Applicability of state criminal law to the Department of Veteran Affairs

Author: LegalEase Solutions

QUESTION PRESENTED

Whether there is applicability of state criminal law when the defendant is charged under a state law for harming an individual working for a federal agency? 

SHORT ANSWER

Yes, the state law will apply. The desire of the Congress while enacting section 111 was to fill a gap in state laws defining assaults and also to provide punishment in excess of that which states would impose for assaults. Also, the criminality of the use of force against one who turns out to be a federal officer depends upon whether the act is legally justified under the law of the state in which the act occurred. The Federal Statute, therefore, does not preempt the state law, and the state law will apply unless the law itself specifies that it is limited to state officers.

RESEARCH FINDINGS

Federal Officer Status and Assaulting a Federal Officer

“The question of whether a person in a particular position qualifies as an officer … of the United States under 18 U.S.C. § 1114—or what we refer to as a federal officer—is a question of law.” United States v. Luna, 649 F.3d 91, 98 (1st Cir. 2011).

Section 1114 designates the following individuals as part of the protected class: ‘any officer or employee of the United States or of any agency in any branch of the United States Government … while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance.’

United States v. Luna, 649 F.3d 91, 98 (1st Cir. 2011) (citing 18 U.S.C. § 1114).

Further, “18 U.S.C. § 111 provides for the punishment of anyone who forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of [Title 18] while engaged in or on account of the performance of official duties.” United States v. Luna, 649 F.3d 91, 98 (1st Cir. 2011).

“[I]n order to effectuate the congressional purpose of according maximum protection to federal officers by making prosecution for assaults upon them cognizable in the federal courts,    s111 cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer.” United States v. Feola, 420 U.S. 671, 684, 95 S. Ct. 1255, 1264, 43 L. Ed. 2d 541 (1975). “All the statute requires is an intent to assault, not an intent to assault a federal officer. A contrary conclusion would give insufficient protection to the agent enforcing an unpopular law, and none to the agent acting under cover.Id.

The statute provides that: 

  • 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 person’s 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.

(b) Enhanced penalty.–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.

18 U.S.C.A. § 111

Section 1114 provides that:

  • 1114. Protection of officers and employees of the United States

Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished–(1) in the case of murder, as provided under section 1111;(2) in the case of manslaughter, as provided under section 1112; or(3) in the case of attempted murder or manslaughter, as provided in section 1113 .

18 U.S.C.A. § 1114

Veteran Affairs Nurse whether a Federal Officer 

It is essential to determine whether VA nurse are federal officers protected under Section 111 as employees of federal agency.

[T]he term “Federal agency” includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.

“Employee of the government” includes (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty under section 115, 316, 502, 503, 504, or 505 of title 32, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18.

“Acting within the scope of his office or employment”, in the case of a member of the military or naval forces of the United States or a member of the National Guard as defined in section 101(3) of title 32, means acting in line of duty.

28 U.S.C.A. § 2671

Therefore, VA nurses as employees of federal agency like United States Department of Veteran Affairs, are entitled to hold federal officer status.

However, it is to be noted that, “it is for the jury to decide whether the government proved … that the assault victims were in fact federal officers who were engaged in the performance of their official duties.” United States v. Luna, 649 F.3d 91, 99 (1st Cir. 2011). Because, “[t]he question of whether an officer is engaged in an official duty is a factual one and therefore is properly left to the jury.” Id.

Jurisdiction

Section 111 works in tandem with state law by providing a federal punishment for assault against officers as defined by state law.

The majority in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), held that “the ‘federal officer’ requirement” in 18 U.S.C. s 111 is “jurisdictional only” (95 S.Ct. at 1260 n. 9), I. e., that by enacting that statute, in the words of Mr. Justice Stewart’s dissent, “Congress intended merely to federalize every assault which happens to have a federal officer as its victim.” (Id. at 1270.) It seems to follow inexorably from this that, as the court holds today, the criminality of the use of force against one who turns out to be a federal officer depends upon whether the act is legally justified under the law of the state in which the act occurred. Thus the Mens rea referred to in the passage from the Feola opinion quoted by Judge Pell is the Mens rea necessary for the state offense, as is illustrated by the example given by the Court, in which the use of force against the person would be legally justified under state law.” Id.

“A purpose of the statute is to provide a federal offense, triable in a federal forum, by which to interdict attacks upon federal law enforcement officers, a matter central to the efficiency of federal law enforcement activities; and thus not to entrust the States with sole responsibility for punishment of such attacks.” United States v. Lopez, 710 F.2d 1071, 1073-74 (5th Cir. 1983). “The arrest or detention by the federal officer may or may not have been authorized by state law, but in either event whether the conduct was in the performance of his official duties within the meaning of the federal statute is determined by federal, not state, law.” Id. (See also United States v. Feola, 420 U.S. 671, 648 n. 18, 95 S.Ct. 1255, 1264 n. 18, 43 L.Ed.2d 541 (1975). Also, “[c]ongress chose not to entrust to the States sole responsibility for the interdiction of attacks, fatal or not, upon federal law enforcement officials a matter essential to the morale of all federal law enforcement personnel and central to the efficacy of federal law enforcement activities.” United States v. Reid, 517 F.2d 953, 963 (2d Cir. 1975).

On the other hand, “[e]ven if section 111 were intended as a forum shifting device, it was also intended to be a substantive proscription. It is not like a removal statute or a federal criminal law which merely incorporates state law by reference.” United States v. Fernandez, 497 F.2d 730, 742 (9th Cir. 1974). “The federal law does not merely effect a change in the forum in which cases of assault on a federal officer will be tried; it also creates a substantive proscription even where state laws do not . . . and authorizes punishment to an extent that state laws do not.” Id.

However, “[s]ection 111 is often treated as if it were the federal analog of a state simple assault statute. When the section is so viewed, the specification that section 111 applies only to those assaults that are on federal officers seems to be merely a jurisdictional element of the crime.” United States v. Fernandez, 497 F.2d 730, 743 (9th Cir. 1974). “Thus, Congress might have intended to deter all assaults by proscribing as many assaults as it felt constitutionally empowered to punish; the reference to federal officers acting in the performance of federal duties would then, like most references to interstate commerce in federal criminal statutes, be no more than a jurisdictional requirement.” Id.

State law and Federal Law

The congress enacted section 111 with a desire to fill a gap in state laws defining assaults and also to provide punishment in excess of that which states would impose for assaults. Thus, the federal law basically relies on state law for its definition of assault, and, therefore, does not pre-empt it.

“When Congress enacted § 111 it intended to protect federal functions. Congress, however, also intended to protect individual federal officers by providing a federal offense triable in a federal forum to supplement the state statutes for punishment of such attacks.” United States v. Kelley, 850 F.2d 212, 214 (5th Cir. 1988).

“Probably motivating the enactment of the assault portion of section 111 was a congressional desire to fill a gap in the state laws defining aggravated assaults: state laws mandated increased punishment only for assaults on state peace officers.” United States v. Reid, 517 F.2d 953, 963 (2d Cir. 1975). “[I]f the person assaulted was a federal officer, the assailant would only be punishable under state law for simple assault. Section 111 accordingly provides for punishment in excess of that which states would impose for assaults on those involved in the investigation or enforcement of federal laws.” Id.

Although, “deterring violence against federal officers, who are contractually authorized to enforce state law, may only be done through the federal court system pursuant to 18 U.S.C. § 111(a)(1).” S. v. Com., 47 Va. App. 247, 264-65, 623 S.E.2d 419, 427 (2005) rev’d, 272 Va. 1, 630 S.E.2d 318 (2006). “More specifically, where a state shares concurrent jurisdiction with the federal government over an area where a state cause of action arises, that state court is the proper forum for deciding the case.” Id.

“In determining whether federal law preempts state law, a court’s task is to discern congressional intent.” Hypertouch, Inc. v. ValueClick, Inc., 192 Cal. App. 4th 805, 825, 123 Cal. Rptr. 3d 8, 23 (2011). “In considering express preemption, our [court’s] inquiry is whether the state law at issue falls within the scope of a federal preemption provision. We [court] apply ordinary principles of statutory interpretation, looking initially to the plain language of the federal statute.” Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 765 (10th Cir. 2010).

“Congress intended merely to federalize every assault which happens to have a federal officer as its victim.” United States v. Hillsman, 522 F.2d 454, 463-64 (7th Cir. 1975). “It seems to follow inexorably from this that, as the court holds today, the criminality of the use of force against one who turns out to be a federal officer depends upon whether the act is legally justified under the law of the state in which the act occurred.” Id. Also, “enactment of section 111 may have been influenced by a congressional desire to have certain cases tried in federal court.” United States v. Fernandez, 497 F.2d 730, 742 (9th Cir. 1974).

CONCLUSION

Based on the foregoing, to summarize, section 111 is often treated as if it were the federal analog of a state assault statute. As a result, it seems that, assaults that are on federal officers are merely a jurisdictional element of the crime. For these reasons it can be concluded that, when a state shares concurrent jurisdiction with the federal government over an area where a state cause of action arises, that state court is the proper forum for deciding the case.