Sean Charles Dunn, 37, appears to have arranged for the ultimate take-out order. After spotting CBP agents outside of a Subway shop, Dunn proceeded to abuse them verbally. That is protected speech. What is not is taking your sandwich and heaving it at an officer. Dunn is now facing a charge of felony assault on an officer. U.S. Attorney Jeanine Pirro now wants to throw the book at him. Just in case anyone is interested in the intersection of culinary and criminal matters, I pulled up the relevant statute.

Daina Henry, a transit police detective, gave the details of the incident in a criminal complaint. Dunn at first walks away before returning and continuing a profane diatribe against the officers, who remain calm. It shows Dunn raving, “F**k you! You f**king fascists! Why are you here? I don’t want you in my city!” Dunn then throws his sandwich at officers and runs away with officers in close pursuit.

Dunn appeared to shrug off the incident, saying “I did it. I threw a sandwich.”

It is a little more than that.

I assume that the charge is 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.

I am assuming that a sub sandwich is not “deadly or dangerous weapon”  (It is more of a deli weapon). Moreover, there was no infliction of bodily injury in the case to justify an enhanced penalty.

However, Dunn is still looking at a maximum sentence of eight years, though that is highly unlikely. His actions certainly appear to satisfy the element of a simple assault.

His counsel could hope for jury nullification in Washington, D.C., but absent a favorable judge or jury, the language of the statute leaves little room for a defense. That could leave defense counsel pushing for a plea to a lesser offense, but U.S. Attorney Jeanine Pirro is clearly not in the mood for negotiations, posting “He 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!”

Making this all the more bizarre is that Dunn was a Justice Department employee with the Office of International Affairs within the criminal division. He was promptly fired. (Update: there are now reports that Dunn is an actual attorney. However, other reports say that he held a position similar to a paralegal and his name does not appear on the D.C. bar. If he is a lawyer, he could not be subject to a bar action for his alleged assault on law enforcement.)

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.

That is why he may have to forget about any light plea bargain.

Now Pirro is likely to say you can stick a fork in yourself because you’re Dunn.