Among a U.S. attorney’s most significant responsibilities is a proper allocation of resources. For every case the office pursues, another goes unaddressed.
That’s why Washington, D.C., U.S. Attorney Jeanine Pirro’s decision to prosecute a man for throwing a sandwich at a federal agent wasn’t just silly, but irresponsible. And in this case, pursuing an assault case against that man was downright lawless.
Pirro should have known better than to file assault charges.
A jury indicated its agreement Thursday when it returned a not-guilty verdict against 37-year-old Air Force veteran Sean Dunn, who admitted he threw a Subway sandwich at a Customs and Border Protection agent. Dunn claimed it was an act of protest against President Donald Trump for declaring an emergency and surging federal law enforcement agents into Washington, D.C.
Pirro should have known better than to file assault charges because the facts didn’t satisfy the elements of the offense. To prove an assault under the federal statute, the prosecution must establish not just that Dunn threw the sandwich at the agent, but that the act constituted a “forcible assault.”
As Judge Carl J. Nichols, a Trump appointee, correctly instructed the jury: to establish a forcible assault, jurors were required to find that Dunn caused “reasonable apprehension of immediate bodily harm.” Anyone who has seen the video of the incident that was played for jurors would find that allegation laughable — if the government’s attempt to punish Dunn weren’t so serious.
As defense attorney Sabrina Shroff argued, “A footlong from Subway could not and certainly did not inflict bodily harm.” The video showed that when Dunn threw the sandwich, it hit CBP Agent Gregory Lairmore — in his bulletproof vest! Lairmore testified that the sandwich “exploded all over his vest,” leaving the smell of onions and mustard on his uniform, even though a photo showed the sandwich on the ground still in its wrapper.
The agent’s testimony elicited laughter in the courtroom.
Regardless of whether any condiments stained Lairmore’s clothing, the point was made. As Shroff pointed out in her closing argument, the prosecution had failed to prove that Dunn had created a “reasonable apprehension of immediate bodily harm,” as the law requires. “If the vest is designed to protect an agent from gunfire,” she argued, “it is “definitely going to keep you safe from a sandwich.”
If the vest is designed to protect an agent from gunfire, it is definitely going to keep you safe from a sandwich.
DEFENSE ATTORNEY SABRINA SHROFF
Following the verdict, Pirro told the press, “Even children know when they are angry, they are not allowed to throw objects at one another.” True, but we don’t charge children with crimes every time they throw a stuffed animal, either, regardless of the indignity it may cause. And as every prosecutor should know, even for adults, criminal law is not the remedy for every wrong. It is also wrong to insult someone or to make an obscene gesture, but we don’t charge people for calling someone a bad name or flipping a middle finger. These acts may be offensive, but they are not criminal.
I agree with Pirro’s basic point that throwing any object at a federal agent creates social harm by making it more difficult for them to do their jobs, and that deterrence is necessary to prevent others from following suit. I also feel sympathy for the agents who, despite some incidents of apparent overreach, are mostly out there just doing their jobs as assigned. Some, no doubt, resent being used as pawns in Trump’s political theater. But criminal charges are not the only remedy available here. In fact, Dunn lost his job as a paralegal at the Department of Justice over the incident. As for criminal accountability, Pirro and her team could have pursued other, more measured options, to hold Dunn accountable: such as a ticket for disorderly conduct or pretrial diversion requiring community service. Instead, the federal government expended its scarce resources staging a high-profile arrest of Dunn at his apartment for the cameras. The White House posted a video of that scene on its social media accounts — in violation of Justice Department policy. Prosecutors occupied the valuable time of a federal grand jury to seek an indictment. Failing to obtain one, they filed misdemeanor charges instead, which require no grand jury approval. Pirro’s people clogged the judge’s docket, summoned jurors and spent three days trying to prove a case that was doomed from the start. Meanwhile, we will probably never know which case went uncharged, just so that the sandwich case could get its day in court. A robbery? A drug deal? An actual assault? Not knowing what Pirro’s office diverted its attention away from is why even an acquittal in this case should leave a bad taste in our mouths. Regardless of whether any condiments stained Lairmore’s clothing, the point was made. As Shroff pointed out in her closing argument, the prosecution had failed to prove that Dunn had created a “reasonable apprehension of immediate bodily harm,” as the law requires. “If the vest is designed to protect an agent from gunfire,” she argued, “it is “definitely going to keep you safe from a sandwich.”
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
