SCOTUS asks DOJ to defend disorderly conduct convictions of J6 protestors who were not disorderly

Eliyahu Tulshinski

April 25, 2024

The Supreme Court has requested a response from the Department of Justice (DOJ) to a petition from a peaceful J6 protestor who is appealing his conviction for disorderly conduct.

99% rejected

The High Court only agrees to grant certiorari, i.e., review a request for appeal, in about eighty out of seven to eight thousand petitions for “a writ of certiorari” each year. Normally, the justices do not give an indication of whether they are inclined to include a particular case in the one percent that get to the next stage, which includes additional briefs and oral arguments, until after receiving a response to the petition and the petitioner's reply to the response.

Confident feds

In the case of J6 protestor Russell Alford, however, the justices may have already signaled that they are inclined to grant certiorari, a decision which would require the agreement of four of the nine justices. Alford filed his petition to cancel his conviction with SCOTUS in early April and the government had 30 days to respond. Instead of responding, however, the DOJ penned a single sentence to the High Court:

The Government hereby waives its right to file a response to the petition in this case, unless requested to do so by the Court.

The justices then announced that they do indeed want the DOJ to respond, giving it a May 23, 2024 deadline, indicating their interest in the matter.

1 act, 13 minutes, 4 convictions

Most J6 defendants, facing multiple charges for the one act of trespassing, waived their right to argue that their entrance into the Capital was an unknowing trespass, fearing the potential for multiple prison sentences. Alford, like America's Frontline Doctors' (AFLDS) Creative Director John Strand, was one of the few J6 defendants to refuse a plea deal.

Alford's trespass was described by the Court of Appeals for the District of Columbia Circuit.

Alford remained inside the Capitol for approximately thirteen minutes…

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. [Emphasis added.]

The court added that Alford left within three minutes of police telling the crowd to leave:

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 … He left once someone managed to open the second double door.

For this, the trial court convicted Alford on four separate counts, all stemming from that 13-minute walk during which he did not so much as yell. He was given the maximum sentence for each charge, to be served concurrently, resulting in a 12-month sentence for:

Remaining in a restricted building
Disorderly or disruptive conduct in a restricted building
Disorderly or disruptive conduct in the Capitol Building and parading
Demonstrating or picketing in a Capitol Building [Emphasis added.]

Overcharging banned; not banned

The DOJ is actually prohibited from engaging in so-called overcharging, particularly in the the District of Columbia Circuit, in which Alford's trial court sits, where the circuit's appellate court has, for more than 50 years, explicitly banned the practice of overcharging defendants where the intent is to coerce a guilty plea on a lesser charge:

. . . the prosecutor clearly cannot have carte blanche to apply whatever tactics he wishes to induce a guilty plea. A policy of deliberately overcharging defendants with no intention of prosecuting on all counts simply in order to have chips at the bargaining table would, for example, constitute improper harassment of the defendant. [Emphasis added.]

Nonetheless, J6 protestors have been uniformly subjected to multiple charges in the absence of separate actions. Technically, though, Alford's case does not fit this classic definition of overcharging, since the DOJ, perhaps sensing a jury pool antagonistic to J6 protestors, did in fact prosecute Alford on multiple charges. But it is not, in any case, overcharging that is at issue in the petition to the Supreme Court.

Not disorderly; disorderly

Alford appealed his convictions on the two charges requiring the government to prove “disorderly or disruptive conduct.” The trial court refused Alford's motion to acquit on those charges, despite the lack of any evidence of such conduct, arguing that he should be held guilty on account of the actions of (a small minority) the other protestors:

Mr. Alford’s mere presence inside the Capitol disturbed the public peace or undermined public safety” and that “his presence was an aspect of the disorder and disruption of the Capitol.” [Emphasis added].

“Even passive, quiet and nonviolent conduct can be disorderly”

The appellate court agreed with prosecutors and the lower 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 …

"Second, it is equally clear from caselaw that even passive, quiet and nonviolent conduct can be disorderly," the ruling continued. [Emphases added].

It is this ruling, that "passive, quiet and nonviolent conduct can be disorderly,” that is at issue in Alford's appeal to the Supreme Court.

High Court may help … others

Should the nation's highest court rule that such peaceful behavior as Alford's cannot be the basis for a disorderly conduct conviction, it may not actually benefit Alford, as his two convictions for “remaining” and “demonstrating” in the Capital would still stand and for each he was sentenced to the maximum prison time, as mentioned above, to run concurrently.

Since the maximum sentence for the charge of merely remaining in a restricted building is one year, even vacating the two disorderly charges would still leave Alford facing a year in prison, though he could argue that, without the disorderly charges, one year is excessive for trespassing.

Alford is far from the only peaceful J6 protestor to be charged with disorderly conduct, however. According to Conservative Zone, 1,156 of those protestors were charged with disorderly conduct despite their peaceful conduct.

1,156 peaceful January 6 protesters have been charged with engaging in disorderly or disruptive conduct. 1,021 have been charged with disorderly or disruptive conduct in a Capitol building. About 1,000 of them have been hit with both misdemeanor charges. These are the most common charges that the 1,300+ total January 6 peaceful protesters have been hit with.

None of the people facing these charges did anything violent or caused any property damage. They were welcomed into the building by police officers who were high-fiving them and holding doors open for them, they wandered around for a while, and they peacefully left when asked to do so.