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STATEMENT OF HON. FRED M. VINSON, JR., ASSISTANT ATTOR
NEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY HON. DAVID G. BRESS, UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA
Mr. VINSON. Thank you, Mr. Chairman and gentlemen. It is a pleasure to be here with you this morning.
As the Chairman noted, I am accompanied by the United States Attorney for the District of Columbia. If I may, I would like to highlight a prepared statement which has been submitted to the committee, and then Mr. Bress and myself will be available for such questioning as the committee desires.
The Attorney General said recently:
To maintain law and order is the first purpose of government and the foundation of civilization. Law enforcement must marshal all resources necessary to restore domestic tranquility. Rioting cannot be permitted to scar the heart of America.
H.R. 12328, proposed to you by the Attorney General and Commissioner Tobriner, deals with one aspect of riot control in the District of Columbia. It clarifies local law and creates substantial penalties for rioting and inciting to riot.
NEED FOR LEGISLATION
The District of Columbia has no law dealing directly with riots or incitement to riot. The District of Columbia code includes the common law crimes of unlawful assembly (22 D.C. Code 1107) and affraying (22 D.C. Code 1101) but does not include the companion common law crime of rioting.
In this respect the District of Columbia differs from most other states. Some 37 states have specific statutory provisions prohibiting riots and 10 other states prohibit riots by defining the terms "unlawful assembly" or "mob action" in a manner which includes riots. In addition, 13 states have separate statutory provisions which prohibit incitement to riot.
It should not be inferred that the lack of a specific riot statute leaves the District of Columbia powerless in dealing with riots. A variety of laws could be applied to a riot situation. For example, persons who riot or incite riot can be charged by the Corporation Counsel with disorderly conduct under 22 D.C. Code 1107 and 1121, but the penalty is $250 or 90 days or both. Similarly, throwing
missiles is punishable by merely a $5 fine under 22 D.C. Code 1109. Further, persons who riot or incite riot can also be charged with any substantive offense which the circumstances may support, including such felonies as arson, grand larceny or assault with a dangerous weapon.
Nonetheless, we feel it would be most desirable to have clear statutory language prohibiting the acts of riot and incitement to riot. Quick and effective prosecution is not assured when the United States Attorney must proceed indirectly through related statutes and justice is not done when penalties are not commensurate with the seriousness of the offense.
In sum we feel the District of Columbia needs a law appropriate for the situation with which it may be confronted.
PROVISIONS OF H.R. 12328
H.R. 12328 specifies that whoever wilfully engages in a riot in the District of Columbia shall be punished by imprisonment for not more than one year or a fine of $1,000 or both. It also prohibits inciting to riot and attaches the same one year/$1,000 penalty unless as a result of the riot substantial damage is done. In that event, persons who incite riots are punishable by a 10-year prison term, $10,000 or both.
The proposed legislation defines riot as "a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct or threat thereof creates grave danger of damage or injury to property or persons”.
In the view of the Department of Justice these provisions constitute a model local law for dealing with riot and incitement to riot. It incorporates the basic thrust of the common law statutes found in many jurisdictions and at the same time modernizes the law and takes cognizance of the First Amendment.
In defining a riot the proposed legislation sets the assemblage at five or more persons rather than the common law three. It also requires a "grave danger of damage or injury to property or persons”, thus excluding those protected assemblages where ideas which invite dispute are espoused but danger is not created.
On the question of the First Amendment, it should be perfectly clear that incitement to riot is not a protected activity. See, Kingsley International Pictures Corporation v. Regents, 360 U.S. 684, 689 and Cantwellv. Connecticut, 310 U.S. 296, 308. Speech which invites dispute or has unsettling effects is protected only until there is “clear and present danger of serious substantive evil”. Perminiello v. Chicago, 337 U.S. 1, 4-5 (1949).
The proposed statute also offers a realistic penalty structure which is in accord with the seriousness of modern riots. The costs of Newark and Detroit are measured in millions of dollars and in human life. Those who incite this kind of destruction should be dealt with as felons and H.R. 12328 so provides. When a riot results in serious bodily harm or property damage in excess of $5,000, persons inciting the riot face a possible ten years in prison. These penalties are similar to those imposed on persons who actually commit such acts of destruction as arson, larceny and assault which are felonies under existing District of Columbia law.
EFFECTS OF H.R. 12328
A statute of this type is not a panacea for riots. It does, however, substantially improve our ability to deal with those who would riot or incite riot. It eliminates the need to look to sedition laws or to argue the applicability of proposed Federal legislation.
In accord with the traditions of local law enforcement, H.R. 12328 will give the District of Columbia ample authority to deal with riots.
Mr. WHITENER. Now, Mr. Bress, do you have a statement you would like to make before we go into questioning?
Mr. Vinson. Mr. Chairman, we have just the one statement between us, but either or both of us would be delighted to respond to any questions.
Mr. WHITENER. All right.
Mr. McMillAN. Mr. Chairman, I want to thank Mr. Vinson for sending this proposal down for the consideration of Congress. In my opinion, I think he has placed his finger on the type of legislation that we are very much in need of in the District at the present time. I am sure that I will do all I can to see that this proposed legislation is expedited in the Congress. I certainly feel that as long as we have able and capable people like Mr. Vinson willing to render public service we do not have to worry too much about the welfare of our country.
Mr. WHITENER. Mr. Nelsen?
Mr. Fuqua. Mr. Vinson, you mentioned the case where substantial damage is done. I believe that is defined as damage amounting to over $5,000.
Mr. VINSON. Yes.
Mr. FUQUA. This would be something like the Newark or Detroit cases where buildings were burned, this type of situation?
Mr. Vinson. Yes, sir; but I don't think it would have to reach that extent.
Mr. FUQUA. I understand. The disturbance we had here in the earlier part of the year in Washington could come under the "substantial damage” provisions, such as store windows?
Mr. Vinson. Yes, sir. It is hard to conceive of a riot which resulted in arson not doing $5,000 damage.
Mr. FUQUA. You mentioned one provision about throwing missiles. I assume that would include Molotov cocktails?
Mr. Vinson. Yes. Molotov cocktails actually could be reached now, I suppose, under the arson statutes as a felony.
Mr. McMillan. Will the gentleman yield?
Mr. McMILLAN. How did they arrive at the $5 fine for throwing missiles?
Mr. Vinson. I think that is one of our very archaic statutes, Mr. Chairman. I understand that this distinguished committee is going to undertake a revision of Title 22 of the D.C. Code, which is long overdue.
Mr. MCMILLAN. Thank you. We even have, I know, a $10 fine for a parking ticket, which should not be more than $2.
Mr. FuQUA. Mr. Chairman, I understand that the Commissioners sent over in August, the latter part of August, a bill. I do not know whether you are aware of it or not. We are awaiting, as I understand it, a report on the bill from the Bureau of the Budget, the bill concerning the possession of Molotov cocktails and also the provisions regarding the ingredients to make these Molotov cocktails. Are you familiar with this bill? In effect, I think we would need this bill to give added help to the bill that you are speaking in favor of now.
Mr. VINSON. I am familiar with the bill. I know that we have been asked to comment upon it. I would defer to Mr. Bress on this question, but I would certainly feel that we could proceed against the possession or the throwing of Molotov cocktails at this time under several statutes.
Mr. Fuqua. This is after the act has been committed, though; am I not right?
Mr. VINSON. That is correct.
Mr. FUQUA. Now, if someone has in his possession a Molotov cocktail already made up that he has not thrown yet, then he is in violation of no law?
Mr. VINSON. I think it would be possession, he would violate the possession laws. Is that not right, Mr. Bress?
Mr. BRESS. Yes. I think under Title 22, Sec. 3204 of the D.C. Code, carrying a dangerous weapon, a Molotov cocktail would be charged as a dangerous weapon. We have currently pending indictments against defendants arising out of the August 2 incident in Washington which involve Molotov cocktails, some who threw and some who possessed.
Mr. FUQUA. In the letter of the District Commissioners to the Speaker, and I quote:
At the present time there is no law in the District of Columbia specifically dealing with firebombs, fire torches or Molotov cocktails. The first section of the proposed bill makes it a crime for any person in the District of Columbia to possess any flammable or explosive or combustible material or substance with intent to wilfully and maliciously use such material or substance to set fire to or burn any building or other property.
Mr. VINSON. I believe the language there has to do with "specifically deals with”.
Mr. FUQUA. Yes, this particular case.
Speech which invites dispute or has unsettling effects is protected only until there is clear and present danger of serious substantive evil.
Could you give me some examples of what would happen under this?
Mr. Vinson. Well, any time you deal with utterances you are confronted with the First Amendment. The First Amendment protects speech. There is no absolute freedom of speech. The First Amendment protects it up to a point and it is a question then of drawing a line. If the speech, as in the Finer case in the Supreme Court decided in 1949 I believe, if the speech has an unsettling effect and creates a real risk of incitement to riot, then obviously the speech is not protected. However, up to that point speech is accorded the protection of the First Amendment.
Mr. FUQUA. In other words, if someone is on the rooftop of an automobile saying, "We ought to burn the town down," then he might not be protected by the First Amendment? Mr. Vinson. That is entirely possible or probable.
Mr. FUQUA. Did you give us your reason for the five men rather than the three persons contained in the common law precedent?
Mr. VINSON. There is certainly nothing magic about either figure. We made a survey of similar statutes throughout the country. The common law rule is that which has already been stated here, which refers to three persons. There are statutes in the states going as high as ten people. There is one statute that may go as high as 20 people. The New York statute is four people. Several statutes are five people. It was our subjective judgment that five or more people might rise to the dignity of a riot. Certainly fewer people than that can cause great trouble. However, fewer people than that causing trouble are much easier to handle, prosecutively, with regard to substantive offenses.
Mr. Fuqua. In other words, then, there was no magic in the figure five? This is a figure you arrived at after looking at the other states?
Mr. VINSON. Surveying other states and trying to decide what we were trying to get a handle on through this legislation.
Mr. Fuqua. Do you think there would be any conflict causing confusion in the handling of court cases where we have three people in one statute and in this one five?
Mr. VINSON. What statute?
Mr. BROYHILL. Mr. Chairman, I request that my statement be included in the record just prior to the testimony of this witness,
Mr. WHITENER. Without objection, the statement will appear in the record at the point requested.
Mr. BROYHILL. I wanted to inquire why this was necessary as a separtare piece of legislation. I had offered what I believe is a similar provision as an amendment to the Cramer Bill when it was debated on the floor. I discussed the amendment and between the time of general debate and the time of the offering of amendments under the five-minute rule, it was stated by some members of the committee that by merely changing the reference to what would be interstate commerce in Title 18 of the U.S. Code, this would bring actions occurring within the District of Columbia under the definition of interstate commerce.
I believe that definition was similar to that in other laws on federal jurisdiction.
As I understand your explanation, there is some ambiguity as to whether the District of Columbia is included in the definition of interstate commerce under H.R. 421, as approved by the House.
Mr. Vinson. No, sir; we haven't reached that question yet, but I am delighted that you brought it up. Originally H.R. 421, as reported by the committee, had its own definition of interstate commerce. I believe Congressman MacGregor offered a floor amendment to take that out, stating his reason to be that he saw no point in having differing definitions of interstate commerce in Title 18, that it could be a matter of some confusion. That means for purposes of H.R. 421 the definition of interstate commerce is contained in Section 10 of Title 18. I notice that you asked the question on July 19th on the floor: Does this bring the District into the bill for purposes of intrastate activities in the District? I believe someone answered that it did.
I think that was your intent and it was I am sure the intent of the person who answered that question. However, when you look at what was actually done, Section 10 of Title 18, in the definition of interstate commerce, it is defined as commerce between the states and includes the District of Columbia as a state, so in our view of that amendmentit would be quite doubtful that activities solely within the District, without use of interstate facilities or without travel from Maryland, Virginia or elsewhere to the District, whether they would be within the purview of that statute.
Mr. BROYHILL. I would hope that some language could be added to H.R. 421 while it is being considered in the Senate, unless there is some reason to believe that bill will not become law, because it does deal with interstate commerce. I know there is some opposition to the bill. I am hoping there will be no opposition to this bill.