Would someone in America go to jail for tossing a shoe at a foreign official?

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Dec. 23 2008 6:46 PM

How To Prosecute a Shoe-Thrower

Would someone in America go to jail for tossing footwear at a foreign president?

Muntadar al-Zaida, the Iraqi journalist who threw his shoes at George W. Bush, will stand trial Dec. 31, the BBC reported Monday. He's being charged with "aggression against a foreign head of state," which carries a prison term of between five and 15 years. If a reporter here in the United States flung his footwear at, say, Iraqi President Jalal Talabani, would he do time?

Quite possibly. Title 18, Section 112 of the U.S. Code offers special protection for "foreign officials, official guests, and internationally protected persons." Whoever "assaults, strikes, wounds, imprisons, or offers violence" against one of these people can be fined, imprisoned for up to three years, or both. "Assault" under common law covers not only the attempt to inflict harm but also placing someone under the reasonable apprehension of harm, so shoe-throwing might count. If a lenient jury decided that throwing a shoe (and missing) didn't quite rise to the level of assault, they might find the perpetrator guilty of coercing or harassing a foreign official or obstructing the official in the performance of his duties. These lesser offenses carry a sentence of not more than six months in prison or a fine.

Tossing Nikes or Bruno Maglis or Model 271s at the U.S. president, vice president, or president-elect on American soil is an even riskier proposition. If a jury were to treat the action as an assault, the perp could get up to 10 years. If the attack were deemed a mere "threat," then he'd face up to five years.

Of course, there's a chance that the hypothetical flingers mentioned above would face no charges at all. That's up to federal prosecutors, since assaulting, harassing, or threatening either the president or a foreign dignitary is covered by federal law. Naturally, a Secret Service agent or another law-enforcement official would apprehend the attacker, but the case might be considered too frivolous to prosecute. If a U.S. attorney declined to take on such a case, the president or foreign dignitary could, like any private citizen, bring a civil suit against the shoe-flinger. In this case, the defendant would risk paying damages to the plaintiff. *

The U.S. and Iraq are not alone in granting special status to foreign officials, and the concept is not new—it's really an offshoot of the principle that diplomats deserve protection from host states. A few examples: In 1784, the French consul-general to the United States was hit with a cane while at home in Pennsylvania. The court found that as a public minister, the consul's person was "sacred and inviolable" and that the attacker had "violated the law of nations"—not just the laws of Pennsylvania or the United States. In the case of Confédération Suisse v. Ivan de Juth (1927), the Swiss Court of Assizes stated that "representatives of a State on diplomatic mission abroad" are entitled to "special protection." Finally, according to the U.N. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (which entered into force in 1977), signatories must take special care to protect foreign heads of state as well as other official representatives. They should also take into account the "grave nature" of threats or attacks against such persons when designating a penalty.

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Explainer thanks Daniel C. Richman of Columbia Law School and Robert Weisberg of Stanford Law School.

Correction, Dec. 26, 2008: This article originally claimed that a defendant in a civil suit could risk paying a fine and getting probation. The defendant would risk paying damages, and while an injunction is possible in civil suits, "probation" isn't the correct terminology. (Return  to the corrected sentence.)

Juliet Lapidos is a former Slate associate editor.