The D.C. Circuit Court of Appeals ruled on Tuesday that all participants in the January 6, 2021 siege of the U.S. Capitol can be charged with disorderly or disruptive conduct — even if they were personally not destroying property or acting violently.
According to Politico, the D.C. appellate court's ruling is a big win for the U.S. Department of Justice, which had assigned that charge to nearly all of the 1,200-plus defendants in its ongoing prosecution of the deadly insurrection.
The three-judge panel specifically struck down rioters' arguments that merely being present without causing havoc wasn't a crime on its own.
“A lone hiker on a mountaintop can sing at the top of his lungs without disturbing a soul; a patron in a library cannot,” Judge Karen Henderson — a George H.W. Bush appointee — wrote on behalf of a three-judge panel (which also includes Barack Obama appointee Florence Y. Pan and Bill Clinton appointee Judith Rogers) in an 18-page opinion.
“It is entirely appropriate to clap and cheer when a keynote speaker steps to the podium but to do so once the room has fallen quiet and he has begun to speak would ordinarily be disruptive. Thus, in determining whether an act is disorderly, the act cannot be divorced from the circumstances in which it takes place.”
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“Even passive, quiet and nonviolent conduct can be disorderly,” Henderson continued. She noted that the presence of less rambunctious participants in the insurrection provided cover for rioters who stole and destroyed property and assaulted police.
Politico legal correspondent Kyle Cheney wrote that 1,156 federal defendants have been charged in response to the January 6 insurrection with "engaging in disorderly or disruptive conduct in a restricted building." Another 1,021 defendants were charged with "disorderly or disruptive conduct in a Capitol building," and roughly 1,000 defendants were hit with both charges.
In addition to upholding the validity of the "disorderly" and "disruptive" conduct charges, the D.C. Circuit's panel's ruling also upheld the conviction of January 6 participant Russell Dean Alford, who was convicted on four misdemeanor charges in 2022 and sentenced to one year in prison.
"Alford paints himself as a passive observer, and, granted, his conduct does not rise to the level of culpability of many of his compatriots,” Henderson wrote. “But he made a deliberate choice to join the crowd and enter the Capitol when he was plainly not permitted to do so. The jury was not required to view Alford’s actions in isolation as though he were the only one at the Capitol that day.”
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Attorneys for Alford — who was also sentenced to 12 months of supervised release and ordered to pay $500 in restitution — argued that his sentence was too strict. However, Henderson countered that by taking his case to trial instead of pleading guilty, Alford effectively forfeited his right for more lenient treatment.
During his sentencing, U.S. District Judge Tanya Chutkan (the same judge overseeing former President Donald Trump's D.C. election interference trial) said Alford had also been "misleading" during court proceedings. She cited that as justification to make his sentence lengthier when determining how to punish him.
"It was not unreasonable for the district court to conclude that Alford warranted a sentence greater than other January 6th misdemeanants," Chutkan said.
Click here to read Cheney's full report in Politico.
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