Odds and endsHIV-as-terrorism case draws national attention

Published 10 December 2009

Two Michigan neighbors got into a fight, and one of them bit the other; when prosecutors learned from a TV report that the man who bit his neighbor was HIV positive, they added the charge of bioterrorism to the charges of assault and assault with intent to maim; prosecutors say the new charge is based on a 2004 Michigan law, passed in the wake of 9/11, which speaks of “possession or use of a harmful device,” and they point to a Michigan Court of Appeal’s ruling that HIV-infected blood was a “harmful biological substance” under Michigan law.

An HIV-positive Clinton Township, Michigan, man facing charges stemming from a fight with neighbors was arraigned in Macomb County Circuit Court on Monday, setting the stage for a potentially explosive case in which prosecutors are for the first time linking laws designed to stop acts of terrorism to an individual’s HIV infection.

Todd Heywood writes that Daniel Allen, 44, stood mute as his attorney James Galen Jr. entered a plea of not guilty before Macomb County Circuit Court Judge Peter Maceroni to charges stemming from an 18 October neighborhood scuffle.

Allen is charged with one count each of assault, assault with intent to maim, and possession or use of a harmful device — the latter charge based on a law passed in 2004 by the Michigan legislature as part of a broader rewrite of terrorism laws in the wake of the 9/11 terrorist attacks. As Michigan Messenger reported, Allen’s case is the first time experts are aware of that HIV has been presented as a bioterror weapon. Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policytold Michigan Messenger that depicting HIV as a bioterror weapon was “the boogey-man characterization of people with HIV.”

Allen is accused of biting neighbor Winfred Fernandis Jr. in the lip during a fight.

Terrorism count added to charges

Galen said he had no idea when he arrived in court on 2 November that he was going to be staring down a terrorism charge for his client. “The prosecutor wished to adjourn to think about additional charges,” Galen said. Galen, though, said his client had a right to face his charges within fourteen days, and District Court Judge Linda Davis agreed that there should be no delay in additional charges.

As a result, Galen said, the prosecutor received a fax which included the possession or use of a harmful device charge as well as the Michigan Court of Appeals ruling in People v. Antoine Deshaw Odom. That ruling found that HIV-infected blood was a “harmful biological substance” under Michigan law, and upheld additional prison time for an inmate who spit bloody saliva at guards during a fight at a Jackson area state prison. The inmate was infected with both HIV and Hepatitis B, although the court was mute on whether Hepatitis B-infected blood was also a “harmful biological substance.”

“I had to digest a 17-page ruling by the