In a case that will take you back to your first-year criminal law class, the Virginia Court of Appeals splits 7-3 today in upholding the assault conviction of a school cafeteria worker who was irate that a school bus driver had suspended her son from riding the bus.
The case turns on whether the defendant engaged in an overt act that elevated her threatening words – which the majority acknowledges can never be enough in themselves for a conviction – to a crime.
There’s much discussion about the distinction between common law civil and criminal assault, and, yes since we’re talking about the common law, Blackstone and the Restatement of Torts are invoked.
The majority opinion, written by Judge Larry G. Elder, finds that twice standing outside the open door of the school bus and telling the driver, “I’m going to get you, bitch,” plus a few other choice vulgarisms, was a “a present threat” rather than a conditional one and thus an overt act.
Not to Judge Robert J. Humphreys, who wrote for the dissenters, “It is not difficult to imagine the sort of absurd results the majority’s analysis could lead to. For example, after today, an inebriated bar patron who plants himself in the doorway and proudly announces that he will ‘whip every man in the place’ will now have committed multiple assaults theoretically equal to the number of occupied bar stools, irrespective of whether any fist is actually raised.
“It seems to me that over the almost eight centuries of the evolution of the British common law, such a scenario has not previously been envisioned in any English, Irish, Welsh or Scottish pub, much less their courts.”