Criminalizing Awful

It was awful. Disgusting. Repugnant. But was it assault?

A Florida woman who was seen in a widely watched video intentionally coughing on a shopper at a Pier 1 home-goods store last summer, as fears about the pandemic raged, was sentenced on Thursday to 30 days in jail, court records show.

The woman, Debra Hunter, 53, had been charged with misdemeanor assault in June after she walked up and coughed on the shopper, Heather Sprague, who had been recording video of Ms. Hunter’s dispute with employees at the store, in Jacksonville.

Watching Hunter engaged in a dispute about a return with store employees, Sprague decided to video the interaction, as people do. Hunter, already angry, saw Sprague taking the video and chose poorly.

The video went viral and Hunter went to court, where things did not go well for her.

Ms. Sprague said she had undergone surgery to remove a brain tumor 10 months earlier and was still undergoing treatment when Ms. Hunter saw that she was recording and made an obscene gesture.

Sprague’s sensitivity, a product of her surgery, wasn’t merely opportunistic. She had good reason to have heightened fear of COVID. Some might also contend that given Sprague’s reasonable concerns, getting embroiled in a customer’s beef at Pier 1 by being that woman who had to take a video might not have been her best decision either.

“The defendant’s act of coughing in my face at the height of a pandemic was an act that was calculated to attack me at my weakest point, physically and psychologically,” Ms. Sprague told Judge James A. Ruth of Duval County Court, according to a recording of an online sentencing hearing that was posted by First Coast News. “I was stunned in the moment and increasingly fearful in the aftermath.”

There is, of course, no way Hunter would have known of Sprague’s brain tumor surgery, her ongoing treatment, or her peculiar sensitivity. Just because it was Sprague’s “weakest point” doesn’t mean Hunter would have had the ability to “calculate” her attack. How could Hunter have known?

After the encounter, Ms. Sprague said, she struggled to find a Covid test, as diagnostics were not widely available at the time, and ultimately tested negative.

This is not to excuse Hunter’s behavior, which was absolutely awful. But Sprague tested negative. No disease was inflicted. What was inflicted was fear and dread, and perhaps a little spittle. Was this a misdemeanor assault under Florida law?

784.011 Assault.

(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hunter didn’t just threaten to cough on Sprague, but coughed, contrived though it was. But was a cough “violence”?  While it might have given rise to a “well-founded” fear in Sprague that the cough might have given her COVID, it was not based on any evidence that Hunter had COVID to spread, but rather the absence of knowledge that she didn’t. And as the subsequent test showed, Hunter did not spread it and Sprague did not get it.

Florida law distinguishes assault and battery, with simple assault being a second degree misdemeanor and battery being a first degree misdemeanor, which can be accomplished by “Actually and intentionally touches or strikes another person against the will of the other.” Whoever wrote this law has never been in a New York City subway. Assault is the intentional threat of violence that doesn’t happen. Battery is the intentional touching against the other person’s will.

Hunter coughed. There’s no doubt from the video that Hunter’s cough was intentional. There’s no doubt that she was invoking fear of COVID by coughing in Sprague’s face, though it similarly appears that Hunter was ridiculing what she believed to be a hyper-sensitivity to COVID rather than a real threat. Was it violence?

Had Hunter, after her very mature reaction of giving Sprague the dreaded double finger, yelled “stop recording me or I’ll punch you in the nose,” that would have been a threat of violence. Had she then not punched Sprague in the nose, but left as she did, would this have escalated to a criminal prosecution or been written off as another Angry Karen in a Store?

Had Sprague not recorded the interaction, the situation would not have occurred. But Sprague did and not only did Hunter react as she did, but the video went viral and likely precipitated the subsequent prosecution, which might not have occurred but for the video having generated a public reaction. Few things motivate the police and prosecution like public reactions.

At sentence, Hunter explained how this viral video impacted her and her family.

Ms. Hunter said she felt remorse and guilt from “one very poor decision” that had cost her three children nearly all of their friends and had made her feel like a pariah in her community. She said her children had been greatly affected by the hundreds of text messages, emails, phone calls, social media threats and even hand-delivered letters she had received after the video of her coughing on Ms. Sprague gained widespread attention.

“The reality is that my family has been permanently scarred,” Ms. Hunter told the judge. “And although that scar might fade over time, it will never completely disappear. My kids should not have to pay the price for my mistake.”

But this reflected Hunter’s concern for her family’s suffering more than the harm done to Sprague, to whom she gave a cursory apology.

Judge Ruth took issue with Ms. Hunter’s testimony, saying she had expressed more concern for her family than for Ms. Sprague.

“She talked about how it changed her world and, you know, she’s getting the nastygrams on Facebook and things of that nature, and they can’t go to the country club or wherever, and can’t play soccer,” he said. “I get that. But I’ve yet to see any expression — or a significant expression — on her regret about the impact it had on the victim in this case.”

As Sprague’s medical condition gave rise to a greater sensitivity toward being infected with COVID, it’s understandable that this cough would inflict more significant psychological harm than it might otherwise. Hunter’s apology was, indeed, not a particularly significant expression of regret. And Hunter’s behavior was, without a doubt, awful. But people behaving badly happens all the time without rising to the level of criminality or being characterized as “violence.” No physical harm was done to Sprague. Wasn’t public condemnation sufficient punishment for Hunter’s awful behavior? Was it really a crime?

19 thoughts on “Criminalizing Awful

  1. David Meyer-Lindenberg

    Obviously it’d be better to hear from an actual Florida CDL here – Mario? – but FWIW: I don’t think the cough is violence, but infecting Sprague with COVID would be. Thus, the cough is the “intentional, unlawful threat […] by act” to infect her with COVID, as well as the “act which creates a well-founded fear in such other person that such violence is imminent.”

    No physical harm was done to Sprague.

    Right, so it wasn’t battery.

    1. SHG Post author

      Consider the panoply of crimes that could come from the fear of someone being infected with a disease. Are you sure that’s what you think should be “violence”?

      1. Miles

        Amazing how easy it is for the kids to let meaning slide down the slippery slope when they want to. Even give it a nudge when they believe it’s for the best.

        1. David Meyer-Lindenberg

          Hey, (and I’m responding to you too, SHG), I’m not saying I like it, just that I think this assault statute’s broad enough that it can be fairly read to proscribe what Hunter did. I took a similar position on Texas’ agg-assault law in an SJ debate a few years back, when a GJ indicted John Rayne Rivello for sending an epileptogenic twit to Kurt Eichenwald. And there were 1A concerns with that one, too.

          @SHG: The only difference I see between a gob of spittle and an aerosolized cough is the state of matter. Is that good enough to distinguish one from the other for battery purposes?

          1. SHG Post author

            Is it? If we can slide from a gob of spittle to an “aerosolized cough,” why not a breath, which we know also spreads tiny gobs and fuzzy-looking viri? Or ungloved hands that were god knows where? Where does it end?

            1. David

              I dunno, Admiral, but it looks your German son is flexing his prosecutor muscles with this flex. You might want to consider where you went wrong.

          2. Miles

            Statutes are as broad as you want to make them once you take that tiny baby step away from the meaning of violence when it was written. You’re right, it could be. Emanations and penumbras happen.

  2. Onlymom

    Horse pucky. If a citizen can be charged and convicted for assault on a LEO just for laying a pinky on their arm if the officer is either an ass or ine of Every law will be obeyed types. This especially considering the state of society at the very least it was assault. At worse. Terroristic attack with a bio weapon.

  3. Paleo

    This is a situation in which there is no one to root for. Hunter’s behavior was appalling. But what business is it of Sprague’s to record a situation in which she’s not involved. Sure she’s got the right, just like I’ve got the right to eavesdrop in public on a conversation that you’d like to be private. Doing so makes me an asshole, though. Sprague was an asshole in this case.

    If this is assault, why is ignoring a mask mandate and arguing with, say, store employees not assault? If you’re within a couple of feet it’s essentially the same thing.

    Gotta go – need to try to get my three crimes in today before the rain starts.

    1. SHG Post author

      While I wonder why Sprague felt compelled to video in the first place, being an asshole does not mean you get to assault her. On the other hand, the mask issue, while less flagrant than what Hunter did, is substantively little different. And if the police figure this out, there’s no telling how far this could go.

  4. KP

    Isn’t it the same as spitting on a cop?? How would that go down? He just gets a bit wet, no harm done, unless you transmit AIDs or Covid you’ll be right mate!

    1. SHG Post author

      Spitting involves a physical touching. I included the “spittle” in the post to see if anyone picked up on it (which, so far, has yet to happen), but which would make the offense a battery rather than an assault. And yes, the legal debate here has a lot to do with what happened during the early days of the AIDS epidemic, even if the youngsters don’t know about it.

  5. BQW

    Forget the filming, why the heck was such a “vulnerable” person shopping at Pier 1? She needed a candle enough to to risk her life?

  6. Ed Nickinson

    I’m a retired Florida judge (and incidentally a college friend of Judge Mark Dwyer). I had the same reaction to this story as SHG. I don’t think it fits the assault statute. But, spittle or not, I think it fits Florida’s definition of battery. It’s not a particularly aggravated battery, but it’s battery. I thought the 30 day jail sentence was excessive, but that’s not the subject of your post.

    1. SHG Post author

      My college roomie is an active judge down in Florida. He hates that I still call him by his old nickname. I thought the 30 day sentence was excessive as well, but people tend to be shockingly harsh when it comes to sentencing people for conduct they find offensive these days.

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