Now the news about Corey Lewandowski is official ad of a few moments ago – here is an article from a legal expert and ValueWalk contributor (correctly) predicting that the charges would be dropped, which the Professor penned earlier this morning.
WASHINGTON, D.C. (April 14, 2016): Corey Lewandowski, Donald Trump’s campaign manager, will not be prosecuted for misdemeanor battery for allegedly touching a female reporter.
This was predicted by public interest law professor John Banzhaf, who noted that he had at least three major legal defenses: implied consent, defense of others, and lack of scienter.
Obviously, not every deliberate touching is a crime or even a civil tort, explains Banzhaf, who has taught battery for over forty years.
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 accepted touches to which we have all impliedly consented simply by being a part of common 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.
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 reporter, he could not lawfully punch her in the face. However, simply briefly grasping her arm under the circumstances is probably reasonable, and thus legally privileged.
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, Lewandowski would have had several strong legal defenses.
Thus, since the prosecutor must prove every element of his case beyond a reasonable doubt, it certainly is likely that he would decline to go forward with such a weak case, Banzhaf predicted.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School