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Appeals Court Upholds Jan. 6 Defendant Conviction for ‘Disorderly Conduct’ Despite His ‘Passive, Quiet and Nonviolent Conduct’

Appeals Court Upholds Jan. 6 Defendant Conviction for ‘Disorderly Conduct’ Despite His ‘Passive, Quiet and Nonviolent Conduct’

Never forget that Jamaal Bowman, who just so happened to pull a fire alarm during an important House vote, never received any punishment. NONE.

Russell Alford, 62, appealed his conviction and one-year prison sentence for disorderly conduct on January 6 despite only being in the Capitol for 15 minutes.

Alford took pictures and uploaded a video on YouTube.

The presiding judge? U.S. District Court Judge Tanya Chutkan, who is also presiding over President Donald Trump’s case.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that “passive, quiet and nonviolent” defendants can be charged and convicted of disorderly conduct” based on the circumstances.

Dangerous precedent. If you entered the Capitol building on January 6th, you can be charged and convicted of disorderly conduct.

Circuit Judge Karen LeCraft Henderson wrote (emphasis mine):

The trial evidence indicated that, during Alford’s brief time within the Capitol, he was neither violent nor destructive. Nevertheless, we affirm his convictions because a jury could rationally find that his unauthorized presence in the Capitol as part of an unruly mob contributed to the disruption of the Congress’s electoral certification and jeopardized public safety. We likewise affirm Alford’s sentence. The district court acted within its discretion in imposing a within Guidelines sentence after weighing the competing circumstances.

Alford’s Supposed Disorderly Conduct

Alford literally did nothing. He never once engaged with the rioters, messed with police, moved anything, etc. He did not even attempt to move past signs saying “Area Closed” or blocked by barricades.

Alford didn’t even attempt to enter the Upper House Door, reserved for Congress members, when police worked to secure the steps. He went around the building but came back to the Upper House Door.

The police were gone, and other rioters opened the door. Alford calmly followed them (emphasis mine):

When Alford returned to the Upper House Door, there were no longer police present. He climbed the steps as other rioters knocked on the doors to attract the attention of rioters already inside the building, who then threw open one of the double doors that make up the Upper House Door. This triggered a shrill, continuous security alarm that sounded throughout Alford’s time in the building. Alford paused outside to upload a photo of the rioters to social media that he captioned “Patriots,” and then walked into the Capitol. Dozens of others streamed in before and after him.

Alford remained inside the Capitol for approximately thirteen minutes. As he entered, he turned and unsuccessfully attempted to open the other double door. He then walked further into the Capitol through a metal detector, setting off its alarm. While inside, he mostly stood to the side and observed. He filmed protestors chanting “stop the steal” and pounding on a door that led to the floor of the House, behind which sheltered dozens of Congress members.

Police arrived within about ten minutes of Alford’s entry and began physically and verbally directing the crowd back out through the Upper House Door. Alford initially moved further down the hallway before turning and making for the exit. Only one of the double doors was open and Alford stepped to the side by the closed door as others filed out past him. Alford remained there for about two minutes filming the departing crowd with his phone, watching as roughly fifty people exited through the open door next to him. He left once someone managed to open the second double door.

The district court determined that “Alford’s mere presence inside the Capitol disturbed the public peace or undermined public safety.”

Alford’s “presence was an aspect of the disorder and disruption of the Capitol.”

A federal court found Alford guilty of four charges:

  • 18 U.S.C. § 1752(a)(1) (Count One): entering and remaining in a restricted building or grounds
  • 18 U.S.C. § 1752(a)(2) (Count Two): disorderly and disruptive conduct in a restricted building or grounds
  • 40 U.S.C. § 5104(e)(2)(D) (Count Three): disorderly conduct in a Capitol building
  • 40 U.S.C. § 5104(e)(2)(G) (Count Four): parading, demonstrating, or picketing in a Capitol building.

Alford appealed Counts Two and Three.

The Ruling

Go reread Alford’s movements and actions at the Capitol building.

Got it? OK. For some reason, the judges find the conviction reasonable.

18 U.S.C. § 1752(a)(2) states (emphasis mine): knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions.

Where did Alford do anything like that? I don’t see it in the description of his actions.

40 U.S.C. § 5104(e)(2)(D) (emphasis mine): [Person or group may not] utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress.

Um, the description did not say anything about Alford making any noise.

Alford’s case reminds me why I hate precedent. It seems courts use it as a copout (see abortion) for the decisions. For example:

Second, it is equally clear from caselaw that even passive, quiet and nonviolent conduct can be disorderly. The Supreme Court has recognized that a breach of the peace can occur “by passive conduct likely to cause a public disturbance,” Garner, 368 U.S. at 173–74, and we have likewise observed that “[p]eople blocking traffic at a critical intersection may breach the peace as fully as those who hurl stones,” Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 116 (D.C. Cir. 1977).

“In fact, disorderly conduct statutes typically encompass ‘obstructing a lawful assembly or meeting’ and ‘congregating with others in a public place and refusing an official order to disperse,’ both of which can be done peacefully and passively. 3 Wharton’s Criminal Law § 37.2, at 143 44 (footnotes omitted),” the judges continued.

What?! The opinion literally stated, “While inside, he mostly stood to the side and observed.” Everything I’ve read about Alford’s case showed no evidence of him actually *doing* anything.

The judges tried to use every possible definition of “disruptive” throughout caselaw to justify Alford as disruptive (I omitted the footnotes) (emphasis mine):

The Supreme Court has observed that whether conduct “disrupts or is about to disrupt normal school activities” should be made “on an individualized basis, given the particular fact situation.” Similarly, in interpretating [sic] a statute that prohibited making “a harangue or oration” in the Supreme Court, we concluded that the statute’s focus was on actions “that tend to disrupt the Court’s operations.” Our analysis reasoned that disruptive actions are those that are inappropriate or plainly out of place for the time or setting. See id. For instance, we explained that neither a lawyer making an oral argument nor a tour guide’s presentation to tourists would qualify as disruptive because each is an accepted part of the High Court’s operation. But we held that it was disruptive for members of the audience during oral argument to interrupt the proceedings with speeches and singing. Our Bronstein holding demonstrates that the everyday meaning of “disruptive” centers on an action’s tendency, taken in context, to interfere with or inhibit usual proceedings.

So of course the judges disagreed with Alford that “disruptive” and “disorderly conduct need a narrower scope. Otherwise they would have had to overturn his conviction.

The opinion continues to use examples of a person *doing* something to justify its ruling to uphold the convinction.

But again, from what I have seen and read, Alford did not *do* anything.

Circumstances. That is why the judges “support the jury’s verdict”:

Alford paints himself as a passive observer, and, granted, his conduct does not rise to the level of culpability of many of his compatriots. But he made a deliberate choice to join the crowd and enter the Capitol when he was plainly not permitted to do so. The jury was not required to view Alford’s actions in isolation as though he were the only one at the Capitol that day. It was entitled to interpret Alford’s actions in light of the circumstances. Those circumstances manifest that there was sufficient evidence to support the jury’s verdict.


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At some point, civil disobedience will involve rescuing these political prisoners from jail, and refusing to turn them over to the authorities.

The left-leaning equivalent would be seeing people who simply identify as homosexual convicted and jailed under blue laws against sodomy.

It cannot stand.

    JohnSmith100 in reply to jhkrischel. | January 5, 2024 at 2:27 pm

    If it does stand Dems need to be strung up in the same manner as J6 victims, and that the number should be at least 10 fold.

    So how long before the J6 injustices are addressed by SCOTUS?

    Jasonn in reply to jhkrischel. | January 5, 2024 at 9:55 pm

    When the rule of law ceases to prevail then what remedy is left to the American people. Just like that it feels like 1773 again.

If during the course of the 2020 Summer of Mostly Peaceful Murderous, Arson & Rioting, the federal authorities spent hundreds of millions of dollars tracking down the thugs who were trying to destroy national monuments and attacking federal court houses FOR WEEKS and prosecuting and imprisoning those people for decades, then this would all be different. I wouldn’t like or even agree with this man’s sentence. But, I couldn’t say – no one could say – that there wasn’t similar draconian law enforcement measures applied to the other side when they were being ‘civilly disobedient.’

But, that didn’t happen. City blocks were literally RAZED in a series of riots that became the most expensive riots in American history…maybe even the most expensive in human history. No one cared, particularly not the federal government, even during a moment when it was (nominally) led by a Republican President. It wasn’t under the feds saw their own sacred institutions defiled (only superficially, at that) were they moved to action and personally offended by the act. When it was citizens who were seeing their life work destroyed by riotous thugs, no one cared. Police quite literally stood around and watched. This is how real insurrections are incubated.

    DaveGinOly in reply to TargaGTS. | January 5, 2024 at 7:24 pm

    One of the smartest things Trump did was to keep out of the riots taking place in the States. The federal government would have only had a role had a state requested assistance. (And Trump did authorize the defense of a federal building in Portland, quite rightly, as he was responsible for protecting federal property no matter where it was located.) Trump sending troops into any State, even at the request of a governor, would have been played as “a Nazi attempting to crush opposition to his regime.” There was nothing good that could have come from it, it would have likely exacerbated the situation. It was a trap, and he didn’t take the bait.

      CommoChief in reply to DaveGinOly. | January 6, 2024 at 8:54 am

      Agreed. The riots were a tar baby and he wisely refused. If State and Local leadership choose to allow ‘room to riot’ that’s on them. A very important but often overlooked aspect in media analysis is the burden of failure also falls on the voters in those failed jurisdictions. They are the ones who put them into power. They did so despite knowing full well the extent of the lefty/woke candidates ideologically driven policy preferences and the likely results of those policies. As my favorite Drill SGT endlessly repeating ‘it’s time for consequences and repercussions’.

        TheOldZombie in reply to CommoChief. | January 6, 2024 at 5:22 pm

        It’s not overlooked. The media will never purposely tell the voters it’s their fault that they elected idiots because those same voters will eventually wise up and not elect those same idiots.

Sundowner coming to Valley Forge tomorrow on their sacred anniversary to beat the war drums.

    Skip in reply to Skip. | January 5, 2024 at 2:30 pm

    And we are to get a Nor’easter, hope it’s worse than their prediction

    alaskabob in reply to Skip. | January 5, 2024 at 2:40 pm

    Non-violent political dissent handled Soviet/CCP style.

    FJBiden will “cross the Delaware” just as Washington did after Trenton. What a stain on American history.

    The NY AG wants a $370 million fine and permanent loss of owning real estate for Trump. Why not make it $100 billion and life in prison? They see no losing with their plans and they know that their government will allow their street armies to “police” the streets as “needed”.

    Neo in reply to Skip. | January 5, 2024 at 3:01 pm

    If you are waiting till tomorrow, you missed him.

    President Joe Biden will be holding his first reelection campaign event Friday afternoon near Valley Forge in Pennsylvania. The president will speak at Montgomery County Community College (Blue Bell).

    Biden will kick off his 2024 pitch to voters the day before the anniversary of the violent riot at the U.S. Capitol on Jan. 6, 2021, by posing the question of whether democracy is still a “sacred cause” worthy of sacrifice.

    The president was scheduled to be in Montco on Jan. 6 but moved up his visit because of inclement weather.

I think we’ve all heard enough by know to conclude that Judge Chutkan is compromised. She should be impeached.

Appeals courts aren’t finders of fact.

“But he made a deliberate choice to join the crowd and enter the Capitol when he was plainly not permitted to do so.” Who ushered them in?

One can only hope Trump’s legal team has an ironclad strategy heading into Tanya Chutkan‘s court room.

Isn’t it fascinating not one of the defendants were acquitted or found not guilty.

    Trump’s legal team has no clue of what is going on. But they raise millions and millions of dollars from Trump supporters. Where do you think those millions of dollars are going to?

theduchessofkitty | January 5, 2024 at 2:45 pm

The message is very clear here.

“The Deplorables should never, ever confront their elite “betters” again. Even if you dare to breathe inside the temple of “Our Democracy,” we will throw you in prison to rot.

“But, if our very own people riot, we protect them. They know who butters their bread: us.

“We don’t protect you. You are nobodies. You are nothing. And you will remain nothing. We will imprison Trump and the rest of you, all hundred million of you, and even if we have to build more prisons.”

That’s their message.

You know who also heard that message long ago? The French. What happened next: July 14, 1789. Look it up.

Judge Karen LeCraft Henderson, Reagan judge, 79 yo

Time for a retirement

If Trump and the GOP win in 2024 they need to take action against the leftist courts particularly the DC circuit.

Even though they will not be convicted in the Senate there needs to be an impeachment in the House just to expose the abuses. The vast majority of Americans only get corporate media news and have no idea the injustices that have been perpetrated on hundreds of Americans. Most of what has been reported is about the myth of the violent insurrection to overthrow the government. The actual facts of what occurred and that people who peacefully entered and walked though the capital for a few minutes or just stayed outside and shared a photo on social media were sentenced to prison terms will come as a surprise and hopefully shocking awakening. An impeachment will generate lots of press coverage and even though the corporate media will defend the judges the actual acts of injustice will get lots of exposure. Among those at the top of the list should be Howell, Chutkan and Cooper.

After exposing the tyranny the congress should do a number of things to rein in this lawless bunch. Using budget reconciliation, they should move the court out of DC to a nearby location like West Virginia. I am sure that the leftist elite judges would be delighted to relocate to such a scenic state. Obama increased the circuit court numbers to give the leftists control and the GOP should consider packing the circuit with judges who honor the constitution to neuter some of the more egregious decisions.

entering and remaining in a restricted building or grounds
This one keeps bothering me. I don’t understand why the building that is ours and where our representatives meet is a “restricted building.” Entry and movement through the Capitol and other buildings is way too restrictive, IMO.

    DaveGinOly in reply to GWB. | January 5, 2024 at 7:28 pm

    I get a kick out of signs that say “Authorized vehicles only.” I have a license and my car is registered. Am I not driving an “authorized vehicle”?

This decision has the practical effect of inviting biased juries to jump on the ideological bandwagon of a partisan prosecution. While juries MAY evaluate a defendants actions in the greater context of the.actions of others present to convict they are not under an obligation to apply the conduct of others to the verdict.

In practice this means anyone present can be jammed up for a max sentence on ‘disorderly conduct’ even if their own actions are not individually harmful. This decision works towards making the prevailing political ideology of the jurisdiction more important to the ultimate outcome of a proceeding than any other factor. While it was always ‘a’ factor this ruling makes it ‘the’ factor at least IMO.

    henrybowman in reply to CommoChief. | January 5, 2024 at 4:28 pm

    Hah! Your post wasn’t visible at the time I was composing mine below, but it’s practically identical.

      CommoChief in reply to henrybowman. | January 5, 2024 at 6:50 pm

      No worries, you and I almost always agree.

      The real problem is that this sets up as tit for tat that most of us don’t want. Most of us would prefer to have rulings with less incendiary consequences. This one sets up as Red ideological groups don’t protest in Blue jurisdictions unless willing to face politically motivated prosecutors and juries. While the converse applies in theory as a practical matter Red jurisdictions by their nature are not yet willing to impose reciprocal political trials and consequences. Sooner or later that will change and I expect much wailing and gnashing of teeth from d/prog, legacy media and grievance grifters when it does.

    DaveGinOly in reply to CommoChief. | January 5, 2024 at 7:32 pm

    This should work the other way too. If you’re stopped by a mob while traveling, you have been unlawfully detained (and possibly “kidnapped”). Should you decide to “floor it” and escape, anyone in the mob you may injure, though they may not have been involved directly in your detention, should be similarly responsible for your plight. There should be no “innocent” people in the mob, they share a collective responsibility for the actions of the mob of which they are a part.

    But we know it doesn’t work this way. Why not?

      CommoChief in reply to DaveGinOly. | January 6, 2024 at 9:00 am

      I argue that it will work that way….eventually… but only in Red jurisdictions. Sooner or later there will be some lefty group who tries their hand in a Red jurisdiction and they will get similar treatment as the J6 crowd. Heck look at the weirdo group in Atlanta opposing the construction of a LEO training center. That’s a purple at best jurisdiction and the violent weirdos are figuring out Atlanta ain’t Portland.

“Nevertheless, we affirm his convictions because a jury could rationally find that his unauthorized presence in the Capitol as part of an unruly mob contributed to the disruption of the Congress’s electoral certification and jeopardized public safety.”

This is what collectivist due process looks like. It isn’t about what you did, it’s about what people in your peer group that you don’t even know did.

    BierceAmbrose in reply to henrybowman. | January 5, 2024 at 4:48 pm

    It’s about what select people who don’t like you could rationalize about what some group they put you in, could, would, or might do.

The opinions by the DC Court of Appeals can be summed up in 2 words:

Verbal Garbage

They would issue opposite opinions if the defendant was an antifa or blm

The law is what they say it is, not how it is written.

George_Kaplan | January 5, 2024 at 8:53 pm

Based on Chutkan’s ruling every Antifa or Burn Loot Murder type can be charged, convicted and jailed for disorderly conduct because even if they themselves are not personally violent or destructive, they’re part of mobs that are.

Unfortunately most of the riots occur in areas of Leftist control and neither Democrat DAs nor Democrat juries are interested in jailing Democrat lawbreakers. Thus we again see the 2 tiering of justice on the basis of political affiliation.

If non-Democrat DAs and juries were to apply Chutkan’s precedent however there would likely be epic screaming from the MSM and other Leftists about fascist abuses of power, despite the fact it’s Leftist precedent being applied impartially, though that of course is the problem – Democrats prefer partiality.

The Æsop for Children
The Farmer & the Stork
A Stork of a very simple and trusting nature had been asked by a gay party of Cranes to visit a field that had been newly planted. But the party ended dismally with all the birds entangled in the meshes of the Farmer’s net.

The Stork begged the Farmer to spare him.

“Please let me go,” he pleaded. “I belong to the Stork family who you know are honest and birds of good character. Besides, I did not know the Cranes were going to steal.”

“You may be a very good bird,” answered the Farmer, “but I caught you with the thieving Cranes and you will have to share the same punishment with them.”

You are judged by the company you keep.

The one thing that this demonstrates beyond any shadow of a doubt is that to save the Republic any and all jurisdiction must be removed from Washington D.C.
Both the jury pool and the judges as a whole, and almost every single one of them individually, are clearly incapable of producing anything remotely resembling justice. One would be hard pressed to find any jurisdiction in any civilized nation that is more openly and proudly biased and partisan.

The judge’s tribunal will be shorter than it’s execution. Until traitors hang, nothing can get better.

Subotai Bahadur | January 6, 2024 at 3:14 pm

We are pretty much on the edge of the point where any attempt to contact a Federal official, whether elected or not; will be considered disorderly conduct, insurrection, or treason [Article III, Section 3 is too restrictive when the Left is in power] unless the reason for the contact is to present a bribe. Soon, voting for any but the government sponsored candidate will carry the same penalty.

We seem to be running out of boxes.

Subotai Bahadur

They are now starting to go after people who never even entered the building.

It’s not going to stop until they are made to stop.

BierceAmbrose | January 6, 2024 at 7:39 pm

“Disorderly Conduct” seems to be one of those vague, general charges that needs way better definition, and vetting those definitions vs. declared civil rights. In application it seems like some notion of non-specific “conduct” at odds with some ill-defined “public order” assessed by some authoritah, trying to exercise their authoritah.

Better maybe, if someone has the right to enforce it, it has to be a named thing, maybe even with a harm to something other than the enforcer’s ego.

Wandering-guy in the article could be charged with any of trespassing, obstruction, conspiracy. ignoring lawful orders, or perhaps violation of some sort of “you can only be around the Capitol in specific ways” laws. His case has me wondering whether “disorderly conduct” laws in practice are a net gain. Seem like a terribly temptation to selective enforcement, whatever their up-side.