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Mr. Bress. I think it would be inappropriate to use that section here because the fellow who does the inciting is charged under certain circumstances in this bill with a more serious offense or felony than the fellow who merely engages in the riot.
Mr. WHITENER. Let me argue against myself a little bit. The use of the word “incite.” How broad is that? It seems to me we are saying "incite or urge.”
Now, Black says that “incite”—“to incite means to arouse, urge, provoke, encourage, spur on, goad, stir up, instigate, set in motion so as to incite a riot."
Suppose we leave the language as it is and in the committee report refer to the definition in Black's and other reputable law dictionaries-and in our report say that the committee intends that the use of the word “incites” means arousing, provoking, encouraging, spurring on, goading, stirring up, instigating, setting in motion a riotous situation."
Do you think that would be adequate?
Mr. WHITENER. What do you think about that, Mr. Kneipp? The thing that you read caused me to believe that perhaps the way this language was drawn here, "whoever willfully incites" or "urges” –
Mr. KNEIPP. The problem in my mind is one of statutory interpretation. If "incite" or "urge” is clear on its face in the bill, you couldn't go to the committee report.
Mr. WHITENER. I will argue against myself again. If we are going to take Black's definition, we don't need the word "urge," because "incites” embraces the word “urge.'
Mr. Vinson. I think your last comment, Mr. Chairman, is entirely correct. We gave serious thought to just having it “whoever willfully incites other persons” as being inclusive of “urge," "arouse,” et cetera.
Mr. WHITENER. If we undertake to define riot" in Subsection (a), what do you think of defining "incitement to riot" at some point in the bill, using language comparable, if not beyond the language in Black's definition? Would that be better than putting it in the report?
Mr. Vinson. It is my feeling, Mr. Chairman, that "incite” has a well-established, clear, legal meaning.
Mr. WHITENER. What would it do to the bill if we strike out “urge”'? Mr. VINSON. I don't think it would affect the bill.
Mr. WHITENER. Perhaps we could strike out "urge" and then in the report refer to the definition of Black's as to what constitutes "inciting."
What do you think, Mr. Bress?
Mr. BRESS. I think, Mr. Chairman, that the word "urges” probably means something less than “incites,” and the bill as drafted would make it the offense to engage in the kind of conduct that one might not characterize as satisfying the common law meaning of the word “incite.” Even if you do less than that. But, what you do amounts to some persuasion, strong suggestion; that is, "urging,” and although I wouldn't be
Mr. WHITENER. What you are saying, as I understand it, is that "urge” may be an element in “inciting” under a given set of facts, but “urging” alone may not under another set of facts be adequate to support a prosecution. So if you leave “urge” here, you might convict a man of "urging" a riot, where you could not convict him of “inciting” a riot under the accepted definition of inciting.
Mr. BRESS. That is correct. It is making it a criminal offense to do something short of actual common law incitement and I don't know that it is intended to be exactly synonymous with incitement.
Mr. Vinson. The word "urge” is a word in more common usage and does give it a little flavor.
Mr. WHITENER. Are there any other questions?
Mr. Kneipp, you are here for the District Government. Do you have a prepared statement?
Mr. KNEIPP. I have no prepared statement. I merely want to set forth the position of the District Commissioners. Commissioner Tobriner said in his letter in which he joined with the Attorney General, dated August 5,
Mr. WHITENER. May 1 interrupt you there? This report from Commissioner Tobriner has not been made a part of the record. We will so make it at this time.
Mr. KNEIPP. Mr. Tobriner, as well as the Attorney General, feel there should be an adequate statutory law to deal effectively with riots in the District of Columbia.
This is not to say, sir, that the District is without a body of law to deal with this problem. Mr. Vinson has referred to the common law offense of riots which is available in the District. No one yet has mentioned that there is a general penalty of $1,000 or not more than five years in jail available in the event there was successful prosecution under the common law. This is in Section 910 of the Act of March 3, 1901 that prescribes a general penalty for any offense for which there is no specific penalty and I think that penalty would apply.
Mr. WHITENER. This statute would then reduce the punishment.
Mr. KNEIPP. It would be this way, sir: The bills offered by Mr. McMillan and Mr. Nelsen would have that effect unless there was serious bodily injury or damage in excess of $5,000. I might mention that I believe the Commissioners support those bills.
The bill offered by Mr. Scott is substantially the same except it would apply to three or more persons rather than five or more.
The bill introduced by Mr. Bevill (H.R. 12557) is somewhat different. It would create a felony. It would make the offense of riots and the offense of incitement to riot a felony as it would be under common law and it would increase the fine to $10,000 instead of the general penalty of $1,000. It would keep the term of imprisonment at the same level
. I think with regard to H.R. 12557, while I haven't discussed it with the Commissioners, they would feel it is too severe in its terms. They have approved the bills introduced by Mr. McMillan and Mr. Nelsen. I have not discussed H.R. 12557 with them, but I believe they would prefer the McMillan-Nelsen bills as against the bill introduced by Mr. Scott and the bill introduced by Mr. Bevill.
Further, as has come out in the course of this hearing, there are other provisions of law that are available to deal with the problem. The unlawful assembly provision, the disorderly conduct provision; they are all available. As the chief has indicated, the penalties are very minor: $250 and 90 days in those cases. While there is law, it is in a rather, shall we say "slightly confused state.” Of course, a specific statutory provision dealing with this problem is preferable to the slightly confused state of the law as it now stands.
I have nothing further, Mr. Chairman.
Mr. WHITENER. As I understand it, we do have the common law that we can resort to in the District of Columbia for prosecution for riots and incitement to riot. This bill would have the effect of lowering the maximum imprisonment from five years to one year, and also the committee amended it for riot or incitement to riot.
The present common law does not have graduated punishment based upon property damage and serious injury, as this bill is proposing
Mr. KNEIPP. Mr. Chairman, I might mention these bills do omit two elements that appear in the classic definition of “riot” as it occurs in the common law, and this would make Mr. Bress' job much easier. In the common law definition there was the "purpose to resist opposition” element and then there was the element of inspiring of terror.' Those would have to be alleged and proven under the common law, I would think.
Mr. WHITENER. The fear of injury-it must be a situation where a person with reasonable firmness
Mr. KNEIPP. As it appears in Section 2 of American Jurisprud classic definition declares a riot is disturbance by three or more persons, assembling of their own authority with an intent mutually to assist one another against anyone who shall oppose them in the execution of some enterprise of a private nature and afterwards actually executing the same in violent or turbulent manner to the terror of the people, whether the act itself or intended act was lawful or unlawful.
Mr. BRESS. Mr. Chairman, with respect to the discussion of the last few minutes about the common law, I think I have a different view of it. My study indicates that the common law of Maryland with respect to riot, or incitement to riot, could not be resorted to in the District of Columbia for prosecution.
Mr. WHITENER. Maryland has a riot statute and they operate under the common law.
Mr. Bress. It is certainly in a state of uncertainty. Title 22, section 107, of the District of Columbia Code provides that criminal offenses not covered by the code shall be punished by a $1,000 fine or up to five years, or both. But in Maryland the offense of rioting or incitement to riot is a misdemeanor at common law.
It appears as Mr. Vinson has indicated that the disorderly conduct statutes in the District of Columbia may have pretty well pre-empted a good part of what constituted common law riots. Therefore, since there is some pre-emption, we would not be able to resort to Maryland common law by virtue of the provisions of Title 22, Section 107, because that kind of conduct is already proscribed by other provisions of the D. C. Code. For that reason I think that we are in the position in the District of Columbia now in dealing with the subject matter of riots and incitement to riot, to either rely upon our present disorderly conduct statutes or to have separate legislation and I think as between those two alternatives, the need for this bill is emphasized.
Mr. WHITENER. Don't you have a statute in the District Code that provides punishment for felonies for which no specific punishment is provided by other statutes?
Mr. BRESS. Yes. I think that is the $1,000 and up to five years.
Mr. WHITENER. This is similar to what we have in our state. We have said the common law is still in effect unless modified or changed by statutory enactment of the legislature. We have a statute saying a felony for which there is no statutory punishment is punishable by not more than ten years in the state prison. When you have a common law offense like riot or incitement to riot, the court advises the individual if he is found guilty that it is a felony under the common law so the statutory penalty for felonies which are not the subject of statute, then comes into force. This has been before the Supreme Court many times.
Mr. Bress. The anomalous thing here is that under the cases in the state of Maryland, which declare that common law riot and incitement to riot constitute a misdemeanor, if brought into the District of Columbia by reason of 107 of Title 22, the punishment would be as for a felony even though it is a misdemeanor in Maryland.
Mr. WHITENER. What the Maryland court might say in 1965 would not have any effect on common law as of that date back in the 1800's. Rioting is a felony in common law.
Mr. VINSON. Not in Maryland, sir.
Mr. Whitener. The law in Maryland makes riot a felony, does it not?
Mr. BRESS. In 1937, Mr. Chairman, the Court of Appeals of Maryland handed down the case of Cohen vs. Maryland, 173 Maryland, 216, and in that case it was stated that common law inciting to riot was a misdemeanor in the State of Maryland.
Mr. WHITENER. What did it have to say about riot?
Mr. WHITENER. In common law, all British statutes in force in Maryland, February 27, 1901, et cetera, shall remain in force except inconsistent with present legislation. That is what D.C. Code, Tit. 49. sec. 301, provides.
Mr. GUDE. Under this common law definition where it says, "incite," does that mean in the sense that it is urged or promoted but the riot does not actually take place? For example, in the Maryland law, how would that be determined?
Vr. BRESS. I don't know that we have any case in Maryland which involved incitement where riot did not result. I think it is a unique situation where the prosecution is for incitement where no riot does result.
Mr. GUDE. In this legislation there could be a case of incitementin this case incitement would be urging or trying to promote but not actually having the riot take place. Isn't that
Mr. Bress. Under this bill that is correct. That is my understanding.
Mr. WHITENER. Thank you very much, gentlemen. We are sorry we kept you so long.
The Committee will proceed in executive session.
Mr. Gude. I was wondering whether we were going to have further hearings. There were persons who wanted to be heard and I wondered whether we would have further hearings.
Mr. WHITENER. The Chairman says these are all the witnesses he intends to hear. Their statements will be included in the record. (The statements referred to follow :)
NATIONAL Mobilization COMMITTEE
To End THE WAR IN VIETNAM,
Washington, D.C., October 2, 1967. Representative John McMILLAN, House Office Building, Washington, D.C.
DEAR MR. McMillan: We have just learned that the Committee on the District of Columbia intends to hold hearings this Wednesday, October 4, 1967 on H.R. 12328 which discusses new penalties for those inciting or engaging in riots in the District.
We would like to request permission to testify before the sub-committee which is holding these hearings. The National Mobilization Committee to End the War in Vietnam is planning a large march, rally and non-violent direct action for October 21-22. A direct action team which is a project of the National Mobilization has already participated in certain activities in the District. Because of the nature of our activities we are particularly concerned with the language, interpretation and content of H.R. 12328. Over one hundred organizations are part of the National Mobilization and will be most interested in the bill.
Thank you for your consideration of this request. We consider it imperative that we be able to testify. Sincerely yours,
NATIONAL MOBILIZATION COMMITTEE
To End The War IN VIETNAM,
Washington, D.C., October 4, 1967. Representative Basil WHITENER, House Office Building, Washington, D.C.
DEAR MR. WHITENER: The National Mobilization Committee to End the War in Vietnam opposes H.R. 12328 and H.R. 12557 and similar bills to prohibit riots and incitement to riot in the District of Columbia. These bills-under cover of attempting to prohibit riots-appear, in fact, directed towards prohibiting persons from expressing legitimate grievances against present American policies. These bills are being considered at the end of the summer when no riots such as occurred in Detroit or Newark seem likely. However, this legislation is being considered just prior to the planned October 21-22 "Confrontation with the Warmakers” sponsored by the National Mobilization, and just prior to the announced "Stop the Draft and Draft Resistance” week.
The language of both bills is so vaguely phrased that anyone could be accused of violating its provisions if they were considered by a policeman or other official to be posing "a danger" or "a grave danger" of damage or injury to property or persons. There is no clear definition of when such danger might exist or what it might entail.
The Department of Justice has written the bill introduced by Mr. McMillan and to our knowledge it already has support from the Administration. Therefore, since no riot appears likely in the District, we believe that this legislation is intended primarily to limit dissent to the War in Vietnam and is being considered at this time to prevent certain political views from being expressed. We do, then, consider this legislation as discriminatory in intent of its application.
We only learned of this bill Monday, October 2, and our lawyers have not yet had an opportunity to consider its full legal implications. However, upon superficial examination, they believe that these bills raise serious constitutional questions of due process of law, and violations of rights to free assembly and to free speech.