Carr v. District of Columbia ( 2010 )

ORDER

PER CURIAM.

Upon consideration of appellees’ petition for panel rehearing filed on December 21, 2009, it is

ORDERED that the petition be denied.

SILBERMAN, Senior Circuit Judge, joined by SENTELLE, Chief Judge, concurring in the denial of rehearing:

In our opinion, we noted that if the crowd acted as a unit, it was possible that “an entirely innocent person would be mistaken for a rioter” — but that would not rebut probable cause for that person’s arrest. Prompted by our consideration of the petition for rehearing, we are doubtful that any one of the marchers should be considered innocent — at least at the summary judgment stage when we must credit the facts as put by the defendants.¹ As our opinion stated, the parties agreed that any of the marchers engaged in violence, or cheering the violence, had committed the crime of rioting or inciting a riot. But it will be recalled that a riot is defined as “a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct ... creates grave danger of damage or injury to property or persons.” All of the marchers, it might be thought, were part of the assemblage. And once the march turned violent, its character presumably extended to all who were aware of the violence and yet continued to march. Particularly at night when a number of marchers are engaged in violence, or cheering on the violence, 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.

The plaintiffs claimed they were not aware of the violence, but a police officer testified that it appeared that all were cheering the violence and establishing probable cause to believe that all the marchers were at least aware of the violence would be a lesser standard. But of course, that has yet to be established.

The District cited in its response to the petition, Arizona v. Garland, 157 Ariz. 246, 756 P.2d 343 (1988) holding that with regard to a prison riot:

While mere presence will not support a charge of riot, State v. Bad Heart Bull, 257 N.W.2d 715, 717 (S.D.1977) a person must distance himself from the assembly when anyone in the group manifests an intent to engage in unlawful conduct. Faulk v. State, 608 S.W.2d 625, 631 (Tex.Crim.App.1980). Failure to do so results in “knowing participation in an assemblage which is creating an immediate danger of damage to property or injury to persons.” Id. at 631. Appellant’s activities disclose his active participation in furtherance of the disorder. Once an individual becomes aware of illegal activity by members of the group he is associated with, it is incumbent upon the individual to disassociate himself from the group.

To be sure, the District has not yet made the argument squarely that, assuming all the marchers were aware of the violence, they had actually violated the statute whether or not they were cheering, so it would be premature for us to consider probable cause for arrest, which presumably would be a fortiori, in light of that interpretation of the statute.

1 . As opposed to a bystander who made no move to be part of the assemblage (or unit) but was mistakenly arrested. Of course, if the police arrested an undifferentiated group of marchers and bystanders with no effort to separate the two, that would be equivalent to what we held unconstitutional in Barham v. Ramsey, 434 F.3d 565, 574 (D.C.Cir.2006).