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WEDNESDAY, OCTOBER 4, 1967
HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE
Washington, D.C. The subcommittee met, pursuant to call, at 10:19 a.m. in Room 1310, Longworth House Office Building, Hon. Basil L. Whitener, Chairman of the subcommittee.
Present: Representatives McMillan (Chairman of the full committee, presiding), Whitener (later presiding), Fuqua, Nelsen, Broyhill and Gude.
Also present: James T. Clark, Clerk; Hayden S. Garber, Counsel; Sara Watson, Assistant Counsel; Donald Tubridy, Minority Clerk; and Leonard O. Hilder, Investigator.
Mr. McMILLAN (presiding). The committee will come to order. I regret Mr. Whitener was held up because of another meeting this morning with the Secretary of State. He will be here in a few moments, however. We have for consideration this morning H.R. 12328, H.R. 12605, H.R. 12721 and H.R. 12557, relating to the prohibition of riots and incitement to riot in the District of Columbia.
(The bills, letter from the Attorney General requesting this legisation, and Staff Memorandum follow :) (H.R. 12328, 90th Cong., 1st Sess., by Mr. McMillan on August 14, 1967; H.R.
12605 by Mr. Nelsen on August 24, 1967; and H.R. 12721 by Mr. Scott on August 30, 1967)
A BILL Relating to the prohibition of riots and incitement to riot in the District of Columbia Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
(a) A riot in the District of Columbia is a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.
(b) Whoever willfully engages in a riot in the District of Columbia shall by imprisonment for not more than one year or a fine of not more than $1,000, or both.
(c) Whoever willfully incites or urges other persons to engage in a riot shall be punished by imprisonment for not more than one year or a fine of not more than $1,000, or both.
(d) If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than ten years or a fine of not more than $10,000, or both.
(H.R. 12557, 90th Cong. 1st Sess., by Mr. Bevill on August 23, 1967)
A BILL Relating to the prohibition of riots and incitement to riot in the District of Columbia
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That
(a) Whoever willfully engages in a riot in the District of Columbia shall be punished by imprisonment for not more than five years or a fine of not more than $10,000, or both.
(b) Whoever willfully incites a riot in the District of Columbia or urges other persons to engage in a riot or organizes, promotes, encourages, or abets a riot in the District of Columbia, or commits any act of violence in furtherance of a riot, or aids and abets any person in inciting a riot or in committing any act of violence in furtherance of a riot in the District of Columbia shall be punished by imprisonment for not more than five years or a fine of not more than $10,000 or both.
(c) A riot in the District of Columbia is a public disturbance involving acts of violence or threats of violence by assemblages of three or more persons which poses a danger of damage or injury to property or persons.
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., August 5, 1967. The SPEAKER, House of Representatives, Washington, D.C.
DEAR MR. SPEAKER: Enclosed for your consideration and appropriate reference is a Bill to provide for the punishment of individuals who riot or incite others to riot in the District of Columbia.
The District of Columbia does not have a statute designed specifically to proscribe rioting and incitement to riot, relying instead on a disorderly conduct provision of law and the Maryland common law. This proposal will provide such a statute. It would punish those who participate in a riot or incite others to riot by imprisonment for not more than one year or a fine of not more than $1,000, or both. If serious bodily injury or damage to property of more than $5,000 results from incitement, such incitement would be punished by imprisonment for not more than 10 years or a fine of not more than $10,000, or both.
The District of Columbia should have adequate statutory law to deal swiftly and surely with such occurrences, for the first purpose of government is to insure that law and order are maintained.
The Bureau of the Budget has advised that this proposal is in accord with the Program of the President. Sincerely yours,
Attorney General. WALTER N. TOBRINER, President, Board of Commissioners, D.C.
STAFF MEMORANDUM ON Anti-Riot LEGISLATION
PURPOSE OF THE LEGISLATION
Under date of August 5, 1967, the text of pending anti-riot legislation was transmitted to the House of Representatives over the signatures of Attorney General and the President of the Board of Commissioners of the District of Columbia. The stated purpose of the proposed legislation was “to provide for punishment of individuals who riot or incite others to riot in the District of Columbia."
The transmittal letter pointed out that the District of Columbia does not have a statute designed specifically to proscribe incitement to riot. The District must rely instead on disorderly conduct provisions of the D.C. Code and the Maryland common law.
The letter further stated that the District should have an adequate statutory law to deal swiftly and surely with such occurrences
"to insure that law and order are maintained."
On July 19, the House of Representatives passed H.R. 421, an anti-riot bill. Purpose of that legislation was to add a new chapter to Title XVIII of United States Code as "Chapter 102.-Riots" to provide legal means to impose fines and imprisonment, or both, upon any persons using interstate facilities to incite, promote, or carry on a riot.
This bill as amended in the House, is now pending before a Subcommittee of the Senate Committee on the Judiciary.
When H.R. 421 was pending before the House, a number of members had amendments prepared to make the provisions of the bill effective in the District of Columbia without the necessity of showing the use of interstate facilities or travel. H.R. 421, as introduced, carried its own definition of interstate commerce. Under that definition, the provisions of the bill would have been applicable in the District only where a person traveled across state lines or used interstate facilities.
The amendment adopted on the House Floor struck from the bill, the definition of interstate commerce. The effect of this amendment was to make applicable to the new chapter the definition of interstate commerce which is found in U.S. Code, Chapter XVIII, Section 10. That definition is as follows:
“The term 'Interstate Commerce', as used in this Title, includes commerce between one state, territory, possession, or the District of Columbia, and another state, territory, possession, or the District of Columbia.”
It appears that this language would be adequate for the purpose of an arrest and probably an indictment of an offender in the District of Columbia without reference to the use of interstate commerce facilities or travel. However, problems are seen as to precisely what presentments the prosecution would be required to make in bringing a criminal action. The definition refers to commerce between the District of Columbia and the District of Columbia. It does not explicitly say "within" the District of Columbia.
Before instituting any criminal action under the definition on interstate commerce in H.R. 421, the prosecution must determine (1) whether travel or the use of facilities of commerce must be shown and (2) if such showing is necessary, how much travel or use of facilities of commerce should be shown to provide the basis for prosecution. At trial, the court must determine the meaning of the definition and whether the particular facts in the case presented the necessary elements of the crime as was determined by the courts construction of the definition.
The text of the anti-riot bills, H.R. 12328, H.R. 12605 and H.R. 12721, pending before the Committee rather closely parallel the general thrust of H.R. 421 with the major difference that the pending bills make no reference to interstate commerce. The similarities and differences are discussed hereafter. H.R. 12557 is essentially H.R. 421 without the provisions relating to interstate commerce.
The bills pending before the Committee make the anti-riot provisions applicable to assemblages of five or more persons. H.R. 421 was applicable to assemblages of three or more persons. The common law applied to assemblages of three or more persons and most States laws make such anti-riot prohibitions applicable to assemblages to three or more persons. It is not apparent why the Justice Department used the terms "five or more persons" but there appears to be no objection to making the terms applicable to assemblages to three or more persons.
To constitute a riot, the bills pending before the Committee require acts which must be characterized as “tumultuous and violent conduct." H.R. 421 requires conduct which can be characterized as "acts of violence”. While the language is not the same, there may be no substantial difference between the two definitions of “riot”.
In addition to the type of acts required to constitute a riot, the pending bills specify "conduct or threats thereof (which) creates a grave danger". H.R. 421 required that an act of violence be one which "poses an immediate danger". The term “immediate danger" is found more commonly in law relating to riots. The language in the pending bill “creates grave danger” appears to be somewhat
broader in its application and might reach situations where "immediate danger” could not be shown.
INCITE TO RIOT The term “incite to riot” is used in the pending legislation and also in H.R. 421. This term is not defined in the pending legislation but it is defined in H.R. 421. The definition used in H.R. 421 is in substance a standard definition of the term “incite” but carries the qualification that the term “shall not mean the mere advocacy of ideas or the mere expression of belief."
While it does not appear essential that the pending legislation incorporate a definition of the term "incite”, the Committee may want to consider the inclusion of a definition and possibly a qualification similar to that in H. R. 421.
PENALTIES The pending legislation provides penalities for those persons convicted or "willfully” engaging in a riot. A person convicted of such conduct would be subject to imprisonment for not more than one year or a fine of not more than $1,000, or both. In the event that any person, as a result of the riot, suffers "serious' bodily harm or if there is property damage in excess of $5,000, those who "willfully engaged in the riot may be punished by imprisonment for not more than ten years, or fined not more than $10,000, or both. H. R. 421 has a single penalty provision which provides for a fine of not more than $10,000, or imprisonment for not more than five years, or both.
DEFINITIONS Elements of Riot
"(1) Number of persons, at least three; (2) common purpose; (3) execution or inception of the common purposes; (4) an intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; (5) force or violence not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.” English Common Law-Pleas of the Crown, 1715. Unlawful Assembly
“The assembling of three or more persons together to do an unlawful act, who separate without actually doing it, or making any motion towards it.” Black's Law Dictionary. Riot
“A tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist each other against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.” Black's Law Dictionary. Rout
“A rout is an unlawful assembly which has made a motion towards the execution of the common purpose of the persons assembled. It is, therefore, between an unlawful assembly and a riot.” Black's Law Dictionary.
Forty-one states have laws relating to riot or inciting to riot. Seven states retain the common law and penalties for riot or incitement of riot. Two states rely on related criminal law on disorderly conduct, breach of peace, arson, assault, etc.