Assistant United States Attorney (AUSA) Christopher Louis Cardani formally charged several people with assaulting federal officers today based on allegations that they shined green laser pointers on Border Patrol agents during protests outside the Mark O. Hatfield United States Courthouse over the weekend. According to The Oregonian at least one officer, U.S. Border Patrol tactical officer Raymond Kent, is named as a victim in the complaint which alleges that at least one of the defendants shined a green laser on his upper body and face in violation of 18 U.S.C. 111. This author has been twice convicted of different offenses under that statute, is educated, and had plenty of time to become an expert on federal assault statutes, so I am writing this article to weigh in with my legal opinion as an expert on assaulting federal officers.
I believe that AUSA Cardani has three possible arguments he may pursue. Two involve felonious assaults resulting in injuries or carried out with weapons and the other involves misdemeanor simple assault based on apprehension of harm. Section 111 is a broad statute that encompasses a wide range of activities ranging from minor assaults without physical contact all the way up to assaults with deadly weapons resulting in serious injuries. The entire statute reads as follows:
18 U.S. Code 111. Assaulting, resisting, or impeding certain officers or employees
(a)In General. Whoever
(1)forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2)forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such persons term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
Whoever, in the commission of any acts described in subsection (a), 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, shall be fined under this title or imprisoned not more than 20 years, or both.
The most serious charge that Cardani could pursue would be a violation if 18 U.S.C. 111(a)(1)&(b). Cardani could obtain a conviction under 111(b) by proving beyond a reasonable doubt that one or more federal officers suffered bodily injuries as a result of the defendants or that the defendants used dangerous weapons to assault the officers. I have not read the criminal complaint that was filed, but I am familiar with the author of the article that I linked to and believe that if they were accused of injuring the officers with the lasers that she would have said so. As ridiculous a theory as the injury with a laser may sound there actually have been successful felony prosecutions across the country based on eye damage caused by lasers. The damage has ranged from temporary pain with blurred vision (https://www.wyff4.com/article/police-student-injures-officer-s-eye-with-laser/6998523) to a burned cornea (https://keprtv.com/news/local/police-officer-suffers-eye-injury-after-an-unknown-person-strikes-with-a-laser-pointer). If such injuries can be proven then convictions under 111(b) can be obtained. Did the laser pointers being used have the potential to cause such injuries? If Cardani can prove that they do then he may be able to sustain a conviction under 111(b) for using dangerous weapons. The Ninth Circuit defines a dangerous weapon as one that is capable of causing serious injury and has ruled that a tennis shoe can be dangerous weapon (http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf). The term "serious injury" includes an injury resulting in "(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty." (https://www.law.cornell.edu/uscode/text/18/1365). If the lasers were capable of damaging the officers' eyes bad enough for them to suffer protracted loss or impairment then the defendants may be found guilty under 111 (b). Can Cardani prove that the lasers in question are capable of such damage? Probably not, most lasers are not that dangerous, so the likelihood of these people being found guilty of violating 111(b) for using lasers absent any claim of injury is quite small.
The most likely outcome from this case would be misdemeanor convictions for simple assault under 18 U.S.C. 111(a)(1). The Ninth Circuit defines simple assault as "either a willful attempt to inflict injury upon the person of another, or 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" (https://caselaw.findlaw.com/us-9th-circuit/1182814.html). A threat can be an action without words. There are a few arguments that Cardani might pursue in support of this:
1) Laser pointers are known to cause eye damage and a reasonable officer would be placed in apprehension of such harm when hit with the laser.
2) Firearms are known to have laser sights and a reasonable officer would fear that someone was aiming a gun at him.
3) The defendants were trying to injure the officers with the lasers but failed to do so.
The first argument is probably the most valid. All officer Kent would have to do is testify that he thought they were trying to injure his eyes and if a jury believes that then he was forcibly assaulted with the lasers. The second argument probably would not work because protesters had been pointing the same lasers at the Portland Police for weeks, so any properly briefed federal agent would already know to expect the lasers, so in this context argument two is not valid. The third one would require that Cardani prove that the defendants' intent went beyond merely annoying the officers by shining lasers in their face, so unless the defendants have been running their mouths in ways indicating such an intent there would be no way to prove it.
18 U.S.C. 111 is a general intent crime which means that the government need not prove that the defendants acted with the specific intent to assault the officers. That means that all Cardani has to prove is that the defendants intentionally committed the acts that caused the officers reasonable apprehension of bodily harm. Cardani does not have to prove that the defendants acted with the intent of causing that apprehension. See United States v. Lamott, "a general intent crime requires only that the act was volitional (as opposed to accidental), and the defendants state of mind is not otherwise relevant."(https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/02/15-30012.pdf).
I conclude that defendants Andrew Faulkner, Taimane Teo, Christopher Fellini, and Cody Porter will most likely be convicted of misdemeanor simple assault in this case.
In my last case, I was convicted of a felonious assault for throwing spicy chips at a jail guard while doing time for violating my supervised release conditions in a threat case. While doing time for the threat I received a consecutive sentence for slapping a federal correctional employee under 111(b) because a bruise was an injury. My chip case resulted in a conviction under 111(a)(1) as a felonious assault involving physical contact that did not cause any injuries. To get the judge to accept my plea, my lawyers and I had to huddle up with the prosecutor and I was told to say that I assumed a threatening stance when throwing the chips and that stance would have caused a reasonable guard apprehension of bodily harm. That is all it takes to find someone guilty under the reasonable apprehension of harm prong.