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’

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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