Arrests in Minneapolis for Assaulting Federal Officers

Attorney General Pamela Bondi, who is in Minneapolis today, has announced the arrests of 16 people on charges of assaulting federal officers.

I admit chuckling at the AG’s taking pains to say that the defendants “allegedly” committed the charged offense but then conclusively labeling them “rioters” even though no one, so far, is charged with rioting. (There is a federal rioting offense, Section 2101 of the penal code, but it requires the government to prove that an accused traveled or used communications facilities in interstate or foreign commerce; that’s why most rioting offenses have to be charged, if at all, under state law.)

That’s a quibble. Everyone should support prosecutions of people who assault federal officers, or any police for that matter, while officers are carrying out their essential missions to enforce law and safeguard the public. That’s why it was such a disgrace for President Trump to pardon hundreds of January 6 defendants who attacked and obstructed police. To her credit, Bondi spoke out against violence against law enforcement officers at her confirmation hearing, though there’s no indication that she objected to the president’s pardons.

(To be clear, I am talking about J6 defendants who attacked police, more than 140 of whom were injured, many seriously. I am not referring to the misdemeanor defendants who harmed no one, caused no property damage, and would not normally have been charged — but were because the Biden Justice Department was trying to inflate the numbers in furtherance of the Democrats’ “domestic terrorism” rhetoric. Naturally, Trump officials are now cavalierly invoking the “domestic terrorist” epithet against the agitators they don’t like.)

A few things to bear in mind.

First, the assault offense under Section 111 of the federal penal code is generally easy to prove, as I’ve previously explained (see, e.g., here). That’s because it’s not even necessary to prove assault (putting the government officer in fear of imminent harm), much less battery. The statute also makes it a crime to “resist, oppose, impede, intimidate, or interfere with” a federal officer.

Second, that said, unless defendants plead guilty, these charges will lead to jury trials in Minneapolis, where the Trump administration and its immigration policies are unpopular, and where hard feelings over the deaths of two Americans from Minneapolis in altercations with federal law enforcement are intense. Even if, under normal circumstances, assault cases should be easy winners for the DOJ on the law, I suspect nothing will be easy about these assault cases.

Third, bank on it: the defense in these cases will try to put the government on trial, even though it is not a defense to a charge of assaulting a government officer that one was incensed by something the government officers did. If a defendant claims that he or she struck an officer because the officer unreasonably instigated the confrontation, judges are going to allow the jury to consider that evidence. But if there is not temporal proximity between any provocative action the federal agents took and the charged acts of assault by the defendant, a judge should exclude the former. If the court refuses to exclude such evidence, that would signal to the jury that it should consider acquitting — even if the government has proved the charged assault.

Fourth, based on the pictures Bondi has posted (which, like descriptions of the defendants as “rioters,” she really should not be posting — see Justice Department Manual, e.g., Sections 1-7.500, 1-7.600, 1-7.610), it looks like the assault cases are being investigated by ICE (specifically, its Homeland Security Investigations component). For the same reasons I posited yesterday in connection with the investigation of Alex Pretti’s death, I think this is a strategic blunder. The FBI should be handling the investigation of assault crimes allegedly committed by lawful residents of American cities. The decision to make these HSI cases does not undercut the legitimacy of the charges; I just think the DOJ is making its life more difficult on the matter of convincing Minneapolis jurors to find people guilty.

All that said, the Justice Department is right to protect federal agents. The chances that a person in the community will be hurt are reduced if people understand that the line between permissible peaceful protest and illegal forcible interference will be enforced. To repeat what I contended earlier today, it would be beneficial if the feds could get the Minneapolis police to help them enforce that line; Mayor Jacob Frey and the city’s cops should see that as a matter of vindicating state public safety law, not enforcing federal immigration law.