Legal Magazine

My Wife Apparently Faces Criminal Charges for "assault" Because She Brushed Against the Deputy Who Shattered Her Arm, Or Somehow Caused Him "apprehension"

Posted on the 01 February 2017 by Rogershuler @RogerShuler

Wife Apparently Faces Criminal Charges

Carol Tovich Shuler

What grounds does the State of Missouri have to bring criminal charges against my wife, Carol, for "assault of a law-enforcement officer"? The first step in answering that question is to look at the relevant law. When you do, it becomes clear that the state's case would have to improve to be absurd.
The law is found at RSMo 565.083, which might have the most ridiculous title in the history of jurisprudence -- and key parts of the law probably would be found unconstitutional if anyone ever challenged it on those grounds. Here is the full title of the law:
Section 565.083 Assault of a law enforcement officer, corrections officer, emergency personnel, highway worker, utility worker, cable worker, or probation and parole officer in the third degree, definition, penalty.

Why didn't they include street-walkers and hot-dog vendors in that? Not enough room?
Let's make one important point right off the bat. I've had several people say things like, "Oh my God, Carol was charged with a felony" or "Your wife is charged with a serious offense."  Please note the highlighted words "third degree" above. That means this is a third-degree misdemeanor, which is one of the lowest-level charges in most jurisdictions. About the only charge lower would be a "violation," which often applies to a crime like trespassing. (And that, by the way, is the second "serious" charge against Carol; we will address that in an upcoming post.)
Based on the information we have from case.net (Case No. 1631-CR07731), it appears Carol is alleged to have brushed against the sheriff's deputy who broke her arm so severely that it required trauma surgery -- much like you might brush up against someone in the vegetable aisle at Wal-Mart. It's also possible that Carol is alleged to be so tough and bruising that she caused the officer "apprehension."
I'm not making this stuff up, folks. Here are the elements of this so-called crime:
1. A person commits the crime of assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in the third degree if:
(1) Such person recklessly causes physical injury to a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer;
(2) Such person purposely places a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in apprehension of immediate physical injury;
(3) Such person knowingly causes or attempts to cause physical contact with a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer without the consent of the law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer. . . .
7. Assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in the third degree is a class A misdemeanor.

Between items (3) and (7), the statute provides definitions of the various "public servants" the law covers. But we don't need to go into that. We know we are dealing with a law-enforcement officer, and we know what that is.
First, (7) confirms -- in the highlighted section above -- that we are talking here about a third-degree misdemeanor. Second, (1) can be excluded because we have no evidence that the law-enforcement officer in question suffered even the slightest injury.
Let's go first to (3), which states it is a crime if a person "knowingly causes or attempts to cause physical contact with a law-enforcement officer. The word "knowingly," frequently found in criminal codes across the country, is critical here. Missouri law states the following:
a person is not guilty of an offense unless he or she acts with a culpable mental state, that is, unless he or she acts purposely or knowingly or recklessly or with criminal negligence, as the statute defining the offense may require with respect to the conduct, the result thereof or the attendant circumstances which constitute the material elements of the crime.

Missouri law goes on to describe "knowingly":
3. A person "acts knowingly", or with knowledge:
(1) With respect to his or her conduct or to attendant circumstances when he or she is aware of the nature of his or her conduct or that those circumstances exist; or
(2) With respect to a result of his or her conduct when he or she is aware that his or her conduct is practically certain to cause that result.

I witnessed the incident from about 15-20 feet away and saw three officers surround Carol, grabbing at her. I did not see her initiate contact with anyone, and she says she told them, "Don't touch me." She was trying to go into our apartment to retrieve personal belongings during an unlawful eviction, as she had been given permission to do, from one or more sheriff officials on site. Did she "knowingly" cause, or attempt to cause, contact with a law-enforcement officer? I don't see how any reasonable person, under the law, could answer with anything but, "No." (By the way, what is this about "attempting to cause contact"? Don't you either cause contact or you don't? I suppose it's possible to throw a punch at an officer and miss. But it's a crime to be a poor puncher?)
Now, let's look at (2), which introduces mind-reading into the equation by making it a crime to cause an officer "apprehension of immediate physical injury." Carol wasn't armed, and the officers knew that, so how could she cause apprehension about anything, much less immediate physical injury. The answer: She couldn't.
If someone were convicted on the "apprehension" prong of this statute, I don't see how it could meet constitutional muster. We possibly convict someone of a crime because of what the alleged victim is thinking or feeling? That's not only absurd, it suggests the Missouri law was written by legislators with the constitutional insight of a gnat.
It reminds me of a an old joke about a basketball coach and a referee:
Coach: Can you hit me with a technical foul for what I'm thinking?
Referee: Of course not.
Coach: Well then, I think you suck.

We will close for now on that attempt at sports-related humor. But we know for now that the case against Carol is nuttier than a Donald Trump press briefing. And we only have begun to learn its details.
(To be continued)

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