J6: where non-disorderly conduct was disorderly conduct

By Mike McDaniel

During the 2020 “Summer of Love,” Black Lives Matter (BLM) and Antifa mostly-peaceful but fiery protestors were given, as a former Baltimore mayor put it, “space to destroy.” A handful were arrested, fewer were prosecuted and very few convicted of riot, arson, destruction of property, assaulting police officers, looting, even murder. They did at least $2 billion in damage. They were, it seems, the right—left—kind of protestors, immune from the consequences of their criminal actions. Not so for January 6, actually mostly peaceful, protestors, even those who merely walked around and took pictures:

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.

Storming capital IMG 3519: Wikimedia Commons.org. 

Chutkan is known for taking a draconian approach to J6 defendants.

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.

During my police career I took a different approach. I didn’t arrest anyone for disorderly conduct unless they were, you know, actually, obnoxiously, disorderly. I didn’t because making such dubious arrests would have badly damaged my reputation, and because it would have been wrong. Apparently, that’s not a concern in DC.

Circuit Judge Karen LeCraft Henderson wrote:

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.

Of course. He wasn’t disorderly, but we’re nailing the guy anyway because J6, insurrection and stuff.

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. 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.

Obviously, Alford is an imminent danger to “our democracy.”

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.” 

That sounds like my thinking on why I didn’t arrest people who weren’t being disorderly for disorderly conduct.

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

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

Actually, yes Alford did. He was a convenient pawn in a government-provoked insurrection that wasn’t. Merely being present in a building he had no reason to believe he was prohibited from entering was more than enough, and even if it wasn’t, he displayed the worst sort of culpability: he supported Donald Trump, believed the most ethical election ever was fraudulent and thought the First Amendment allowed him to petition the government for redress of that grievance. Silly fellow.

Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. His home blog is Stately McDaniel Manor. 

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