Sandwich Guy, Thrower of Hoagie–Or Hero?

It’s Nov. 3, a day some recognize as National Sandwich Day. It’s also Day One of United States v. Dunn—U.S District Court Judge Carl J. Nichols declares the matter he’s presiding over “the simplest case in the history of the world.” He says the trial will take no more than two days. Ultimately, it extends into four—a double-decker, if you will.

Sean Charles Dunn, the defendant in this matter, is known to most people (and referred to for the remainder of this article) as Sandwich Guy: the man who, depending on your preferred culinary taxonomy, hurled a hoagie or slung a sub at a Customs and Border Patrol officer serving on President Trump’s D.C. Safe and Beautiful Task Force.

Sandwich Guy is charged with misdemeanor assault under 18 U.S.C. 111(a)(1), which prohibits forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with federal officials or employees “while engaged in or on account of the performance of official duties.” The government initially tried to secure an indictment for felony assault but failed, belying that old adage about the ease with which indictments are typically secured (though it was a human male, not his salami sandwich, under the grand jury’s scrutiny).

The idea that this is indeed a historically simple case is overheard being expressed off-handedly by one juror candidate to another as they exit the courthouse for lunch: “It’s like, did he throw a sandwich or did he not throw a sandwich?”

Yet both parties seem to disagree with the premise. They treat this as a complicated case, one that does not only require extended testimony but also relentless objections and definitional disputes, to the point that the increasingly exasperated judge complains during closings, “I guess we’re just going to interrupt both sides. A lot.”

The reason for this intensity becomes clear: Both sides want to make an example of Sandwich Guy. The government, as a menace to society against whom that society must for the sake of law and order impose punishment, and the defense, as a dissident unfairly targeted for his deeply held ideological convictions. The trial ends in an acquittal. But the proceedings that lead to this verdict feel like a strange sort of performance art—highly amusing and highly menacing at the same time.

The Case of the Exploding Sandwich

The question, as it turns out, isn’t really, “Did he throw a sandwich or did he not throw a sandwich?” (That’s hardly in dispute; even the defense emphasized in its opening statement, “He did it. He threw the sandwich.” The government opted for, “No matter who you are, you can’t just go around throwing stuff at people if you’re mad.”) The question is whether the throwing of the sandwich was, as the defense put it, “a punctuation,” “an exclamation mark at the end of a verbal outburst,” “a harmless gesture that did not and could not cause…injury” or whether it was a violent act, and a federal crime.

Throughout the trial, the prosecution and defense characterize the sandwich throw as either ferocious (the prosecution) or frivolous (the defense). They employ language to match, staging a high-tension courtroom drama: “He takes the sandwich in his hand, he cocks it back,” a lawyer for the government describes, as if the grinder were a gun. Similarly, in a court filing, the prosecution says the sandwich was thrown at “point-blank range.” Later, the lawyer inquires about the “impact” felt by the alleged victim, Customs and Border Patrol Officer Gregory Lairmore. 

“I could feel it through my ballistic vest,” the agent testifies. “The sandwich…exploded all over my uniform. I could smell the onions and the mustard.” As Joseph Conrad’s Kurtz might have testified, “The horror! The horror!”

The defense, in contrast, treats l’affaire de sandwich more as farce. An attorney plays for the jury the final portion of an Instagram video depicting the incident. The now notorious late-night snack lies discarded on the ground, accompanied by a caption, “This sandwich is going up in history.” She asks the victim to identify the sandwich; he says he can’t make a positive verification, because he didn’t go back to collect it. She points out that the paper wrapping is still largely on, the contents essentially intact.

“You don’t see there’s mustard on it?” No. “You can’t tell there’s ketchup on it?” No. “You can’t tell there’s mayonnaise on it?” No. Lettuce? Tomato? “In fact, the sandwich hasn’t exploded at all?”

Cross examination wraps (sorry) with the defense questioning the agent about gag gifts his colleagues conferred on him after the encounter. One is a plushie sandwich. Another is a “Felony Footlong” patch purchased from a vendor in the city. Agent Lairmore put the plushie on his shelf and the patch on his lunchbox. So even the man supposedly harmed by the flinging of the footlong finds the situation funny. He is plainly, under questioning about the assortment of possible toppings on the object with which he was allegedly assaulted, on the verge of laughter. (There’s only one witness besides Agent Lairmore—a D.C. Metropolitan Transit Police detective named Daina Henry, who is all business.)

The jury seems to find all this funny too. We can’t see the jurors on the screens in the dedicated media space, but a reporter in the courtroom confirms that they struggle at times to contain their smiles—and one juror in particular must cover her face with her notebook to conceal herself cracking up. Comments on my Twitter thread recounting the case in assiduous detail include many mentions of how much readers “relish” the coverage. They doubt that the government’s case can “pass mustard.” They proclaim the prosecution “bologna.”

Attorney for the defense Sabrina Shroff emphasizes the joke of it all when she asks in closing: “Would a man genuinely injured, genuinely offended, by having a sandwich thrown at him proudly, happily, joyfully” carry around mementos of the event? The government, prosecuting this case “in some purported effort to keep law enforcement safe and free from food fights,” is trying to turn a “gag-gift worthy moment into a federal criminal offense.”

Sandwich Guy, on lunch break, sits in the cafeteria eating soup.

How to Keep Safe From a Sandwich 

The details of the instructions to the jury matter greatly in determining who prevails. Judge Nichols has determined by the time the trial commences that proving assault is sufficient but not necessary for a guilty verdict; proving any of the other five verbs in that part of the statute would also suffice. The parties spend the following days periodically squabbling over how to define those verbs—plus the essential adverb here, “forcibly.” The defense wants standards for “forcibly” and “assault” both that demand, in short, a real risk of meaningful physical harm. The government prefers a looser interpretation.

The judge, in the end, instructs the jury that they must find Sandwich Guy acted forcibly, regardless of the verb—assault, impede, and interfere turn out to be the most relevant three—they do or don’t conclude he performed. He defines forcibly as “by use of force,” elaborating that a person can act forcibly by “threatening or attempting to inflict bodily harm upon someone, with the present ability” to do so. Assault is “any attempt or threat to inflict injury” that “places another in immediate apprehension of bodily harm.” This injury–as the prosecution prefers–can be “any physical injury…including touching offensive to a person of reasonable sensibilities.”

The defense, in closing, tells the jury that throwing a sandwich doesn’t constitute forcible conduct any more than throwing a stuffed animal—as would, say, an “eight-year-old in the middle of a temper tantrum” —because there’s no real likelihood of bodily harm. As for the immediate apprehension of bodily harm required for assault, the agent was wearing a ballistic vest created “to keep you safe from military rifle fire” and therefore “definitely going to keep you safe from a sandwich.” 

The prosecution, for its part, thinks of force differently: “Here we have the defendant throwing— it’s a sandwich, but throwing it hard.” As for assault, the government homes in on the “offensive” point. “Having a sandwich spiked on your chest. Is that offensive to a person of reasonable sensibilities? Certainly. We have an assault.” During rebuttal, emphasizing the need only for apprehension of harm, the government says, “This isn’t just a sandwich.” It is said sandwich accompanied by “screaming,” “cussing” and attempting to instigate. The judge reminds the jury before they retire that Sandwich Guy’s speech can’t constitute assault or any of the other verbs—it can only provide context as to his mens rea.

The definitional debate continues into the final day of the trial, when the jury submits a note requesting that the judge define “bodily harm.” Is it different from “injury”? The judge eventually decides the terms are interchangeable, and the defense requests a mistrial on the grounds that it built its arguments around the belief the terms were different, with bodily harm to be understood according to its plain meaning. This is only the latest frustration the defense has had these past few days over how the trial has been conducted—the earliest being how all of individualized voir dire was conducted with a husher on, rendering the questioning inaudible to the public.

Stick Your Subway Sandwich Somewhere Else

Judge Nichols’s Day One declaration turns out to be half-right: This should be the simplest case in the history of the world. Arguably it shouldn’t be a case at all, at least not in federal court. Initially, local authorities arrested Sandwich Guy for assault and disorderly conduct; they released him without charging him, and that seemed to be the end of the matter. Until he went viral—at which point the administration suddenly decided to pursue the felony indictment it ultimately failed to secure, sending a SWAT team to his studio apartment even though he had volunteered to surrender and producing a video of the arrest filmed from multiple angles and soundtracked by heavy metal music.

Many times throughout Sandwich Guy’s trial, the government insists that the case isn’t about speech. In one instance, a prosecutor  says, “This case is not about someone with strong opinions. It’s not about immigration. It’s not about the First Amendment. It’s about an individual who crossed the line. Each and everyone of you has a right to their personal beliefs…However, that does not give them the right to touch another person, to strike another person, even with a sandwich.” 

Yet it is difficult to envision Sandwich Guy ending up in this courthouse without his very loudly, indeed tangibly, expressed political opinions as part of the picture. A motion by the defense to dismiss the case for selective or vindictive prosecution was never formally addressed in open court—but the argument there was that other throwers of “soft objects” are “never charged” under § 111, and that Sandwich Guy wouldn’t have been charged either “but for” the government’s retaliatory animus.

This animus is all over the internet: U.S. Attorney for the District of Columbia Jeannine Pirro said in a video posted to social media, “Assault a law enforcement officer, and you’ll be prosecuted. This guy thought it was funny—well, he doesn’t think it’s funny today, because we charged him with a felony. So there. Stick your Subway sandwich somewhere else!” Attorney General Pam Bondi, upon announcing Sandwich Guy had also been fired from his job at the Department of Justice, explicitly held him up as an “example of the Deep State we have been up against.”

Not only is Sandwich Guy only one of almost 20 people charged under § 111 over the summer in the course of the deployment of federal troops throughout D.C. There’s also demonstrably a voracious appetite (sorry again) among members of this administration for shutting down dissent elsewhere in the country. Customs and Border Protection Commander Greg Bovino—currently leading Operation Midway Blitz in Chicago—recently said in a deposition in a case about his team’s use of force against protesters and journalists that he has “instructed his officers to arrest protesters who make hyperbolic comments in the heat of political demonstrations.”

Already, the Trump administration’s executive order on Countering Domestic Terrorism and Organized Political Violence identifies crimes under § 111—the same statute the government has used to charge Sandwich Guy—as first among those investigators should prioritize. The ease with which prosecutors can deploy this law against protesters depends in part on how judges interpret it: how they define forcibly, or assault, or what kind of conduct is sufficient to have resisted, opposed, impeded, intimidated, or interfered with government actors doing their jobs.

Much of the precedent so far comes from cases against people who participated in the Jan. 6 attacks on the U.S. Capitol.

“Assault a law enforcement officer, and you’ll be prosecuted,” Pirro warned with no sense of irony about the fact that she represents an administration that pardoned all the Jan. 6 offenders indiscriminately, or the fact that the prosecutors who brought them to justice have nearly to a person been fired from the office she runs.

But just how low is the bar for assault if you’re protesting against the Trump administration, not protesting in support of Trump’s claim that his election was stolen? It is easy to anticipate how the triumphant calls of “so there” from this administration might extend beyond mere hoagie-hurling to other ways of running afoul of law enforcement. 

Hoagie—Or Hero? 

The jury takes upwards of seven hours to find Sandwich Guy not guilty. The length of time in deliberations, along with the multi-day trial, proves the judge’s claim wrong. The case isn’t simple.

The government tries to depict Sandwich Guy as a criminal capable of endangering the brave Customs and Border Protection officers striving to enforce the president’s agenda. The defense painting him as a form of folk hero. Other D.C. denizens have done the same thing, literally turning him into Banksy-style street art.

According to this view, depending on your palate, Sandwich Guy could be a menace, as the government alleges. Or maybe Sandwich Guy could be a modern-day Abbie Hoffman, the member of the Chicago Seven convicted for intending to incite a riot while crossing state lines as part of his anti-Vietnam War activism during the 1968 Democratic Convention. (The conviction was eventually vacated; in the courtroom, Hoffman showed up dressed in judicial robes; held up his middle finger while he was sworn in as a witness; and urged the presiding judge to try LSD.) Or Sandwich Guy could just be a foolish man who did a foolish thing on a Sunday night on U St.

Or Sandwich Guy could be all of these things. His escapades are a form of protest simultaneously righteous and ridiculous—their ridiculousness rendering them, in the face of overzealous prosecution, even more righteous, like the inflatable dinosaurs boldly marching before militarized law enforcement brigades at anti-ICE demonstrations nationwide. Of course, his antics are also illegal, which is why they had to go to the jury at all. The defense’s Rule 29 motion for dismissal as a matter of a law failed. You actually aren’t allowed to throw a sandwich at a cop. And it is the prerogative of the U.S. attorney’s office to determine that this is a crime which society simply cannot tolerate and for which a person will therefore have to answer to a sometimes-giggling jury.

But no matter how you see Sandwich Guy, the government’s message in forcing 12 citizens of Washington, D.C., to decide his case even after a grand jury had rejected felony charges is clear: Mess with this government, and it will mess with you.

Sandwich Guy may have been acquitted, but that message will leave a bitter aftertaste.