On January 6, 2021, thousands of people attended President Trump’s Save America rally in Washington D.C. to support his assertions that the 2020 Election was rigged and stolen. Afterwards, many of his supporters marched down Pennsylvania Avenue to the Capitol building where a joint session of Congress was convened to certify the Electoral College vote. Many in the crowd breached the barricades surrounding the building and entered in an attempt to prevent both houses from approving Joe Biden’s victory. The ensuring riot lasted for several hours while people occupied, vandalized and stole from the building. Eventually, the Capitol was evacuated and locked down, but not before thousands of dollars in damage and five deaths occurred. Despite this attempt to disrupt the electoral process, Congress resumed session later that evening and certified the election for Joe Biden.
In the aftermath, the U.S. Attorney’s Office and the FBI began to identify and carry out arrests for hundreds of people who were involved in the riots and committed criminal actions. Many perpetrators revealed their own identities by posting pictures of themselves on social media engaged in illegal activities. Among those was Patrick McCaughey of Connecticut, who was depicted on video assaulting Metropolitan Police Department Officer Daniel Hodges with a clear police shield as Hodges fought to stop a crowd of rioters from breaching the Capitol. On video, Hodges screamed in pain as he was trapped in a doorway. Mr. McCaughey was heard shouting on video “Don’t try and use that stick on me boy” referring the officer’s baton as he pushed forward. “You see me. Just go home. Talk to your buddies and go home. … Don’t try to use that stick on me. I am not hurting you.” He was arrested at his home and charged with, among other offenses, assaulting, resisting, or impeding certain officers or employees.
ASSAULTING FEDERAL LAW ENFORCEMENT OFFICERS – 18 U.S.C. § 111
Federal law protects “any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance.” 18 U.S.C. §1114(a). This is very broad and applies to essential every single person working for the government who is on the clock.
In general, whoever –
- “Forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in [18 U.S.C. §1114(a)] while engaged in or on account of the performance of official duties” (18 U.S.C. §111(a)(1)); OR
- “Forcibly assaults or intimidates any person who formerly served as a person designated in [18 U.S.C. §1114(a)] on account of the performance of official duties during such person’s term of service” (18 U.S.C. §111(a)(2)),
Is subject to the following penalties:
- “Where the acts in violation… constitute only simple assault, shall be guilty of a misdemeanor punishable by a fine [up to $100,000.00] or imprisonment up to one year, or both.”
- “Where such acts involve physical contact with the victim of that assault or the intent to commit another felony, shall be guilty of a felony punishable by a fine [up to $250,000.00] or imprisonment up to 8 years, or both.”
- “If the offender uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, then he shall be guilty of a felony subject to the enhanced penalty of up to 20 years of imprisonment. 18 U.S.C. §111(b).”
CASE LAW REGARDING ASSAULTING A FEDERAL OFFICER
In United States v. Lopez, 710 F.2d 1071, 1074 (5th Cir. 1983), the standard for determining i an officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”:
“Generally speaking, a federal officer engaged in performing the function in which employed, in good faith and colorable performance of his duty, even if effecting an arrest without probable cause, is still engaged in the performance of his official duties, provided he is not on a frolic of his own, and is protected from interference or assault. Of course, as a matter of defense, an accused may present evidence that the officer’s conduct was beyond the reasonable scope of his employment. Further, whether the officer’s conduct outside the apparent scope of his “official” duties is within the protection of the statute may present an issue of fact determinable by the jury.” Lopez, 710 F.2d at 1074 (internal citations deleted).
What is an “assault”? According to the U.S. Court of Appeals in United States v. Acosta-Sierra, 690 F.3d 1111 (9th Cir. 2012), “[b]ecause 18 U.S.C. §111 does not define assault, we have adopted the common law definition of assault as either (1) “a willful attempt to inflict injury upon the person of another,” or (2) “a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.”:
“The first type of common law assault is an attempt to commit a battery. For this type of assault, there need not be physical contact with the intended victim, or reasonable apprehension on the part of the victim. The second type of criminal assault, sometimes called an “intent-to-frighten,” derives from the law of torts, and recognizes the importance of protecting individuals from the mental disturbance of being put in reasonable apprehension of bodily harm. For this latter type of assault, one does not necessarily need to be put in actual danger. Even if one is only put in reasonable apprehension of imminent harm, the suffering is the same in the one case as in the other, and the breach of the public peace is the same.” Acosta-Sierra, 690 F.3d at 1117-1118 (internal citations deleted).
However, the prosecutor is not required to necessarily prove an assault to determine that a crime occurred. A conviction can be sustained if it can be proved that the defendant “resists, opposes, impedes, intimidates, or interferes with any person designated in [18 U.S.C. §1114(a)] while engaged in or on account of the performance of official duties.”
Several U.S. appellate circuits have held that assaulting a federal officer is a general intent crime. This means that the prosecutor does not have to prove that the defendant had specific intent to violate the statute and assault a federal officer, but rather that the defendant only possessed the mindset to violate the law. Defendants cannot claim that their actions can be negated because they were intoxicated by alcohol or drugs. In United States v. Gustus, 926 F.3d 1037, 1040 (8th Cir. 2019), the U.S. Court of Appeals determined “[there is no error] in preventing [the defendant] from presenting a voluntary-intoxication defense, [for] [s]uch a defense is unavailable to defendants being charged with violating 18 U.S.C. § 111(a)(1) because assaulting a federal employee is a general-intent crime.”
In United States v. Feola, 420 U.S. 671; 95 S. Ct. 1255 (1975), the U.S. Supreme Court determined that a conviction under 18 U.S.C. §111 doesn’t require that the offender knew that the victim was a federal employee. “[W]here knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of a substantive offense embodying a mens rea requirement, such knowledge is equally irrelevant to questions of responsibility for conspiracy to commit that offense.” Id at 696. As long as there was evidence that the victim was actually a federal employee (in this case, an undercover police officer), then the offender’s knowledge is irrelevant.
ASSAULTING FEDERAL OFFICERS IS A SERIOUS OFFENSE AND YOU MUST RESPOND WITH AN AGGRESSIVE DEFENSE
Patrick McCaughey and all of the other accused individuals at the Capitol on January 6, 2021 are entitled to be presumed innocent until proven guilty. They are also entitled to have a skilled criminal lawyer in their corner to aggressively protect their rights, assert every defense available, and hold the prosecutor to the legal standard of proving guilt beyond a reasonable doubt.
If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
