“[t]estimony will reveal that Officers of the Political Defendants did all approach Plaintiff in a menacing and threatening manner, and did put their hands on him as he tried to roll video. He was placed in serious apprehension of his safety.” Amended Complaint, at p. 19. A promise to provide facts to support a claim does not come close to meeting the requirements of Rule 8. Moreover, the acts depicted on the plaintiff’s imbedded video cannot, as a matter of law, constitute assault.
13 December 2010
KingCast helps Nixon Peabody's Gordon MacDonald understand basic Common Law Assault Pleading and Practice in KingCast v. Ayotte, GOP, Nashua PD 2010-CV-501.
In his third count, the plaintiff alleges that,
Oh, really Counselor? Well first of all, there were more acts than shown in the embedded video but we will need Discovery to get into that won't we? Moreover:
United States v. Lee, 199 F.3d 16; 1999 U.S. App. LEXIS 32449 (1st Cir. Mass, 1999) Appendix___
HN3Common law assault embraces two different crimes: one is attempted battery, that is, an intended effort to cause bodily harm to another which falls short of success (an example would be striking at a police officer but missing), regardless of whether the intended victim knows of the attempt. The other branch of assault is an act which is intended to, and reasonably does, cause the victim to fear immediate bodily harm; such "menacing" constitutes assault even if no physical harm is attempted, achieved, or intended.