Washington’s federal appellate court today declined to rehear a major case on the rights of street demonstrators, sparking a worried dissent from one judge that the decision could have a chilling effect on political expression.
In its March 11 order, the U.S. Court of Appeals for the D.C. Circuit let stand a ruling from November, in which a three-judge panel found that police had the right to arrest an entire group of marchers once some members of the crowd began to riot, even if officers never ordered the crowd to disperse. The case grew out of a protest in Washington’s Adams Morgan neighborhood on the eve of President George W. Bush’s second inauguration. A number of protesters were arrested in an alley away from the main demonstration, which had turned violent, and they later sued claiming constitutional violations.
Today’s order in Carr v. District of Columbia included a concurrence written by Senior Judge Laurence Silberman, and joined by Chief Judge David Sentelle, which declared that “once the march turned violent, its character presumably extended to all who were aware of the violence and yet continued to march.”
By not leaving, “other marchers are arguably not only supporting and thereby inciting the violence, by their very presence, they are impeding the police’s efforts to identify the more active wrongdoers,” Silberman wrote.
That prompted a dissent from Judge Thomas Griffith, who wrote that Silberman’s interpretation had “added to the problem” of the original opinion. He said that by extending the riot statute to marchers who were merely aware of violence, the majority could end up squelching constitutional political speech.
“[A] peaceful marcher who becomes aware of the violent acts of a few on the fringes of the crowd could be arrested for rioting unless he abandons his otherwise lawful protest,” Griffith wrote. “This interpretation will make a would-be demonstrator think twice before taking to the steps of the Capitol or the National Mall.”