Big Problems with Dems’ No-Harm-No-Foul Assault Law

Richmond mob. Photo credit: Richmond Times-Dispatch

by James A. Bacon

Sen. Scott Surovell, D-Fairfax, has a point: Virginia needs to reform its law declaring that any “assault” on a law enforcement officer be treated as a felony. It is absurd that people are charged with felonies, as has happened in Virginia, for throwing onion rings and brownies, spilling water on shoes, or bumping a school resource officer while trying to get to class. Clearly, the law has been applied too broadly. Surovell and other Senate Democrats propose making it a felony to assault a law enforcement officer only if the victim experiences a visible injury.

Just one problem: The proposal does not take into account the tactics of protesters who have perfected the art of “non-violent” violence.

How would Surovell’s proposal treat the intentional aiming of  lasers for the purpose of blinding police officers?

How about throwing bags of urine and feces?

How about attempting but failing to injure a police officer by throwing rocks?

Under the Democrats’ plan, writes Surovell, “if an officer is attacked and suffers a serious injury like broken skin, broken bones, internal injuries or a concussion, then that is a felony punishable by five to 30 years in prison and a two-year mandatory minimum sentence. No one has proposed changes to that.”

Surovell and his fellow Democrats need to think through the consequences of reducing non-injurious assaults to misdemeanors.

Their timing couldn’t be worse. Anarchists and their allies are pushing the boundaries of “peaceful” protest beyond recognition. They regularly throw bricks, rocks, and frozen water bottles at police. Some have hurled Molotov cocktails. They smash windows and set vehicles, buildings and dumpsters on fire. Radicals have learned how to weaponize fireworks, even going so far as to embed them with nails so they explode with shrapnel. Organizers also carefully calibrate the level of violence, depending on circumstances.

At one extreme, the siege of the federal courthouse in Portland, Ore., has been extremely violent. At the opposite end of the spectrum, demonstrations like those visited upon the homes of Richmond Mayor Levar Stoney, Councilwoman Kim Gray, and Commonwealth Attorney Colette McEachin in Richmond, are designed to intimidate with loud noise, verbal threats, displays of firearms, and vandalism — all falling just short of what it takes to trigger police intervention. Among other affronts, protesters aimed lasers into Gray’s house.

One can deplore the radicals’ agenda while granting a grudging respect for their ability to innovate new protest tactics and disseminate them rapidly via social media. If the General Assembly enacts a law reducing the penalty for non-injurious assaults on law enforcement officers, it is predictable that the anarchists will tailor their tactics to take full advantage of the changes.

The use of laser pointers is particularly disturbing. I don’t know Surovell’s thinking, but I suppose he could contend that if a protester wielding a laser pointer blinded a police officer, the act would be classified a felony on the grounds that it resulted in an injury. What of laser-pointer attacks that fail to inflect blindness? If a dozen people in a crowd are aiming laser pointers, good luck identifying the individual responsible for blinding an officer.

The Democrats’ proposal would penalize successful assaults but decrease punishments for unsuccessful assaults.

Consider a parallel with guns. Everyone would agree that it should be a felony to shoot and injure someone. I expect that everyone would agree that it should be a felony for people to fire guns with the intention of inflicting harm, even if they shoot and miss.

What about throwing bricks and rocks? Most of the time, the rocks miss their mark or bounce off protective armor. But once in a while they cause serious injury. Under Surovell’s proposal, it would constitute a felonious assault on an officer to hurl a rock only if it actually caused a visible injury. Good luck sorting out which individual in a crowd threw the particular rock that injured a policeman. No harm, no foul.

What about attempting to blind police officers with laser pointers? If no one is hurt, no harm, no foul.

What about shooting fireworks into a phalanx of police officers? If no one is hurt, no harm, no foul.

Yes, the law should be amended so trivial offenses are not turned into felonies. At the same time, the law should be updated to protect law enforcement officers against the ever-evolving tactics of anarchists and insurrectionists. As the proposal stands (based on Surovell’s description of it), it looks like the Dems are siding with the mob against the police. The optics (laser or otherwise) are very bad.

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23 responses to “Big Problems with Dems’ No-Harm-No-Foul Assault Law

  1. It’s an interesting issue. On the lasers. If I point a laser at someone – not a policeman – can I be charged with assault?

    How about if I throw a rock at someone and miss?

  2. I’m not a lawyer so maybe one of the lawyers on this blog can help. Aren’t there different classes of crime for assaults on regular citizens (i.e. non police officers)? I assume that if somebody throws onion rings at me they will be punished differently than if they it me with a baseball bat. Why are the laws protecting regular citizens ineffective when applied to police officers?

    • I have always wondered why the penalties for assaulting police officers are different from those for assaulting a “regular citizen”.

      It seems to run counter to “equal protection under the law”.

  3. What if the brownie is large… and stale… and it gives a police officer a concussion, or puts his/her eye out?

  4. James Wyatt Whitehead V

    Delegate Surovell makes some good points in his RTD commentary. The law enforcement assault law needs some common sense built into it. At the same time revisions to the law could create harmful side effects that diminish the authority of law enforcement officers. The Virginia State Police are under review for accreditation. It would seem to me that Commission of Accreditation for Law Enforcement Agencies (CALEA) could reveal best case scenarios for changes to the existing law. Maybe it would be better to wait for professional recommendations.
    https://drive.google.com/file/d/1jGaoTr6U5OiHu9cVOukwVJ0tNJ7M2g1G/view

  5. Seems like there are a wide range of laws that apply to interactions with police, so I extracted the following which illustrates differences especially with regard to misdemeanor and felony:

    2006 Code of Virginia § 18.2-460 – Obstructing justice

    A. If any person without just cause knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness or any law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.

    B. If any person, by threats or force, knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or any law-enforcement officer, lawfully engaged in his duties as such, or to obstruct or impede the administration of justice in any court, he shall be deemed to be guilty of a Class 1 misdemeanor.

    C. If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty, or to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate 18.2-248 or subdivision (a) (3), (b)or (c) of 18.2-248.1, or 18.2-46.2 or 18.2-46.3, or relating to the violation of or conspiracy to violate any violent felony offense listed in subsection C of 17.1-805, he shall be guilty of a Class 5 felony.

    https://law.justia.com/codes/virginia/2006/toc1802000/18.2-460.html

  6. I do not know if other states do this too, but Virginia elected officials tend to assign one-size-fits-all penalty for all infractions, from minor to serious, with no ability to change it by the responding officer. However, speaking from experience, the judge has some ability to moderate the charge- eg; to parking violation vs. felony criminal trespassing against the State of Virginia. But I think the solution is to not force the officer to clobber people with over-the-top extreme serious charges. Give the cop the ability to write a parking ticket, for Pete’s sake.

    • The cop has that ability. He and the Commonwealth’s attorney also have the authority to charge someone with a felony if that person accidentally, or even intentionally, brushed up against a cop.

  7. Sen. Scott Surovell, D-Fairfax proposed law is absurd. It is also highly dangerous. Not only is it highly dangerous to police officers but also to all citizens. It threatens all citizens right to public order and to the political system that is their right and inheritance, its stability and its functionally as a government empowered to maintain order and representative democracy.

    In short, Sen. Scott Surovell, D-Fairfax, proposed law would undermine public safety, and with it our political system and our society. In practical effect, his proposed law legalizes intimidation. It allows thugs to threaten gross physical harm to all citizens while at the same time it permits and encourages intimidation and threats aimed by thugs to erase the rights and protections due all citizens, not least the police who are tasked with insuring those rights and protections.

    For example:

    Free speech is erased. Free assembly is erased. Safely in one’s home is erased. Safety in the public square is erased. Property rights are erased as are religious rights. All of this is erased in fact by reason that Sen. Scott Surovell proposed law permits an array of serious threats by thugs again innocent and defenseless citizens, trying to live freely in communities stripped of government protection.

    Sen. Scott Surovell, D-Fairfax, proposed law is deeply cynical. It’s a law that would result in great harm to the vast majority of citizens, those who obey the law, while it protects thugs within mobs intent on intimidating those citizens.

    Why? If the thugs intent is to threaten and intimidate others with 10 bricks or whatever thrown or exploded with impunity so long as they do no lasting physical harm, then they accomplish their mission of intimation and fear with all its horrible results, a Lord of the Flies state of fear, terror, and oppression, by thugs in mobs. This along insures the breakdown of an orderly and decent society, replacing it with the rule of mobs, along with the eventual maiming and killing of citizens, including police, should anyone still want the job of public safety, or have the courage to perform it for the benefit of all his or her fellow citizens.

  8. Jim:

    Thank you for the thoughts. While I understand that different people pull different symbolic messages from the bill, that’s not the point.

    All of us support our law enforcement efforts to keep us safe. We also all honor both the U.S. Bill of Rights and the Virginia Declaration of Rights which was the first document of its kind in the world. We want to make sure that law enforcement is conducted in a fashion that honor our constitutional traditions and properly balances individual liberty with safety.

    Those of us who practice law see this statute abused regularly – often in probable police misconduct cases when when someone is charged with a felony + six month mandatory minimum over a traffic stop, they often end up pleadings.

    For example, my partner had an older client who was about 110 lbs. Spoke little english. Was upset a police officer gave her a ticket for something like 50 in a 35. Officer handed it to her thru the window and she slapped his wrist. He pulled her out of the car and charged her with Felony Assault on LEO. She pleaded instead of running the risk of a felony + six months in jail.

    As for your specifics. First, the General Assembly made pointing a laser at a LEO a Class 2 misdemeanor in the aftershock of Commonwealth v. Adams.

    https://law.lis.virginia.gov/vacode/title18.2/chapter4/section18.2-57.01/
    https://casetext.com/case/adams-v-commonwealth-22

    If you read the dissent by now Chief Judge Don Lemons, he hits the nail on the head:

    Additionally, the majority redefines “touching” for the purpose of common law battery. Although the reasoning is logical, it is unwise, because the unintended consequences may reach too far. Will the next prosecution for battery be based upon failure to dim high beams in traffic, flash photography too close to the subject, high intensity flashlight beams or sonic waves from a teenager’s car stereo? Rather than stretch the boundaries of the common law understanding of what is necessary for a “touching” to occur, criminalizing conduct that involves intangible objects put in motion should be left to specific legislative action rather than generalized redefinition that may sweep into the ambit of criminal behavior conduct that is not intended.

    ***
    As for your specific examples, throwing dangerous objects could possibly constitute attempted felony malicious wounding – if against a police officer it’s a 2-year mandatory minimum. Malicious wounding has been affirmed on appeal for concussions, internal injuries, broken ribs, or repeated strikes to a person. Assault by Mob is a separate crime.

    Attempting to injure someone with explosives is a felony:

    https://law.lis.virginia.gov/vacode/title18.2/chapter4/section18.2-52/

    I’m not sure you fully appreciate the tools that are presently available, should the Commonwealth choose to use them, to address the problem.

    Mandatory minimum sentences have been shown to have little to no deterrent effect in repeated studies. They are bad policy.

  9. Folks are getting too worked up over this. Surovell’s point is that there are laws on the books now that can cover any real injury to a police officer. Sec. 18.2-51.1 makes it at least a Class 6 felony to cause anyone bodily injury. Under Sec. 18.2-26, it would be a Class 6 felony to attempt to assault someone, such as throwing a brick and missing. Under Sec. 18.2-57.01, it is a Class 2 misdemeanor to point a laser at a law-enforcement officer. (Maybe that one needs beefing up.)

    Misuse of the the felony assault charge on a law-enforcement officer is not unusual. Recently, a protestor against the Mountain Valley Pipeline when limp when she was being arrested. As she was being hauled off, the grip of a State Police officer on her leg slipped, resulting in her kicking him (accidentally, according to her). That felony charge was the most serious against her during the ensuing plea bargaining. https://richmond.com/ban-from-montgomery-county-other-agreements-wrap-up-pipeline-protester-cases/article_5f8a73b8-0c9f-529f-8e59-6017fc16c9db.html

    • one on one encounters – with body cams/witnesses would be easy to charge but on a street with dozens/hundreds of protestors and some of them throwing stuff, and actually hitting LE – it’s much harder.

      When that happens, it’s hard to claim it’s a “peaceful protest” even if 90% of them are – and the bad actors know this ….. and use it both strident radicals and false flag folks.

      • There is this law on the books:

        18.2-42.1–Any and every person composing a mob which commits an act of violence as defined in § 19.2-297.1 shall be guilty of that act of violence and, upon conviction, shall be punished as provided in the section of this title which makes that act of violence unlawful.

        “Mob” is defined in another section as: Any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law, shall be deemed a “mob.”

        The problem will be proving that the people assembled “for the purpose and with the intention of committing an assault or a battery..or an act of violence. Of course, based on some of those fliers, it might be easier to prove.

        • The police have to leverage the technology that is available. That would be cameras, facial recognition, and cell phone location data and such. It’s not street police – it’s a technology gurus who work for the police.

          They have to keep up on the technology and show the demonstrators that they actually will be held to account.

          • “They have to keep up on the technology and show the demonstrators that they actually will be held to account.”

            Don’t you mean rioters?

          • any/all – if protestors in general think the police are ineffectual saps, it breeds a lack of respect – and emboldens would-be bad actors who know they can “mess” with them.

            These bad-actor numskulls love it when the police engage in recipocal violence and it gets on camera… it a recruitment strategy. the police have to be much smarter than that.

            I’d be marking the bad actors with “soft” but indelible paintballs much like is used on dye on bank robbers and the weapon would be snapping the picture of the paintball-ee.

            Then let other police just wander through the crowd scooping up the ones that are “marked” and match them with their snapshots… off to the hooscow… oh and post their pictures on social media… and ask who knows them including employers.

          • Larry,

            N_N is right. I am way to subtle in my facetiousness.

  10. Scott, thanks for responding and clarifying several points. (I did not know that pointing a laser is treated as a misdemeanor.) I can well understand that application of the law can get exceedingly complicated. There are always “what about” situations. As you note, how does the law define “touching”? Every proffered solution raises new issues.

    Perhaps my big problem is the way the law has been enforced (or not enforced) during the Richmond protests. The General Assembly can enact a law, but it’s up to local officials to enforce it. No one was charged with a misdemeanor, for example, for probing Kim Gray’s house with lasers during the half-hour protest there. Making the offense a felony, I suppose, would not change the willingness of local authorities to enforce that particular law.

  11. The discussion below shows how easy it is for a mob to threaten and intimidate law abiding citizens, depriving them of their rights of free speech, property, and safety. This event happened at UVA. It also shows how easy this bad behavior can decline into mass violence and how it can quickly spread like a bad habit to other venues and places with inadequate police protection. It also suggests how the University of Virginia has directly contributed to the birth and spread of this chronic violence in Virginia. The full BR post is linked in below the following commentary.

    Reed Fawell 3rd | February 27, 2018 at 11:38 am | Reply

    Wait a minute. These Jews who support Israel and abuse Palestinians, when they meet like this on the Grounds, they are promulgating “Offensive Memes”. Thus they deserve the White Supremacy treatment handed out last summer and spring.

    You see how one series of lies follows quite logically an earlier series of lies? Hate to say it, but it is hard to blame the students here. They are only acting out as they have been taught. But next time, throw them out of UVA along with a few faculty, like should have been done to a bunch of those students and faculty rioting last spring and summer. That will clear the air in a hurry.

    TooManyTaxes | February 27, 2018 at 11:53 am | Reply

    Whiny spoiled snots who cannot accept any views but their own.

    At the risk of showing my age, way back when I was in law school, we had classroom debates/discussions about all sorts of issues. Ditto for discussions in the hallways or over lunch. While some got strong and emotional, there was never branding of an opponent as evil or perverse. Some of us even felt we might learn something from a classmate.

    If UVA or any other publicly supported school cannot offer an environment where students can share ideas and debate issues, why are taxpayers funding them?

    Government regulation of speech, time-place-manner, needs to be content neutral.

    LarrytheG | February 27, 2018 at 2:39 pm | Reply

    The thing is – “protesters” can show up at any “open” campus event. There are dozens of these every week/month. What would we have the administration do? Send the police as soon as there is a “protest”? I dunno.. I’m asking … how would this be handled ?

    James A. Bacon | February 27, 2018 at 2:56 pm | Reply

    I’m not sure how UVa should have handled the disruption. The students were not part of any identifiable group, so there’s no group that could be sanctioned. Perhaps Groves could have been more emphatic in his denunciation of the protest.

    Reed Fawell 3rd | February 27, 2018 at 4:32 pm | Reply

    Why should the following actions not be grounds for a student’s immediate expulsion from UVA?

    “Rabbi Jake Rubin … said that he and student leaders invited the protesters to participate in the program and share their concerns through conversations, but the protesters declined the offer and continued to disrupt the panel.

    “While free speech and the ability to protest are important aspects of college life, we are disappointed that protesters refused to engage in conversation and instead continued to shout intimidating and hostile slurs directed at students, staff, and panelists,” Rubin’s statement read. “U.Va. is and has always been a place for the free exchange of ideas, learning from opposing views, and open dialogue.”

    Ben Borenstein, a second-year College student and active member of the Brody Center, attended the Building Bridges event. He said the protesters had a megaphone and brought literature to distribute about the history of Israeli-Palestinian relations. “I felt very threatened,” Borenstein said. “It was probably the most afraid that I’ve been in a situation at U.Va. because it was such a small classroom and it was so loud … it was very antagonistic and almost militant.”

    Mom | February 27, 2018 at 7:14 pm | Reply

    When we marched on the President’s house to protest Dean Canaparty’s decision to cancel Easters, they handled the “disruption” with police and fire hoses even though the only thing we threatened was the life expectancy of our beer supply.

    Reed Fawell 3rd | February 28, 2018 at 4:40 pm | Reply

    Wonderful comment. This says it all. Including that the UVA administrators love to hit easy targets for ideological advantage. Like how Sullivan Administration lauded one of UVA president who back in the 1940s was said to have broken the power of the fraternities at UVa.

    And how during the Jackie affair, UVA, eager for scapegoats, targeted fraternities for an alleged crime administrators almost surely knew was highly suspect at best, thus shifted blame away from the UVA’s decades long failure to stand against the hookup culture, the harm it did all students, especially young women students.

    djrippert | February 27, 2018 at 4:54 pm | Reply

    UVA = VDOT
    Clark Hall = A DMV location

    What should happen to 10 people who walk into a DMV office shouting and trying to intimidate the people trying to stay in compliance with Virginia’s laws?

    They should be arrested for disturbing the peace, handcuffed, taken to jail and charged. From there, they can post bail (or be released on their own recognizance), appear at trial and be found either guilty or innocent.

    Steve Haner | February 28, 2018 at 6:55 am | Reply

    I embrace Reed’s point above – those who were so happy to see the violence last summer, who refuse to see that both sides were responsible in July, have no right to complain that left-wing bullies are now doing the same thing to another group they despise. DJ is right – cuff them and haul them off, and if they are students, they become former students…..

    The email was 12 lashes with a wet noodle.

    LocalGovGuy | February 28, 2018 at 11:13 am | Reply

    It is great to see students exercising their First Amendment rights at a public open forum. If the Brody Center did not wish for these protests, they should not have invited the entire university to the event.

    I see the usual right wing snowflakes are out and whining.

    The Center could have easily closed the event. If they had done so, I’d agree with arresting the protesters. But if you open your event to the general public at a public university, you have to live with protests.

    This is not an ideological statement. I feel the same way if a left wing student group opens its event for the public and the College Republicans show up to jeer. The College Republicans should not be arrested.

    James A. Bacon | February 28, 2018 at 12:00 pm | Reply

    I would agree with you that it should be OK for protesters to attend, hand out flyers, wave placards or participate in other non-disruptive ways. But when they shut down someone else’s event, such an action is antithetical to the spirit of openness and exchange of ideas that universities supposedly stand for.

    Acbar | March 1, 2018 at 10:19 am | Reply

    It’s also antithetical to our basic nominal decision-making process, both legislative and judicial: hear both sides, debate a proposed response, then vote on it. These UVa students can’t get past Phase 1, hear both sides. And, it appears we can’t get any farther with gun control. We have an event coming up in Washington on March 24 that has all kinds of potential for getting out of hand. Yet it’s occurring because one side has stonewalled the other, won’t hear the other, won’t allow any response to be debated or come to a vote, through what appear to be the moral equivalent of bribes. All those students can do is come to DC to express their frustration, and they will. Which brings me back to the frustration expressed by some protesters outraged by the Israeli Wall and settlement policies: do they have any alternative either?

    Reed Fawell 3rd | March 1, 2018 at 10:37 am | Reply

    Your comment raises the rationale behind my profound disagreement with the comment of LocalGovGuy. The hecklers veto should be outlawed. People should have the right to express themselves in public without fatal interference from others. If bullies can drive them indoors into private places to peaceable express their beliefs then, in such a case, the bullies, fascists, and Stalinist control the schoolyard, and win by violence. Our society is far too tolerant of bullies. Bullies should be punished, not rewarded for bad behavior. Shouting someone down is not free speech, it is violent speech that destroys free speech.

    LocalGovGuy | March 1, 2018 at 5:56 pm | Reply

    It doesn’t surprise me that you want to criminalize speech.

    Reply Reed Fawell

    LocalGovGuy –

    You miss the point and beg the question. You also attack your own shadow projection.

    Speech has nothing to do with the illegal conduct at issue here. Quite the reverse. Speech, including free speech, is what I seek to protect, and what you seek to destroy. Can you not see that?

    Shouting other citizens down in public forums for their trying to engage in free speech and forcing them out of public squares into private safe spaces before they can freely express their opinions to their fellow citizens is not speech. It is thuggery. What fascists do on the road to their crimes.

    LocalGovGuy | March 2, 2018 at 8:50 am | Reply

    First of all, for an alleged “attorney”, can you please point to the “illegal” conduct? Please point to a specific state or federal statute that criminalizes the protesters’ actions and speech. If you can’t, well that says so much about your “acumen”….

    Second, you wrote, “The hecklers veto should be outlawed.” That is criminalizing speech.

    Reed Fawell 3rd | March 2, 2018 at 9:03 am |

    What happened to those Jews at UVA was on its face as reported, illegal behavior. What happened in C’Ville last summer was illegal behavior. This society needs to recognize thug behavior for what it is and deal with it under the law, no matter the ideology involved. People who don’t speak up on these issues, and stand of the sidelines clapping and/or covering for thugs, are complicit with the fascists.

    And please, don’t suggest I should write a legal brief for you on your misguided ideology.

    LocalGovGuy | March 2, 2018 at 9:54 am | Reply

    Mr. Fawell,

    You have stated in previous posts that you are an attorney. I’m simply asking you to please provide the specific state or federal statute that criminalizes what you term as “illegal behavior” at the Brody Center.

    Reed Fawell 3rd | March 2, 2018 at 10:57 am | Reply

    Educate yourself. Start by reading the history of the fascists in the 1930s, particularly after the fall of the Wiemar Republic, then focus down on the targeting of all political opponents, using the Jews as scapegoats.

    For more see:
    https://www.baconsrebellion.com/wp/moderation-protection-liberty-no-virtue/

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