A frequently used Department of Justice claim that Jan. 6 protesters share equal guilt for rioting, like raindrops that join to create a flood, is unconstitutional and should be banned from court, a defense attorney argues.
“The criminal law in the United States requires that to prove a person guilty of a crime, prosecutors must prove the individual guilt of that particular defendant,” wrote attorney John Pierce.
“Guilt of a crime is not transferable from one person to another,” Pierce wrote. “You may not consider evidence that someone else committed a crime to impute or transfer guilt to another defendant.”
Mr. Pierce filed a motion to ban federal prosecutors from using the so-called “raindrop theory” at the trial of a Minnesota father and three sons charged for alleged crimes at the U.S. Capitol on Jan. 6, 2021.
“A defendant cannot be found guilty merely as a result of being near someone else committing a crime,” Mr. Pierce said. “Watching someone commit a crime is not a crime.”
The case involves Robert D. Westbury Jr., 64, and his sons Jonah E. Westbury, 28; Isaac R. Westbury, 21, and Aaron James, 36, all of Lindstrom, Minn.
The men are charged with a range of crimes including civil disorder; assaulting police officers; entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds with a dangerous weapon; engaging in physical violence in a restricted building or grounds; parading, demonstrating or picketing in a Capitol building, and other charges.
The men are scheduled to stand trial on Feb. 12, 2024, in U.S. District Court in Washington.
The raindrop theory has been cited in charging documents, motions, and sentencing recommendations to explain how individuals in a group or “mob” share guilt because their collective presence caused illegal acts during the Jan. 6 protests at the Capitol.
Mr. Pierce said the raindrop theory is unconstitutional on its face.
He is seeking an order from U.S. District Judge Rudolph Contreras to bar prosecutors from “telling or arguing to the jury that a person can be criminally liable for the crimes of a mob, for merely standing or peacefully assembling or walking in a location.”
Mr. Pierce has asked that prosecutors be precluded from “arguing that an individual who is merely present can be convicted as a ‘raindrop’ amid a rainstorm of others who cause violence or disruption of events.”
What’s ‘Part of’ a Crowd?
Mr. Pierce wrote that the raindrop theory creates numerous problems. If a defendant was nowhere near the alleged mob actions, how do you define what being “part of” a crowd means or whether a defendant knows what the “crowd” is doing? How do prosecutors define what constitutes a crowd?“What does being ‘part of’ a crowd mean if the government has no individualized evidence unique and particularized to an individual defendant of what that defendant personally did or failed to do without reference to anyone else?” Mr. Pierce said.
“It is not a crime to join a crowd, nor to watch a crowd as a bystander or observer. Being part of a crowd is not chargeable as a crime.”
Capitol Police security video shows with “unmistakable clarity” that most of the crowds that entered the U.S. Capitol after 2:12 p.m. on Jan. 6 had no discernible plan and were “simply milling around aimlessly,” Mr. Pierce wrote.
“One cannot intend to take over the U.S. government or stop the count of Electoral College votes in as little as nine minutes (for many people shown on security video less than 20 seconds) or perhaps 18 to 20 minutes before exiting the building,” he wrote.
“The timelines are incompatible with the government’s allegations of what prosecutors imagine to have been in demonstrators’ minds.”
The motion compares the raindrop theory to an anti-riot law to prevent mob violence enacted in Florida in 2021 in the wake of the George Floyd riots. A U.S. district judge struck down that law as unconstitutional. An appeal is pending before the U.S. Court of Appeals for the 11th Circuit.
“If this court does not enjoin the statute’s enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians,” Chief Judge Mark Walker wrote.
Mob Intimidation
Signed by Gov. Ron DeSantis (R), the Florida law creates a new crime, “mob intimidation,” and requires that anyone arrested at a protest be denied bail until their first court appearance, the motion states.“The Biden Justice Department has joined the plaintiffs as amicus curiae, arguing that there is a high probability that DeSantis’ anti-riot law is, in fact, unconstitutional,” Mr. Pierce wrote, claiming that the DOJ’s position appears to fly in the face of how DOJ is handling Jan. 6 cases.
“Collectivism has an intellectual home,” Mr. Pierce wrote, “but it is not in the United States.”
The motion against the raindrop theory is just the latest challenge to how Jan. 6 prosecutions are being carried out by the Department of Justice.
The Supreme Court has not yet indicated whether it will take up Mr. Lang’s petition.
