Rioting Modernization Amendment Act of 2020: Proposed Legislation Clarifies D.C. Riot Act, Part 1

Photo: W. Brian Watkins, iStockPhoto

By Catherine Park, Esq.

D.C. Bill 723, “Rioting Modernization Amendment Act of 2020,” is scheduled for a public hearing at the D.C. Council (via Webex) on October 15, 2020.  The bill seeks to “clarify the conduct that constitutes rioting ….”  By definition, a “clarify[ing]” law is intended to apply retroactively.  DC Bill 723’s most notable clarification is the description of conduct punishable as “rioting” as conduct that shows intent to commit criminal offenses that involve looting or property destruction, bodily injury, or sexual assault, while reckless to the fact that a large group of people in the vicinity are also committing or attempting to commit criminal offenses involving looting or property destruction or bodily injury.  

As with the current Riot Act (codified at D.C. Code § 22-1322), DC Bill 723 is aimed at protecting First Amendment rights while punishing destructive conduct.  If the bill is enacted without revisions, the practical effect will be that a person can be prosecuted for the offense of rioting only if the person had the intent to commit the enumerated criminal offenses while perceiving in his or her vicinity a large group of people doing largely the same thing (i.e., the bill text makes allowance for the fact that sexual assault may not occur out in the open, but does occur in the riot context).  

The new description of “rioting” in DC Bill 723 is an insightful clarification, necessary to preserving First Amendment rights while assisting law enforcement in keeping the peace.  

Rioting and incitement to riot are currently described at D.C. Code § 22-1322 as the following:

(a)  A riot in the District of Columbia is a public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or threat thereof creates grave danger of damage to property or persons.

(b)  Whoever willfully incites or urges other persons to engage in a riot shall be punished by imprisonment for not more than 180 days or a fine of not more than the amount set forth in § 22-3571.01, or both.

(c)  If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than the amount set forth in § 22-3571.01, or both.”

As shown above, the current language gives an inaccurate and misleading picture to law enforcement regarding the type of conduct to be criminalized (“an assemblage of 5 or more persons …”).  DC Bill 723 clarifies that law enforcement must focus on the prohibited conduct (looting and property destruction, bodily injury) and not on the fact of a gathering, per se.  Gathering, in and of itself, has never been criminalized under the Riot Act.

DC Bill 723 clarifies that the prohibited conduct must involve a bona fide “riot” in that the number of persons must be “9 or more,” and not as few as 5 persons–a remote possibility contemplated in the current Riot Act, but not a useful focus for law enforcement.  The bill text states as follows:

Sec. 901.  Rioting…. A person commits the offense of rioting if that person: (1) In fact, is in a location that is: (A) Open to the general public at the time of the offense; or (B) A communal area of multi-unit housing; and (2) Knowingly commits, or attempts to commit, a criminal offense that causes or would cause: (A) The damage to, or taking of, property; (B) Bodily injury; or (C) Sexual contact, as that term is defined in Section 101(9) of the Anti-Sexual Abuse Act of 1994, effective May 23, 1995 (D.C. Law 10-257; D.C. Code § 22-3001); and (3) Is reckless as to the fact nine or more other people are each attempting to commit or committing a criminal offense involving damage to property, taking of property, or bodily injury, in the area perceptible to the person….

(b)(1) Nothing in this section shall be construed to prohibit conduct protected by the First Amendment Rights and Police Standards Act of 2004, effective April 13, 2005 (D.C. Law 15-352; D.C. Code § 5-331.01 et seq.).  (2) It is not an offense to attempt to commit the offenses of rioting, as described in subsection (a).  (c) A person may be convicted of both rioting and a criminal offense involving damage to property, or taking of property, bodily injury, or sexual contact arising from the same course of conduct.  (d)(1) Notwithstanding D.C. Official Code § 16-705(b), a defendant charged with committing the offense of rioting may demand a jury trial….”

If the bill is enacted, the retroactive effect of the law may ruffle feathers given that the current Riot Act contains no detailed guidance for law enforcement, and individuals who were prosecuted under the previous (lack of) guidance may have justification to seek a reduction of their sentences or to have their convictions vacated.

DISCLAIMER:  The opinions expressed herein are general and might not be applicable to your case or circumstances.  If you need legal advice about a specific matter, consult an attorney in your jurisdiction.