A recent decision by federal prosecutors in Portland, Oregon to charge a Black Lives Matter protester with misdemeanor assault shows that the U.S. Attorney's Office (USAO) considers throwing food more serious than throwing rocks. The feds allege that Christian Burke threw a large rock at a federal officer, but missed and hit a tree. Three years ago Cyrus Sullivan threw a handful of spicy chips in the face of a Multnomah County Sheriff's Office (MCSO) corrections deputy while being detained on a U.S. Marshals hold. Burke is charged with misdemeanor assault and Sullivan was convicted of felony assault on a federal officer. Sullivan believes that charging decisions like these support his claim that he was selectively prosecuted.
18 U.S.C. 111 is a broad statute that covered just about every conceivable type of assault on a federal employee (https://www.law.cornell.edu/uscode/text/18/111). Section 111(a)(1) punishes all forms of assault except simple assault as a felony. The Ninth Circuit has held that simple assaults are assaults that do not involve physical contact or use of a weapon (https://caselaw.findlaw.com/us-9th-circuit/1182814.html). Sullivan was convicted of a felony under this statute because the chips he threw made physical contact with the deputy. The only material difference weighting against Sullivan here is that Sullivan made physical contact with the officer and Burke did not.. This difference exposes a flaw with the construction of the statute and/or how the statute is enforced by federal prosecutors in the District of Oregon. Current practices permit punishing people that throw food more severely than people who throw rocks.
How can this happen? How could Congress draft an assault statute that classified food throwers worse than rock throwers? Under the current construction a person that throws a rock capable of causing serious injury, but fails to do so, is guilty of a misdemeanor because he did not make physical contact. A person that makes physical contact with no intention of injuring an officer is guilty of a felony. Is that what Congress intended? Section 111(b) is a more serious felony reserved for people that use dangerous weapons, so how large was that rock and how hard was it really thrown? The Ninth Circuit has held that a tennis shoe can be a dangerous weapon depending on how it is used (http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf). In that decision, The Court ruled that a dangerous weapon is an " instrument capable of inflicting such injury with the intent to injure his victim." That leads us to believe that Burke must not have intended to injure the officer according the the USAO or at least the USAO does not believe that they can prove intent. We do not see how they could prove intent to injure because Burke could have intended to hit the tree and his intent may have simply been to frighten. Under those circumstances he might be found guilty of violating Section 111(a) as a misdemeanor simply because he intentionally threw a rock and that rock caused the officers reasonable apprehension of harm. Absent intent to injury, Burke cannot be charged with using a dangerous weapon under 18 U.S.C. 111(b), and because he did not make physical contact his conduct is considered simple assault. If Burke threw the rock and it resulted in a reasonable apprehension of harm on the officer's part then he is appropriately charged with a misdemeanor.
Felony assault charges under 111(a)(1) have been sustained over the years based on behavior as minor as a shoving a prosecutor in court (citation needed). Is that worse than throwing a rock? Of course not, but that is where the line is drawn. As a result people like Sullivan get convicted of a felony for doing something harmless while people that throw rocks can only be convicted of a misdemeanor absent proof of intent to injure. We have not seen the video footage from the Burke case, so we are thinking it probably shows him throwing a rock at a tree and not at a person. If it showed him aiming at an officer and throwing the rock as hard as he could he would probably be charged under 111(b).
Unfortunately for Sullivan there is nothing he can do to challenge his conviction in court anymore. He tried to dismiss the case in 2018 for selective prosecution but lost. Sullivan's lawyers proved that Sullivan was the only federal detainee to be federally prosecuted for assaults on jail staff that did not result in serious injuries over the past 15 years. Sullivan's lawyers produced documents showing that government officials were targeting him in part for his lawfully protected First Amendment activities. Despite those things he lost (https://copblaster.com/blast/1225/selective-prosecution-example-featuring-gregory-ralph-nyhus) because AUSA Greg Nyhus argued that his decision to prosecute was based primarily on history. The reality is that courts just don't want to give the targets of selective prosecutions the ability to commit crimes and then claim selective prosecution.