Trump rally arrest: Botched in two ways

Story highlights

  • Danny Cevallos: Officers should have arrested the guy who threw the punch right on the spot
  • Did police enforce the law a day later for fear of bad publicity, Cevallos asks

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

(CNN)After a Donald Trump rally in North Carolina on Wednesday evening, videos posted online appear to show an attendee haul off and sucker punch protester Rakeem Jones right in the face, as Jones was led out of the event in the custody of sheriff's deputies.

In case you haven't seen the video, almost immediately thereafter, four deputies can be seen bringing the man down and apparently forcibly removing him from the stadium.
    When I said "him" just now, you probably thought I meant the alleged assaulter, identified as John McGraw, 78.
    I didn't. I meant Jones. The guy who got punched in the face. They used that police force on the victim. For what? Using his face to assault someone's fist? Forgetting to duck?
    You're probably thinking, these deputies don't kid around. You might be thinking, if they wrestled the victim to the ground, they probably took a nightstick and a Taser to the suspect, McGraw.
    Not exactly.
    McGraw was not even questioned by police. Nor was he kicked out of the event. Which, if nothing else, sends a very confusing message about what qualifies as an ejectable offense at this particular venue. Boo or wear an opposing party T-shirt? You're out of here. Haul off and punch someone in the face for no reason? Welcome. Enjoy the show. Can we get you some ice for your hand?
    Of course, there's plenty else here, though. And it gets worse.
    Immediately after the rally, the apparent assailant was remorseful, and feared his imminent arrest.
    Just kidding. Actually, McGraw promptly gave an interview to "Inside Edition," saying that the protester Jones deserved what he got, and suggested, "The next time we see him, we might have to kill him." At that time he was not yet under arrest for anything, despite admitting -- nay -- flaunting his crime openly.
    Finally Thursday, McGraw was questioned, arrested by the Cumberland County Sheriff's Office and charged with assault, disorderly conduct and communicating threats. In addition, CNN reports the deputies are the subject of an internal investigation for what they did, or, more appropriately, didn't do.
    You may think that the fact McGraw was eventually charged is a step in the right direction. But two wrongs do not make a right direction. Here's what I mean.
    Sheriff's deputies had the opportunity to arrest McGraw at the time this happened; they did nothing. In fairness, if you watch the video, they may not have been looking at the incident when it happened. But also in fairness, that means we have to believe that not one of the deputies were looking in the direction of persons they were physically escorting out of the event -- for supposedly causing some ruckus.
    Assuming for the sake of argument that the deputies missed the fisticuffs, surely someone told them what had just happened -- that a punch was thrown unprovoked. At that point, they at least had a few witnesses they could talk to. Actually, they had about 11,000 witnesses they could talk to. Many of them were watching, even if the officers were not. The officers did nothing then to follow up on that punch. That is, nothing besides gang-tackling the guy who got punched.
    So then, why did police decide to enforce the assault laws a day later? There's no indication any of the involved deputies had a moment of cool reflection and realized that McGraw might have committed a crime.
    No, it appears the only reason law enforcement decided to care was because citizens posted the video, and news outlets reported on the incident. The indications are that the arrest was not the product of any ongoing police work, but instead was the product of bad PR.
    The Supreme Court has suggested that police officers enjoy considerable discretion in making on-the-spot determinations of criminal conduct. Even if an officer observes two persons jaywalking that officer can exercise his discretion to stop only one; nothing in the Constitution requires him to stop the other.
    Nor do we expect complete, 100% enforcement of all criminal and other violations by the police. That is not economically feasible, nor would it be desirable, especially given the scarcity of law enforcement resources.
    So then, our officers enjoy considerable discretion to arrest -- and also to NOT arrest. Even if it was established that the officers saw the assault go down, they could have pretended they didn't see it. Now, with technology, those days are over.
    For the most part, technology and social media is on the side of the police -- including this case, at least from an evidence standpoint. But in cases like these, the broadcast power of a single iPhone, YouTube, or news website can result in some immediate and damaging press for a police department.
    We give our police considerable discretion to arrest, and also to not arrest. That latter power has equal -- if not greater -- potential for corruption. Police generally help those favorable to them not by arresting them, but by cutting them a break, or looking the other way.
    There's been plenty of discussion in other prominent cases of what happens when police abuse their power to arrest. The question any internal investigation will have to answer in a case like this is: When is looking the other way an abuse of power, too?