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Circuit Split Creates Apparent Loophole for Homicides Committed Abroad

Homicide is the most serious offense. In most states, homicide is punished more severely if the victim is a law enforcement officer. But, what if this murder is committed outside an American territory? Federal statute 18 U.S.C § 1114 makes it illegal to kill any government officer engaged in their official duties. For years, federal courts have generally avoided applying statutes extraterritorially, except in cases where Congress clearly indicates that this is their intent. However, some courts have recently begun applying the Supreme Court’s decision in the case of United States v. Bowman to justify applying 18 U.S.C § 1114 outside the country. Bowman held that U.S. courts have jurisdiction to try crimes committed at sea or abroad, even if not specifically conferred by statute if the nature of the crime logically includes them.

There is currently a circuit split regarding this issue, with the Eleventh and Second Circuits holding that 18 U.S.C § 1114 applies extraterritorially, while the D.C. Circuit held that it does not any such application.

18 U.S.C. § 1114 says the following: 

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—


in the case of murder, as provided under section 1111;


in the case of manslaughter, as provided under section 1112; or


in the case of attempted murder or manslaughter, as provided in section 1113.

The Eleventh Circuit held in United States v. Benitez that §1114 does have extraterritorial application. In this case, the defendant was convicted of conspiracy to murder a DEA agent working in Colombia. The Eleventh Circuit held that assault and attempted murder of DEA agents working abroad is exactly the type of crime that Congress intended to apply extraterritorially.

The Second Circuit took a similar approach and held in United States v. Al Kassar that §1114 has extraterritorial application. In that case, three defendants were convicted of conspiring to kill U.S. officers in Spain and Romania. The Second Circuit reasoned that the statute infers extraterritorial application because the goal of this statute was to protect U.S. personnel from harm when acting in their official capacity. Because a significant number of U.S. government employees perform their duties on foreign soil, the court held the statute applies in other countries

However, in D.C., the D.C. Circuit held that because §1114 does not speak to extraterritorial application, the presumption against extraterritoriality remains firm. In the case of United States v. Sota two defendants were convicted of killing a law enforcement officer in Mexico. The court inferred that because another statute, §1116, prohibits the murder of a U.S. officer or employee pursuant to international law, §1114 does not apply to murders on foreign soil. The D.C. Circuit believes that the Eleventh and Second Circuit are misinterpreting Bowman.

This ruling creates a strange loophole, as it seems now that a foreign national may be able to avoid punishment for murder an officer or employee of the United States on foreign soil if convicted under the jurisdiction of the D.C. Circuit. 

It seems unlikely that the United States Supreme Court will hear a case regarding 18 U.S.C. § 1114’s application in the near future. This circuit split is likely to widen as other districts decide issues involving 18 U.S.C. § 1114’s application abroad. 

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