By Catherine Park, Esq.
The Council hearing on October 15, 2020 covered not only the “Rioting Modernization Amendment Act of 2020” (DC Bill 23-0723), but also the “Internationally Banned Chemical Weapon Prohibition Amendment Act of 2020” (DC Bill 23-0771), and “Comprehensive Policing and Justice Reform Amendment Act of 2020” (DC Bill 23-0882). As to the Rioting Modernization Amendment Act, critics came forward from the local brick-and-mortar business community and the Metropolitan Police Department (MPD). One public witness for brick-and-mortar businesses, which rely upon foot traffic for revenues, testified that a decrease in Riot Act arrests would raise the businesses’ insurance premiums. MPD’s spokesman echoed the concern about insurance premiums. Another public witness in his testimony about businesses that were looted, burned, and destroyed in bona fide rioting this past summer admitted that the local business districts are having a “visceral” reaction against DC Bill 723.
A tepid insurer is no justification for overpolicing peaceful protests. As witnesses testified, overpolicing could take the form of indiscriminate sweeps (a tactic known as “kettling”), which sweeps up people for arrest merely for being near a riot or covering a riot for a news outlet. The “visceral” reactions of local business owners are misdirected here at lawful protesters, given that DC Bill 723 does not abolish the criminal offenses of property destruction, larceny, burglary, arson, offenses involving bodily injury, assault and sexual assault–all of which still remain criminal offenses when occurring during a bona fide riot. The problem that DC Bill 723 seeks to address is prosecution under the Riot Act as a method of suppressing First Amendment rights. Several public witnesses testified about the use of felony prosecutions under the Riot Act to intimidate defendants into pleading guilty to avoid a trial and the risk of a 10-year jail sentence upon conviction. A public witness emphasized that, of the more than 200 Riot Act arrests surrounding the 2017 inauguration, only 20 defendants pleaded guilty–the very defendants charged with felony Riot Act violations carrying the 10-year sentence.
Because such prosecutorial domineering sometimes survives appellate scrutiny, the Council’s advancement of DC Bill 723 would circumvent the harm to a defendant who has no choice but to vindicate First Amendment rights through the appeals process (which could take years, during which the defendant suffers disability due to a conviction and sentence that will have a lasting impact even if the conviction is later vacated).
The District’s Office of Police Complaints, which investigates misconduct and issues policy recommendations and training, voiced support for DC Bill 723. A spokesman for the Office of Police Complaints testified that other offenses are easier to charge and prove, emphasizing that only a few people charged under the Riot Act who proceed to trial are actually convicted.
The Criminal Code Reform Commission (CCRC), which issues comprehensive recommendations for the Mayor and the Council on reforming D.C.’s substantive criminal statutes, testified in support of DC Bill 723. CCRC’s spokesman testified that CCRC’s current draft recommendations are almost entirely consistent with and supportive of the rioting bill language. Hundreds of criminal offenses in the D.C. Code separately punish each form of wrongdoing that may occur during a riot in a far more specific and proportional manner. Trespass, violation of curfew, theft, destruction of property, criminal threat, robbery–all such offenses can be immediately charged and prosecuted when occurring in a group setting. More particular crimes under the D.C. Code are described in more detail as to proof requirements, and the punishments are tailored to each offense. In contrast, the flat 180-day penalty that prosecutors may seek for misdemeanor rioting is disproportionate to other types of harm if rioting is the sole charge, and appropriate only as a secondary penalty that incrementally increases punishment because of the group conduct. The D.C. Code further provides for aiding and abetting liability, which charges such defendants as principals and not merely as accessories, and conspiracy liability is provided by statute, as well. The Riot Act charges would seem superfluous given that the D.C. Code reaches all of the predicate offenses and harms.
CCRC’s spokesman also discussed the sordid history of the Riot Act, which began in 1827 as part of the antebellum “black codes” targeting gatherings of 5 or more African-Americans. The D.C. Riot Act was enacted in substantially its current form in 1967. The 10-year penalty for serious bodily injury and property damage of $5,000 or more was enacted to target African-American rights organizations during riots in the 1960’s which, at the time (although the assumption was later proved to be erroneous), were assumed to be premeditated and orchestrated by outside agitators and therefore subject to the harshly disproportionate penalty provisions. The D.C. Riot Act was used on a large scale following Dr. King’s assassination in 1968, a year in which more than 7,000 Riot Act arrests took place. In addition to the racial-discrimination subtext, the history of the D.C. statute is further entwined with suppression of First Amendment rights, because the statute criminalizes a type of speech (incitement). With no specificity regarding the predicate offenses or harms to be penalized, the current Riot Act makes charging decisions highly subjective.
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