Angrily kicking your five-year-old daughter in the chest goes beyond the parental discipline allowed by state law, court rules

The Massachusetts Appeals Court today upheld a man's conviction for assault and battery with a dangerous weapon for kicking his young daughter in the chest hard enough to send her flying to the floor in a drugstore.

Michael Rosa appealed his six-month jail sentence on the grounds his actions were permitted under a 2015 Supreme Judicial Court decision that allowed parents to use "reasonable force" to discipline their children.

But the appeals court said Rosa's actions on Jan. 17, 2017 in a Northampton CVS went far beyond the criteria set by the SJC. Before explaining its legal reasoning, the court first described the incident:

The surveillance video footage and testimony of the CVS employee demonstrate that the defendant's daughter approached him and grabbed his legs. He shoved her in her chest with his hand, causing her to take a step or two to regain her balance. She then attempted to cling to his lower legs with her arms, and he once again shoved her away, this time causing her to step back two or three steps before falling down onto her buttocks; she immediately got back up. According to the CVS employee's testimony, the daughter reacted to this pushing in a playful manner but showed signs of becoming agitated.

The defendant then approached the counter to pay for his coffee. The CVS employee testified that, at this point, the defendant warned his daughter to stay away from him, telling her, "[G]et the fuck away from me. Trust me, you don't want to fucking be near me right now." His daughter came toward him again. In response, the defendant lifted his foot and kicked his daughter in the chest, knocking her to the ground and causing her and her brother to cry briefly.

The surveillance video shows that in response to the kick, the daughter stepped back, lost her balance, fell onto her bottom again, and remained there for approximately two seconds. After getting up, the daughter meandered around the area of the cash register as the defendant finished his purchase, at which point she left the store with the defendant and her brother.

The CVS employee called the police to report the incident, and two police officers stopped the defendant shortly thereafter. During the stop, Northampton police officer Brent Dzialo separated the defendant from his children and asked him why he had kicked his daughter in the chest. The defendant answered, "I don't raise pussies." ...

At the time of the incident, the defendant was approximately five feet, six inches tall, and weighed three hundred pounds. His daughter was approximately three feet tall, and weighed less than fifty pounds.

The court then analyzed Rosa's actions under the three criteria the SJC set for "reasonable" physical discipline, including whether "the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct."

At trial, the defendant justified his action on the ground that he was afraid his daughter might be kidnapped or go missing. Prior to the kick, however, the defendant's daughter repeatedly attempted to stay by his side, only to have the defendant shove her away twice and warn her to get "the fuck away from [him]." Indeed, the defendant admitted at trial that, by the time he kicked her, he no longer feared she would be kidnapped and did not even "want her close by." In light of the defendant's admission that his purportedly legitimate parental purpose was a pretext, the judge could reasonably have found that the defendant's decision to kick his daughter was wholly unrelated to the purpose of safeguarding or promoting the welfare of the minor.

Moreover, prior to the trial, the defendant provided a different explanation for his conduct, stating that he kicked his daughter because "I don't raise pussies." At trial, he explained: "I mean that, in society today, there's a lot of children being bullied in schools and I'm not going to raise my children to be victims." Certainly, the judge could also reasonably have found that the defendant's shifting rationale for the kick belied his assertion that the kick related to a legitimate purpose of safeguarding or promoting the welfare of the minor. Here, the judge expressly found the defendant not to be credible, instead crediting the testimony of the CVS employee that the defendant kicked the daughter in the chest and finding the defendant's testimony that he merely nudged her not credible.

The court also rejected Rosa's argument that his snow boot, or legally, "shod foot," was not a dangerous weapon, citing previous decisions in which footwear has been held to be a dangerous weapon when used in a physical attack:

Here, the evidence demonstrated that the defendant used his snow boot to kick -- not to push -- his five year old daughter in the chest with sufficient force to knock her down onto the ground.

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Comments

There are some heroes in this story

the CVS employee and the responding officer and the judge, who together may have saved this girl's life but teaching the father that he will face serious consequences if he continues to abuse his children.

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Voting is closed. 83

F-bombs aren't a sign of stupidity

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Kicking your kid is a sign of stupidity.

Let's untwist your panties and stay on the subject.

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Voting is closed. 22

The court actually considered that

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Prosecutors said that alone would be enough to prove the guy went too far. The court said, no, cursing by itself would not be enough (it's in a footnote, not the main body of the decision).

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Voting is closed. 16

One of the concurrences said

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One of the concurrences said that, I tend to agree with it. The court was split on why the conviction should be upheld, but afte agreed that it should.

Good job by the trial judge in this case, tough issue.

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Voting is closed. 8

It wasn't a bar fight

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I was just disciplining a stranger when I beat his head into the ground.

I will NEVER understand why "parental discipline" is used as a "free pass" to batter a much smaller human in ways that you would NEVER be allowed to do with anyone else.

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Voting is closed. 49

People that say, "my parents

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People that say, "my parents beat me and I turned out fine" did not actually turn out fine. People who think its fine to beat up children are not decent people.

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Voting is closed. 40

Someone needs parenting classes

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Children's bone structure isn't strong and they can get permanent developmental injuries that could impair any of their growth. A bruise can travel into the brain, if there is an undetected vessel it could hemorrhage. They are fragile 'til seven.

Sad this is even considered acceptable where thousands of folks would love the opportunity to adopt or foster a child.

Children need nurturing,encouragement,discipline and 10 minutes a day of one on one undivided attention. Then they know and learn kindness,love and being special.

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Voting is closed. 5

I thought that children were considered fragile until age 12.

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Yet, anybody of any age can be seriously injured, or even killed outright, by a kick to the chest, stomach, head, the kidneys, the spine, or even the groin.

Yet, it's true that children are especially prone to serious injury or even death by a shod foot or whatever due to the reasons you mentioned above.

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Voting is closed. 4

the defendant justified his

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the defendant justified his action on the ground that he was afraid his daughter might be kidnapped or go missing

Makes perfect sense to me.

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Voting is closed. 12

"finished the purchase?" WTF??????

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You mean to tell me that after he KICKED HIS CHILD IN THE CHEST the cashier finished the transaction???

Gawd I wish this story ended with a bystander absolutely steamrolling this 5'6" 300lb loser immediately after he kicked his child to the ground.

The only logical reaction to this should have been a full shoulder tackle right to the ground (or a right cross) with no hesitation.

There is ZERO reason this tubby sack of shit loser should have walked upright out of that store.

People, when you see wrongdoing on this scale, step the fuck up and do something.

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Voting is closed. 17

super easy to be an InnerwebsToughGuy

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but in the moment people often make different calculations, both for their own safety as well as that of the victim.

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Voting is closed. 32

also missing the point

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it has nothing to do with being an "interwebtoughguy" - you might handle it differently and that is your choice. I understand not everyone wants/chooses to intervein - which sadly empowers these losers even more.

And I never said the cashier should have physically stopped in. My surprise was that she didn't immediately stop everything and call the police vs. finishing a transaction.

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Voting is closed. 10

no, friend

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you wanted to expand upon how you, as apparent owner of the moral high ground, were going to provide "tubby" with a chance to "hit the deck",

and what some of us are trying to tell you is that, bro, it's not all about you, and it's not super cool for you to sit back in the safe glow of your computer screen and judge the cashier for "empowering" someone like this. she most likely was following whatever protocol CVS has in place, and was responding to a different set of situational calculations.

if I pull out a phone and call the police right in front of a person like his, he may take off with his victim, he may get more angry and do something worse, you dont know. and you dont know the physical capabilities of the cashier to take on any of those possibilities.

if this is the CVS i think it is in Northampton, its unlikely he arrived by car and would be found easily on foot.

meantime, I think we all look forward to a detailed list of your perfectly executed social vigilante exploits.

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Voting is closed. 17

She did! She called the

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She did! She called the freaking cops! And he got arrested, convicted, and sent to jail, which seems like a pretty satisfactory outcome! If you were faced with an asshole unhinged enough to kick his child in public, you really think picking a fight with him would be the best course of action?

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Voting is closed. 60

if you see a child or animal

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if you see a child or animal being physically assaulted by an adult and don't intervene you have lost my respect. stand up for those who can't stand up for themselves. calling the cops is a critical step, but who is to say they will definitely catch the person, or that a second - fatal - kick isn't coming?

protect those who can't protect themselves.

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Exactly

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This!

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missing the point

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Agree - the outcome of him being arrested and convicted is a good thing.

But to answer your question - YES, if I see a CHILD being KICKED IN THE CHEST, the guy is getting dealt with. It would be the ONLY course of action. Hello?

My objection is that upon seeing a CHILD being KICKED IN THE CHEST - the cashier's first reaction was to finish the transaction rather than immediately calling the police. (hello?)

The reason cowards do things like this is that he knew nobody was going to do shit - which was confirmed when the cashier finished his friggin transaction.

If I were in line witnessing this and my first reaction (to an assault on a CHILD) was to pull out my phone, I would have some serious soul searching to do afterward.

Nope: tubby zero is hitting the deck

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Voting is closed. 10

Somebody never worked retail

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And then tubby shitstack takes out a gun and ...

Better that he got his ass sent to jail.

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Voting is closed. 25

Took out a phone???

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No. The register area and pretty much all of a CVS is under video surveillance.

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Voting is closed. 12

hello? hello? yes, hello.

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we get it, you think you're a badass, congratulations.

most of us would like to do the same in this situation, but you don't know until you're faced with it what the right course of action is. if you set off a person who is already angry, they may take it out further on the victim or even move to a more inaccessible location where they can't be found.

there's more to it than you being the hero, sorry.

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Voting is closed. 34

what?...

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"set off a person who is already angry?" he just kicked his child in the chest, it's already happening - that is my point.

Hey, if you would feel OK with your decision to watch an assault on a CHILD, stand there, do nothing, then watch the scumbag walk out the door (with their child in tow), and hope the police find the guy - then it says a lot about you.

it has nothing to do with being "badass" or the "hero", it's about doing what is right.

While you obviously disagree, the "right course of action" is pretty clear to me. While a gross guy is KICKING HIS CHILD, the "right course of action" is to step in - not stand around and do nothing.

and certainly, don't finish ringing the guy up while his poor kid is standing there dazed.

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Voting is closed. 6

i get it

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you would like us to feel bad because you are morally and physically superior.

but the whole "well if YOURE OKAY with watching an assault on a CHILD" is not necessary. no one is ok with that, and you know it. you're taking one aspect of the report and turning it into a massive moral failing on the part of the cashier and the rest of us who attempt to understand the many different, many equally rational ways of responding to violence.

you're so intent on being waaay up there on your high horse you're not understanding that things don't work out like in the movies.

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Voting is closed. 13

One has to bear in mind, however, that this kind of vigilantism

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or taking the law into one's own hands isn't necessarily and always a good thing either, because the person who stepped in and started physically beating and kicking the guy who kicked his 5 year old kid in the chest could result in either one of two things: Either the person doing the kicking could turn on the person who physically intervened, the person doing the intervening could also end up in jail, along with the guy who kicked his 5 year old kid in the chest, or the intervener could end up in court and also be charged with assault.

Not a good thing.

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Voting is closed. 8

Retail worker here...

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I am a retail worker. All employees are taught that in situations like this you do whatever is necessary to get the dangerous person OUT OF THE STORE FIRST, then call the cops.

Someone kicking a child is the very definition of a dangerous person.

Why is this the rule? Because some dangerous people have guns on them, and may shoot the clerk, or take hostages. Nobody wants that. And anyone unbalanced enough to shoot, stab, punch, or take hostages will not be stopped by surveilance cameras or multiple eyewitnesses.

In this case it appears this monster did not have a gun on him, but NOBODY KNEW THAT. The store clerk was just doing what his or her employer had previously instructed.

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Voting is closed. 28

well done

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turning around a clear-cut case of child abuse to be "of course we all know its REALLY the lady's fault"

classic misogynistic behavior, perfectly executed.

you should feel bad about yourself in general.

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Voting is closed. 10

Nice sexism there

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We don't know the child's family constellation. And he is her parent, so he wasn't "given her to watch." He may have made some bad choices, but he's responsible for them, and people don't "watch" or "babysit" their own children.

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Voting is closed. 8