What are notable recent appellate decisions interpreting threats and menacing conduct under §111?
Executive summary
Federal appellate courts are actively divided over whether 18 U.S.C. § 111 requires “assaultive” conduct (including threatening or menacing conduct that creates an apprehension of harm) as an element of the offense, and recent decisions and authoritative practice guides reveal competing lines: some circuits treat threats and menacing gestures as sufficient force, while others insist on at least common-law simple assault. This split has produced notable appellate rulings such as the Seventh Circuit’s decision in United States v. Stands Alone and contrary Ninth Circuit practice and Supreme Court precedent clarifying mens rea on victim status, with the Department of Justice framing guidance consistent with expansive readings of threatening conduct [1] [2] [3] [4].
1. The Seventh Circuit’s Stands Alone decision and the push against an assault-only reading
In United States v. Stands Alone the Seventh Circuit held that a § 111 conviction does not require proof of common-law assault as an essential element and affirmed convictions premised on resisting, intimidating, or interfering without alleging a “simple assault” in the indictment — a conclusion the court reached while rejecting the contention that the indictment was defective for failing to use the word “assault” [1] [5]. The practical consequence of Stands Alone is to permit convictions under § 111(b) for non-contact conduct that is still forcible or menacing in context, a position that the government has championed as necessary to protect federal officers from obstructive or threatening conduct [1].
2. The circuits that require assault — the Ninth Circuit and circuit splits
By contrast, the Ninth Circuit has articulated a rule that § 111 convictions “require at least some form of assault,” and model jury instructions in that circuit define assault to include intentionally threatening another coupled with an apparent ability to inflict immediate bodily harm — thereby importing traditional assault concepts into § 111 prosecutions [2]. The tension across circuits is stark: the certiorari petition in Stands Alone notes a seven-circuit split over whether § 111 requires common-law simple assault for its offenses, with three circuits holding it does and four holding it does not, underscoring an entrenched appellate disagreement ripe for Supreme Court resolution [5].
3. How threats, menacing gestures, and “apparent ability” factor into prosecutions
Department of Justice guidance and historical case law show prosecutors often treat threats uttered with apparent present ability, menacing gestures, hostile company, or threatening surroundings as sufficient “force” for § 111 in the proper case, meaning non-contact menacing conduct can satisfy the statute when it creates reasonable apprehension of harm or otherwise functions as forcible obstruction [4] [6]. Lower-court opinions and DOJ manuals thus endorse a functional view: context and apparent capacity to execute threats can convert words or gestures into the kind of forcible conduct § 111 targets, even where there is no physical touching alleged [4] [6].
4. Mens rea and the victim’s federal status — Feola’s limiting principle
The Supreme Court’s decision in United States v. Feola holds that § 111 does not require the assailant to know the victim is a federal officer; the statute requires intent to assault but not an intent to assault a federal officer, a rule that limits defenses based on ignorance of the victim’s status even as circuits dispute what conduct qualifies as assaultive for § 111 purposes [3]. That mens rea clarity preserves federal jurisdictional breadth while leaving open the definitional fight about whether threats and menacing conduct count as the requisite “assault” or forcible act in each circuit [3] [5].
5. Stakes, advocacy perspectives, and unresolved questions
Advocates for robust federal protection emphasize that an expansive reading—counting menacing threats and interference as forcible conduct—furthers congressional intent to safeguard officers, a stance reflected in DOJ manuals and prosecutorial practice [4] [6]; defense and civil liberties observers, echoed in filings seeking Supreme Court review, counter that treating non-assaultive obstruction or intimidation as a § 111 felony risks collapsing the statute’s mensuration of force and criminalizing speech or passive resistance absent clear assaultive elements [5]. Recent appellate rulings — including the Seventh Circuit’s posture and per curiam holdings in other circuits that § 111(b) is a crime of violence — show the practical sentencing and collateral-consequences stakes are high while the circuits remain split and the Supreme Court has not yet harmonized the approaches [7] [5].