By Catherine Park, Esq.
At the Council hearing on October 15, 2020, the U.S. Department of Justice (DOJ) took the position that DC Bill 723 (“Rioting Modernization Amendment Act of 2020”) does not merely “clarify” the current Riot Act but “changes the definition of rioting.”
The issue of the retroactive effect to be given a clarifying amendment to an existing law hinges on whether the clarification goes too far with respect to various provisions and would be treated instead as a substantive change with respect to those provisions, and not merely as a clarification. As the U.S. Court of Appeals for the Sixth Circuit recently discussed:
United States v. Richardson, 948 F.3d 733, 746-47 (6th Cir. 2020).
Here, the due process problem associated with retroactivity of a criminal statute (potential enlargement of the penalty for defendants who were charged under an earlier codification of the law, which had narrower penalty provisions) is absent. Nor did DOJ’s testimony on DC Bill 723 object so strongly to retroactivity as to prospectivity. There were three main points of objection: (1) DC Bill 723’s elimination of incitement to riot as a punishable offense, (2) elimination of the felony gradation, and (3) elimination of simple assault not causing bodily injury as a rioting offense.
DOJ’s spokesperson acknowledged that, for example, even though incitement (involving organizing and encouraging) would be punishable under other laws (e.g., statutes criminalizing aiding and abetting, and conspiracy), potentially DOJ’s and MPD’s investigations of riots before they occur could be impeded. But would the investigation of domestic, non-terrorism offenses genuinely be impeded? Rather,
(1) DC Bill 723 would turn law enforcement investigations away from monitoring protected First Amendment activity and toward monitoring the planning and organizing of the underlying criminal offenses that occur during a bona fide riot (e.g., property destruction, looting, offenses causing bodily injury, sexual assault, and etc.).
(2) Many of those underlying offenses can be prosecuted as felonies, in and of themselves. Elimination of the felony gradation for Riot Act charges only could ameliorate the detriment to First Amendment rights. For example, of the over 200 Riot Act arrests surrounding the 2017 inauguration, only 20 defendants were charged with the felony gradation. Given the potential for a 10-year-sentence for felony rioting, they were the only defendants to plead guilty.
(3) Simple assault and other offenses not causing bodily injury are still punishable under the D.C. Code; those offenses just would no longer be predicate offenses to a Riot Act charge.
The testimony at the hearing revealed a disconnect between law enforcement and the Councilmembers regarding what “most members of our community would agree … constituted rioting.” Such uncertainty regarding the prohibited conduct, which contributes to impermissible vagueness in a criminal statute, is ameliorated by DC Bill 723’s clarification of the conduct that constitutes Riot Act violations.
Through such clarification, the bill removes from the prosecutor and law enforcement sole decisionmaking power to determine what “most members of our community would agree … constituted rioting”–a determination that must be made by the elected members of the Council, since the Riot Act is a statutory creation.
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.