Appeals Court Upholds Disorderly Conduct Charge For ‘Passive, Quiet and Nonviolent’ Jan. 6 Defendants

A federal appeals court upheld a Jan. 6 defendant’s “disorderly or disruptive conduct” conviction on Friday, even though evidence indicated he was “neither violent nor destructive” while briefly present in the Capitol.

A three-judge panel wrote in an 18-page ruling that “even passive, quiet and nonviolent conduct” can be considered disorderly based on the surrounding circumstances. The D.C. Circuit Court of Appeals panel also upheld the one-year sentence U.S. District Court Judge Tanya Chutkan handed to defendant Russell Alford, who was convicted of four misdemeanors based on his role in Jan. 6.

“A lone hiker on a mountaintop can sing at the top of his lungs without disturbing a soul; a patron in a library cannot,” Judge Karen Henderson, a George H.W. Bush appointee, wrote in the court’s opinion. “It is entirely appropriate to clap and cheer when a keynote speaker steps to the podium but to do so once the room has fallen quiet and he has begun to speak would ordinarily be disruptive.

“Thus, in determining whether an act is disorderly, the act cannot be divorced from the circumstances in which it takes place,” Henderson continued.

The panel also included Circuit Judge Florence Pan, a Biden appointee, and Senior Circuit Judge Judith Rogers, a Clinton appointee.

“Alford paints himself as a passive observer, and, granted, his conduct does not rise to the level of culpability of many of his compatriots,” the opinion notes. “But he made a deliberate choice to join the crowd and enter the Capitol when he was plainly not permitted to do so.”

Chutkan, who first decided Alford’s case, is overseeing special counsel Jack Smith’s case against former President Donald Trump for alleged efforts to interfere with the 2020 election. She paused proceedings in the case in December, pending Trump’s appeal of his bid to dismiss it based on presidential immunity.