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There's a woman going around claiming to be from the federal "Freedom to Breathe Agency", telling store workers that they can personally be sued for telling customers that they need to wear a mask.

Multiple people have said that she should be arrested for impersonating a federal officer. However, 18 U.S. Code § 912 - Officer or employee of the United States says:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

IANAL, but I don't think tricking an employee into believing that they can be personally sued for asking a customer to wear a mask counts as "thing of value".

So what does "act as such" mean when the person claims to be from a non-existent agency? Since there isn't any federal Freedom to Breathe Agency, there doesn't exist any way that an employee of it would act.

(NOTE: The woman claiming to be from the "Freedom to Breathe Agency" might very well have committed other crimes. I'm solely asking about the crime of impersonation.)

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The clause you highlighted has an "or" in front of it: "..., or in such pretended character...". It's only one alternative. Demanding or obtaining money, etc, is sufficient to violate the statute but not necessary.

Looking at the previous clause, it is still a violation if the pretender merely "acts as such", which I suppose is what people allege this person is doing. She can be guilty without having demanded or obtained anything, so the question about whether it's a "thing of value" is moot.

As to the "nonexistent agency" issue: a useful source for information about how federal criminal laws are interpreted and enforced is the Justice Department's Criminal Resource Manual. (The link may be a past version; they seem to have reorganized their documents and I can't find a version not marked as "archived", but I think the information is still valuable.) 18 USC 912 is discussed in sections 1469-1477 of that version. Section 1474 examines the meaning of the "acts as such" element, and includes this note:

It is not necessary that the act be one which the pretended officer would have authority to perform if he were in fact the officer he represents himself to be. Lamar v. United States, 240 U.S. 60 (1916); United States v. Hamilton, 276 F.2d at 98. Nor is it necessary that there be in fact such an officer as the defendant pretends to be. Caruso v. United States, 414 F.2d 225, 227 (5th Cir. 1969).

Caruso in particular was a case in which the defendant, as part of a scam, claimed to be the Administrator of a Veterans Hospital. He was convicted, and appealed on the basis that the government had not proved that the office of administrator existed. (Just as in this case, the government certainly could not prove that the Freedom to Breathe Agency existed, since it does not.) The Fifth Circuit found that his point had "no merit" and, citing Brafford v. United States (6 Cir. 1919, 259 F. 511, 513), that it was "immaterial whether or not there was any government officer or employee with the precise title [the defendant] assumed".

I realize that claiming to be a nonexistent officer is not exactly the same thing as claiming to represent a nonexistent agency, but I would expect that courts would treat it the same.

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    @MatthewCline my understanding of "acts as such" is that it denotes an attempt to assert authority stemming from the pretended federal office. So you can pretend to be a federal officer as long as you are up front about the fact that you're ptoetending and you don't obtain any money, etc., by virtue of the pretended office. Telling people what they can or can't do is definitely "acting as such" unless it's an obvious parody. – phoog Sep 12 '20 at 19:33
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    "authority of the United States" seems to allow for the department not actually existing. – Barmar Sep 13 '20 at 21:11
  • Could the woman in question, claim they were from a private federal wide (whole US not just a single state) agency. The term agency does not mean one is from the government. i.e., the Better Business Bureau is not a government Bureau. It would't stop them from getting arrested, but could be used as an defense. Also they could use the PR from getting arrested to boost the FB following. – DarcyThomas Sep 15 '20 at 8:17
  • @DarcyThomas: I don't know for sure, but I would guess the question for a court would be something like: "Did she know, or should she have known, that her words and actions would lead people to believe that she was an officer or employee acting under the authority of the United States?" – Nate Eldredge Sep 15 '20 at 16:36
  • How does it affect your answer if the word "federal" is not in the question? Because there's some doubt that that was actually said. – JdeBP Sep 15 '20 at 19:22
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From the initial version of the post:

Would tricking an employee into thinking that they can be personally sued for asking a customer to wear a mask be a "thing of value" such that the law could be applied?

Regardless of actionability under the statute you point out, there are other penal statutes --be it from state or federal law-- which do not require that a thing of value be at stake.

Consider MCL 750.215(1)(c), prohibiting an individual to "[r]epresent to another person that he or she is a peace officer or a medical examiner with the intent to compel the person to do or refrain from doing any act against his or her will".

See also MCL 750.217c. This statute is in terms of "legal process or unauthorized process that affects or purports to affect persons", with section (7)(b) of that statute defining legal process as something intended "to direct persons to take or refrain from an action".

Thus her method can certainly lead to her prosecution.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Pat W. Sep 12 '20 at 20:39
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Presumably, you're talking about Lenka Koloma. I didn't hear her use the term "federal" in the video, and the facts that she is speaking in a heavy accent and not wearing pants, a shirt with sleeves, or closed-toed shoes work against the idea that she is expecting people to believe she is a federal officer. On the other hand, the article claims she is using the DoJ seal, which raises issues of whether she is implying to represent them. With the facts at hand, she isn't doing anything illegal (other than violating mask ordinances, and, arguably, trespassing).

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    Are you excluding the claim about the Justice Department seal from the "facts at hand"? If the claim is correct then she would indeed be doing something illegal. And I don't see why accent or clothing would have any impact on the credibility of her claim. – phoog Sep 12 '20 at 20:08
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    @phoog Yes, I'm treating the DoJ claim as provisional, and in need of more detail regarding how it was used. Federal agents don't generally wear sandals, leggings, and a tank top that shows a tattoo, and I would expect one with a strong foreign accent to make a particular effort to appear professional. – Acccumulation Sep 12 '20 at 21:00
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    She could be under cover. The law doesn't say the pretense has to be credible, but even if there were some element of credibility, the fact that anyone actually thought that she might be for real (if anyone did think that) would probably be sufficient to satisfy it. – phoog Sep 12 '20 at 22:35
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    @Trish what's your point? That such declarations and warnings somehow constitute a defense because everyone should have known that the card was fake? What about people (like me) who haven't seen those warnings? Does a government warning that people are perpetrating any other fraud protect the fraudsters by virtue of an analogous argument? Of course not. – phoog Sep 12 '20 at 23:11
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    Do federal officers all get elocution lessons as part of signing up? I'm not sure what relevance her accent has to whether its believable that she is the real thing. – Lio Elbammalf Sep 14 '20 at 11:24

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