18 USC 245: Protected Activities, Penalties, and Certification

18 U.S.C. § 245, titled “Federally Protected Activities,” makes it a federal crime to use force or threats of force to injure, intimidate, or interfere with someone because of that person’s participation in certain activities the federal government has singled out for protection. Some of those activities — voting, federal jury service, federal employment, federally funded programs — are protected on their own terms. Others, like attending public school or using a restaurant, are protected only when the interference is motivated by the victim’s race, color, religion, or national origin. Penalties run from one year in prison up to life or the death penalty, depending on the harm caused.

The Two Categories of Protected Activities

The statute is built around a split that determines what prosecutors have to prove. Understanding that split is the key to reading the law.

Activities Protected Regardless of Motive

Under subsection (b)(1), force or threats aimed at interfering with any of these activities is a federal crime on its own. The government does not have to prove the attacker acted out of racial or religious bias:

Voting or campaigning in any primary, special, or general election, including working as a poll watcher or election official.
Participating in or receiving benefits from any federal program.
Applying for or working in federal employment.
Serving, or appearing for possible service, as a juror in federal court.
Participating in any program or activity that receives federal financial assistance.

The reasoning behind this category is that violent interference with federal institutions and federally funded activities is itself the injury Congress wanted to reach.¹

Activities Protected Only When Bias Is the Motive

Subsection (b)(2) reaches into everyday life, but the price of that broader reach is a heavier burden of proof. Here, prosecutors must show both that the victim was engaged in the protected activity and that the defendant acted because of the victim’s race, color, religion, or national origin. Covered activities include:

Enrolling in or attending a public school or public college.
Participating in or receiving benefits from a state or local government program.
Applying for or holding any private or state employment, or using a labor union or employment agency.
Serving, or appearing for possible service, as a juror in state court.
Traveling in interstate commerce or using a public transportation terminal or common carrier.
Using a hotel, restaurant, gas station, theater, sports arena, or other public-serving establishment.

Two boundaries worth flagging. The education protection reaches public schools and public colleges only; private institutions are not covered by this provision. And the public accommodations list tracks the categories used in the Civil Rights Act of 1964,² so it is broad, but it is not a general “anywhere in public” rule.¹

Who the Statute Protects

For the (b)(2) activities, Section 245 protects victims targeted because of race, color, religion, or national origin. Those four characteristics are the entire list. Gender, sexual orientation, gender identity, and disability are not covered under this statute.¹

That limit reflects when the statute was written. Section 245 was enacted in 1968 and built on the framework of the Voting Rights Act of 1965 and the Civil Rights Act of 1964, both of which focused on racial and religious discrimination.³ Congress later added the missing categories through a separate hate crimes statute, discussed further down.

Force or Threat of Force Is Required

Section 245 applies only when the interference involves force or a threat of force. Verbal harassment, discriminatory remarks, or bigoted social media posts do not, by themselves, satisfy the statute. Prosecutors must show physical force or a genuine threat of it directed at the victim.¹

The statute does not spell out how that requirement applies to online communications. Whether a digital message qualifies as a threat of force depends on the specific facts and on how courts read the “true threats” doctrine in that context.

Penalties

Sentences under Section 245 climb in tiers tied to the harm caused:

If there is no bodily injury and no weapon involved, the maximum sentence is one year in prison, a fine, or both.
If the offense causes bodily injury, or involves the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, the maximum jumps to ten years.
If the offense results in death, or involves kidnapping, aggravated sexual abuse, or an attempt to kill, the defendant faces any term of years up to life and may be sentenced to death.¹

The ten-year tier has two independent triggers. Actual bodily injury is one. Use of a dangerous weapon is the other, even if nobody was physically hurt. Displaying a firearm to keep someone away from a polling place can put a defendant in the ten-year range on that basis alone.

Federal judges also apply the hate crime sentencing enhancement in U.S. Sentencing Guidelines § 3A1.1, which raises the offense level by three when the finder of fact concludes beyond a reasonable doubt that the defendant selected the victim because of a protected characteristic.⁴

Why § 245 Prosecutions Are Rare: The Certification Requirement

Section 245 has a gatekeeping rule that most federal criminal statutes do not carry. Before charges can be filed, a senior Department of Justice official must certify in writing that the prosecution is in the public interest and necessary to secure substantial justice. Only the Attorney General, the Deputy Attorney General, the Associate Attorney General, or a specifically designated Assistant Attorney General can sign that certification, and the authority cannot be delegated any further.¹

The FBI is the lead investigative agency for these cases and works with state, local, and tribal law enforcement to develop them.⁵ But even a strong investigation stops at the certification desk if senior DOJ leadership concludes federal prosecution is not the right vehicle. Many cases are handled first at the state level, and the Justice Department often monitors those proceedings before deciding whether to pursue a parallel federal case. A separate state prosecution does not bar the federal one; the statute expressly preserves state jurisdiction, and the separate sovereigns doctrine allows both prosecutions to proceed.¹

Section 245 is also a criminal statute only. It does not give victims a right to sue on their own. Only the federal government can bring a case, and only after certification. Victims looking for civil damages generally rely on state hate crime laws or other civil rights statutes.

What § 245 Does Not Cover, and How § 249 Fills the Gap

Two features of Section 245 leave real gaps: its protected classes stop at race, color, religion, and national origin, and even for those classes the (b)(2) prosecutions require proof that the victim was engaged in one of the specifically listed activities. Congress addressed both gaps in 2009 with the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, codified at 18 U.S.C. § 249.

Section 249 does two things Section 245 does not. It adds gender, sexual orientation, gender identity, and disability as protected characteristics. And for crimes motivated by race, color, religion, or national origin under § 249(a)(1), the government does not have to prove interference with any specific federally protected activity.⁶ For the newer protected classes under § 249(a)(2), prosecutors must show a connection to interstate commerce, such as the defendant crossing state lines or using an interstate communication channel.⁷ Penalties under § 249 track those of § 245: up to ten years for bodily injury, and up to life if the offense results in death or involves kidnapping, aggravated sexual abuse, or an attempted killing.

A separate statute, 18 U.S.C. § 247, criminalizes damage to religious property and obstruction of the free exercise of religion, covering attacks on churches, synagogues, mosques, and religious cemeteries.⁸ Congress strengthened it through the Church Arson Prevention Act of 1996.⁹

Reporting a Suspected Violation

Anyone who witnesses or experiences conduct that may qualify as a federal hate crime can report it to the FBI at 1-800-CALL-FBI or through tips.fbi.gov. Reports can be made anonymously.⁵ The DOJ Civil Rights Division and local U.S. Attorney’s Offices also accept complaints. Investigators then assess whether the elements are met: force or a threat of force, interference with a federally protected activity, and, where required, a discriminatory motive. Even a well-documented case still has to clear the certification step at the Justice Department before federal charges can be filed.

1
Office of the Law Revision Counsel. 18 USC 245 – Federally Protected Activities
2
U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964
3
National Archives. Voting Rights Act (1965)
4
United States Sentencing Commission. 2018 Chapter 3 – Adjustments
5
Federal Bureau of Investigation. Hate Crimes
6
U.S. Department of Justice. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009
7
Office of the Law Revision Counsel. 18 USC 249 – Hate Crime Acts
8
Office of the Law Revision Counsel. 18 USC 247 – Damage to Religious Property; Obstruction of Persons in the Free Exercise of Religious Beliefs
9
govinfo. Public Law 104-155 – Church Arson Prevention Act of 1996