Defendants illicitly present in the Capitol during the Jan. 6 riot can be convicted even if they were passively observing, according to a federal appeals court.
The D.C. Circuit Court of Appeals ruled Friday that trespassers in the Capitol during the riot did not need to be acting "disorderly" or "disruptive" to be found guilty of disorderly conduct, because such definitions "are nebulous but time has given them concrete contours in two ways important here."
"First, it is well-established that whether conduct qualifies as disorderly depends on the surrounding circumstances," the court wrote. "Courts consistently observe that ‘whether a given act provokes a breach of the peace depends upon the accompanying circumstances,’ making it ‘essential that the setting be considered.’"
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"Second, it is equally clear from caselaw that even passive, quiet and nonviolent conduct can be disorderly," the ruling continued.
The court compared trespassers present in the Capitol on Jan. 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 a soul; a patron in a library cannot," the court wrote. "It is entirely appropriate to clap and cheer when a keynote speaker steps to the podium but to do so once the room has fallen quiet and he has begun to speak would ordinarily be disruptive."
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It continued, "Thus, in determining whether an act is disorderly, the act cannot be divorced from the circumstances in which it takes place."
The court's ruling quashes an appeal on the conviction of Russell Alford, a Jan. 6 defendant who was found guilty 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 in the Capitol contributed to the Congress’s multi-hour delay in completing the electoral certification," the court document reads.
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' incarceration.
