What is an assault on a federal officer?
18 USC ยง 111 makes it a crime to assault a federal agent. Notably, this law protects federal agents from assault while they are performing their official duties. For example, it protects ICE agents and Border Patrol officers conducting immigration raids.
Of major interest, this law creates three different crimes. They are:
- Simple or basic Assault;
- Serious Assault without using a weapon; and
- Serious Assault using a dangerous or deadly weapon.
Moreover, these crimes turn on two key facts. They are the injuries to the agent and the weapons used by the suspect.
To illustrate, if the person did not touch the officer or use a weapon, then the crime is a misdemeanor. This means it carries up to one year in jail. In contrast, if the person hurts the officer or uses a weapon during the crime, then the crime turns into a felony. Consequently, the person may face more jail time.
How does the government prove the crime of Simple Assault on a Federal officer?
To convict a person of simple assault, DOJ must prove three facts:
- A person forcibly assaulted [or resisted, opposed, impeded, intimidated, or interfered with] a federal officer;
- The federal officer was forcibly assaulted [or resisted, opposed, impeded, intimidated, or interfered with] while engaged in the performance of his official duty or on account of the performance of official duties;
- A person did this intentionally.
In addition, the words in brackets are different ways to commit the crime of simple assault. And this gives prosecutors more leeway on how to prove their case.
Finally, a key point of simple assault is it does not require any physical contact between the suspect and agent. This means a person can commit an assault without ever touching the officer.
How does the government prove the crime of Serious Assault on a Federal Officer without a Dangerous Weapon?
To convict a person of serious assault without a weapon, the government must prove simple assault plus the following fact:
- (Fact 4): The acts involved physical contact with the officer or intent to commit another felony.
Unlike simple assault, this type of assault requires physical contact between the person and the federal agent. To illustrate, 18 USC 111 makes it a crime to push, shove, or slap an ICE or Border Patrol Agent.
How does the government prove the crime of Forcibly Assaulting a Federal Officer with a Deadly Weapon?
To convict a person of assault with a deadly weapon, the government must prove simple assault plus the following fact:
- (Fact 4-a): The person used a deadly or dangerous weapon or inflicted bodily injury.
This is the most serious of the three assaults. This is because the conduct is the most extreme. In the most common scenarios, the person uses a gun or knife to attack the agent.
What are the penalties for assaulting a federal agent under 8 USC 111?
| No. | Offense | Type | Jail Time | Fine Amount |
|---|---|---|---|---|
| 1 | Simple Assault | Misdemeanor | Up to 1 year in jail. | Up to $100,000.00 |
| 2 | Assault without a weapon | Class D Felony | Up to 8 years in jail. | Up to $250,000.00 |
| 3 | Assault with a weapon | Class C Felony | Up to 20 years in jail. | Up to $250,000.00 |
On the other hand, serious assault without a deadly weapon is a felony that carries up to eight years in jail.
Similarly, serious assault with a deadly weapon is a felony. But it carries up to 20 years in jail.
What are examples of assaulting a federal agent?
- Kicking, spitting, or throwing objects at ICE Agents making an immigration arrest;
- Ramming or driving your car at ICE or Border Patrol Agents;
- Pushing or shoving a Border Patrol Agent who is stopping a noncitizen from entering the country;
- Punching a U.S. Marshal who is making a fugitive arrest;
- Shooting at an ATF agent while the agent is conducting an investigation; or
- Slapping an FBI Agent who is interrogating a suspect.
How do I protest ICE raids peacefully?
To avoid getting arrested for a crime, make sure you read 8 USC 111. This is the law the feds will use against ICE protesters. However, below are some guidelines on how to exercise your First Amendment rights without getting arrested for a crime.
- Do not touch or make contact with an ICE or Border Patrol Agent.
- Do not block in ICE agents with your car.
- If an agent tells you to move back, then move back to a safe space where you do not interfere with the ICE raids.
- Record or film everything for your protection.
- If police arrest your take you into custody, do not resist, kick, or spit on the agent.
- Finally, if police arrest you, ask for an attorney and remain silent.
In sum, the goal of a peaceful protest is to challenge a government policy without breaking the law.
What is the bottom line on 8 USC 111?
Congress passed 8 USC 111 to give DOJ the option of filing federal charges against anyone who assaults a Federal agent. They did this because in many cases, state prosecutors often refused to file charges against suspects for political reasons. Consequently, 8 USC 111 allows the feds to file charges even when state officials decide not to prosecute.
Furthermore, assaulting a federal officer is a serious crime because it carries stiff jail terms. However, the details in these types of crimes matter. A person in this situation should consider the following facts:
- Did her or she make any physical contact with the officer?
- Was the officer injured during the assault?
- Did the person use a gun, knife, or a club during the assault?
The answers to these questions will determine how much jail time a person may get. Most important of all, the answers to these questions will lay the groundwork for a defense in your case.
In addition, a person charged with this type of assault should consider the duress defense. This defense in a nutshell is: “Yes, I did it, but I had no choice.” This defense is possible in some cases. But it is hard to prove. This is because judges do not want people assaulting agents who are doing their jobs.
Finally, people have a right to protest government action. It is our right. However, there is often a fine line between a peaceful protest and a criminal assault. In these cases, your attorney must look at the facts closely to see if the feds can prove the assault.
San Antonio Defense Attorney Genaro Cortez. 210-733-7575.
Genaro R. Cortez is a criminal defense attorney in San Antonio, Texas. He graduated from UT at Austin in 1999 with a bachelors in Economics. After that, he graduated in 2002 from Texas Tech School of Law. Further, Genaro R. Cortez has defended clients charged with assaulting border patrol agents along the Texas-Mexico border.