whether particular breaches of the peace constituted riot assumed added importance as legislation came to be enacted, in derogation of the common law, to make municipalities civilly liable for damages by riot.3

Statutory definitions of riot in this country have, for the most part, adopted the common law concept with slight variations. One of the more noticeable of these concerns the minimum number of participants required to constitute a riot. Two has been enough to engage in riot in certain states. In contrast, present Federal law has considerably confined the scope of riot offenses, as explained below, and this subchapter proposes to restrict them even further.

SECTION 1831. LEADING A RIOT

1. In General and Present Federal Law

This section makes punishable the inciting of a riot and the participation in a riot in any of certain specified leadership capacities. The section is designed to carry forward aspects of 18 U.S.C. 1792 and 2101. In addition it owes part of its derivation to the current riot statute for the District of Columbia, 22 D.C. Code 1122.

Insofar as pertinent here, 18 U.S.C. 1792 provides that it is a felony for a person to instigate, connive, willfully attempt to cause, assist, or conspire to cause any mutiny or riot at a Federal penal or correctional institution. The penalty is imprisonment for up to ten years.

18 U.S.C. 2101 (a), enacted in 1968, provides that whoever travels in interstate commerce or uses any facility of such commerce (such as the mails, telegraph, telephone, radio, or television) with intent to incite a riot, or to organize, promote, encourage, participate in, or carry on a riot, or to commit an act of violence to further a riot, and who performs an overt act for any such purpose, shall be subject to a maximum penalty of five years' imprisonment. Notably, under this section, the definition of a riot is quite broad, reaching a public disturbance involving an act or acts of violence by a person who is part of an assemblage of three or more persons, or a threat or threats of the commission of an act or acts of violence by a person who is part of an assemblage of three or more persons having the ability of immediate execution of the threat, where, in either case, the act or threat results or would result in damage or injury to another person or to property of another. There is, moreover, no requirement in 18 U.S.C. 2101 that a riot actually occur. Notwithstanding its relative breadth, the statute has been sustained against claims that it is overbroad and vague and that it infringes First Amendment freedoms of travel and expression."

22 D.C. Code 1122 provides that whoever willfully engages in or urges or incites others to engage in a riot in the District of Columbia is guilty of an offense. If, as a result of the riot, a person suffers serious bodily harm, or there is property damage exceeding $5,000, a person who urged and incited others to take part therein is punishable by up to ten years in prison; otherwise, the offense is a misdemeanor. The See Annotation, Liability of Municipalities for Mob or Riot, 52 A.L.R. 563 (1928). 4 Ibid.; Working Papers, p. 988.

5 See 18 U.S.C. 2102 (a).

6 See United States v. Dellinger, 472 F.2d 340, 354-364 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973).

section defines a riot as a "public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to persons or property." This definition was upheld against constitutional challenge in United States v. Matthews.""

Riot offenses committed in Federal enclaves are presumably punishable through the Assimilative Crimes Act, utilizing the diverse laws of the States, although no reported case involving a prosecution for riot under 18 U.S.C. 13 apparently exists.

2. The Offense

A. Elements

There are two distinct crimes defined in subsection (a). The first of these is causing a riot by incitement. The term "incitement" as used herein is intended to have the meaning now set forth in 18 U.S.C. 2101 (b), i.e., it is intended to include urging or instigating other persons to riot, "but not to embrace the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts." The word "incitement" thus connotes exhortatory conduct, consisting of words, signals or any other means of communication, which is designed for the purpose or is capable under the circumstances of urging or exciting others to riot. Inciting a riot may involve an explicit call to violence or an assertion or insinuation of the rightness, fitness, or necessity of acting violently.

The offense of causing a riot by incitement under this section requires the actual occurrence of a riot. This represents a considerable narrowing of the offense in 18 U.S.C. 2101 and is in accordance with the judicial interpretation placed upon the District of Columbia riot statute, supra. Riot incitement activity that is merely inchoate in nature may be punishable, however, under the general attempt, conspiracy, and solicitation provisions of the proposed Code.10

The term "riot" is defined in section 1834, for purposes of this subchapter, as a public disturbance involving an assemblage of five or more persons which, by violent and tumultuous conduct creates a grave danger of injury or damage to persons or property. This is also a considerable narrowing of the purview of the offense under current law. The definition is derived from and similar to that given to the term "riot” in 22 D.C. Code 1122, quoted supra, but is even less expansive than under that statute, as no provision is here included making the "threat" of violent conduct sufficient to constitute the offense.11 The Committee concluded that these modifications tending to minimize the First Amendment implications of the provision could be made without jeopardizing prosecution of appropriate cases.

The disturbance inherent in a riot must be a "public" disturbance. There are no private or covert riots. The disturbance must occur in a public place so that it may attract public notice, because a riot is distinctly punishable as having the potential to cause public terror or alarm. However, the general public need not be involved. A riot may

7419 F. 2d 1177 (D.C. Cir. 1969).

$ See United States v. Dellinger, supra note 6, at 362-363, sustaining the definition in 18 U.S.C. 2102(b); cf., Heard v. Rizzo, 281 F. Supp. 720, 745 (E.D. Pa.), aff'd per curiam, 392 U.S. 646 (1968).

See United States v. Jeffries, 45 F.R.D. 110 (D.D.C. 1968): see also United States v. Dellinger, supra note 6. at 361 n. 30.

10 Sections 1001-1003.

11 See Final Report, Comment, p. 242.

take place in a Federal prison under the potential gaze of only a special or limited public.

The concept of an "assemblage" refers to a group of persons within the area of general awareness of an individual. However, there is no requirement that the persons in the group have been acting in concert or with a common purpose in order for this section to apply; nor need the defendant have known the identity or numbers involved (so long as more than five are shown to have participated).12

According to the Code definition, a riot also requires "violent and tumultuous conduct." For five persons to engineer a robbery by means of force and violence is not a riot. The distinguishing factor in a riot is the agitation of the rioters. Physical acts are committed violently and tumultuously when they are furious, extreme, sudden, vehement, passionate, or otherwise characterized by intense movement or feeling, so as to appear out of control or to threaten indiscriminate injury. In short, the offense "involves frightening group behavior." 13 Such conduct usually causes some personal injuries or property damage, but "riot" is not defined in terms of the necessity of any such results. The court in United States v. Matthews, supra, specifically held that participation in the looting phase of a riot may constitute "violent and tumultuous conduct," noting that even the looter who does not smash store windows or break in the door "promotes new violence. [His conduct] attracts people to the scene who have no business there." 14 The Committee endorses this holding and intends that it apply also to this section.

The second offense created under this subsection is leading a riot, This offense may be committed in various ways, e.g., by "urging" another person to participate in rioting or by giving instructions to further a riot. The provision is drawn from the recommendations of the National Commission.15 The term "urges" was used since that term was specifically sustained against First Amendment attack in the context of an even broader statute (18 U.S.C. 2101).16 Significantly, in order for the offense under this provision to be committed, the acts of leadership must occur during a riot and be in furtherance of it.

The Committee is aware that apprehension has been expressed in some quarters that riot laws may be worded or applied so broadly as to inhibit the exercise of the freedoms of speech and peaceful assembly.17 This section, however, has been carefully fashioned with these constitutional considerations in mind. It does not reach mere hotheaded speech, however outrageous, nor does it cover the declaration of abstract or academic propositions of the need for violence.18 The Committee thus believes that the section will readily withstand constitutional scrutiny and is of appropriate breadth to protect Federal interests.

B. Culpability

The conduct in paragraph (1) is contained in the words "by incitement." As no culpability standard is specifically designated, the ap

12 See United States v. Jeffries, supra note 9, at 118-119; see also id. at 121.

13 Id. at 118.

14 Supra note 7, at 1183-1184.

15 See Final Report, § 1801 (1) (b).

16 United States v. Dellinger, supra note 6, at 361-362.

17 See Working Papers, p. 1020: Report of the National Advisory Committee on Ciril Disorders, pp. 289-290 (G.P.O. ed. 1968).

18 Compare Brandenburg v. Ohio, 395 U.S. 444 (1969).

plicable state of mind that must be proved is "knowing," i.e., that the offender was conscious of the nature of his action.19 In effect this means that the offender must be aware that he is inciting a public disturbance or violent demonstration. He need not, however, know that he is inciting a riot as that term is defined in section 1834. The element in this offense that a "riot" is incited is a result of conduct. As no culpability level is specifically provided, the state of mind that must be shown is "reckless," i.e., that the offender was aware of, but disregarded, the risk that his incitement activity would produce a riot, and the risk must be such that its disregard constituted a gross deviation from the standard of care that a reasonable person would have exercised in the circumstances.20 Thus a person who, knowing that an assemblage was present, incited its members to a public disturbance involving violent conduct would be guilty under this paragraph notwithstanding that he did not know for certain that the assemblage consisted of five or more persons or that a "grave danger" of injury to persons or property was created. The Committee considered but rejected (as did the National Commission) a requirement that the incitement be "intentional," i.e., with a purpose to cause a riot. Although the proof in the usual case will likely establish such intent, it seems patent that when an individual is aware that he is exhorting others to violence and that violence of the level of a riot will probably ensue, he is operating outside the area of protected speech.

In paragraph (2) the culpability is similar. Thus, the offender need only be reckless as to the attendant circumstances that a riot is happening and that the activity he is urging participation in, leading, or giving commands, etc., is in furtherance of is in fact a riot meeting the definition in section 1834. He must, however, know, i.e., be aware, that he is urging participation in, leading, or giving commands, etc. in furtherance of a public disturbance or violent demonstration. 3. Jurisdiction

Subsection (c) provides that there is Federal jurisdiction over an offense in this section in five circumstances. The first arises when the offense is committed in the special jurisdiction of the United States. The special jurisdiction is defined in section 203 to include the special territorial, special maritime, and special aircraft jurisdictions. In essence, it covers Federal enclaves, vessels on the high seas, and certain aircraft while in flight. No comparable jurisdictional base exists under current law. Rather, as previously indicated, a riot in a Federal enclave is presently punishable under the Assimilative Crimes Act, 18 U.S.C. 13, by borrowing the riot laws of the State or locality in which the enclave is situated. The purpose of including this jurisdictional base is to make it unnecessary for the Federal government to assimilate the disparate and often antiquated riot laws of the States and to supply a uniform Federal definition and grading for the offense.21

It should be noted that, since the District of Columbia is not within the special territorial jurisdiction.22 the mere existence of a riot in the District will not constitute an offense under this section, unless one of the other jurisdictional bases applies.

19 See sections 303(b) (1) and 302 (b) (1).

20 See sections 303 (b) (3) and 302(c) (2).

21 See Working Papers, pp. 987-988.

22 See Johnson v. United States, 225 U.S. 405. 415 (1912). See also the discussion of section 203 (b) in connection with section 1863 (Violating State or Local Law is an Enclave).

Section 1832.

The second base for jurisdiction occurs if the riot involves persons in a Federal facility used for official detention. The latter term is defined in section 111 and is discussed in connection with section 1313 (Escape) in this report. This jurisdictional base is designed essentially to carry forward the present scope of 18 U.S.C. 1792.

The third and fourth bases for jurisdiction exist when the United States mail or a facility of interstate or foreign commerce is used, or when a person moves across a State or United States boundary, in the planning, promotion, management, execution, consummation, or concealment of the offense. These provisions essentially continue the current jurisdictional purview of 18 U.S.C. 2101.

The final jurisdictional base arises when the riot obstructs a Federal governmental function. This basis does not exist in present law. It was included, however, in the recommendation of the National Commission as part of the definition of "riot." The Committee believes that it is more appropriate to regard the obstruction of a Federal governmental function as a separate ground for jurisdiction rather than as an element of the offense. Thus, if a riot in the District of Columbia is directly against a government agency (e.g., the Bureau of Indian Affairs) and obstructs the operations of that agency, Federal jurisdiction will exist. Similarly, if a riot hinders Federal law enforement agents from arresting or transporting a suspect (e.g., moving a particularly unpopular defendant out of a local jail and past an angry mob) this provision may be invoked.

4. Grading

An offense under this section is graded as a Class D felony (up to seven years' imprisonment) if the riot involves persons in a facility used for official detention; otherwise, the offense is a Class E felony (up to three years in prison). These penalties are somewhat less severe than those under 18 U.S.C. 1792 (ten years) 23 and 2101 (five years). However, a person guilty under this section may also be punishable for personal injury or property offenses committed during the riot.

1. In General

SECTION 1832. PROVIDING ARMS FOR A RIOT

This section creates the one offense in this subchapter that does not require the occurrence of a riot as an element. The section makes punishable the supplying or teaching the preparation or use of a firearm, destructive device, or dangerous weapon with intent to promote a riot. It is designed basically to carry forward the offenses in 18 U.S.C. 231 (a) (1) and (2). This section is not violated by the recipient of the firearm or the instruction. That person may, however, be guilty of offenses elsewhere described in the Code. e.g., section 1822 (Firearms Violations) and 1823 (Using or Possessing a Weapon in the Course of a Crime.

2. Present Federal Law

18 U.S.C. 231(a)(1) provides that whoever teaches or demonstrates the use, application, or making of any firearm, explosive, or incendiary device, or technique capable of causing injury or death to persons,

23 Strangely, however, 18 U.S.C. 1792 contains no provision permitting imposition of a fine. The present classification permits a fine up to $50,000. See section 2201.