I receive mail about David Steven Bell

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David Steven Bell has been charged in Buncombe County with assault on a female and assault on a child under the age of 12. He is set to go to court on February 5.

Video shows Mr. Bell punching the girl, who reportedly is 11 years old, outside of a mall in Asheville, North Carolina. She collapses to the ground, nearly striking a concrete pillar.

After publishing a post about the assault, I received an email that had two questions:

  1. If someone were surrounded by a bunch of people and attacked by one of them, why couldn’t the group be charged with kidnapping, assault, or gang violence?
  2. Why is Assault on a Female, which imposes higher penalties on males who strike females than vice versa, constitutional?

With respect to “gang violence,” I haven’t seen anything in this matter that leads me to believe there was a gang anywhere near the place where Mr. Bell assaulted the eleven year old. A criminal gang has a specific definition in North Carolina under the Criminal Gang Suppression Act. Among other things, a criminal gang must be an ongoing group of three or more persons, must have as one of its primary activities “criminal or delinquent acts” and must “share a common name, identification, sign, symbols” and so on. Sec. 14-50.16A of the General Statute explains in greater detail.

This is a teachable moment for this correspondent so let me elaborate:

While the emailer questions the equal protection constitutionality of Assault on a Female (a law that punishes men more harshly than women), he doesn’t question the constitutionality of the Criminal Gang Suppression Act which implicates First Amendment freedom of association rights.

Here’s the implicit bias: Black people gathered together are presumptively a gang, but a white guy slugging a young female shouldn’t be charged with a law that punishes him more harshly because of his gender.

With respect to Assault on a Female, North Carolina’s Court of Appeals upheld the constitutionality of the law in State v. Gurganus:

Despite the existence of certain areas of uncertainty which will require further clarification by the Supreme Court of the United States, we find the test set forth in Craig and reiterated in Goldfarb to be controlling in cases involving constitutional challenges to gender based classifications applied by the States. That test compels any statute or other “state action” to meet two requirements prior to being found permissible and consistent with the Fourteenth Amendment. First, the classification by gender must serve “important” governmental objectives. Second, the classification by gender must be “substantially” related to achievement of those objectives. We find that G.S. 14-33(b)(2) meets both these requirements and is in no way violative of the letter or spirit of the Fourteenth Amendment.

The questions related to whether Mr. Bell himself was the victim of crimes – kidnapping or assault – are easier to answer.

There simply is no evidence of a kidnapping, which in North Carolina requires some kind of restraint, confinement, or removal. Such restraint need not require a physical touching, but the video shows Mr. Bell moving amongst and throughout the crowd without much difficulty.

It does appear that Mr. Bell is shoved at one point, and that would be a simple assault. However, police always have the power to disregard certain crimes in selecting whom to prosecute and for what they will be prosecuted. It is very common for the worst aggressor – like David Bell – to be charged while others who may have violated the law go uncharged, and for good reason.

We want police to ultimately be able to assess the situation and apply the law in a way that makes common sense.

250 pound men should not slug children.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.