| Last week’s acquittal of “sandwich guy” Sean Dunn and the recent conviction of animal-rights activist Zoe Rosenberg form an arresting juxtaposition. Both defendants essentially conceded the facts of the crimes for which they were charged. Dunn hurled a Subway sandwich made from slaughtered turkey parts at Customs and Border Patrol agent Gregory Lairmore in protest of President Donald Trump’s deployment of federal forces in the District of Columbia. Rosenberg rescued four chickens from the Petaluma Poultry slaughterhouse in Sonoma County, California. Dunn was caught on video. Rosenberg, a member of Direct Action Everywhere (DxE), was carrying out an open rescue in which she looked into the camera and explained her actions as she engaged in them. |
| Dunn’s defense team argued that the sandwich he tossed caused no harm. Rosenberg’s lawyers sought to make the same point, indeed, going further to argue that her actions averted harm to the chickens she saved from the suffering they were enduring and their imminent fate. And yet Dunn was acquitted, while Rosenberg was convicted and potentially faces a multi-year sentence. |
| What explains the difference? It’s easy to say these were different cases on opposite sides of the country. And that’s certainly true. But that’s hardly the whole story. |
| Start with Dunn. After the grand jury refused to indict him on felony charges, he was tried for a misdemeanor. His trial unfolded as a small theater piece featuring video of the tossed sandwich striking Lairmore in his bullet-proof (and apparently sandwich-proof) vest. Lawyers, judge, and jury scrutinized his uniform and his reaction to the incident. The defense framed the toss as symbolic political protest—a harmless gesture aimed at challenging the Trump administration’s unnecessary interference in D.C. life. The jurors either concluded that the particular act of sandwich throwing was effectively not an assault or engaged in jury nullification. |
| Contrast Rosenberg. Before the trial, the judge rejected her lawyers’ request to let her present a necessity defense—evidence and a legal instruction that would have allowed the jury to consider whether the unlawful act was justified to avoid “a significant evil.” The judge concluded that under California law, the defense is available only where the harm the defendant sought to avert is to humans, a dubious conclusion under the key precedents. Without Rosenberg’s evidence relevant to a necessity defense, her trial focused on intent, trespass, and property-protection narratives crafted by the prosecutors. The jury deliberated only a few hours before returning guilty verdicts, which is not surprising, given that Rosenberg admitted the elements of the crimes charged. |
| It is relatively easy to understand Dunn’s acquittal. The whole idea of throwing a sandwich as a protest is comical. Agent Lairmore’s not-very-credible testimony that the sandwich “exploded all over him” and that he “could smell the onions and mustard” likely had the opposite of their intended effect, underscoring the triviality of the incident, not its seriousness. Meanwhile, even if the particular jurors were unaware of Jeanine Pirro’s efforts to make an example of Dunn, they surely were aware of the larger political context. |
| Rosenberg’s conviction is also easy to explain, though not to justify. The defense wanted to show jurors the awful conditions of the chickens at Petaluma. However, in addition to rejecting the necessity defense, the trial judge also limited the cruelty evidence that could be shown to the jury. As a result, Rosenberg’s jury did not see her as engaged in an act of moral courage. They saw her as a trespasser and a thief. |
| There is also a geographical dimension to the cases. Dunn was tried before a jury of D.C. residents. Even many such people who have concerns about crime resent the way in which the Trump administration has used the District for political purposes. By contrast, Rosenberg, a UC Berkeley student, went before a jury drawn from a rural community that views animal agriculture as part of normal life. |
| Yet the unfortunate truth is that if Rosenberg had been tried just about anywhere in America, a randomly selected jury would likely have seen animal agriculture as normal because the vast majority of Americans routinely eat chickens, turkeys, and other animal products that come from Petaluma and similar facilities. Rosenberg’s jurors didn’t hear about the cruelty inflicted on the chickens she rescued, and most Americans don’t want to know about the cruelty that makes possible the meals they choose to eat. |
| That is not to say that jurors can never be reached. In 2022, a Utah jury acquitted Wayne Hsiung and Paul Picklesimer on charges of burglary and theft arising out of their open rescue of piglets—even though in that case as well the judge excluded the graphic evidence of cruel treatment of the animals. But such victories are hardly guaranteed. In 2023, Hsiung was convicted and sent to jail for rescuing chickens and ducks from the same poultry slaughterhouse where Rosenberg conducted her rescue. |
| Finally, consider both the sandwich throwing and the chicken rescue through a civil disobedience lens in the tradition of Thoreau, Gandhi, and King, each of whom was at some point imprisoned for taking a moral stand. It is sometimes said that anyone who commits a crime as an act of civil disobedience should be prepared to accept the punishment. Yet while it is certainly true that anyone contemplating law breaking as civil disobedience would be prudent to weigh the possibility of incarceration in deciding what to do, it does not follow that the larger society must punish those who break the law to serve what the lawbreakers regard as a greater good. Where we agree with the ends served by the nonviolent law breaking, we—prosecutors, judges, and juries—may be justified in showing mercy. |
| The likely fact that a D.C. jury was willing to engage in its own act of civil disobedience by nullifying the law rather than ratifying Trump’s authoritarian militarization of local law enforcement is worth celebrating. The fact that a California judge and jury were unwilling to see the cruelty that goes into the supplying of Americans with poultry products—whether for eating or throwing—shows the limits of what courts can do to fight injustice when the people involved in adjudication routinely participate in the very injustice being challenged. |
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