Now consider the three charges in North Carolina: subjecting a law enforcement officer to bodily fluid, purposely tampering with a law enforcement officer’s drink and creating a hazardous environment.
I previously expressed surprise over the North Carolina charges. The Chicago charges are more predictable in these cases. We have seen the use of bodily fluids as a form of battery in attacks on police officers.
One question that I had was whether the battery would be elevated for aggravated battery under Section 5/12-2:
§ 12-2. Aggravated assault.
(a) Offense based on location of conduct. A person commits aggravated assault when he or she commits an assault against an individual who is on or about a public way, public property, a public place of accommodation or amusement, or a sports venue.
(b) Offense based on status of victim. A person commits aggravated assault when, in committing an assault, he or she knows the individual assaulted to be any of the following:
(4.1) A peace officer, fireman, emergency management worker, or emergency medical services personnel:
(i) performing his or her official duties;
(ii) assaulted to prevent performance of his or her official duties; or
(iii) assaulted in retaliation for performing his or her official duties.
The language appears mandatory but there is the key qualification of “performing his or her official duties.” Is getting coffee while on duty part of his official duties? The law appears directed as interference with a police activity so, as a criminal defense attorney, I would argue that it does not.
However, this case would seem an example of “retaliation for performing his or her official duties.”
Notably, the Chicago charges do not try to use the same COVID angle in North Carolina. In neither case was the person known to be COVID positive, but the prosecutors still used the pandemic as a foundation for the charges. Even without COVID contamination, it could be argued that saliva carries other dangers but those would also seem to depend on the defendant’s health status.
What is interesting is also the comparison to product tampering laws. These laws are designed to not only punish culprits who do things like post videos of licking ice cream in stores. It is also to product stores and businesses from the loss of sales from consumers who are concerned with the safety and purity of products. Such acts can devastate a manufacturer or even an industry. Notably, in this case, the police said that they will no longer use Dunkin’ Donuts. That is precisely the reaction that these laws seek to avoid. However, these defendants allegedly committed these acts with the intent of that the contamination would not be public. Such acts are committed to secretly take joy from knowing that the officer drank contaminated coffee. That makes it different from many cases like the ice cream licking cases where the culprits post videos of the act.
In Illinois the tampering charge also would raise the foregoing question of the actual risk from saliva:
Sec. 12-4.5. Tampering with food, drugs or cosmetics.
(a) A person who knowingly puts any substance capable of causing death or great bodily harm to a human being into any food, drug or cosmetic offered for sale or consumption commits tampering with food, drugs or cosmetics.
(b) Sentence. Tampering with food, drugs or cosmetics is a Class 2 felony.
(Source: P.A. 96-1551, eff. 7-1-11.)
It is not clear if saliva in a hot cup of coffee present a “capacity” (rather than a threat) of “great bodily harm.”
The Chicago charges are, in my view, a better avenue to avoid such appellate issues. In the end, these are all serious charges, as they should be.