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Alleged Facts

  1. On this video (at time marker 5:32-5:36), Ben Shapiro alleges Zoey Tur committed the crime/s (and/or tort/s) of assault and/or battery against Shapiro.

  2. (I believe) the incident occurred in California.

  3. Shapiro filed a police report and criminal complaint against Tur.

  4. After an investigation, the police and/or D.A. declined to prosecute Tur.

Questions

  1. Did a crime (or tort) occur?

If so:

  1. Does Shapiro have any recourse and/or mechanism to force enforcement of the criminal statutes?

  2. If Shapiro sues Tur civilly, would/should he win?

  3. If Shapiro wins a civil suit, how would damages be assessed / determined / calculated?

  • Adding the "if you don't cut it out" would actually make it worse in Illinois. It would probably result in an intimidation charge, because the threat of violence is to prevent the person from making further comments. – user5745 May 31 '16 at 6:28
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The elements of a criminal action in assault are1:

  1. The defendant did something that was likely to result in the use of force against someone else;
  2. The defendant did so willfully;
  3. The defendant was aware of facts that would lead a reasonable person to believe that this act would directly and probably result in force being applied to the other person; and
  4. When the defendant acted, they had the capacity to apply force to the other person.

The elements of a civil action in assault are2:

  1. An action intended to create
  2. a reasonable apprehension
  3. of imminent harm
  4. that is harmful or offensive

In civil and criminal assault, the elements are reasonably similar. Essentially, the action must be 1) intentional, 2) create a subjective apprehension (that is, from the plaintiff's perspective) 3) of immediate, unlawful and 4) harmful contact.

1. Did a crime (or tort) occur?

Assuming that the plaintiff truly feared unlawful, harmful contact (2, 3, 4), whether the defendant intended to create this would also be questioned. I highly doubt a judge or jury would find that this is the case, given the overall circumstances, that this was the defendant's intention (1) - being televised, and with a number of witnesses, and so on.

But, for the sake of an answer, let's assume that a crime/tort did occur.

2. Does Shapiro have any recourse and/or mechanism to force enforcement of the criminal statutes?

The California public prosecutor is required to institute proceedings where they suspect such offenses have been committed. There's a bit of discretion in this respect, and so they'll usually consider whether there's enough evidence to do so, and whether it's in the public interest to do so.

3. If Shapiro sues Tur civilly, would/should he win?

Maybe. It's difficult to say, but the fact that the District Attorney did not prosecute in this instance may be a signal that there is either a lack of evidence, or that it would not be in the public interest to do so. In my opinion, probably a bit of both.

Sure, in a civil case, a balance of probabilities is the standard of proof, rather than beyond a reasonable doubt in criminal cases. So it's possible that a civil action could be successful. But, that leads to the outcome, which would be...

4. If Shapiro wins a civil suit, how would damages be assessed / determined / calculated?

Almost certainly only nominal damages (damages that are usually very small - this is done in cases where the harm is technical, instead of actual). Punitive damages (intended to deter similar behaviour in the future, and sometimes called exemplary damages) are limited in the United States, and where no compensatory damages are awarded, highly unlikely. Excessive punitive damages has been found to be an arbitrary deprivation of property, in violation of the Fourth Amendment, and therefore unconstitutional. (See BMW of North America, Inc. v. Gore (1996).)

Compensatory damages (including special damages - as the name suggests, intended to compensate the plaintiff for loss or harm caused by the effect of actions undertaken by the defendant) are almost definitely out of the question, unless the plaintiff can prove that they suffered psychiatric injury as a result of the assault.


  1. An explanation of California Assault Law: Penal Code 240 pc
  2. Adapted from California Civil Jury Instructions (CACI), June 2005
  • Does California not have private prosecutions? – Ben Aug 29 '15 at 8:25
  • @Ben Nope. – jimsug Aug 29 '15 at 8:27
  • 2
    Worth pointing out that the burden of proof for the tort is balance of probabilities as opposed to the criminal burden of beyond reasonable doubt. The fact that the DA may feel he cannot get a conviction does not necessarily mean there is no prospect of success in a civil case. – Dale M Aug 29 '15 at 8:37
  • Punitive damages? – Ben Aug 29 '15 at 8:39
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    @Ben I suppose it's necessary to note that 1) the SCOTUS has found private prosecution unconstitutional, and although this applies only to Federal cases, you'd be looking for laws that state otherwise in various criminal codes, and 2) especially in penal codes like California's, the fact that public prosecution is mentioned, but private prosecution is not, is considered an exhaustive list (containing one item) of possibilities for prosecution. – jimsug Aug 29 '15 at 18:05
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"If it were not assize-time, I would not take such language from you."

(said while grabbing the handle of sword)

This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start.

One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!"

I would hope that a jury would consider this hard bargaining.

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