have been arrested and prosecuted? The application of our laws isn’t supposed to depend upon who is perpetrating the crime and who the victim is.
This really couldn’t be more true. Just imagine for a second the hissy-fit that would have developed had some Glenn Beck inspired idiot attacked the Representative in a similar manner, and it happened to have been caught on camera by a bystander!
However, a brief look around at the relevant Washington DC criminal law references seems to make the “clear case of assault and battery” not so clear-cut as Glenn suggests. Local jurisdictions in the United States have varying statutes on Assault and Battery. Generally, assault is defined as “the threat of violence” and battery as “the violence itself”. Generally, under modern statutory systems, battery is subdivided into “grades” that can range from non-criminal battery to simple misdemeanor battery all the way up to aggravated or sexual battery felonies. While simple battery can include any form of harmful (or even insulting) contact, even if there is no actual injury caused, most jurisdictions require intent to inflict an injury on another person for it to be considered criminal battery. Otherwise, the aggressor may be liable for tortious battery in a civil case, but is generally not criminally liable.
According to the website of Jamison Koehler, a D.C.-area Criminal Attorney, the crime of Simple Assault in Washington is structured as follows:
There are two forms of misdemeanor assault (that is, simple assault) in Washington, D.C. First, there is “attempted battery assault” which occurs when the defendant injures or attempts to injure another person. The second form, “intent-to-frighten” assault, is defined as a threatening act that puts another person in reasonable fear of immediate injury.
In both cases, the prosecution must also demonstrate that the defendant’s act was voluntary and that the defendant had the actual ability to injure the other person at the time of the incident. “Injury” is defined as any physical injury, however slight, and includes an “offensive touching.” The penalty for either form of this type of assault is $1,000 and/or imprisonment of up to 180 days.
Briefly perusing around the Interwebs, I found a number of other similar sites that roughly back up that reading of the law.
In watching the video, I think it would be very difficult to prove that Rep. Etheridge had the requisite criminal intent to injure the student. He is certainly angry (and there does not appear to be any justification for his reaction), but his actions look like they are mostly an attempt to restrain the student, not to injure him. This would possibly open him up to some sort of Criminal Restraint prosecution, though I don’t know if his actions would rise to the level needed to meet that definition under D.C. law. However, Rep. Etheridge’s actions almost certainly open him up to civil battery liability, should the student choose to sue.
None of that really changes Glenn’s primary point, though. Had the situation been reversed, it would not have mattered if the student had the apparent “intent” to injure the Representative! The police SWAT team would have almost certainly kicked down his door as soon as they could find him, and they would have charged him, regardless. Now, Etheridge’s office has issued an official apology, but again… Would that be sufficient penance if the situation were reversed?
In the end, this just further disproves the core conservative Utopian assumption that all people in the United States are provided with an equal opportunity to “pull themselves up by their bootstraps”, and that any failure to do so is solely the fault of the individual. We have an elite in this country (not just the elected officials, of course, but the wealthy and even sometimes the famous), and the rules that apply to them are not the same as the rules that apply to the rest of us.
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