When 'riot' is in the eye of the beholder: the critical need for constitutional clarity in riot laws

• Author: Nancy C. Marcus
• Position: LL.M., S.J.D., is a Legal Skills Professor at California Western School of Law whose teaching and scholarship has also addressed issues including constitutional law
• Pages: 281-346

ARTICLES

WHEN “RIOT” IS IN THE EYE OF THE BEHOLDER: THE CRITICAL

NEED FOR CONSTITUTIONAL CLARITY IN RIOT LAWS

Nancy C. Marcus*

ABSTRACT

In the twenty-first century, American streets are frequently filled with passion-

ate protest and political dissent. Protesters of diverse backgrounds range from

those waving flags or lying on the ground to re-enact police killings to those car-

rying lit torches or hand-made weapons. This Article addresses how, as between

such groups, it may initially seem clear which has a propensity to engage in vio-

lent riots, but too often, “rioter” is in the eye of the beholder, with those both

regulating and reporting on riots defining the term inconsistently. And ironically,

while police brutality is often the subject of protests, non-violent protesters who

take their outrage to the streets are frequently met with police decked out in mili-

tarized riot gear who engage in disproportionate heavy-handedness culminating

in mass arrests, including of the non-violent protesters. The irony is compounded

when the police turn a blind eye to comparatively violent counter-protesters,

some of whom were the actual instigators of the violence for which compara-

tively non-violent protesters were later blamed and labeled “rioters.”

This Article documents conflicting descriptions of the same protests either as

riots or not, both by media sources and even by court opinions. The Article

explains how the problem of inconsistent interpretations of “riot” is rooted in

and aggravated by the unclear and overbroad language of a substantial number

of riot laws. Whether due to sloppy drafting or less benign reasons (as may be

the case with riot laws granting immunity to those who drive vehicles into crowds

of protesters), such flawed legislation endangers the liberty and potentially even

lives of protesters. A misplaced comma can thus potentially become a matter of

constitutional crisis, as poorly drafted legislation risks violating due process pro-

hibitions on vague laws that foster discriminatory or arbitrary enforcement, First

Amendment prohibitions on overbroad laws that chill and punish constitutionally

protected expression.

* Nancy C. Marcus, LL.M., S.J.D., is a Legal Skills Professor at California Western School of Law whose

teaching and scholarship has also addressed issues including constitutional law, criminal justice, and other civil

rights issues. She is grateful to William Aceves, Emily Behzadi, Jessica Fink, Catherine Hardee, Erin Sheley, and

Kyle Velte for their invaluable insights and suggestions; to her wonderful students in her inaugural 1L classes at

California Western who engaged with her in thought-provoking (and article-inspiring) initial explorations of

vagueness and overbreadth precedents pertinent to riot law challenges; and to her research assistants Courtney

Brown and Kirsten Saldana. © 2023, Nancy C. Marcus.

281

To address the problem of inconsistent and unclear riot laws, this Article

engages a comparative analysis of litigation in which riot statutes have been

challenged as unconstitutional. Correspondingly, the Article also catalogs dozens

of state statutes that remain on the books despite being dangerously vague or

overbroad in a variety of respects. The Article proposes various specific revisions

legislators should make to constitutionally flawed legislation, while also making

substantive suggestions for those challenging the laws. Fundamentally, riot laws

must provide sufficiently clear standards that unambiguously limit the potential

prosecution of “rioters” to those with intent to commit imminent violence. Riot

laws must carefully, clearly, and precisely define their key terms and delineate

the intent requirements and requisite violent conduct to constitute rioting, rather

than risk being struck down as unconstitutional.

While there is a strong governmental interest in protecting public safety, even

that interest does not excuse laws that fail to clearly define what constitutes

unlawful rioting, resulting in sweeping dragnets that ensnare non-violent and

violent protesters alike. It is imperative that when history has its eyes on these

unfolding chapters of political dissent and division, what it records is a respect

for constitutional rights, not a continued pattern of those in power violating the

rights of passionate, but non-violent, protesters.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

I. THE EVOLVING FACE OF PROTESTS: HOW DIFFERING DEPICTIONS OF

TWENTIETH AND TWENTY-FIRST CENTURY PROTESTS ILLUSTRATE THAT

“RIOTER” IS IN THE EYE OF THE BEHOLDER . . . . . . . . . . . . . . . . . . . . . 287

A. The Eyes of History: Who Tells the Story? Conflicting Judicial

Accounts of the 1999 WTO Protests . . . . . . . . . . . . . . . . . . . . 289

B. Racial Justice and Tensions: From Black Lives Matter Protests

to White Nationalist Responses. . . . . . . . . . . . . . . . . . . . . . . 292

C. Protest, Riot, or Insurrection? The January 6, 2021, Attack

on the U.S. Capitol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

II. CONSTITUTIONAL PROBLEMS WITH AND CHALLENGES TO VAGUE AND

OVERBROAD RIOT LEGISLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

A. A Brief Overview of Constitutional Vagueness and Overbreadth

Doctrines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

B. Twentieth Century Constitutional Challenges to the Federal

Riot Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306

C. Twenty-First Century Constitutional Challenges to Riot Statutes 308

1. Twenty-First Century Challenges to the Federal Riot Act. . 308

a. United States v. Daley . . . . . . . . . . . . . . . . . . . . . . . 308

b. United States v. Miselis . . . . . . . . . . . . . . . . . . . . . . 310

c. United States v. Rundo. . . . . . . . . . . . . . . . . . . . . . 310

282 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:281

2. Florida Riot Statute Challenge: Dream Defenders v.

DeSantis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

a. The Dream Defenders Opinion . . . . . . . . . . . . . . . . 311

b. Unsuccessful Invocation of Dream Defenders by

January 6 Capitol Attack Defendants. . . . . . . . . . . . 317

III. OTHER STATE RIOT STATUTES VULNERABLE TO CONSTITUTIONAL ATTACK

FOR VAGUENESS OR OVERBREADTH . . . . . . . . . . . . . . . . . . . . . . . . . . 317

A. Problematic, Vague, and Overbroad “Tumultuous”

Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318

B. Problematic Intent Language (or Lack Thereof) . . . . . . . . . . . 318

C. Problematic Lack of Distinction Between Violent and Non-

Violent Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

D. Problematic Conflation of Minor Misdemeanors with More

Serious Criminal Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . 320

E. Other Vague and Overbroad Unclear Language . . . . . . . . . . . 321

IV. MOVING FORWARD: RECONCILING COMPETING INTERESTS IN THE

PREVENTION AND REMEDIATION OF CONSTITUTIONAL INFIRMITIES IN RIOT

LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

A. Learning from Past Legislative Drafting Mistakes. . . . . . . . . 322

B. The Reconciliation of Competing Policy Considerations . . . . . 323

C. Concluding Recommendations for Improving Riot Legislation. 330

D. Concluding Recommendations for Litigators Challenging Riot

Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

APPENDIX: TEXTUAL COMPARISON OF RIOT STATUTE DEFINITIONS OF “RIOT”. . 338

INTRODUCTION

Fear of serious injury cannot alone justify suppression of free speech

and assembly. Men feared witches and burnt women. . .. Those who

won our independence by revolution were not cowards. They did not

fear political change. They did not exalt order at the cost of liberty. To

courageous, self-reliant men, with confidence in the power of free and

fearless reasoning ... the remedy to be applied is more speech, not

enforced silence. Only an emergency can justify repression. Such must

be the rule if authority is to be reconciled with freedom.

—Justice Louis Brandeis

1

We have entered a new chapter in American history in which witches burned at

the stake have been replaced by civil rights protesters hit by cars, the drivers subse-

quently protected by laws that allow them to drive into those deemed to be

1. Whitney v. California, 274 U.S. 357, 376–77 (Brandeis, J., concurring).

2023] WHEN “RIOT” IS IN THE EYE OF THE BEHOLDER 283