Corey Lewandowski Has Legal Defenses to Criminal Battery Charge

Implied Consent, Defense of Others, Lack of Scienter Could Get Him Off
WASHINGTON, D.C. (March 30, 2016): Corey Lewandowski, Donald Trump’s campaign manager, who has been charged with misdemeanor battery for allegedly touching a female reporter at a political rally in Jupiter, Fla., has at least two major legal defenses – implied consent and defense of others – says public interest law professor John Banzhaf, who has taught battery for more than forty years.

Obviously, not every deliberate touching is a crime or even a civil tort, explains Banzhaf.

If X taps a stranger on the shoulder to ask directions, or Y slightly but deliberately touches W as they brush by each other in a crowded hallway, there is no battery because these are the common touches to which we have all impliedly consented simply by being a part of society.

Moreover, the law also says that we all consent to additional types of touchings if we go to places, or engage in activities, where touching beyond those is customary. People pushing to get onto a crowded subway train, or mild roughhousing at a drunken fraternity party, are two common examples.

So, since political rallies are often quite rowdy, with reporters as well as fans all trying to elbow their way to get next to the candidate to ask questions, take pictures, etc., persons who join in the customary jostling around the candidate are usually held to agree to those types and levels of touchings which are customary and to be expected in such situations.

Since the scene around Trump at the time does seem somewhat chaotic, with at least a moderate amount of jostling and other types of touchings, a strong defense would be that the complainant, by voluntarily joining in the melee, had consented to some level of touching which could include briefly grasping an arm. Indeed, if this is not the legal rule, it appears from the tape that many of those likewise milling around would be able to file criminal battery complaints against otherss.

The law also permits a defendant to use reasonable force if he reasonably believes that someone else is about to commit a battery on another. So if Lewandowski reasonably believed that the reporter was about to touch his boss – e.g., to take hold of Trump’s arm or even his sleeve while asking a question – he has a legal privilege to use force which is reasonable under the circumstances to prevent that from happening.

Here it should be noted that he has such a privilege even if he was mistaken; i.e., if the reporter was not in fact seeking to touch Trump. So long as the mistake was not unreasonable, Lewandowski may still legally use force, and engage in a touching, which would otherwise be illegal.

Naturally, the force which he uses must be reasonable. If he reasonably believed that his boss was about to be grasped by a female reporter, he could not lawfully punch her in the face. Whether on not grasping her arm under the circumstances is “reasonable,” and thus legal, is up to the jury.

Also factoring into the situation is that the prosecutor must be able to prove every element of his case beyond a reasonable doubt, and must show that the defendant acted with criminal intent (scienter).

So, from a strictly legal point of view, Corey Lewandowski does have several strong legal defenses.

However, there is no guarantee that jurors will both understand and try to follow the law, and that their individual votes will not be affected by political concerns during this turbulent and confrontational political season, says Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School

Corey Lewandowski Has Legal Defenses to Criminal Battery Charge