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Wednesday, February 1, 2017

My wife apparently faces criminal charges for "assault" because she brushed against the deputy who shattered her arm, or somehow caused him "apprehension"


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)

24 comments:

Anonymous said...

It's kind of hard to avoid contact with an officer who is breaking your arm, right?

Anonymous said...

Will be interesting to see the probable cause statement on this.

legalschnauzer said...

Yes, @1:13, I assume that is Exhibit A listed at case.net.

Anonymous said...

This whole business with Carol coincides with the Trump announcement re: SCOTUS and rejecting Bill Pryor. I suspect that is not an accident. Smells like retaliation for your reporting.

legalschnauzer said...

Smells like retaliation to me, too, and I know what that smells like. I've smelled it before after reporting on Pryor and his gay-porn background.

Anonymous said...

My guess is that the probable cause statement will make no mention of Carol's broken arm. It doesn't fit their narrative, and they are lying, bastard cops.

legalschnauzer said...

Incredible. I bet you are right, @1:39.

Anonymous said...

i don't know, it seems really, really far fetched to think that the Trump administration even has any idea, or cares for that matter about what happened to Mrs Schnauzer- that a little absurd. If you want to say that the cop was overzealous and a charge wasnt warranted that's another story

Anonymous said...

This is clearly a false arrest and false imprisonment. Just add that to the lawsuit you already are going to file against these fuckers. Then, kick them in the nuts in court. Make them squeal. Bastards.

Anonymous said...

What kind of pussy is this cop? He breaks a woman's arm and then claims touched him.

Good God, grow a pair, man. He should be the laughing stop of every police department in the country.

Does this Missouri department hire nothing but limp-wristed pusses. What a disgrace to manhood.

Anonymous said...

I wish Carol had kicked this guy in the nuts, assuming he has any.

What weak-ass shit.

legalschnauzer said...

@1:53 --

I think you are responding to @1:21's comment, plus my response to him at 1:22. This is just my view, so I'm not speaking for him. My thoughts are based not so much on the charges, although I know from being a witness that they are bogus, but I'm looking more at the decision to pursue an arrest. Consider this timing:

* On Jan. 26, last Thursday, I published the following post about an apparent homosexual relationship between Jeff Sessions and Bill Pryor, both ardently anti-gay:

http://legalschnauzer.blogspot.com/2017/01/jeff-sessions-in-1990s-made-frequent.html

* The next night -- last Friday, Jan. 27 -- cops started knocking on our door, apparently trying to arrest Carol for something she didn't do, on a charge they filed, according to records, Sept. 8, 2016.

You might not find that curious, but I do. They wait 4 1/2 months to seek an arrest, and it comes the day after I publish an unflattering post about Sessions and Pryor. Again, I don't think that is an accident.

Plus, the court admits that Carol never received notice of a court appearance, and yet they charge her with failure to appear. Seems to me the court should be charged with incompetence for failure to notify re: court dates.

Anonymous said...

I thought apprehension was part of being a cop -- that and eating donuts.

Anonymous said...

You're mistaken about the seriousness of the offense. A class A misdemeanor is the most serious kind of misdemeanor. Class A's often face jail time. This is more limited for first offenses and a diversion program is more likely for a first offense. You need a lawyer.

I know you want to deny and push this away but you cannot take this lightly or count on the charges being dismissed.

Even the context you give, taken in a darker light, means that she could be found guilty. If Carol believed she had a right to enter the premises, or permission, if an officer attempted to stop her or was in the way or not letting her by, if that officer believes she attempted to push past him deliberately, ignoring him or fighting back at attempts to block her path, and did so in a way that caused contact that her deliberate action made unavoidable, she's technically guilty.

I wish you would publish the police report and any statements associated with charging documents so we can see what is actually alleged against Carol.

The word "apprehension" can't be interpreted in the way you mockingly state it. It is the archaic language of the law, and simply means that the officer had to consider her a risk because of the way she was asking. Again, she is not allowed to push past the officers even if someone else had given her permission. Her only legal option was to obey, go back and speak to the sheriff and get that permission effectively communicated to the officers who didn't want her to enter the property again.

Remember both of you provoked this eviction, and its unhappy sequelae, by failing to pay rent, to accept notice that the lease was not going to be renewed and to find new lodging. People tried to help you and you resisted the inevitable. There is no way you would have been allowed to remain in that apartment. You made it as difficult as possible on your poor wife. You laugh..."guffaw" at the "impossibilities" that are sadly, all too possible. She needs her own advocate. You need to get her a lawyer. You need to stop arguing her case in public, because you could say things that damage her, and I think you already have. You have reported hearing her say things that can be used against her and help establish a set of facts or statements that will help establish a case against her. "I'm just trying to get..." implies she is having to explain herself when challenged. Such a statement would be consistent with her trying to get in, or trying to get by persons and being challenged. "Don't touch me" implies it went terribly wrong - and worst of all that she is trying to resist actions of the officer. You did not do her any favors by reporting this in public without prior consultation with a lawyer, whom I assure you would have told you to shut up until the charges were dismissed.

Anonymous said...

I would like to point out that you misunderstand the meaning of 3rd degree. It has nothing to do with the type offense. It is just a way to differentiate between similar codes. 1st degree will always be the most serious level and the higher the number of degree will be lower levels, but that has no relation to what type punishment one would receive. For instance, in Missouri, 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. Class A misdemeanor is the most serious misdemeanor possible and has a Maximum Penalty: up to 1 year in jail, and a fine of up to $1000. This is just under a class D felony. A class c misdemeanor is just over an infraction. Assault of a law enforcement officer, emergency personnel, or probation and parole officer in the second degree is a Class C felony and Assault of a law enforcement officer, emergency personnel, or probation and parole officer in the first degree is a Class A felony.

Simon Syad said...

Roger, if Trump's people thought you were a threat, you'd be dead or in jail. They wouldn't bother with some dinky case against your wife. Think about it. I expect they assault charge is because the cops are worried you're gonna sue them.

Trump's people don't give two shits about you.

legalschnauzer said...

Simon:

I certainly agree that the cops are worried about a lawsuit, and they should be. That shows you the level of corruption we are talking about here. Seems we are on the same page about that.

I can only guess whether anyone connected to Trump cares about my blog. Perhaps you forget that Jeff Sessions is a Trump person, and he undoubtedly knows about, and has concerns about, this blog. I might have given the impression that Trump himself or some of the national figures connected to him care about me -- and I don't think that at all. But I guarantee you Jeff Sessions and Bill Pryor care about the reporting here.

legalschnauzer said...

@8:07 --

I know exactly what third degree means, and my post reflects that. You provide a few more details about a Class A misdemeanor, and that's fine, but the point I was making is this: I've heard people say "Oh, Carol faces a felony" or a "serious offense." So I explain that it's not a felony, and when you consider that they apparently are alleging she brushed up against a police officer, it's not a serious offense. I wasn't addressing punishment; that can be done another day. But based on the information I have now, they aren't even coming close to alleging she pushed or shoved or punched or did anything remotely like that. And they, like you, probably are ignoring that she wound up with the broken arm, and the cop is the one who committed a crime here.

legalschnauzer said...

@7:28 --

You spew a lot of misinformed rubbish here, and I don't care to touch on all of it, but here are a few points that are based in reality:

(1) There is nothing in my reporting that indicates we take this lightly. I have shown that the charges are ungrounded and absurd, which is true. But I, of all people, know we are dealing with a corrupt system, so that is serious.

(2) I think you and I have discussed this before, and you always ignore facts and law that show Carol was the victim here. FYI, Carol was between the officer and the door. She was on her way in, a few steps from the door, when three cops surrounded her. She did not even try to push past anyone. I saw the whole thing, and you didn't. And your imaginary version of events is not close to reality.

(3) I will publish any documents when I have them, and when I'm read to publish them.

(4) She didn't disobey or try to push past anyone. I don't know how many times I have to say that to you. If she had tried to get to the sheriff for clarification, as you suggest, she would have had to push past the deputy who broke her arm. He was between her and the sheriff.

(5) Your understanding of apprehension is nowhere near correct. I've seen Missouri state law where a subject was armed and pointed a weapon at an officer and that, by law, created apprehension. I've seen nothing that says an officer lawfully has apprehension of "immediate physical injury." See, you left out that last little phrase, and that's what you always do. It's not just this question: Was the officer "afraid"? It's: Was he afraid of being immediately injured physically by Carol? And the answer is no. If he thought she was in an agitated state, all he had to do was back off, let her calm down, call for assistance, etc. Instead, he attacked her.

(6) Your last paragraph is pure bullshit, and you should know it. We went to court, as we had every right to do because the landlord was trying to breach our lease/contract. We filed a notice of appeal, which puts an automatic stay on execution. That's fact; look it up. A key legal point you always ignore: The cops had no lawful grounds to be on the property, so their actions against Carol are particularly egregious, indefensible really.

You intentionally misstate the facts and ignore key areas of the law that show the cops were 100 percent in the wrong. That suggests to me you are a fraud, a person with seriously compromised view of right and wrong.

I know what you are like, and I spent more time on you than I should have. But I saw this as an opportunity to unmask you as a fraud, and that is very easy to do.

legalschnauzer said...

A final thought about @7:28's bullshit --

It's a fact that Carol was surrounded by three officers. Only one of them found the need to grab her, slam her to the ground, and break her arm. The other two didn't do that, suggesting they did not find Carol a threat and they knew she had been given permission to enter. In fact, they only got near her when the other officer started yelling and acting abusively toward her. But he was screeching at her from behind, not trying to block the door.

There were four people here -- Carol and three officers. Three of them did not engage in physically harmful actions to the others. One of them did. The other two cops acted appropriately and lawfully. Why did one find the need to act like a thug when the other two did not?

@7:28 ignores the fact that only one of the four people acted abhorrently here. And that was the guy who broke Carol's arm. The other two officers were just as close to Carol as he was, and they could have grabbed her but did not. They did not act to harm her. Only one of them did. He's the outlier in this situation, regardless of whatever excuses 7:28 might concoct.

legalschnauzer said...

One final thought on cops, subjects, and the notion of obeying orders.

In this case, the cop had no lawful grounds to be on the property because the eviction had been stayed by our notice of appeal. And all parties had been notified of that. A cop who has no grounds to be on the property has no grounds to be issuing orders.

It's a fundamental principle of criminal law that a subject has every right to resist an unlawful arrest. Based on that, it seems reasonable that a subject is in the right to question or ignore orders from a cop who has no grounds to be there.

@7:28 has this "Fantasy Island" version of the law, which always favors cops and disfavors those they abuse. But I hope readers will understand that subjects have rights, and cops do not have unfettered ability under the law to boss folks around with no grounds for doing so.

Unknown said...

I would demand a jury trial. I'll talk to a lawyer friend in Chicago, you need to sue the pants off of these swine.

Anonymous said...

LS, this is so reminiscent of your reportage on that numbskull cop Eric Parker who injured Sureshbhai Patel, the Indian gentleman visiting his family. Wonder if there were dash cams running during the assault on Carol, and, if not, why not.

legalschnauzer said...

Yes, @11:33, it does bring back images of the Patel case. We hope to learn about the presence of cams soon.