HIV-as-terrorism charges dismissed by Macomb County Judge

Macomb County Circuit Court Judge Peter Maceroni has quashed a controversial bio-terrorism charge against a 45-year-old HIV-positive man. The order was entered into the court records June 2 — defendant Daniel Allen’s 45th birthday — and indicates a formal opinion is forthcoming.

Allen will be in court Thursday morning and Maceroni is expected to release his opinion at that time.

“I feel elated,” defense attorney James Galen Jr. said of the order. “The justice system is designed to protect citizens from injustices. It worked.”

Allen was charged in November with use or possession of a harmful device, a bio-terrorism law created in the wake of the Oklahoma City bombings, and amended following the September 11, 2001 terrorist attacks.

The charges stem from an October fight between Allen and his neighbor, Winfred Fernandis Jr., who alleges that Allen bit him in the lip during the fight. But Allen says the incident was merely the final stage of years of anti-gay harassment that Fernandis and his family subjected him to. Allen was arrested hours after the incident by Clinton Township Police, who charged him with assault with intent to maim.

Following the incident, local media grabbed onto the story of a man allegedly biting another man, and during an interview with Fox 2 News in Detroit, Allen disclosed he was HIV-positive. Prosecutors then amended the charges against Allen to include the bio-terrorism charge as well as assault with intent to do great bodily harm less than murder.

Allen still faces charges of assault with intent to maim and assault with intent to commit great bodily harm less than murder. Both are felony charges and if convicted Allen could face up to 10 years in prison for each charge.

The bio-terrorism charges caused outrage, with protests coming from the HIV-positive community and its advocates. Change.org launched an email campaign to pressure Macomb County Prosecutor Eric Smith, a Democrat, to drop the charges, while another group of activists working with Michigan Positive Action Coalition launched a Facebook campaign encouraging people to turn themselves in as HIV or Swine Flu terrorists.

Lawmakers in Lansing weighed in on the charges as well. Rep. Mark Meadows (D-East Lansing) chair of the House Judiciary Committee called the charges “silly” in an interview with Michigan Messenger. Rep. Rick Jones (R-Grand Ledge) said the incident was not terrorism, and the charges should be dropped.

“I have always believed the bio-terrorism was overcharging, and I am glad to see he has been exonerated of that charge,” Jones said in a phone interview from Mackinac Island, where he is attending the Detroit Chamber of Commerce annual policy conference. “Justice is done.”

In addition to the motion to quash the charge submitted by Galen, the ACLU of Michigan and Lambda Legal Defense and Education Fund filed amicus briefs with the court.

Both amicus briefs stressed the impact of bringing the bio-terrorism charges on stigma as well as prevention efforts involving HIV.

Both Galen and his client Allen say the bio-terrorism charges were acts of anti-HIV stigma.

“There’s a lot of homophobia in this country. And there is stigma attached to those who are themselves HIV-positive,” said Galen. “That stigma needs to be smashed.”

“I feel that (the bio-terrorism charge) was HIV hatred,” said Allen.

But Galen hastens to add the ruling from Maceroni “smashes” HIV stigma with a message.

“I truly believe this ruling sends a clear message to prosecutors and law enforcement that people should not be treated differently based on a medical condition,” Galen said.

The ruling has activists elated.

“Equality Michigan is thankful that someone in Macomb County understands the spirit of the law of bio-terrorism,” said Alicia Skillman, executive director of Equality Michigan a nonprofit advocacy group in Detroit. The group works with lesbian, gay, bisexual and transgender people, as well as HIV-positives, to address hate crimes and discrimination. “No person with an infectious disease should live in fear of being jailed due to circumstances beyond their control. We believe those were the circumstances when Mr. Allen was defending himself.”