In 1985, Sol Wachtler, the chief justice of New York's Supreme Court, famously said, "Any good prosecutor can get a grand jury to indict a ham sandwich." Perhaps-but indicting someone for throwing a ham sandwich may be tougher than it appears.
A grand jury has reportedly refused to indict 37-year-old Sean Charles Dunn. A former Justice Department employee, Dunn was shown on video shouting obscenities at Customs and Border Protection (CBP) agents standing near 14th and U streets in Washington, D.C., on Aug. 10 and then striking an officer with a wrapped sandwich.
Daina Henry, a transit police detective, gave the details of the incident in a criminal complaint. Dunn initially walked away before returning and continuing a profane diatribe against the officers, who remained calm. The video shows Dunn raving, "F--- you! You f---ing fascists! Why are you here? I don't want you in my city!" Dunn then threw his sandwich at the officers and ran away, with officers in close pursuit.
DC MAN ACCUSED OF HURLING SANDWICH AT FEDERAL OFFICER ESCAPES INDICTMENT
Dunn appeared to shrug off the incident, saying, "I did it. I threw a sandwich."
It was a little more than that.
I assume that the charge was brought under 18 U.S. Code § 111 - Assaulting, resisting, or impeding certain officers or employees:
(a)In General.-Whoever-
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
(b)Enhanced Penalty.-
Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
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The District of Columbia is known as one of the most Democratic and liberal jury pools in the country. However, this may be a case of overcharging in the eyes of the jury.
As I previously noted, a sandwich is not a "deadly or dangerous weapon" (more of a deli weapon). Moreover, there was no bodily injury inflicted in the case to justify an enhanced penalty.
U.S. Attorney Jeanine Pirro promised maximum effort and punishment for Dunn. She posted, "This guy thought it was funny - well, he doesn't think it's funny today, because we charged him with a felony: Assault on a police officer. So there, stick your Subway sandwich somewhere else!"
The grand jury may view this as, at most, a simple assault.
There remains the question of who revealed the vote of the grand jury. There is reportedly an inquiry into the possible violation of the grand jury secrecy rule.
There is a basis for a criminal charge of assault. A refusal to indict even on a lower offense would, in my view, be a form of jury nullification.
The question is whether Pirro will now seek the lower charge. She should do so. Law enforcement officers are not dunk-tank targets for any citizen with rage issues. There need to be consequences-even if it is only a misdemeanor charge.
As I previously noted:
Dunn created this incident and wanted the notoriety. He succeeded. I expect that there will be a GoFundMe effort to cover his legal costs, and he will enjoy a certain celebrity status. However, while this is not a significant assault, it is an assault on an officer. While he may have been a protester, neither he nor his sandwich qualifies as a hero.
Dunn has already been fired from his position at the Justice Department. He should also face a criminal charge to go with his infamous assault on officers.
This column first appeared on the author's blog, Res ipsa loquitur - The thing itself speaks.
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