Here's the group that was inspiring fear in the police officers...
There was a protest in Richmond today, on the steps of the Virginia Capitol. The event — called “Call to Action: Thousands Against the Assault on Women’s Rights” — was to protest against the various bills still under consideration in the General Assembly that implicate women’s rights, such as HB1 — the so-called “personhood” bill and HB 462 — the “mandatory ultrasound” bill (not to mention what has been going on in Washington with contraception with Rush Limbaugh, Sandra Fluke, Rush’s non-apology apology, etc.) HB1 was sent back to committee, and HB 462 was amended to make the “trans-vaginal” nature of the ultrasound optional rather than mandatory. This post is not a political post — it will discuss the legality of the arrests.
Apparently the 31 arrested have been charged with three offenses — unlawful assembly, remaining at an unlawful assembly after having been ordered to disperse, and trespass. The statute on unlawful assembly has been very carefully drawn to make it very difficult to arrest (or at least to convict) under that statute for political protest. Here is the text of Va. Code §18.2-406:
Whenever three or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order, and the assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order, then such assembly is an unlawful assembly. Every person who participates in any unlawful assembly shall be guilty of a Class 1 misdemeanor. If any such person carried, at the time of his participation in an unlawful assembly, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.
Let’s look at this carefully, element by element. One cannot be convicted unless the following elements are met:
- Three or more persons assembled (no problem here) who
- “Share the common intent to …[commit] an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order” and
- “The assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order”
I am sure that there were video cameras rolling, and I suspect strongly that the video cameras will show no act of “unlawful force or violence” on the part of the protestors. A sit-in does not violate this statute.
The second statute under which they have been charged is §18.2-407:
Every person, except the owner or lessee of the premises, his family and nonrioting guests, and public officers and persons assisting them, who remains at the place of any riot or unlawful assembly after having been lawfully warned to disperse, shall be guilty of a Class 3 misdemeanor.
Note that this statute still requires that there have been an unlawful assembly. If the assembly does not violate the terms of §18.2-406, there can be no violation of §18.2-407. Finally, I understand that they have also been charged with trespass, I assume in violation of §18.2-119.
If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge thereof, … he shall be guilty of a Class 1 misdemeanor.
I don’t know the exact terms of their demonstration permit, so I cannot comment on whether they might be found guilty of this violation. But unlawful assembly? No way.
In 1971, the Virginia Supreme Court decided Owens v. Commonwealth, 211 Va. 633, 179 S.E.2d 477 (1971) a Charlottesville case dealing with a prosecution under what was then §18.1-254.1 for a political protest. The statute at that time did not contain the requirement that the assembly be formed for the purpose of breaching the peace. The Court, following (but not mentioning) the controlling U.S. Supreme Court law, held that the statute was unconstitutional unless it had as an element that there was a clear and present danger of a breach of the peace. The U.S. Supreme Court cases included Gregory v. Chicago, 394 U.S. 111 (1969), Cox v. Louisiana, 379 U.S. 536 (1965), and Edwards v. South Carolina, 372 U.S. 229 (1963), all of which make explicit that “unlawful assembly” statutes must have, at their core, a requirement that those who would be deemed to have unlawfully assembled must have been committing a breach of the peace. I would note that the standard set forth in §18.2-406 — that a person “of ordinary courage” must have felt that a serious breach of the peace was imminent — is probably only saved from being deemed to be unconstitutional by the use of the word “serious”. The point is that no demonstration can be declared to be an “unlawful assembly” based on the fact that the government doesn’t like what is being said, and — certainly where there is a permit issued — it cannot be declared to be an unlawful assembly based on them getting noisy, or insulting, or uppity.
Unlawful assembly? No way.
