Mimesis Law
27 May 2017

The Danger of Making Too Much Out of Ordinary Decisions

Feb. 1, 2016 (Mimesis Law) — Things just keep getting worse for Melissa Click, the University of Missouri assistant professor who made the news last year after requesting “some muscle” in order to remove a journalist from a protest:

In the latest controversy to divide the community, Mizzou’s Board of Curators voted Wednesday to suspend Melissa Click, the assistant professor caught on camera pushing a student journalist and calling for “some muscle” to remove him from a protest camp.

“The Board of Curators directs the General Counsel, or outside counsel selected by General Counsel, to immediately conduct an investigation and collaborate with the city attorney and promptly report back to the Board so it may determine whether additional discipline is appropriate,” the board said in a statement.

The suspension came a day after the city prosecutor’s decision to file a misdemeanor assault charge against Click over the incident, but it fell short of state legislators’ demands that Click be fired.

The demonstration happened on November 9, 2015, and video of Click went viral in no time. Her actions were the perfect example of people’s determined belief that their important causes and very sensitive feelings entitle them to get whatever they want, even if that means privacy obtained by silencing the press with physical force. People immediately discussed that. The video is really something:

It’s good quality video, and what happens is quite clear.

She twice tells the journalist he needs to get out. He says he doesn’t. Obviously irritated by his refusal to respect her authority, she grabs his camera while saying it again. It jerks. She’s clearly perturbed. Continuing to point at him, she walks away while requesting muscle to remove him.

Police and prosecutors no doubt had access to the video no later than the rest of us did, yet she wasn’t charged until January 25, 2016, about two and a half months after the incident. The university didn’t bother doing anything until after the charge was announced.

If what Click did was indeed a crime, it isn’t the type that needs a lot of investigation. There’s no need for a search warrant. There’s no need to convene a grand jury. There’s no evidence to test, no experts to consult. There’s not really even any need to interview anyone. It’s a damn misdemeanor. It’s all on video. Cops across Missouri look at situations just as clear and either issue a citation or don’t every single day. Prosecutors do the same.

Here’s what the law it seems she’s accused of violating says:

A person commits the crime of assault in the third degree if:

(1) The person attempts to cause or recklessly causes physical injury to another person; or

(2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon; or

(3) The person purposely places another person in apprehension of immediate physical injury; or

(4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; or

(5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; or

(6) The person knowingly causes physical contact with an incapacitated person, as defined in section 475.010, which a reasonable person, who is not incapacitated, would consider offensive or provocative.

Click did not cause any actual physical injury and didn’t have a weapon, so subsection two is out. She didn’t create a grave risk of anything, so four is out. The reporter wasn’t an incapacitated person, so six is out. That leaves subsections one, three and five.

As for subsection one, the question is simply whether she attempted to cause physical injury to the reporter by grabbing the camera and asking for muscle to remove him. For three, the question is whether she purposely placed the reporter in apprehension of immediate physical injury. Finally, for five, the question is whether she knowingly grabbed the camera, and also whether she knew the reporter would regard it as offensive or provocative.

Just knowing what you now know and having seen the video, you probably have a pretty good feel for how you’d answer each of those questions. Maybe you think she wasn’t attempting to injure the reporter, maybe you think she was. The same is true of whether you think she was trying to place the reporter in apprehension of physical injury and whether she’d regard grabbing his camera as offensive or provocative.

Reasonable minds can certainly differ, but just like the authorities in Missouri, you have pretty much everything you need to decide whether or not you believe Click broke the law. You can’t say for sure whether she’s guilty, but neither can authorities. Yet every single day, cops and prosecutors decide to cite or charge people with crimes. That’s how it works. If there’s probably cause, charges go ahead. Ultimately, a finder of fact decides whether the defendant is in fact guilty beyond a reasonable doubt.

So why did it take so long for charges in Click’s case? Why make such a big deal of this?

Sadly, the situation with Click may be representative of a growing sentiment that there’s some sort of symbolism to justice system involvement in situations where there’s enough media attention. Rather than understanding that authorities normally just look at the facts and the law, and then decide how the facts apply to the law, people want charges to mean something more. A third degree assault charge doesn’t just signify that a charging prosecutor looked at a video of what might be a crime and made the judgment call that it was a crime, but instead says something meaningful about institutional racism or freedom of the press or safe spaces.

Considering the bigger picture is fine. Indeed, a lot of injustice could be avoided if prosecutors thought more about the implications of their decisions. However, straying too far from the idea that a charging decision is simply about the law and not some grand cause is dangerous. That’s also the case with the decision of the university’s board to suspend Click, which seemed very much related to her criminal charges and the media firestorm surrounding the incident, not merely an impartial decision reached by simply applying the rules or standards that govern faculty suspensions to the situation at hand.

A prosecution might send a message, but the point shouldn’t be to send a message. If authorities in Missouri think that Click broke the law, they should charge her. If the university board thinks she meets the criteria for suspension, they should suspend her. The last thing anyone should do, however, is let systems of rules and laws devolve into a dramatic way of getting a message across based on whatever the prevailing sentiment about a situation or a person happens to be.

Epilogue: Click’s “prosecution” ended not with a bang, but a whimper.

A suspended University of Missouri professor charged with assault in clashes with two student journalists can avoid prosecution if she does community service and stays out of trouble for a year.

If the point of the message was to reduce this to complete pointlessness, it appears they succeeded.

2 Comments on this post.

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  • Scott Jacobs
    1 February 2016 at 12:50 pm - Reply

    If the point of the message was to reduce this to complete pointlessness, it appears they succeeded.

    Hooray! The system works!

  • More Mimesis Posts | Tempe Criminal Defense
    10 February 2016 at 11:12 am - Reply

    […] Full of sound and fury, signifying nothing. […]