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Case number 24-5034.

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Genshu Scott He et al.

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The balance versus Marco Rubio, United States Secretary of State in his office of capacity and United States of America.

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Mr. Rodford for the balance.

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Mr. Simon for the appellees.

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Mr. Rodford, good morning.

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Good morning, Judge Henderson.

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Good morning, panel.

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My name is Mitch Rodford.

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I represent the appellants, June Zhang, her minor children, and her

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to parents, Wang Jing and Rong Zhang.

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May it please the court.

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This appeal presents a rather simple question, which is whether the Zhang's second amended complaint plausibly alleges or allows the reasonable inference that a federal officer, namely Pert, acted in a manner

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that gave the Zhangs reasonable apprehension of harm and that they suffered such harm.

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The district court below applied a test that doesn't exist under Virginia law.

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The test, as articulated in Clark, is that the present ability to cause harm is not a prerequisite or an element of the tort of common law assault under Virginia law.

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The district court, however, dismissed the second amendment complaint on the following conclusion, that the second amendment complaint does not plausibly suggest that Pert was poised to injure anyone without significant delay.

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Let me ask you this.

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The Virginia law also says there must be an overt act.

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What is the overt act in your opinion?

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The overt act?

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Well, there's more than one overt act.

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And Virginia law counsels us that we should look at the totality of the complaint.

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That's out of Clark as well.

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You've got the officer grabbing Mr. He.

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Yes.

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And you've got him pointing the gun at the child.

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Correct.

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Are those the two over there?

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No, there's more.

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These officers came to the Zhang Hong, their home, on the eve of a Chinese festival.

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They were dressed in black.

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They arrived at the house having bypassed a sign that said, don't come by here because we're protecting ourselves from COVID.

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And they bang loudly on the door for 30 seconds.

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That's the allegation.

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Did they have masks on?

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I'm sorry, Your Honor.

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Did they have masks on?

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Yes, they wore masks.

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And were they COVID masks?

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Well, Your Honor, they were masks.

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And we didn't plead whether they were meant to be more than what we would have understood to be a COVID mask at the time.

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And the full family goes to the front door.

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And at this point, Perth engages ha, pronounced ha, in a connection in a series of conversations, which has to do with some workplace allegation that Perth has been hounding ha for years about.

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Now, the United States wants you to understand that because it has a workplace genesis, that therefore it is not a common law tort of assault.

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But I don't think that helps the United States here.

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I think the fact that these officers came here to bring to the Zhang home an argument that belonged in the workplace is part of the series or totality of overt acts that happened that evening.

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So do you think just appearing at their house?

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Was it over that?

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Obviously, it was.

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I think so, Your Honor.

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Given the circumstances, appearing there at the House, and to borrow from Fourth Amendment jurisprudence, we know that the home is a sacred space.

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It is not to be invaded without some degree of real necessity.

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And I think the inference that we have allowed that's reasonable from the Second Amendment complaint is that these federal officers intended to cause

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fear in the Zhangs and the fear was felt.

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There's no question that this family was in fear.

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Those are the two elements of the tort.

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They are satisfied under the pleading standard that we have under Twombly and Iqbal.

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The problem, if there is one, and it's a very narrow one, but an important one, is that Iqbal and Twombly not be expanded to basically allow trial on the briefs.

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There's plenty of issues that the United States has raised in their

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response to our brief that have nothing to do with the elements of the common law tort.

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And that even presumes that we have to plead the elements.

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We're not required to plead elements.

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We're required to plead facts that allow the inference that at trial those elements can be made.

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The United States wants you to understand, I think, that there was some degree of consent in the officer showing up on that evening.

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But consent is not an element.

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And if anything, consent is simply a defense that they may assert at trial on this.

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I have a couple of questions about to close the loop on assault, there have to be

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alleged facts that permit a reasonable inference that Hurt and Velez intended to cause harmful or offensive contact.

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with the person or at least to make them fear imminent such contact.

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And I wonder what the facts are that you're really focusing on in the complaint, that they were not just there to spook the family or drive home to that.

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the, you know, he, he wanted him to acknowledge something that, that Hurt thought Hla had done, but that actually that there's some reasonable basis to fear imminent

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physical harm.

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So I think this gets back to Judge Henderson's question, and I think Judge Pollard.

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It's a question of what facts do we focus on for purposes of that element of creating that apprehension of imminent harm?

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Because it's not required that harm actually have to occur.

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No, it's that you have to be able to infer that the defendants intended

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to make the plaintiffs apprehensive that physical harm to them was imminent.

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Yes.

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Right?

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Right.

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I don't think physical harm being imminent is an element.

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I think it's fear that the apprehension is imminent is all.

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And that is set forth in the Clark case very plainly.

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it's not about the question of causing immediate harm or imminent harm.

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It's about causing imminent fear of harm.

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And that is exactly what is established by Kurt's conduct.

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And if we don't need to look much further than the two examples that Judge Henderson raises, which I think is a core part of the overt acts, which is hurt reaching through the threshold, grabbing his arm and then, you know, making his finger gun and

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pretending to shoot the child and calling him a racial slur.

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I think that those are sufficient for us to conclude that the elements of the common law toward under Virginia law were established.

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So as I read the Virginia cases, typically the overt acts

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to find assault, the overt acts have to be aimed at the victim.

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And there's a question here whether the overt acts are just aimed at her.

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Would they have done the exact same?

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The family weren't there or didn't come to the door.

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And so the notion that these overt acts or the intent to cause apprehension of physical harm

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are aimed at the family members.

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Do you have anything that supports an inference that that was the defendant's intent?

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I think that that inference arises from the fact that these federal agents arrived at the Zhang home on a known

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Chinese holiday.

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Do we have any reason to think that they knew that this was the New Year?

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I think what we know is that when they leave, as alleged, when we leave, when they leave the premises, they make, again, they make another racial slur.

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They start, they say something to the effect of that, you know, it's funny, they're leaving their Christmas lights on, these immigrants are leaving this Christmas lights on.

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And we know that that... It seems to cut the other way.

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They don't know it's Chinese New Year.

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They're assuming that they're

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untimely.

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I think if we draw the inference in favor of the Jiangs, not in favor of the United States, the inference is given the totality of the complaint where Hurt is accusing or demanding that He can cede something that's still unknown.

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He's calling him an immigrant.

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He's saying you're not an American.

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He's doing all of these things.

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That

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essentially, I think, colors the entirety of the event on February 12, 2021.

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Is it important to you that the defendants know that this is the Chinese New Year?

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What if we think that that's not been alleged?

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If you think that's not been alleged, then I think that's just one factor.

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It's not the only factor that we rely on.

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So for the aiming, if we think the aiming at the victim is important, the aiming at the family, you would rest on that they're going to the home to talk about a workplace?

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grabbing the parent who's at the lead, all of them are shuddering behind him.

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I think that there is an understanding while that continues.

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It's not like, you know, Perch sees that there's a family says, OK, I'm backing off and I'll see you in the office on Monday.

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That's not what happens.

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Instead, he continues to harangue her in front of his family.

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I think that's sufficient to allow us to go to the next stage of this case.

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We have to look at what inferences are reasonable.

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Now, if these were known mafiosi, then coming to the house and basically, we know where you live and being aggressive about this event, that might be a reasonable inference.

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But these are government employees and in protective service.

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This still has been intimidating Mr. Ha for months.

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A judge, it was more than months.

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It was over the course of years, nearly.

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I think I've heard probably a half a dozen jury issues just in the discussion.

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Yes.

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Isn't your, rather than parsing all of this,

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Isn't this the common sense way of looking at this, especially in the light most favorable to the plaintiffs, is that people came, banged on the door, grabbed, unconsented, the head or the father or the leading person, the leading defender of the home, because that's the person who kind of comes to confront whoever's on the other side of the door.

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And everyone is standing behind the prime defender of the castle and sees this man grab him by the wrist and calling him racial slurs.

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And notwithstanding all of that, points a finger as if a gun at a child.

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Wouldn't it be reasonable for at least that child

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to have some sort of fear that harm could come to them and that a person was intending to place fear in the heart of that child.

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You don't point a finger looking like a gun at a child to, you know, endear yourself to them necessarily.

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And since

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that one count is a group count with respect to one count of assault with all five or whatever of those family members other than her.

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The only way the government wins is if none of them were, the assault isn't pled with respect to any of those people.

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When you look at the big picture here, isn't that really what this case comes down to?

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I agree, Judge Wilkins.

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And I think that the fact that the federal agents came, as they did, dressed all in black with and stayed in front of the family, knowing the family was there to continue the harangue that commenced at work against Mr. He.

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and acknowledge the presence of the family with this, make this finger gun, puts all of them in apprehension that it's not just Mr. Huh.

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that they're coming after.

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They came to the family home.

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That has to mean something under Virginia law, and it does.

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These are triable questions.

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We ask that the court reverse the district court and remand for proceedings consistent with our second amendment complaint.

[00:15:21] Speaker 02:
Thank you.

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We'll give you a couple minutes in reply.

[00:15:23] Speaker 04:
Thank you very much, Judge.

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Mr. Simon.

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May it please the court.

[00:15:41] Speaker 03:
I think it's important to look at the allegations in the complaint.

[00:15:45] Speaker 02:
One question first.

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Is this guy Perth still employed there?

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He is not still employed.

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He left the State Department.

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If I could just give some quick background.

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And there are many points I would like to address with the court's indulgence.

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According to the allegations in the complaint, Ha had not engaged with Pert, I think, for two years before this encounter.

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There had been a two-year gap because Ha had left the State Department and came back to the State Department.

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This administrative investigation was still ongoing and hadn't been closed yet.

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February 9th, according to paragraph 5 of the amended complaint,

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He receives a communication from PERT to try to set up an in-office interview.

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We need to remember this is COVID.

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The allegations in the complaint are that he was quarantining.

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He was teleworking.

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This incident occurred at 4 PM on a Friday during business hours.

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When you telework, your home becomes your duty station.

[00:16:51] Speaker 01:
But he was quarantining, meaning, I mean, I see there's no allegation of threat of bodily harm through contagion.

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The reason that a person is teleworking and that people are quarantining is so that they will not be physically in the same space as their colleagues.

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So why isn't calling and waiting for an email reply, which apparently Mr. He had sent by the time a pair shows up, good enough?

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Well, with all due respect, Your Honor, this is really just background.

[00:17:30] Speaker 01:
I don't believe that's germane to the question of whether the elements of assault have been... Well, it's a little bit to the circumstances, at least as Mr. Ruppert talks about them, bringing a dispute that belongs in the workplace.

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physically to the home.

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And you're right to point out this is during work hours.

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And there's a little bit of difference in characterization where the plaintiffs emphasize that they were getting ready for a family festival, a Chinese festival, the family's getting ready.

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And it sounds like it may have been on Mr. He's duty hours.

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But I guess I'm just asking what

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why it isn't a reasonable inference from the allegations of this complaint, that at least it's one of several facts that plaintiffs claim are relatively aggressive for the security officer to show up personally at the home.

[00:18:29] Speaker 03:
Merely showing up at home is not an assault under Virginia law.

[00:18:32] Speaker 01:
No, I know.

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You have to have it.

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But is it usual?

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Is it necessary?

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It feels aggressive.

[00:18:38] Speaker 03:
Even if the court were to infer it was aggressive, it is not an overt act directed to the family.

[00:18:45] Speaker 05:
What's paragraph 107 of the complaint says?

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It says, Fert hurt, then reached and grabbed her's wrist while her was inside the threshold of his home.

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Yes, Your Honor.

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Isn't that a plausible allegation of an assault against her?

[00:18:59] Speaker 05:
But this is not...Huzz, the claims that... Answer my question.

[00:19:04] Speaker 05:
Is that a plausible allegation of an assault against Huzz?

[00:19:07] Speaker 03:
Well, Your Honor, it's followed by the statement that he was trying to hand him a business card.

[00:19:11] Speaker 05:
So you'd have to... Grab somebody's wrist to hand them a business card?

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Grab my wrist and you're going to get a two-piece with a business card.

[00:19:20] Speaker 03:
Assuming it's an allegation of assault by Hudd, that is not the assault.

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Hudd may have a claim of assault, although that's been dismissed for other reasons, but that is not an assault from his family.

[00:19:31] Speaker 05:
My point is, I know that that's not the assault that's at issue in this count because it's the other plaintiffs besides Hudd.

[00:19:40] Speaker 05:
My point is, isn't that a plausible allegation of an assault against Huh that his family witnesses?

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And then you go further to the complaint, to paragraph 113 on the next page, that Huh's minor children begin to cry, and Huh could feel his wife trembling behind him.

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And then he proceeds to point a pretend gun

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at her son and press the thumb down as if he's shooting.

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That's paragraph 114.

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So if they're all watching her get assaulted and they are trembling and crying, and the response to that is to point the pretend gun at a child,

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Why isn't that an intent to cause fear?

[00:20:41] Speaker 05:
It's certainly not an intent to de-escalate the situation, at least reading everything in the light most favorable to the plaintiffs.

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Why isn't this a simple case of there's enough that's been pled here, whether they can prove it or not or get any damages or not is something else.

[00:21:04] Speaker 05:
But what are we doing here?

[00:21:06] Speaker 03:
The standard, there needs to be a plausible allegation that an over act caused was capable of causing

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imminent bodily harm to the victim claiming assault.

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So it has to be reasonable.

[00:21:23] Speaker 01:
Where are you getting that from?

[00:21:23] Speaker 01:
Or apprehension of such conduct.

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Or apprehension of such conduct.

[00:21:28] Speaker 01:
None of the over docs has to be capable of causing harm.

[00:21:31] Speaker 01:
It has to make the people reasonably feel like I'm going to be harmed.

[00:21:36] Speaker 03:
Right.

[00:21:36] Speaker 03:
But the reasonableness part means that the act has to be capable either actually or in appearance of causing harm.

[00:21:43] Speaker 03:
That's the Carter case.

[00:21:45] Speaker 01:
No, no, no.

[00:21:46] Speaker 01:
It has to be, I think, it has to...

[00:21:52] Speaker 01:
cause a harmful or offensive conduct or cause imminent apprehension of such conduct.

[00:21:59] Speaker 01:
So it itself doesn't have to be.

[00:22:01] Speaker 01:
And I mean, if they're grabbing the dad, why wouldn't the kids fear that they're going to grab them or the parents?

[00:22:08] Speaker 03:
If I could, the Carter case and the Kaufman versus Garnett case make clear, in Virginia, it has to be a reasonable apprehension, not just an apprehension.

[00:22:18] Speaker 01:
But it doesn't have to be that the defendant has already done

[00:22:23] Speaker 01:
conduct that could itself cause harm, and maybe he has here, but that's just to get the standards straight.

[00:22:31] Speaker 03:
Your Honor, I respectfully disagree.

[00:22:33] Speaker 03:
I think the standard is that for it to be

[00:22:37] Speaker 03:
an apprehension that is reasonable, the act committed has to have the capability, whether actual capability, a loaded gun, like real gun, or apparent capability to cause imminent bodily harm in the moment.

[00:22:53] Speaker 03:
Otherwise, the fear, any apprehension is not a reasonable apprehension.

[00:22:58] Speaker 03:
All of the Virginia cases, they talk about holding a cane, a gun, if the gun's not loaded, is still an assault because it has the appearance of being able to cause in the moment, imminently, bodily harm.

[00:23:11] Speaker 01:
In an overt act, I'm reading from Carter,

[00:23:14] Speaker 01:
If a common law assault occurs, then they have the first action intended to inflict harm.

[00:23:22] Speaker 01:
Or if the defendant engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.

[00:23:37] Speaker 01:
So it's intended to make someone fear that they're going to be hurt and actually

[00:23:44] Speaker 01:
reasonably makes them so fear.

[00:23:48] Speaker 03:
It has to be a well-founded fear.

[00:23:50] Speaker 03:
Yeah.

[00:23:51] Speaker 03:
Right.

[00:23:51] Speaker 03:
OK.

[00:23:51] Speaker 03:
And there has to be a card.

[00:23:52] Speaker 02:
What was unreasonable about the fear of these people?

[00:23:56] Speaker 03:
So we're talking about the family.

[00:23:59] Speaker 03:
Whatever happened between the officer and her ended quickly with her trying to hand, saying, I want to hand you a business card.

[00:24:11] Speaker 03:
So at that point,

[00:24:12] Speaker 03:
If the children feared for their father's safety, that's not an assault on them.

[00:24:17] Speaker 01:
But wait a minute.

[00:24:19] Speaker 01:
If you're a child or an elderly parent, and the question is, has a defendant's conduct, was it intended to place me the child or me the elderly parent in fear or apprehension of bodily harm, and does it reasonably

[00:24:43] Speaker 01:
make me fearful.

[00:24:45] Speaker 01:
Seeing, as Judge Wilkins was saying, seeing the head of household be actually physically assaulted in his home seems to me it's reasonable to draw an inference that

[00:24:59] Speaker 01:
If the strong one among us is going to be victimized by these bullies, again, reading the complaint in the light most favorable to the plaintiffs and drawing reasonable inferences in their favor, if the complaint alleges that these two bully, including physically unwanted touching of the dad, how is that not enough?

[00:25:27] Speaker 01:
to show that they intended to place the children and the parents in reasonable fear for their own bodily safety.

[00:25:37] Speaker 03:
Because that act wasn't directed at the family.

[00:25:39] Speaker 03:
It didn't have the potential to physically cause contact to the family.

[00:25:44] Speaker 01:
It doesn't have to itself.

[00:25:45] Speaker 01:
It has to reasonably cause them fear that they will be hurt.

[00:25:51] Speaker 01:
Not just the act that's happened hurt them.

[00:25:55] Speaker 03:
Right?

[00:25:55] Speaker 01:
Virginia law is very- Am I wrong about that?

[00:25:57] Speaker 03:
I respectfully disagree.

[00:25:59] Speaker 01:
Tell me what you think the standard is.

[00:26:01] Speaker 01:
Okay.

[00:26:01] Speaker 01:
Because I thought that we had agreed a moment ago.

[00:26:03] Speaker 03:
So, words alone are not enough under Virginia law.

[00:26:06] Speaker 03:
I'm just going to start just, if I could just build this up.

[00:26:09] Speaker 01:
Words alone are not enough for what?

[00:26:10] Speaker 03:
To constitute an assault.

[00:26:12] Speaker 01:
Because you have to have the overt act.

[00:26:16] Speaker 03:
Correct.

[00:26:16] Speaker 03:
So even if words, even if you say, I'm going to kill you, that is not an assault under Virginia law.

[00:26:22] Speaker 03:
The reason it's not an assault is because a word doesn't have the actual ability to harm a person, and it doesn't have the apparent ability to harm a person.

[00:26:31] Speaker 03:
So you need the overt act has to do one of those two things.

[00:26:37] Speaker 03:
And that then, if there is an apprehension, that makes the apprehension reasonable.

[00:26:43] Speaker 03:
So here you have, let's assume that the grabbing of Hay's wrist meets the elements.

[00:26:52] Speaker 03:
That was not directed at the family.

[00:26:54] Speaker 03:
He was not in reach of the family.

[00:26:55] Speaker 03:
The family was behind Hay.

[00:26:57] Speaker 03:
He stopped and then handed Hay a business card.

[00:27:00] Speaker 03:
He took no steps into the house, he took no steps towards the children, nothing that would create the imminence that's needed.

[00:27:07] Speaker 03:
The hand gesture, I apologize for, but I'll just make this hand gesture to see this, this is not, cannot cause anyone actual harm, nor can it cause anyone apparent harm.

[00:27:19] Speaker 03:
Is it inappropriate?

[00:27:21] Speaker 03:
If it happened, absolutely.

[00:27:22] Speaker 03:
It's not an assault.

[00:27:24] Speaker 01:
Actual harm or apparent, it doesn't have to cause actual harm or apparent harm.

[00:27:29] Speaker 03:
right.

[00:27:30] Speaker 03:
I mean, actual, it has to have the, it has to either actually have the ability to cause imminent harm or have the appearance of the ability to cause imminent harm.

[00:27:38] Speaker 01:
Where are you getting that standard, which is a little different.

[00:27:42] Speaker 03:
I'm getting it from Carter.

[00:27:43] Speaker 03:
There must be some power.

[00:27:47] Speaker 03:
I'm sorry.

[00:27:47] Speaker 03:
This is page

[00:27:49] Speaker 03:
This is hard to always with these, I'm going with the Virginia VA reporter page 47.

[00:27:54] Speaker 05:
Are you in the Supreme Court case or the appellate, the Court of Appeals?

[00:27:58] Speaker 03:
I'm in the Supreme Court case.

[00:28:00] Speaker 03:
There must be some power, actual or apparent, of doing bodily harm.

[00:28:05] Speaker 03:
And then there's just a scenario in Carter where... But apparent power is sufficient

[00:28:14] Speaker 01:
is the next phrase.

[00:28:17] Speaker 03:
My point there is that's Carter.

[00:28:20] Speaker 03:
Carter was a situation where a police officer is doing a traffic stop.

[00:28:24] Speaker 03:
The person makes a movement from their hip, arching towards the officer, doesn't have a gun, but that movement in real time, in the moment, created reasonably imminent fear that the officer might be shot.

[00:28:41] Speaker 02:
There's more language in Carter, and that doesn't go to the word act, it goes to the imminence or the ability to injure someone.

[00:28:56] Speaker 02:
On page, I don't know which page you were reading from, I think it was 841, but 842, the court says,

[00:29:05] Speaker 02:
The definition in Burgess remains valid.

[00:29:08] Speaker 02:
That definition does not require the present ability to inflict harm when, as here, an assailant acts in a manner intended to put the victim in reasonable fear and causes the victim such reasonable fear.

[00:29:23] Speaker 02:
And if you say, we don't know his intent,

[00:29:27] Speaker 02:
I'll give you that, but that's a jury question.

[00:29:30] Speaker 02:
I think we do know his intent, but that's a jury question.

[00:29:33] Speaker 02:
We can't say as a matter of law, but a jury has all of this scenario, this inexplicable campaign of intimidation against this man.

[00:29:46] Speaker 03:
Well, but let's talk about the second component, which is whether it's reasonable apprehension.

[00:29:52] Speaker 03:
That can be decided by the court.

[00:29:54] Speaker 03:
That's an objective standard.

[00:29:56] Speaker 03:
And what you just read from Carter is addressing the fact that the driver didn't have a weapon.

[00:30:03] Speaker 03:
So he didn't actually have the present ability to harm the officer, but the act

[00:30:09] Speaker 03:
created the apparent ability to harm the officer.

[00:30:12] Speaker 03:
That's enough.

[00:30:12] Speaker 01:
One fact situation in which, you know, it seemed to the to the

[00:30:20] Speaker 01:
officer that he had a gun.

[00:30:24] Speaker 01:
And so there's actually quite strong testimony there that the officer in the moment was fearing for his safety when the passenger went like this.

[00:30:34] Speaker 01:
But that's not required.

[00:30:36] Speaker 01:
I mean, I think there's both before that passage from Lynch and after the part that Judge Henderson read and the prior, at least as it comes out in my

[00:30:46] Speaker 01:
version of the prior column, we conclude a common law assault occurs where an assailant engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension.

[00:31:04] Speaker 01:
They don't have to have done any act that seemed to be capable of, at that moment, causing harm.

[00:31:14] Speaker 01:
Well, that is the fact of with it with the in Carter, but it's I think that's not saying that is always the way that we apply the standard.

[00:31:24] Speaker 03:
If that's the case, then words alone would be sufficient.

[00:31:27] Speaker 01:
Well, there has to be overt acts.

[00:31:28] Speaker 01:
What's your response?

[00:31:30] Speaker 01:
What's your response to?

[00:31:34] Speaker 01:
The Mr. Roberts saying that the overt acts are, are many, you know, coming to the home, bringing a dispute to the home that, that belonged to the workplace, banging hard on the door, uh, being dressed in black and masked and, you know, being, leaning into the, to the threshold and grabbing, uh, those are all acts.

[00:32:00] Speaker 01:
What makes them not, in your view, overt acts under the assault provision in Virginia?

[00:32:06] Speaker 03:
Even if you take the characterization, Mr. Roper, acts preparatory to a future battery are not assault.

[00:32:14] Speaker 03:
And so let me give an example.

[00:32:18] Speaker 03:
We have a disagreement.

[00:32:19] Speaker 03:
We stand up.

[00:32:21] Speaker 03:
Looks like there might be something to happen.

[00:32:23] Speaker 03:
I take my glasses off.

[00:32:25] Speaker 03:
That is an overt act.

[00:32:27] Speaker 03:
But the act of me taking my glasses off and putting them on the table is not capable of causing anybody harm.

[00:32:34] Speaker 03:
It doesn't have the appearance of having one.

[00:32:35] Speaker 03:
If I get into a position with my fists up, now suddenly I'm in an overt act where I actually have the capability of causing imminent physical harm.

[00:32:45] Speaker 03:
So knocking on the door, none of that is causing the family

[00:32:53] Speaker 03:
The imminent fear, reasonable apprehension of imminent harm.

[00:32:59] Speaker 03:
Hay didn't have to open the door.

[00:33:01] Speaker 03:
He opened the door.

[00:33:02] Speaker 03:
He could have shut the door.

[00:33:03] Speaker 03:
There's no allegation he tried to shut the door.

[00:33:06] Speaker 03:
These were business associates.

[00:33:07] Speaker 05:
What about the grabbing of the arm and the wrist?

[00:33:11] Speaker 03:
Assume for the sake of argument that's an assault on Hay.

[00:33:14] Speaker 03:
It's not an assault on his family because that act could not have physically

[00:33:21] Speaker 03:
reach them.

[00:33:22] Speaker 05:
So it's not plausible or reasonable to conclude that that act was intended to place folks in fear and people watching in fear.

[00:33:37] Speaker 03:
Well, I'm focusing, Your Honor, on the question of whether that created a reasonable apprehension of imminent harm in the family.

[00:33:44] Speaker 03:
Even if you accept that it was intended to instill fear in the family, that's not enough.

[00:33:49] Speaker 03:
It has to create a reasonable apprehension of imminent harm in the family.

[00:33:54] Speaker 03:
And the family witnessing harm to their father.

[00:33:57] Speaker 05:
Under Virginia law, what does harm mean?

[00:34:01] Speaker 05:
So are you saying that let's suppose

[00:34:04] Speaker 05:
The case that we were dealing with was how?

[00:34:10] Speaker 05:
Does he have to plead that somehow he was injured under Virginia law when his wrist was grabbed?

[00:34:18] Speaker 03:
No.

[00:34:18] Speaker 03:
I don't know about for battery, but for assault, he just has to plead that the physical contact was imminent.

[00:34:26] Speaker 05:
The unconsented touching?

[00:34:29] Speaker 03:
Physical contact, yes.

[00:34:31] Speaker 03:
Is the harm, right?

[00:34:32] Speaker 03:
Well, that's the bodily.

[00:34:33] Speaker 03:
The standard is essentially that you are at risk or you are reasonably apprehending imminent physical contact as a result from the act itself, the overact itself.

[00:34:46] Speaker 05:
Exactly.

[00:34:46] Speaker 05:
My point exactly.

[00:34:48] Speaker 05:
So the basic question is, if it can be done to Mr. Huh, why wouldn't the children or the parents or the wife think that he could brush past

[00:35:02] Speaker 05:
Mr. Ha and grabbed one of them.

[00:35:05] Speaker 05:
Why wouldn't that be a reasonable fear for them to have?

[00:35:09] Speaker 03:
Because he didn't make any movement toward them.

[00:35:12] Speaker 03:
So that he has to take an overt act towards the children.

[00:35:17] Speaker 03:
If he tried to enter the house, tried to move past them.

[00:35:20] Speaker 05:
He engaged the children or at least one of them.

[00:35:24] Speaker 03:
But that act that you say he engaged a child with was not capable of causing that child harm.

[00:35:32] Speaker 01:
Where you're getting this capable of causing harm, you keep coming back to that.

[00:35:35] Speaker 01:
And we've had, I think, three exchanges already where I've probed where you're getting that from.

[00:35:42] Speaker 01:
Because the definitions that I read from Carter of this generally applicable standard

[00:35:48] Speaker 01:
Not the facts in Carter, where the officer did think that actually a gun was being pulled on him.

[00:35:54] Speaker 01:
So yeah, he did think that he was about to be shot.

[00:35:57] Speaker 01:
But that's not the statement of the standard.

[00:35:59] Speaker 01:
That's the statement of the facts that met the standard.

[00:36:01] Speaker 01:
And the standard does not talk about overt acts that are themselves, except for some misapprehension,

[00:36:12] Speaker 03:
It's the difference, Your Honor, between having subjective apprehension and reasonable apprehension.

[00:36:16] Speaker 01:
Not really.

[00:36:17] Speaker 01:
That doesn't track that.

[00:36:18] Speaker 01:
I think reasonable apprehension is, you know, what a person in the situation who's not highly nervous or... And Your Honor, I'm sorry, I apologize.

[00:36:26] Speaker 03:
I hope I'm not interrupting, but also the imminence is also factored into that.

[00:36:31] Speaker 01:
So if, if, um, if Parrott punched the father in the chin,

[00:36:40] Speaker 01:
and the children were right up behind him and the parents right up behind them.

[00:36:48] Speaker 01:
Would that be enough to create, to intend to create the harm and reasonably cause the harm?

[00:36:55] Speaker 03:
That would certainly get much closer because you have to- But would it?

[00:36:57] Speaker 01:
Would it?

[00:36:57] Speaker 01:
I mean, no or yes?

[00:37:00] Speaker 01:
And then you can explain.

[00:37:01] Speaker 01:
You just need to have a sense of where your position is.

[00:37:05] Speaker 03:
If he hits, ha and ha falls to the ground.

[00:37:08] Speaker 03:
And then he's now staring there after knocking out his father, facing the children.

[00:37:12] Speaker 03:
That would create a reasonable apprehension of imminent harm to them.

[00:37:16] Speaker 03:
But here, he grabbed momentarily, because, huh, pulled back and said, you have to respect COVID distancing.

[00:37:23] Speaker 03:
And then he said, I want to hand you a business card.

[00:37:25] Speaker 01:
Did he say that?

[00:37:27] Speaker 03:
That's what it says in paragraph 96, I believe, of the complaint.

[00:37:32] Speaker 01:
I'll take your reference.

[00:37:34] Speaker 03:
If I have it right, it's 95 or 96.

[00:37:37] Speaker 03:
Um, so that's the context.

[00:37:39] Speaker 03:
And this is a business.

[00:37:40] Speaker 03:
This is a ha is there to do business with the father is maybe he's allegedly doing it in an aggressive manner, but is the father.

[00:37:47] Speaker 01:
So hurt hurt is there to do business with her.

[00:37:51] Speaker 03:
It's a business related conversation.

[00:37:53] Speaker 03:
How does it end?

[00:37:55] Speaker 03:
He leaves his business card and and leaps.

[00:37:58] Speaker 03:
So

[00:38:00] Speaker 03:
This is not the type of act towards a third person that can put other people in reasonable fear that they're about to have imminent harm to themselves.

[00:38:13] Speaker 03:
He needs to do some other overt act.

[00:38:15] Speaker 03:
The only other overt act he did was a pretend hand gesture.

[00:38:20] Speaker 03:
And that is not capable in the moment of creating reasonable fear.

[00:38:25] Speaker 03:
I also just note in paragraph.

[00:38:27] Speaker 01:
Do we know whether

[00:38:29] Speaker 01:
hurt is packing.

[00:38:31] Speaker 03:
So, Your Honor, there's no allegation that he has that he's armed.

[00:38:36] Speaker 01:
There's no allegation is that he is a security officer.

[00:38:40] Speaker 03:
Well, he's known to ha to be a law enforcement officer at stake.

[00:38:43] Speaker 03:
If I so I just want to make make clear.

[00:38:45] Speaker 03:
My understanding is that typically

[00:38:49] Speaker 03:
They, these officers are armed, but what's important here is there's no allegation that they saw any weapon on him.

[00:38:58] Speaker 03:
Remember, this is February, 2021.

[00:39:00] Speaker 03:
I think it was 32 degrees out.

[00:39:02] Speaker 03:
Probably we're wearing.

[00:39:03] Speaker 01:
I'm just, so I'm getting at, you know, I had asked you before whether, no, I guess I had been asking Mr. Robert, you know, there is a, if Mr. Perth were a known mobster,

[00:39:20] Speaker 01:
That, it seems to me, would make your case much harder.

[00:39:23] Speaker 01:
Of course, you wouldn't have to defend that case.

[00:39:26] Speaker 02:
And he was to Mr. Ha.

[00:39:30] Speaker 02:
He had intimidated him in the office, at least according to this complaint.

[00:39:38] Speaker 02:
repeatedly, and I don't know that you know what he was talking about, but I thought, you said he came to conduct business.

[00:39:47] Speaker 02:
I thought at some point he said, ambush.

[00:39:50] Speaker 02:
Am I wrong about that?

[00:39:52] Speaker 03:
That's an allegation that one of the statements he made was ambush.

[00:39:55] Speaker 03:
Yes, that's correct.

[00:39:56] Speaker 03:
But the children and the family, there's no allegation they knew about any prior conduct by her.

[00:40:02] Speaker 03:
I'm sorry, by pert to her.

[00:40:03] Speaker 05:
Well, what the family knew was that according to the complaint,

[00:40:07] Speaker 05:
her repeatedly cursed at her and said COVID was caused by people like you and uttered a racial slur at the child, and I'm not going to repeat, at paragraph 114.

[00:40:31] Speaker 05:
So you think that minorities, immigrants, people of color,

[00:40:36] Speaker 05:
If they have racial slurs hurled at them and are being cursed at, that doesn't plausibly create a fear of harm, an apprehension, a reasonable apprehension of harm.

[00:40:51] Speaker 03:
I'm sorry.

[00:40:52] Speaker 03:
Those allegations are certainly disturbing if they happened.

[00:40:54] Speaker 03:
I'm not saying otherwise, Your Honor.

[00:40:56] Speaker 03:
But there were no threat to do violence.

[00:40:59] Speaker 03:
And that's what you need to do.

[00:41:00] Speaker 05:
Well, my experience of racial epithet and cursing

[00:41:06] Speaker 05:
are common prelude to violence.

[00:41:10] Speaker 05:
But there needs to then be an overt act.

[00:41:12] Speaker 05:
Is that fair?

[00:41:13] Speaker 05:
Is that a fair

[00:41:18] Speaker 03:
um inference based on how we know the world works well certain certain racial stories certainly your honor but the question some well i don't know i don't know specifically what the court is is is contemplating saying that that you know you didn't have your you took immigrants don't put put away their christmas lights i'm talking about what's in paragraphs you know 113 114 116

[00:41:49] Speaker 03:
and fundamentally your honor there still needs to be none of those were directed towards the children other than the last one but to be clear the last one according to paragraph 114 was muttered meaning it was made under his breath that's what muttered that's the definition of muttered and the child was several feet away behind the father and the mother okay so we don't know take all of that in the light most favorable

[00:42:14] Speaker 05:
to the plaintiffs and say because they alleged you use the word muttered in their complaint we we can infer that they didn't really hear it even if they even if they heard it it wasn't it was muttered so it was murdered so that's not stated in a threatening way

[00:42:32] Speaker 03:
I'd also just point out that in paragraph 114, they never allege that the family actually experienced fear from the pretend hand gesture or from that statement.

[00:42:48] Speaker 03:
They make that statement in paragraph 113 regarding the grabbing of Huzz wrist.

[00:42:53] Speaker 03:
They never make it with respect to this other overact we've been discussing.

[00:43:00] Speaker 03:
And if you look at

[00:43:03] Speaker 05:
their paragraph says began to cry and he can fill fill his wife trembling behind him yes that's related when people cry and trembling aren't they reasonable to infer they're in fear in fear in fear of what happened to their father but not necessarily got a alleged that that it continued

[00:43:24] Speaker 05:
and didn't stop in order for us to, or otherwise, we can just discount all the allegations that happened after that in the complaint.

[00:43:33] Speaker 05:
That's the way you're saying we're supposed to do this?

[00:43:35] Speaker 03:
What I'm saying is, Your Honor, is that if the children had fear from what happened to their father, their fear about what happened to his person is not an assault on them.

[00:43:48] Speaker 03:
for that to be assault on them, it has to be cause them fear that their bodies will be imminently contacted.

[00:43:56] Speaker 03:
And what I'm saying is they have not made plausible allegations.

[00:43:59] Speaker 03:
They don't even allege they had actual fear of that in paragraph 114.

[00:44:04] Speaker 03:
And if you look at paragraph 198, that's their assault cause of action.

[00:44:08] Speaker 03:
Their basis for alleging reasonable fear is the grabbing of husband's wrist, not what's described in paragraph 114.

[00:44:19] Speaker 03:
If I have any further questions, we would respect the request that the court affirm the judge and pull it.

[00:44:25] Speaker 05:
Thank you.

[00:44:35] Speaker 04:
Thank you, Your Honor, for allowing me another two minutes.

[00:44:38] Speaker 04:
I won't use all of it.

[00:44:40] Speaker 04:
I direct the court's attention to paragraphs 121 and 122.

[00:44:47] Speaker 04:
of the Second Amendment Complaint, which alleges that for several weeks, his four-year-old son wet his bed and was unable to sleep alone.

[00:44:58] Speaker 04:
Both of their sons were unable to sleep alone.

[00:45:02] Speaker 04:
And at 122,

[00:45:06] Speaker 04:
The Second Amendment complaint alleges that the elders, Ron and Wenjing, who are survivors of the Cultural Revolution in China, experienced insomnia and depression and were frightened that this would recur.

[00:45:22] Speaker 04:
I think that's sufficient allegation of fear.

[00:45:25] Speaker 01:
Can I ask you, your briefing relies on how Virginia has adhered to the

[00:45:32] Speaker 01:
Second statement of towards and the section 26 of which says to make the actor libel for an assault.

[00:45:43] Speaker 01:
The other must be put in apprehension of a contact with his own person.

[00:45:49] Speaker 01:
And then the comment adds, it's not an actionable assault to make another fear that the actor will intentionally inflict a harmful or offensive bodily contact on a third person, no matter how closely connected with the other by ties or blood or affection.

[00:46:05] Speaker 01:
And it goes on to talk about if you're afraid that your wife or child is going to be harmed, even though that's

[00:46:14] Speaker 01:
really anxiety provoking, that that isn't enough.

[00:46:20] Speaker 01:
And I just am interested in your response to that.

[00:46:23] Speaker 01:
How do you deal with that?

[00:46:24] Speaker 04:
Thank you, Judge.

[00:46:25] Speaker 04:
I think that that part of the restatement is articulating something very specific that doesn't apply here, which is where someone is told words or overt acts or directed at someone.

[00:46:39] Speaker 04:
And someone, some third person is a part of that

[00:46:43] Speaker 04:
that threat.

[00:46:46] Speaker 04:
I think that this is a lot different because Pert is addressing the family together.

[00:46:53] Speaker 01:
Before you shifted to this case, you said and the other third party is not part of that?

[00:46:58] Speaker 04:
The third party isn't present.

[00:46:59] Speaker 04:
It's not present.

[00:47:01] Speaker 04:
I meant to say present.

[00:47:03] Speaker 04:
I mean, everybody's there.

[00:47:04] Speaker 04:
They're an audience to Pert's performance.

[00:47:07] Speaker 01:
Not just an audience, but they're

[00:47:08] Speaker 04:
They're facing him, and they're behind.

[00:47:11] Speaker 04:
They're the strongest member of their family who's trying to protect them.

[00:47:16] Speaker 04:
And nevertheless, he's still assaulted and an unconsented touching.

[00:47:22] Speaker 01:
So if you're the parent going to pick up your kid at school, and you see them on the playground, and the bully is hitting your kid, the fact that you're witnessing that, isn't it?

[00:47:36] Speaker 04:
That's too distant.

[00:47:37] Speaker 04:
Yes, Your Honor.

[00:47:38] Speaker 04:
And that's what you think this is addressing.

[00:47:40] Speaker 04:
That's what I think, Your Honor.

[00:47:42] Speaker 04:
We ask the court to reverse and remand.

[00:47:45] Speaker 04:
Thank you very much.