I suppose we should have seen this one coming. As elected officials continue to essentially weaponize their executive orders intended to control the spread of the pandemic, we’ve already seen threats of arrests and fines for those who refuse to comply. But one case out of Virginia this week takes things to an entirely new level.

During a pair of demonstrations in Sterling, Virginia this weekend, taking place outside of Donald Trump’s golf course, supporters and detractors of the President were facing off as so often happens these days. One Trump supporter crossed the street and approached some of the other protesters. 61-year-old Raymond Deskins confronted two women while not wearing a face mask, causing the women to shout at him about his failure to observe social distancing protocols. That’s when Deskins “assaulted” them by taking a deep breath and exhaling. And yes… he was later charged with assault. (NBC News)

Kathy Beynette told News4 that she and another woman were protesting President Trump outside the Trump National Golf Club on Saturday. Across the street, a group of Trump supporters were counter protesting.

“Then, quite out of nowhere, the guy came over from across the street, came charging across the street,” Beynette said.

She captured video of the man, wearing a Trump t-shirt and a pool float with Trump’s likeness around his waist, confronting them.

In the video, a woman can be heard telling him, “You’re in my face and you don’t have a mask, so you need to back off.” The man then takes a deep breath and blows.

The encounter was captured on video. You can watch it here from the NBC News feed.

What Deskins did was certainly, at a minimum, rude. And there is a standing executive order for people to wear face masks in public. But being rude isn’t a crime and he wasn’t charged with violating an executive order. Deskins was charged with misdemeanor assault.

I’m having a hard time seeing how this stands up in court if Deskins has an even marginally competent attorney defending him. If it turns out that he was knowingly spreading the virus then I suppose I could see some sort of charge being appropriate. But there’s no indication given suggesting that the man is infected with the virus. Even if he tests positive but hadn’t been tested previously he can make a fully credible argument that he didn’t know he had been exposed.

So if Deskins is either uninfected or was unaware that he was, the only thing he’s guilty of is breathing in the vicinity of someone else. One component of an assault charge, even as a misdemeanor, is intent. And the victim has to be able to demonstrate that some harm was suffered as a result. Neither of those elements will wind up being present absent the conditions I mentioned above. Breathing on people isn’t a crime in this country… at least not yet.

That doesn’t mean that the women didn’t have justifiable cause for concern. This is in some ways reminiscent of some of the horror stories that were going around back in the 80s when the HIV-AIDS epidemic was kicking into full gear. We saw reports of people taking home one-night-stands only to wake up in the morning and find a note scribbled somewhere saying that their partner for the evening was infected with the virus and now the victim probably was too. Sometimes that turned out to be an empty threat, but there were also people who were knowingly going around and engaging in unprotected sex with people after having been diagnosed. That later became a crime in some cases.

But we haven’t reached that level with the novel coronavirus at this point. And Deskins didn’t claim to have the virus in an attempt to scare the women. He just breathed on them. If that’s going to qualify as assault in a court of law in the future, we’re entering a dark chapter in the country’s legal history.