What it Takes to Get Convicted for Inciting a Riot -- If Your Name's Not Trump

 A couple months ago, I came across the case of Thomas Hirschi while doing research on wrongful convictions for my current novel project. He was a member of People United to Fight Police Brutality, convicted of inciting a riot after police killed an unarmed man of color—a Vietnam vet the Houston cops beat savagely, twice, then threw in the river—all the way back in 1978. Hirschi was convicted on the testimony of a pathological ‘jailhouse informant,’ although he’d been arrested and charged after simply calling for the killer police to be “brought to justice” before the infamous Moody Park Riots.

The interesting part for me, thinking about my novel project, was the jailhouse snitch. But I filed Hirschi’s case away in the back of my brain. Interesting, I thought to myself. That’s all it takes to be charged with ‘inciting a riot?’ Some angry words, without a specific command to go do something violent?

 

Well, as it turns out, yeah. That is all it takes—and sometimes much less—if you’re a normal person.

 

Watching this current impeachment trial, Hirschi’s case came back to me. How crazy is it that our former president, Donald Trump, can do everything he did for months to rile people up, gather them in the thousands, like he’s stockpiling ammunition, and fire them off towards the Capitol—and he can’t even get convicted in a political trial? (As opposed to a criminal case, which theoretically has a much higher bar.)

 

What a blinding, crystal-clear example of the divide that exists in American justice, between rich White men and, well, everyone else…

 

I’ve got a bunch of other stuff on my plate today, but I thought I’d do a little googling and see what other examples of what has constituted ‘incitement’ in recent years—for normal people—enough to bring criminal charges.

 

I came across the case of Jermaine “FunnyMaine” Johnson, charged with inciting a riot. Birmingham officers said Johnson directed protesters last summer to tear down a Confederate monument, by saying “I’m not telling you to tear something down in Linn Park.” “I’m not telling you I’ll be over there,” he said, 90 minutes before the offensive statue came down.

 

In 2017, 76 members of a protest group who set up camp around the Dakota Access Pipeline to protect the water source were arrested and charged with incitement of a riot—including a journalist who was just there interviewing people.

 

After a 2011 Denver Occupy Wall Street protest, three protesters were charged with riot offenses, including incitement, because their tents and other “items were blocking the right of way.”

 

Then there’s 22-year-old Emadi Okwuosa, arrested for using a bullhorn to “incite the group in an attempt to disrupt the flow of traffic on the interstate,” which apparently constitutes a riot. (At least these charges were later dropped.)

 

In 2013, a guy named Jon Collins organized an off-road motorcycle meet and urged participants through social media to drive through streets, which pissed off town functionaries enough that he was charged with incitement.

 

Eleven AIDS activists in 2004 (plus Benjamin Traslavina—a student newspaper editor, arrested for taking pictures) were charged with incitement, after an AIDS protest that disrupted a Republican National Convention Youth speech.

 

Plenty of famous people have been charged and/or convicted of inciting a riot, too. Bakari Seller’s father. Rapper Travis Scott, for encouraging people to rush the stage at his show. Jim Morrison, Axl Rose and Tommy Lee have all been charged with incitement, for similar exhortations. Hundreds, if not thousands, have been charged with incitement in the fallout from the BLM protests last summer.

 

Donald Trump’s ‘Justice’ Department arrested 230 people for protesting during his inauguration, charging many with inciting, rioting, conspiring, and so on, including a freelance photographer Aaron Cantu. (It took 15 months of legal strife before his charges were dropped.)

 

According to Findlaw, Incitement to riot is when a person encourages others to commit a breach of the peace without necessarily acting themselves. This may involve statements, signs, or conduct intended to lead others to riot. Of course, I’m drawing shaky comparisons here, as we’re talking about fifty different states’ legal systems, and they’re all different in what they proscribe—and the federal system is further distinct. (Which is another problem, if you ask me.)

 

Surprisingly, it only takes a handful of people to make up a riot. According to Kaminksi’s Incitement in the Age of Social Media: Four states require only two people for a gathering to eligible to be a riot. The bulk of states require a minimum of three people under statute or at common law. The next most prevalent requirement is a minimum of five people. Four states require six people, and only two states require at least seven people for a gathering to come within the purview of the riot law.

 

Further of note, given this week’s proceedings, “several courts have agreed, however, that neither property damage nor personal injury is necessary for a conviction for riot. Some states require only the creation of a risk of physical injury or property damage, while others require even less: a threat of injury or damage, without a likelihood that the threat will actually be executed."

 

Everything I hear from pundits on TV is that Trump’s actions wouldn’t constitute criminal incitement, under federal law. (Although FindLaw says different.) What this viewpoint ignores, in plenty of state courts, normal people have been charged with just that, for far less than he’s done.

 

Food for thought, right?