DC Circuit upholds staple Capitol riot misdemeanor charge for demonstrating inside Capitol

WASHINGTON (CN) — A D.C. Circuit panel on Tuesday rejected a Capitol rioter’s request to throw out his conviction on four misdemeanor offenses, ruling the U.S. Capitol is a “nonpublic forum” and upholding his conviction related to his entry on Jan. 6, 2021.

The three-judge panel, made up of U.S Circuit judges Cornelia Pillard, Robert Wilkins and Bradley Garcia — Pillard and Wilkins were appointed by Barack Obama, Garcia was appointed by Joe Biden — ruled unanimously to uphold John Nassif’s conviction and 7-month prison sentence.

Pillard, writing the panel’s opinion, said Nassif had failed to prove that the Capitol was a public forum that allows protesters to demonstrate inside, and thus the statute need only support the government’s interest in the legislative process remaining undisturbed. 

Nassif was charged with four misdemeanor offenses, but his challenge focused on the statute prohibiting picketing, parading and demonstrating inside the Capitol buildings.

He traveled to Washington from Seminole County, Florida, with two friends to attend former President Donald Trump’s “Stop the Steal” rally outside the White House. They briefly returned to their hotel, then Nassif marched to the Capitol on his own.

Once there, he joined the mob, leading a call-and-response chant yelling, “Whose house? Our house!” He then entered the building into the Capitol Rotunda after a group of rioters already inside the building forced the doors open from within. 

Nassif then exited the Capitol approximately 10 minutes later.

Prior to trial, Nassif tried and failed to have the demonstrating offense dismissed, arguing the statute was unconstitutionally overbroad in violation of the First Amendment and unconstitutionally vague in violation of the Fifth Amendment. 

U.S. Senior District Judge John Bates, a George W. Bush appointee, rejected the motion, holding that the Capitol building is a nonpublic forum where the government can limit First Amendment activities to protect the lawmaking process. 

In considering his appeal, Pillard noted that the Capitol grounds have long been considered a pubic forum and protests regularly occur on a series of lawns and sidewalks surrounding the Capitol buildings. But she said that at no point has Congress ever indicated the Capitol buildings should be considered a public forum.

“To be sure, expressive activity by people other than members and staff happens every day in the Capitol building — in constituent meetings, lobbying sessions, committee hearings and the like,” Pillard wrote. 

However, those examples are scheduled by members of Congress and cannot be used to establish the Capitol as open for the public to freely demonstrate, Pillard found.

In his appeal, Nassif pointed to the 1934 civil rights sit-ins at whites-only restaurants within the Capitol and the 1990 protests inside the Capitol Rotunda, the “Capitol Crawl” supporting the Americans with Disabilities Act. 

“Neither protest involved an intentional choice by the government to open the Capitol as a public forum. And two examples over a 90-year period do not establish a ‘consistent pattern’ of authorizing expressive activity,” Pillard wrote.

According to a March 26 analysis by the Justice Department, 463 Capitol rioters have received sentences on the demonstration offense. The DOJ has used the provision against countless rioters who did not engage in violence on Jan. 6, but were still able to enter the Capitol building after their violent counterparts breached police lines and forced their way into the building. 

The panel’s decision marks a somewhat infrequent victory for the Justice Department at the D.C. Circuit in regard to the Jan. 6 prosecutions, after another panel ruled that a Capitol rioter’s sentence had been improperly lengthened. 

On March 1, Pillard, along with U.S. Circuit judges Patricia Millett and Judith Rogers found Bates had wrongfully applied an enhancement of interfering with the administration of justice to Larry Brock’s sentence. The enhancement, which can increase a defendant’s sentence by more than a year, has been used against more than 100 other defendants, and could be grounds for them to be resentenced. 

The Justice Department was successful in defending the use of a staple charge — Title 18 U.S. Code, Section 1512, or obstruction of an official proceeding — after another panel with Pillard, U.S. District judges Florence Pan and Karen Henderson ruled 2-1 in favor of upholding its use this past October.

The statute was also one of the four special counsel Jack Smith levied against Trump as part of his still-paused election subversion prosecution. 

That case is now before the Supreme Court, which is set to hear arguments on April 16. 

Follow @Ryan_Knappy

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