Case o' The Week: Ask, "W.W.W.D?" (What Would Warren Do?) -- Chapman and Section 111 Offenses

As we mourn the passing of Ninth Circuit Judge Warren Ferguson (left), one of his younger colleagues (Judge Kim Wardlaw, right) continues his admirable legacy by holding the government to the full proof requirements of Section 111. See United States v. Chapman, __ F.3d __, 2008 WL 2485566 (9th Cir. June 23, 2008), decision available here.


Players: Great win by San Diego Assistant Federal Defender Steven Barth.

Facts: Chapman allegedly “cut in line” at a border checkpoint. Id. at *1. Border agents stopped him, told him to move out of line, and when he refused, tried to physically “escort” him out of line. Id. Chapman “tensed up,” and “took a rigid stance” when the agents tried to cuff him. Id. An agent struck him in the thigh with a baton. Chapman told the agent, “hit me again,” the agent did so “to no effect” – so the agent pepper sprayed him and cuffed him. Id. (Ed. note: All this for (allegedly) cutting in line?)

Chapman didn’t attempt to strike the agent or use profanity. Id. Chapman was charged with 18 USC § 111(a), “resisting and impeding” a federal officer. Id. He was convicted at a bench trial of a misdemeanor; the court denied the motion for acquittal. Id. at *2.

Issue(s): Is an “assault” “required for a § 111 conviction?” Id. at *5.

Held: “[W]e . . . hold, as suggested by the majority of our sister circuits, that convictions under this statute require at least some form of assault. Section 111(a) creates two distinct offenses, a misdemeanor and a felony, and Congress has distinguished between these two offenses using language that is only meaningful when describing assaults.” Id. at *5. “Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a simple assault, we reverse and vacate the judgment of conviction.” Id. at *1.

Of Note: Districts with federal parks, recreation areas, military bases and reservations see a fair share of Section 111 prosecutions. Like Section 1326 cases, this opinion illustrates that a simple crime – a Section 111 offense – can raise extraordinarily complicated legal issues.

Judge Wardlaw’s analysis wasn’t made any easier by the Section 111 statute itself, which was “inartfully drafted,” id. at *3, or authority from other circuits that was “hardly a model of clarity,” id. at *5. In a thoughtful opinion Judge Wardlaw cuts through this confusion and creates a simple rule: a misdemeanor Section111 conviction requires a simple assault – not merely resisting arrest, and not merely disobeying orders. (An assault is “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.” Id. at *4.)

How to Use: The good news is, we’ve been arguing Wardlaw’s new rule for years in § 111 cases. The bad news is, Chapman deals with an old version of the statute. A new, amended version became effective January 7, 2008. See id. at *1 & n.2.

The amendment changes the penalty subsection of § 111(a), which defines what constitutes a felony offense under the statute. See “Court Security Improvement Act of 2007,” PL 110-177, 2008 HR 660 (2007). While Chapman analyzed the old statute, nothing in the amended ‘08 version seems to affect the decision’s holding that a misdemeanor § 111 offense requires simple assault.

For Further Reading: As noted above, Judge Warren Ferguson died last week, at the age of 87. He was elevated from the C.D. Cal. bench by Carter in ‘79, and took senior status in ‘86. He served in the Army, in North Africa and Italy in WWII. He lost his son, Jack, during Vietnam.

Judge Ferguson actively sought clerks who were committed to “social justice.” His opinions reflected his passion for justice: in Chase, he strongly championed the right of an indigent defendant to retain an expert. In Luong, he rejected the government’s attempt to hide behind the good faith exception to salvage a warrant lacking in probable cause. In Snellenberger, he refused to allow criminal minutes and abstracts of judgment as fodder for the “modified categorical” sentencing analysis. In his compelling Clark dissent he warned,

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

Ferguson was a great judge and a great champion for the poor, for minorities, and for the oppressed. He will be sorely missed.

Above image of Judge Warren Ferguson from Cal Law, here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org



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