HIV positive man charged with "possession of a harmful biological substance."

[noamnety]

In Michigan's Macomb County, HIV = Terrorism

(snip)

The story revolves around Daniel Allen, a gay HIV-positive Michigan resident. Last month, Allen got into a dispute with his neighbor, Winfred Fernandis Jr. Fernandis had allegely taunted Allen about his sexual orientation, and after a while, the confrontation between these two folks turned physical, at which point Allen bit Fernandis on the lip.

Police arrived on the scene and arrested Allen under traditional assault changes. But then things took a strange turn for the discriminatory. When Macomb County Prosecutor Eric Smith found out that Allen was HIV-positive -- from a local Fox News television broadcast -- Smith decided to add a new charge, generally reserved for terrorists: possession of a harmful biological substance.

Viewing HIV-positive people as biological threats? Have we traveled back in time to the early 1980s all of a sudden? It's time to let Prosecutor Smith know just how bogus these charges really are by signing this petition.

The charge of possessing a dangerous biological substance stems from a wave of anti-terrorism laws that the Michigan state legislature passed in the aftermath of 9/11. But even the authors of these laws say that Prosecutor Smith is acting way out of line by trying to charge an HIV-positive man with bioterrorism.

(snip)

http://gayrights.change.org/blog/view/in_michigans_macomb_county_hiv_terrorism

There is a link to a petition on the right side of the article (look for a graphic with an orange X).

[Deep13]

1. *sigh* Okay, let's review the absolute basics of criminal law.

Page 1: A crime must be a voluntary act by the defendant. Without commenting on the fight itself, it is pretty clear that suffering from a serious disease is not "possession of a harmful biological substance" because that "possession" is not voluntary. I suppose if I catch pnuemonia I'll be in possession of a harmful, biological substance-pnuemococcal (sp?) bacteria. Now if the defendant purposefully contracted HIV just he could bite people, it would be different. That seems pretty damn unlikely.

[sailor65]

6. Here is one of the basics of criminal law....

...in that you have to actually read the law.

Michigan Penal Code Section 750.200i (The section used in this case) does not broadly criminalize possession. What is prohibits specifically is possession, transport, use, etc., FOR AN UNLAWFUL PURPOSE. There is no Michigan law under which being HIV+ alone is unlawful possession of anything, because the person does not have unlawful purpose.

[Deep13]

16. Right, there's usually a mens rea requirement.

That is a guilty thought. In this case, as you point out, it's for an unlawful purpose. That's an element of the offense. But even offenses that have no mens rea requirement (traffic violations for example) and are classified as strict liability, there still has to be a guilty act. That is to say some voluntary act by the defendant is still necessary. J-walking is strict liability. A person doesn't need to intend to do it to be guilty. On the other hand, if a strong wind pushes a pedestrian across the icy road against his will, there is no offense because it was not voluntary.

[sailor65]

18. I agree

and I think that leads to the question of whether or not the action was defensive in this case. If it was, then Mr. Allen was essentially "Pushed across the icy road" (Nice metaphor for intent by the way) and there was certainly no unlawful purpose. If not the case, then the intent was there, and Mr. Allen will likely face the charge or one like it. I am certain that if it's the former then the prosecutor will drop the charge. The judge must have felt unlawful purpose was at least possible.

The main reason I jumped on this thing is that the linked article makes out as if Michigan has this blanket law that criminalizes HIV+ people, or that a prosecutor applying a law where there MAY have been the required intent or unlawful purpose is a way of criminalizing HIV+ people. I don't like it when anyone grabs at something like this as a way to inflame.

[La Lioness Priyanka]

2. What kind of message does this send?

HIV positive people do not have a right to defend themselves physically because it might constitute fucking bio terrorism. what horseshit

[sailor65]

3. The linked article is disingenuous at best

Allen is not being charged with possession of a substance, rather "Using a biological substance as a weapon, assault with intent to maim and assault with intent to do great bodily harm." He is NOT being charged as simply "Possessing" a substance. The relevant law is not related whatsoever to bioterrorism, but is actually part of a package passed prior to 2001, as amendment to a 1931 set of laws. Actually, the exact same set of laws has been used in prosecutions involving HIV nondisclosures to sexual partners. This particular case is not a gay rights issue and it's a shame it is being presented that way because that will take attention away from the genuine GLBT problems here.

Word here in Macomb County is that the charges will potentially upgrade again to something on the level of attempted murder, depending on transmission.

edited for regrettable spelling......

[ThomCat]

5. What horseshit!

So if you are HIV positive, you are not legally allowed to defend yourself? And if you do defend yourself you get charged with attempted murder?

What a wonderfully backhanded way to implement a double standard in the law. :(

[sailor65]

9. That dog won't hunt.....

your angry reaction to my post doesn't change the fact that my post only does one thing; that is to clarify the fact that Allen is not being charged the way the OP linked article states. The law was not a bioterrorism thing and was not written after 2001 as the OP linked article states. AND.....as I said, the very same law has been used in Michigan to seek justice for sexual partners not informed of their partners' positive status; some of those victims having been gay men. So for the article to treat this as some kind of gay-bash or bioterrorism law is, as I said, disingenuous.

As to defending himself, that may very well have been the case. Those facts have not been fully disclosed yet. I did not advocate for or against Mr. Allen. I advocated against a linked article that is intentionally false with the intent of being inflammatory. And it obviously had the desired effect on you. No fault to you, it's a very volatile issue, especially here on DU.

On edit: Hopefully I got this in before you read this post; I should have said earlier that should it be determined that Mr. Allen was in fact defending himself, then he is no longer carrying out "Unlawful purpose" and the charge would rightly be dropped. I certainly agree with you on self-defense.

[noamnety]

8. You're mistaken. Or else the Chair of the House Judiciary Committee is mistaken.

From http://michiganmessenger.com/29816/state-lawmakers-question-terrorism-charges-for-hiv-positive-man:

"An HIV-positive Macomb County man is facing charges created under Michigan’s 2004 terrorism laws for biting another man in a neighborhood scuffle. That, HIV advocates, state lawmakers and legal experts say is “cowardly” and “nonsense” and increases ignorance and stigma surrounding the virus.

State Rep. Mark Meadows, who chairs the House Judiciary Committee said in an interview he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. The Democrat from East Lansing also said he thought the prosecution was “silly.”"

[sailor65]

11. In the end, we'll certainly see.

but the charge on file at the County is not possession, it is use for an unlawful purpose. And the law being used is part of the pre-2001 package. I was careful to look it up before posting.

I figured my post would be met rather negatively but the article warranted the correction.

[ThomCat]

4. Wow. That prosecutor is displaying his bigotry.

I hope the judge throws that out immediately.

Can the judge sanction the prosecutor for something so obviously biased? Does that ever happen? :(

[CoffeeCat]

7. Allen was WRONG for biting and should be prosecuted...

However, it is equally wrong that he should be charged in the same way that a terrorist is charged.

Many people won't notice this story. Or they won't understand the implications of this, but it is scary. Putting
an HIV person on par with a terrorist is an iterative process that slowly slides homosexuals into a category that
would open the door for abuse--or worse.

Allen should be charged with assault and possibly attempted homicide charges. He was HIV positive and he
did bite--knowing that this could harm someone, or possibly kill them.

However, Allen is clearly not a terrorist. There are plenty of charges that fall within the usual bounds of
the criminal justice system. We do not need to practically classify this person as a terrorist.

As a heterosexual--this stuff terrifies me. We cannot allow our government to incrementally categorize certain groups
of people as terrorists, or treat them as terrorists. That's dangerous, especially given our current laws where
"enemy combatants" can be rounded up, detained indefinitely, denied legal counsel and tortured.

[joeybee12]

10. You're jumping to conclusions as to intent...

...how do you know he bit knowing he could hurt the guy? Did the other guy have him in such a hold that biting him was a reflex reaction because that was the only way he could get out of it? If i were Allen, I'd praise Jebus you weren't my lawyer.

[La Lioness Priyanka]

12. unless he bit in self defense. which, i dont think should be off the table for hiv positive people

[sailor65]

13. Yes

Upthread I mentioned the fact that the law requires "Unlawful purpose." If it's determined he was defending himself which sounds likely then there is no unlawful purpose and under the law he would be free of that particular charge.

[RaleighNCDUer]

14. OTOH, the guy who attacked Allen knew his orientation, and very possibly

knew his HIV status. He initiated the fight anyway.

Just because Allen's defense has potentially lethal consequences, he is not any more at fault - no more than a CC owner is at fault for shooting someone who attempts to mug him.

[sui generis]

15. I want to take his side, BUT

if he knew he was HIV+ and he bit somebody then that was very unwise.

The bigger issue is exactly how did Fox television determine this man's medical status? Was it public information? What was the provenance on that information?

I'm more curious how the news was able to get a free pass to broadcast personal medical records . . .

[La Lioness Priyanka]

17. say you are hiv positive, and some guy mocks you and this fight escalates

would you rather get beaten to pulp or bite the guy? why is the option of biting him off the table for you but someone else can hurt the same guy in self defense?

biting him, while unwise, has very low risk of transmission. 1. he would have to draw blood 2. there would have to be a cut in his mouth

[sui generis]

19. I'm with you 100% - just saying it was unwise.

yeah, the media does NOT report that hydrostatic pressure means people bleed OUT.

More importantly than HIV are all the other bite infections from human saliva that could really ruin someone's day . . .

Still, if given a choice and a moment to think, an elbow, skull or knee makes a better, harder weapon than teeth. Unfortunately, it wouldn't matter whether he bit him or not to the news. The sensational part of the story is that some gay dude with HIV dared to defend himself, thereby confirming everyone's worst fears that all gays everywhere are walking terrorist blood bombs.

Oy - Fox at its finest, as usual.

[La Lioness Priyanka]

20. rather that, that thought of as weak sicklings who you can taunt as much as you want to

with no fear of retribution :)

[noamnety]

21. This is from a comment on a blog

so take it for whatever that's worth:

"Allen's status was not disclosed voluntarily. HIV did not come up until our local Fox News station discovered his status in their investigation, tracked the man down, stuck a camera in his face and asked him if it was true. (At which time he said yes.)"

http://www.thebody.com/content/art54479.html

I also like the rest of the quote from the judiciary guy at that link: "It's like saying that because I breathed on you and I have tuberculosis and we are fighting, that somehow because I have this disease it suddenly becomes more than just that I have this disease," said Meadows, a former assistant attorney general. "The other charges are more than sufficient to deal with the issues involved."

You could make that argument with tuberculosis - or swine flu. If someone travels on an airplane with flu symptoms, is that terrorism now? Or if you have swine flu and take a week off work to stay home, are you considered to be carrying out a terrorist attack against other family members living in the house with you? There are a lot of diseases that are airborne, some of them potentially deadly, but they aren't treated with the same stigma as HIV.

[sui generis]

22. so "discovered his status" means a HIPAA violation.

plain and simple. Unless he posted it somewhere in writing any other assumption used in discovery is hearsay without evidence. I still think Fox should be sued to disclose how they arrived at such an assumption.

Ergo - I'd like to learn how they "investigated" his status, and their motivation in trying to make that case with a gay man.

I am so extraordinarily bound by HIPAA as an employer - on the face of it, that I can't even see WHAT company copays paid FOR. In theory only. At least not legally. The fact is I see all that information in my annual resonciliation down to the penny pap smear and PCR, and results, with a caveat that the information enclosed within is subject to the protections of HIPAA, nudge nudge, wink wink. I also get to see drug test paperwork where the applicant discloses what medicines they take, and what condition is being treated. I have the right to share that information with my business affiliates . . . including national data providers and background check agencies, effectively barring this person from ever working again . . . if I were evil. Certainly I have the option to just "lay off" anyone I think might be hurting my insurance rates, for any reason I can make up, other than what I saw on my company payment report.

I have only ever ordered a piss test once for an employee who I thought needed to be in rehab - not fired. I habitually ignore requests to update integration files from third party providers with whom I have a "business affiliation", including Axcel. Just the same, if such a chain were found by a reporter admitting they obtained the information illegally, the provenance of that information would come back to me in a lawsuit, but once it's out it's toothpaste out of the tube. You can't put it back. Just fyi for anyone who has any false belief that their medical information is private OR protected in any meaningful way.

I am guessing that if he was arrested they did an involuntary blood test at booking, so THAT means that the police released the information to a reporter. Occam's razor.