Assaulting a Federal Agent in San Antonio

18 USC § 111 makes it a crime to assault a federal agent. This law creates three separate crimes. They are:

  1. Simple Assault;
  2. Serious Assault without a weapon; and
  3. Serious Assault with a dangerous or deadly weapon.

Simple assault is a misdemeanor crime. It carries up to one year in jail. In contrast, 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.

The table below summarizes these three crimes.

Penalties for Assaulting a Federal Agent–18 USC § 111

No.OffenseTypeJail TimeFine Amount
1Simple AssaultMisdemeanorUp to 1 year in jail.Up to $100,000.00
2Assault without a weaponFelonyUp to 8 years in jail.Up to $250,000.00
3Assault with a weaponFelonyUp to 20 years in jail.Up to $250,000.00

Next, let’s take a closer look at each of these crimes.

Simple Assault on a Federal Agent

To convict a defendant of simple assault, the government must prove:

  1. That the defendant forcibly assaulted [or resisted, opposed, impeded, intimidated, or interfered with] a federal officer, as described below;
  2. That 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; and
  3. That the defendant did such acts intentionally.

In addition, the words in brackets are different ways to commit simple assault. Finally, a key point of simple assault is it does not require any physical contact between the suspect and agent. See United States v. Hernandez-Hernandez, 817 F.3d 207, 212-213 (5th Cir. 2016).

Serious Assault on a Federal Officer without a Dangerous Weapon.

Social protests can result in protesters being charged with assaulting a federal agent under 18 USC 111.
18 USC § 111 makes it illegal to assault a federal agent. However, the penalty for this crime will depend on how the agent was assaulted. Specifically, if the defendant committed serious assault without using a deadly weapon, then he could face up to 8 years in prison.

To convict a defendant of serious assault without a weapon, the government must prove the three elements for simple assault plus the following element:

  • (Element 4). That such acts involved physical contact with the officer or intent to commit another felony.

Forcibly Assaulting a Federal Officer with a Deadly Weapon

Assaulting a Border Patrol Agent is a federal crime.
Assaulting a border patrol agent is a crime under 18 USC § 111.

To convict a defendant of assault with a deadly weapon, the government must prove the elements for simple assault plus the following element:

  • (Element 4-a). That in doing such acts, the defendant used a deadly or dangerous weapon or inflicted bodily injury.

Defenses against an 18 USC § 111 Charge

A. Challenge the Elements of the Crime

18 USC 111 makes it a crime to assault a federal agent.
Assaults on federal officers frequently occur during political or social protests.

The government must prove each element of 18 USC § 111 to a jury beyond a reasonable doubt. This is a heavy burden for the government. And it presents a defendant with opportunities to defend against an 18 USC 111 charge.

For instance, assume a defendant is accused of assaulting a federal agent during a mass-political rally. One defense option is to challenge the identity of the assailant. In other words, the defendant will argue they arrested the wrong person. And if the protesters wore COVID-19 facemasks, it could prevent the government from identifying the person who assaulted the officer. However, this defense will depend on the facts and evidence of each case.

B. Challenge the Intent Element of the Crime

18 USC § 111 protects federal agents while they are working. For that reason, courts give prosecutors room to prove the intent element of the crime. In particular, the government only needs to prove that the defendant intended to commit an assault on someone. But it does not need to show the suspect “inten[d]ed to assault a federal officer.” United States v. Feola, 95 S.Ct. 1255, 1264.

That is to say, the government does not need to prove that the defendant knew he was assaulting was a federal officer. This makes it a lot easier for the government to secure a conviction.

But, in some very limited circumstances, the Supreme Court allows a defendant to challenge the intent element by showing he did not know the person was a federal officer:

We are not to be understood as implying that the defendant’s state of knowledge is never relevant under [the Forcibly Assaulting a Federal Officer Statute.]. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted . . . negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.

Feola, 95 S.Ct. at 1264.

In short, the Feola exception allows defendants to raise a mistake of fact defense in limited circumstances.

San Antonio Federal Criminal Defense Attorney

Assaulting a federal agent carries stiff federal penalties. However, a defendant charged with this crime has options. He should review the elements of the crime to see if the government can prove its case in court. And in some limited circumstances, a defendant may be able to raise a mistake of fact defense. Consequently, the mistake of fact defense can result in a favorable outcome for the defendant.

Genaro R. Cortez

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578