How have federal courts resolved the circuit split on whether § 111 requires a common‑law assault element?
Executive summary
Federal courts are divided: several circuits read 18 U.S.C. § 111 as demanding at least a common‑law “simple assault” (or equivalent threatened‑force element) for convictions, while other circuits treat the statute’s six verbs (forcibly assaults, resists, opposes, impedes, intimidates, interferes) disjunctively so that non‑assaultive conduct can suffice; the split prompted a Supreme Court cert petition in the Stands Alone case that frames the issue as an entrenched circuit conflict [1] [2]. The conflict affects criminal prosecutions against federal officers and has generated competing interpretive theories about textualism, surplusage, and congressional intent [2] [3].
1. The cleavage: who says assault is required and why
The Ninth Circuit has long held that convictions under § 111(a) require “at least some form of assault,” reading the statute to incorporate a threatened‑force or apprehension‑of‑harm element into convictions even when the charged verb is not literally “assault” (United States v. Chapman summarized in model jury instructions) [4] [5]. Other appellate authorities embrace a similar frame: earlier circuit decisions and jury‑instruction drafts treat “simple assault” as carrying its common‑law meaning under § 111 and distinguish substantive tiers of the statute based on assault severity and attendant harms [3].
2. The opposing view: verbs are disjunctive, assault is not obligatory
Several circuits, however, reject a unitary assault requirement and read the list of verbs disjunctively: “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” should be read as separate means of violating § 111, so not every means requires the common‑law assault element; a leading rationale is that treating assault as essential would render many statutory words surplusage (the Seventh Circuit’s reasoning echoed in district ruling summarized in the Stands Alone cert petition) [1] [2]. The government’s opposition to cert likewise highlights circuit disagreement—specifically noting disagreement with the Tenth Circuit decision in United States v. Wolfname that found assault an essential element [2].
3. The doctrinal fault lines: text, surplusage, and common law precedent
At core the dispute is interpretive: one side leans on the statute’s structure and history to read “simple assault” into the misdemeanor clause and to give common‑law meanings effect; the other side invokes textualist concerns—if assault were required, several verbs would collapse into synonyms and produce surplusage, which statutory construction disfavors [1] [2] [3]. Model jury instructions and circuit opinions riff on precedents like Feola for intent elements, but Feola does not resolve whether the statutory verbs import a common‑law assault definition, leaving circuits to diverge [6] [4].
4. Practical stakes: prosecutions, jury instructions, and regional divergence
The split matters on the ground: in circuits requiring an assault element, prosecutors must prove threatening force or apprehension of imminent harm or actual contact depending on the tier; in disjunctive circuits, more types of obstruction or non‑threatening interference can trigger § 111 charges and potentially its enhanced penalties—creating real disparities in outcomes and charging choices across jurisdictions (model rules and commentary in Ninth Circuit materials and circuit opinions reflect these differences) [4] [7] [3].
5. Who’s pushing for the Supreme Court and why that matters
The cert petition in Stands Alone flagged seven courts of appeals on different sides of the question and asked the Supreme Court to resolve the split; the government’s opposition acknowledged disagreement among circuits and highlighted the Tenth Circuit’s stance as a focal point of contention [1] [2]. The agendas are evident: defense advocates and some circuits emphasize limiting federal criminal reach and preserving common‑law elements, while prosecutors and other circuits emphasize enforcement flexibility and textual readings that avoid collapsing statutory verbs [1] [2].
6. Where reporting and doctrine still leave gaps
Public filings and model instructions document the split and the competing rationales, but the provided materials do not show a definitive Supreme Court resolution as of these documents; if the Court has since acted, that outcome is not contained in the supplied reporting and cannot be asserted here [1] [2] [4].