Does 18 U.S.C. § 115(a)(1) Apply to Private Security?

As most criminal defense attorneys are aware, the Fourth Amendment prohibition against illegal search and seizure is not violated when a private actor, such as a private security employee rummages through one’s belongings (i.e., loss prevention at a store) or computer files (i.e., Google finding child pornography in Gmail traffic) and then hands over the evidence of a crime to law enforcement.  This is so even when the private actor is ostensibly acting as a government agent “piggybacks” on the private actor search. 

Therefore, would it be a crime under 28 U.S.C. § 115 to threaten or assault or murder a government official if the victim is a private company employee contracted by a federal agency, but is not a government employee?

The recent published decision by the United States Court of Appeals for the Ninth Circuit in United States v. Jaqueline Anderson (2022 DJDAR 9072) answered that question, finding such a threat was a crime under 28 U.S.C. § 115.  If this seems unfair, or at least unfair, it is worth knowing more about the case and understanding how the district court ruled, as well as the Ninth Circuit.

Jacqueline Anderson was convicted of violating 18 U.S.C. § 115(a)(1)(B) by threatening a person assisting federal officers and employees.  Anderson threatened to kill Protective Security Officer (PSO) Justin Bacchus while he was on duty at the Long Beach Social Security Office.

At all times relevant to the case, PSO Bacchus was an employee of a private company, Paragon Systems, that had been contracted by the Federal Protective Service (FPS) to “provide security services at government-owned and leased properties.”  FPS is the federal agency responsible for protecting federal buildings.  FPS relies on contractors to protect facilities that it does not have the capacity to cover.

On a typical day, the Social Security Office tasks three PSO’s with screening and processing the office visitors.  One PSO is stationed outside the main entrance and is responsible for directing visitors to an appointment or the general information line.  The second PSO is assigned to screen and check bags for prohibited items.  The third PSO is stationed at the metal detector to ensure no weapons are brought into the office.

On the morning of December 12, 2028, Jacqueline Anderson arrived at the Social Security Office and informed PSO Bacchus, who was working outside the main entrance, that she had an appointment. 

Bacchus was unable to confirm that Anderson had an appointment, so he directed her to the general information line.  Moments later, an older man approached Bacchus and did not have an appointment, so Bacchus directed him to the same line as Anderson.

The older man, however, did not position himself at the back of the line.  Instead, he went to the front of the line and Bacchus noticed this.

Bacchus therefore approached the man and redirected him to the back of the general information line.  As Bacchus was doing this, Anderson intervened and told the older man “he didn’t have to go anywhere and that she ‘didn’t give a f*** about him or any of these illegal Mexicans,’ and that she didn’t care about the rules of the Social Security Administration.”  She then turned to Bacchus and said “F*** you, b***** a* n*****.”

Bacchus then informed Anderson that due to her behavior, she would not be allowed in the Social Security Office and would have to come back the next day. 

In response, Anderson told Bacchus, “I’m going to go out to my car and get my gun and blow your f***** brains out.”  Bacchus told police that he felt threatened by Anderson. 

Anderson was then arrested and charged in U.S. District Court with a single count indictment with threatening a person assisting federal officers and employees in violation of § 115(a)(1)(B).

The case went to trial and the jury convicted Anderson.  The judge sentenced her to one year of probation and payment of a fine.

Anderson appealed, arguing that Bacchus was not an “official” under 28 U.S.C. § 115(a)(1)(B).  The appeal went to the United States Court of Appeals for the Ninth Circuit (in Pasadena), which regarded the appeal as calling for statutory construction, so it approached the case “de novo,” meaning on its own, without deference to what the lower court ruling was.

On its own analysis, the Ninth Circuit found that the legislative history of § 115 involved the definition of who was a government employee, which was defined at 28 U.S.C. § 1114.  In evaluating § 1114, the Ninth Circuit found that Congress intended to protect non-officials when performing official duties and that Congress, when passing § 115, intended to protect non-officials as well. 

Accordingly, Bacchus was covered under § 115 and Anderson’s conviction was affirmed.

We present this summary with some curiosity, as we would like to know if a motion to suppress evidence found by Bacchus would be denied based on a finding that Bacchus is not a government employee.  We suspect that, ironically, this is how a judge would rule.

The citation for the United States Court of Appeal for the Ninth Circuit ruling discussed above is United States v. Jacqueline Anderson (9th Cir., 2022) 46 F. 4th 1000.

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