We’ve all heard the demand, “Video or it didn’t happen,” right? Well, members of a grand jury in Washington DC apparently want us to hold their beer.
Readers will certainly recall this viral video of a man berating federal agents in the capital a couple of weeks ago. Sean Dunn screamed at them while the officers remained patient, right up until Dunn — an employee at the Department of Justice — hit one of the officers with his Subway sandwich. A half-dozen federal officers then pursued and arrested Dunn for battery on a law enforcement officer, a felony (18 USC 111) that could get Dunn a prison sentence of up to eight years:
The video makes the battery plain as day. Any hostile physical contact on another is battery, and the law makes such battery on federal agents a felony — and for good reason. Most, if not all, states make battery on law enforcement officer felonies for the deterrent value, hoping to prevent enforcement/patrol interactions from escalating to violence.
Of course, for deterrence to work, prosecutors have to get indictments. Despite the video making the crime plain to see, however, a grand jury in DC has refused to issue an indictment. And it’s not the first time:
Federal prosecutors on Tuesday were unable to secure a felony assault indictment against a man who threw a sandwich at a federal agent on the streets of Washington this month, according to two people familiar with the matter.
The remarkable failure by the U.S. attorney’s office in Washington was the second time in recent days that it was unable to persuade grand jurors to bring an indictment in a felony assault case against a federal agent. And it amounted to a sharp rebuke by ordinary citizens against the team of prosecutors who are dealing with the fallout from President Trump’s move to send National Guard troops and federal agents into the city on patrol.
The rejection by grand jurors was particularly noteworthy given the attention paid to the case. Video of the episode went viral on social media, senior officials talked about the case, and the administration posted footage of a large group of heavily armed law enforcement officers going to the apartment of the man, Sean C. Dunn, to arrest him.
That does make it noteworthy, but not necessarily unique. The other case likely had body-cam video, since that has become de rigueur for law enforcement agencies, and any battery on an officer would have footage substantiating the crime. Grand juries are not required to use a reasonable-doubt standard for deliberations on indictments; they use the preponderance of evidence standard, allowing prosecutors to build cases to withstand the higher standard at trial. And video of battery as seen in this case arguably meets the higher standard anyway.
So what’s happening? It appears to be a form of nullification by residents of Washington DC serving on grand juries. The Washington Post noted something similar in a story this morning that went up before the news broke of this grand jury’s no-bill result:
A federal grand jury on three separate occasions this month refused to indict a D.C. woman who was accused of assaulting an FBI agent, an extraordinary rejection of the prosecution’s case. Days later, a federal magistrate judge said an arrest in Northeast Washington was preceded by the “most illegal search I’ve seen in my life” and described another arrest as lacking “basic human dignity.”
While judges are known to criticize prosecutors from time to time, grand jurors only in rare cases refuse to issue an indictment, which requires them to find only probable cause that a crime was committed, the lowest evidentiary bar in the legal system. Instances of failed indictments have begun to crop up more since Trump took office this year. Grand jurors in Los Angeles have rejected indictments of people who were arrested for protesting the administration’s immigration enforcement actions, according to the Los Angeles Times.
The July 22 scuffle at issue in D.C. federal court occurred weeks before Trump’s law enforcement order, but the grand jurors were presented with the case this month just as federal agents were descending on Washington.
Prosecutors alleged that Sydney Reid was obstructing and recording agents from the FBI and U.S. Immigration and Customs Enforcement as they attempted to arrest a gang member being released from the D.C. jail who was slated for deportation. An FBI agent scraped her hand against a wall amid the fracas, and prosecutors planned to charge Reid with assaulting, resisting or impeding a federal officer, a felony offense punishable by up to eight years in prison.
In fairness, that case sounds a bit weak, even if body cams caught it on video. Dunn literally threw a sandwich at an officer after failing to get a rise out of the LEO from his deranged berating. Failure to get an indictment from a grand jury with that video cannot be explained any other way than an attempt at nullification.
Dunn isn’t out of the woods yet, though. Prosecutors can call another grand jury to review the case, or they can opt to pursue this as a misdemeanor, which doesn’t require a grand jury. They will have to act fast on Door Number One, however, as they have a 30-day window to seek a felony indictment before having to dismiss the case in the short run. Given the determination of Pam Bondi and Jeanne Pirro to set a deterrent example, I’d guess that they will try another grand jury first but will take Door Number 2 if still unsuccessful or the deadline comes too close.
The issue of nullification, however, may be impossible to overcome. If grand juries in DC won’t indict suspects whose crimes are caught on camera, then they will have to live with the consequences. One has to wonder whether the federal government’s response will be forced retrocession back to Maryland to put an end to most of the problems plaguing the capital. Congress could also end all home-rule policies too, and perhaps even propose a new statutory process for felony indictments to bypass grand-jury requirements. Fewer than half the states (23) require grand juries for felony indictments, with 25 others having them as optional. Connecticut and Pennsylvania have dispensed with them altogether except as independent investigative bodies. If DC’s grand juries want to play games, the Trump administration can play them right back.
Editor’s Note: President Donald Trump is returning Washington, D.C. to the American people by locking up violent criminals and restoring order.
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