Federal Court Rules Even Passive Jan. 6 Protesters Inside Capitol Can Be Sentenced


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Defendants who were unlawfully present at the Capitol during the Jan. 6 riot can be convicted even if they were passively watching, according to a federal appeals court.

The D.C. Circuit Court of Appeals ruled Friday that intruders at the Capitol during the riot did not need to act in a “disorderly” or “disruptive” manner to be found guilty of disorderly conduct, because such definitions “are nebulous but time has given concrete contours”. in two important senses here.”

“First, it is well established that whether conduct qualifies as disorderly conduct depends on the circumstances surrounding it,” the court wrote. “Courts consistently observe that ‘whether a given act causes a breach of public order depends on the accompanying circumstances’, making it ‘essential that the environment be considered.'”

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Americans loyal to then-President Donald Trump demonstrate at the US Capitol in Washington on January 6, 2021. (AP Photo/José Luis Magaña, File)

“Second, it is equally clear from the case law that even passive, silent and non-violent conduct can be disorderly,” the ruling continues.

The court compared the intruders present at the Capitol on January 6, 2021 to hikers and audience members in an extended metaphor about singing.

“A lone hiker on a mountaintop can sing at the top of his lungs without disturbing anyone; a library user cannot,” the court wrote. “It is entirely appropriate to applaud and cheer when a keynote speaker takes the podium, but doing so once the room has fallen silent and he has begun to speak would normally be disruptive.”

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Protesters at the roundabout

Protesters enter the rotunda of the US Capitol in Washington, DC (SAUL LOEB/AFP via Getty Images)

He continued: “Therefore, in determining whether an act is disorderly, the act cannot be divorced from the circumstances in which it takes place.”

The court’s ruling overturns an appeal over the conviction of Russell Alford, a Jan. 6 defendant who was convicted of four misdemeanors in 2022 despite arguing he was a passive observer who did not participate in the chaos.

“A rational jury could conclude that Alford’s actions were disruptive because his presence at the Capitol contributed to Congress’ several-hour delay in completing the election certification,” the court document reads.

Protesters outside the Capitol

Trump supporters occupy the west front of the Capitol and the inauguration steps. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

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It adds: “There was ample evidence for the jury to conclude that Alford knowingly entered the Capitol without authorization.”

Alford was sentenced to twelve months in prison.

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