Jan. 6 Protesters Who Were Not Violent Can Be Convicted of Disorderly Conduct: Court

In an image from body-camera footage, Russell Alford (circled) stands inside the U.S. Capitol in Washington on Jan. 6, 2021. DOJ via The Epoch Times

People who entered the U.S. Capitol on Jan. 6, 2021, can be convicted of disorderly conduct even if they were “neither violent nor destructive,” a federal appeals court ruled on Friday, Jan. 5.

Russell Alford of Alabama was convicted in 2022 by a jury of four counts, including two of disorderly conduct.

But Mr. Alford entered the Capitol through an open door, was only inside the building for about 13 minutes, was silent, and did not engage in any violence or destruction, his lawyers and government officials agreed. That means the disorderly conduct convictions should be tossed, Mr. Alford’s public defenders said.

The U.S. Court of Appeals for the District of Columbia Circuit disagreed, favoring the government, which said the available evidence supported the convictions.

“The trial evidence indicated that, during Alford’s brief time within the Capitol, he was neither violent nor destructive,” U.S. Circuit Judge Karen LeCraft Henderson wrote in the unanimous ruling. “Nevertheless, we affirm his convictions because a jury could rationally find that his unauthorized presence in the Capitol as part of an unruly mob contributed to the disruption of the Congress’s electoral certification and jeopardized public safety.”

Judge Henderson, appointed by former President Ronald Reagan, was joined in the panel opinion by Circuit Judges Florence Pan, appointed by President Joe Biden, and Judith Rogers, appointed by former President Bill Clinton.

Lawyers for Mr. Alford did not respond to a request for comment.

Arguments

One of the counts in question says that a person violates the law if they “utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the grounds or in any of the Capitol buildings with the intent to impede, disrupt, or disturb” Congress.

The other makes it a violation when a person “knowingly, and with intent to impede or disrupt the orderly conduct of government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds.”

A request to dismiss the two counts was rejected by U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama. Judge Chutkan said that Mr. Alford’s “mere presence inside the Capitol disturbed the public peace or undermined public safety.”

That finding was wrong, Mr. Alford’s lawyers said, noting how once inside the Capitol, Mr. Alford largely stood still and recorded video, with no evidence that he spoke at all.

“The statutes require more than mere presence, and no reasonable jury could find that the evidence showed Mr. Alford behaved in a disorderly or disruptive manner,” they wrote.

The lawyers said that disorderly or disruptive conduct means “conduct that is disorderly or disruptive in nature, not merely effect” and that such conduct is defined in various laws as making unreasonable noise, engaging in violence, and using offensive language.

“Where mere presence may suffice as disorderly conduct, statutes ordinarily say so and limit the prohibition to presence after a warning to leave,” they said.

Government attorneys said the evidence supported the convictions because Mr. Alford “breached the U.S. Capitol building without authorization, setting off the alarm on the metal detector as he entered, and then joined the mob that had temporarily seized control of the building.”

“Those actions alone disrupted Congress and disturbed its orderly process—indeed, as long as he was in the building, Congress could not resume its electoral certification,” they wrote to the appeals court. “Even if Alford himself never chanted or banged on the doors to the House floor, he grew the mob’s forces by joining its ranks, intensifying the mob’s disruptiveness. And Alford engaged in further acts of disorderly or disruptive conduct while inside, including trying to open a door to allow more rioters to enter, moving deeper into the building in defiance of police orders to leave, and then delaying his exit as long as possible.”

More From Ruling

The appeals court panel said Mr. Alford’s position on the disorderly conduct statutes was mistaken.

“Disorderly conduct” is “the modern successor to the common-law offense of breach of the peace,” Judge Henderson wrote. Breaching the peace has been defined as “creating a public disturbance or engaging in disorderly conduct, particularly by an unnecessary or distracting noise.”

Judge Henderson said that whether conduct is disorderly does “depend on the surrounding circumstances,” but “it is equally clear from case law that even passive, quiet and nonviolent conduct can be disorderly.”

The court pointed to a ruling by the Supreme Court that found peace can be breached “by passive conduct likely to cause a public disturbance” and a ruling from their own court that found “people blocking traffic at a critical intersection may breach the peace as fully as those who hurl stones.”

The ruling stated: “A rational jury could conclude that Alford’s actions were disruptive because his presence in the Capitol contributed to the Congress’s multi-hour delay in completing the electoral certification. There was ample evidence for the jury to conclude that Alford knowingly entered the Capitol without authorization.”

“For similar reasons,” the ruling added, “a rational jury could conclude that Alford’s actions were disorderly because, viewed in the context of the day’s events, they ‘tend[ed] to disturb the public peace, offend public morals, or undermine safety.’”