In the United States, the right to peacefully protest receives constitutional protection. Indeed, people have a right to speak out against the government, the president, or any other elected official. Furthermore, groups have the right to lawfully assemble. Those rights come from the First Amendment of the U.S. Constitution.
When protests shift from peaceful assembly to civil disorder, they run afoul of federal law. Passed in 1968 during the civil rights movement, the civil disorder statute (18 U.S.C. § 231) makes it illegal for three or more persons by acts of violence to engage in a public disturbance that causes or threatens to cause immediate harm to persons or property. The federal government has brought criminal civil disorder charges to stop organized violence. Such violence may occur during demonstrations of various kinds.
This article defines the felony crime of civil disorder. It also provides the penalties for the offense. It discusses America's history of civil unrest, including some notable cases, past and present.
Civil Disorder: The Legal Definition
What is a civil disorder? Federal law defines it as follows:
"A public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any individual."
Another important element of the civil disorder crime relates to its impact on commerce or federal activities. The statute makes it illegal to engage in civil disorder that:
"... obstructs, delays, or adversely affects commerce, or the movement of commerce, or the conduct or performance of any federally protected function."
Civil disorder should not be confused with civil disobedience. In federal law, civil disorder is a specific crime that involves violent acts. Civil disobedience, on the other hand, is a general term encompassing non-violent conduct by a person or group refusing to obey a law for moral reasons. For an example of a civil disobedience act, civil rights activists refused to leave a "whites only" lunch counter in the 1960s. They engaged in non-violent conduct, hoping their arrests would lead to a change in racial segregation laws in the South.
Civil Disorder Violations
The criminal statute of civil disorder contains three distinct prohibitions. Violations can occur in the following ways:
- By teaching or showing someone how to use, make, or deploy a firearm, or explosive or incendiary device or technique that can cause injury or death, knowing or believing it will be used for civil disorder which may obstruct, delay, or adversely affect commerce or the conduct or performance of any federally protected function
- By transporting or manufacturing for transport in commerce any firearm, or explosive or incendiary device, knowing or believing it will be used in furtherance of a civil disorder
- By committing or attempting to commit to any action to obstruct, impede, or interfere with a firefighter or law enforcement officer lawfully engaged in the performance of their official duties during an event of civil disorder, which in any way obstructs, delays, or adversely affects commerce or the performance of any federally protected function
What Is the Punishment for Civil Disorder?
A person convicted of civil disorder may face up to five years in federal prison and a fine of up to $10,000.
Conduct Often Associated With Civil Disorder
Civil disorder charges may arise from many different areas of political and economic unrest. This may include:
- Political grievances (e.g., anti-war protests and January 6 protests)
- Economic unrest (e.g., labor protests and the Occupy Movement)
- White supremacy (e.g., KKK marches and the Unite the Right rally)
- Protest of racial disparities (e.g., the Civil Rights movement and the Black Lives Matter)
The current federal crime of civil disorder became law in 1968. The use of the law during times of civil unrest has garnered significant debate. Prior to the creation of this crime, U.S. history included several incidents of civil unrest or riot. Many caused intentional harm to individuals or groups of persons (e.g., massacres and lynch mobs). At other times, the intent of protests or riots focused more on harm to property (e.g., the Seattle World Trade Organization protests).
The challenge for federal prosecutors seeking criminal charges comes from the fact that protected free speech and assembly activities may be occurring at the same time as criminal conduct. Law enforcement must seek to keep the peace and permit citizens to engage in lawful protest. They must also weed out those who use such moments to break the law and inflict harm.
Riots and protests are not the only times when federal authorities charge civil disorder.
In 2011, a federal jury convicted a militia activist of carrying a firearm with the intent of using it to commit civil disorder. Darren Huff falsely claimed that President Barack Obama was not a natural-born citizen. He was unhappy when a grand jury refused to charge the president with treason. Huff admitted to plotting a citizen's arrest of President Obama and other government officials. He planned to do this while armed with a .45 caliber Colt pistol, an AK-47, and 300 rounds of ammunition. He met with like-minded individuals near a Tennessee courthouse but then returned home to Georgia. Huff was later arrested on a federal warrant, convicted at trial, and sentenced to prison.
More recently, in 2020, several protests erupted throughout the U.S. after the death of George Floyd, who was killed at the hands of officers from the Minneapolis police department. Federal prosecutors in Pennsylvania brought civil disorder charges against three protesters arrested in Philadelphia. The protesters engaged in acts of flipping over a police car and setting it on fire. They ultimately pled guilty and received varying prison sentences.
Later in 2020, federal prosecutors in Portland, Oregon, also filed civil disorder charges against people in protests. During protests over the death of George Floyd, they charged people who sprayed police officers with bear spray and pointed high-powered lasers at police officers.
In 2021, federal prosecutors once again used the civil disorder law, in combination with other statutes, to prosecute extremists who stormed the U.S. Capitol on January 6 in a failed coup attempt. Rioters sought to prevent the certification of the election of President Joseph Biden. Many rioters faced charges of transporting weapons for unlawful use. Other charges stemmed from assaulting law enforcement officers during an act of civil disorder. More than 130 police officers suffered attacks from protesters during the riot.
The January 6 defendants claimed the federal statute was unconstitutional. They said it infringes on constitutional rights to free speech, association, and the right to bear arms.
In 2021, Attorney General Merrick Garland responded to the claims of the January 6 defendants. He said: “We are focused on violence, not on ideology. In America, espousing a hateful ideology is not unlawful. We do not investigate individuals for their First Amendment-protected activities." He explained that the focus of the Department of Justice "is to prevent, disrupt, and deter unlawful acts of violence, whatever their motive."
Has the Crime of Civil Disorder Survived a Constitutional Challenge?
Federal courts have upheld the civil disorder crime as a constitutional exercise of Congress's authority. In 2015, the Sixth Circuit Court of Appeals rejected a claim by Darren Huff that the law was unconstitutional. Huff's conviction in 2011 resulted from conduct of transporting a firearm in commerce with an intent to use it in furtherance of civil disorder. The court found that the law does not target speech but the conduct of transporting a weapon in furtherance of civil disorder, knowing that the weapon will be used unlawfully. “Unlawful conduct is not protected conduct," the court ruled.
Federal district courts have also rejected claims from the January 6th defendants that the civil disorder law violated the First Amendment and the Commerce Clause of the U.S. Constitution.
Civil Disorder: Related Federal Crimes
One of the criminal charges considered in the case of the January 6 defendants was the charge of sedition (18 U.S. Code § 2384). Federal law defines sedition as:
"If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof..."
The penalty for sedition includes up to 20 years in prison and/or fines.
The enactment of the federal crime of sedition followed the start of the U.S. Civil War in 1861. It is a crime rarely charged and prosecuted. Before the January 6 riots, the last time the government brought federal charges of sedition took place in Michigan. In 2010, federal prosecutors alleged nine members of a militia group called the Hutaree were planning to kill a law enforcement officer. The government claimed they planned an attack on the officer's funeral procession with improvised explosive devices. The case did not proceed after a federal judge threw the charges out, alleging there was insufficient evidence.
Since January 6, 2021, the U.S. Department of Justice (DOJ) has filed charges against more than 1,000 persons involved in the uprising at the U.S. Capitol. In 2023, a federal jury found key leaders of the Proud Boys (a para-military group) guilty of seditious conspiracy and other charges related to the January 6 breach of the Capitol.
There are several more criminal charges that federal prosecutors consider when otherwise peaceful protests turn violent. For example, in a less organized situation than one of civil disorder, a protest may become a riot. Riot and incitement to riot are criminal charges on their own.
Crimes of trespass, disorderly conduct, disturbing the peace, or resisting arrest can occur at demonstrations. Acts of vandalism and arson may occur. It is not uncommon for participants to throw rocks, bricks, or bottles. In extreme cases, they may detonate improvised explosive devices.
Civil Disorder: State Laws
State laws vary on civil disorder crimes. State crimes may include offenses like:
- Criminal damaging
- Criminal trespass
- Disorderly conduct
- Obstructing official business
- Resisting arrest
Some states provide statutes that mirror the federal civil disorder crime. For example, in South Carolina, the law prohibits teaching or demonstrating the use or making of a firearm or destructive device. This crime prohibits teaching or demonstrating the use of a firearm or destructive device, knowing the weapon can cause harm or death with the intent to use the weapon in furtherance of civil disorder. It also prohibits assembling with one or more other persons to train in the use of such weapons in a civil disorder. The penalties also include up to 5 years in prison or a $5,000 fine. Upon a subsequent offense, the penalties double to up to 10 years in prison or a $10,000 fine.
Arrested on Charges of Civil Disorder? Get Legal Help
Whether you were marching on Washington, on campus, or in the streets, if you have been arrested and accused of civil disorder, you likely have questions about criminal procedure and your rights. You should consider getting legal help from an advocate who has experience dealing with the government. You can contact an experienced criminal defense attorney near you today.