Tuesday, July 07, 2020

Laws on rioting an anachronistic snapshot into Texas Legislature's anti-civil rights mentality in 1965

Grits has heard of people reading someone the Riot Act, but until recently had never read Texas' own riot act for myself.

On the Reasonably Suspicious podcast the other day, Mandy Marzullo and I discussed Texas' laws on "riots," which were invoked via dozens of arrests around the state, including "several dozen" in Fort Worth. In Dallas, protesters have sued to challenge the constitutionality of the law.

First, some historical context. Texas' offense of "Riot" was created in spring 1965, reacting to national events like passage of the the Civil Rights Act in 1964 and the Harlem Riots later that year (begun after police shot a young black man). The famous 1965 Watts riots wouldn't come until later that August, when the Legislature was no longer in session.

Regardless, by then Texas had a long history of repressing black-liberation politics, often by dubbing the speaker a "Communist" to justify quashing them. Grits recently recounted examples of repression of civil-rights activism in the '50s and '60s in northeast Texas, including the intervention by Gov. Price Daniel in 1960 to redbait black leaders and fire all Wiley College faculty members who had not opposed a visit from Dr. Martin Luther King, Jr.. Texas state political leaders were serious about fighting communism, conflating that with desegregation to a degree that seems nonsensical with the clarity of 20/20 hindsight. 

By 1965, John Connally was governor. But Texas' Jim-Crow era political coalitions hadn't yet changed, much less the culture of its governing institutions. Connally's opposition to the federal Civil Rights Act had spawned large protests in Austin before he modified his position. Regardless, many conservative Democrats in Texas agreed with him the first time and weren't going to let any of that long-haired, protest stuff infect our fair state with communist propaganda about black equality, etc..

That was the ideology and culture being projected by the Texas Legislature with the creation of the "Riot" offense in the Penal Code, as well as the expansion of police power in Ch. 8 of the Code of Criminal Procedure to "suppress" riots.

These statutes were an expression of an historical moment and have never been altered since. Today they're anachronisms and, like an old, racist monument, it's time to resign them to Trotsky's "dustbin of history," but with a legislative vote rather than a mob pulling them down.

The Texas Penal Code defines a "riot"in such a way as to give police maximum arrest discretion in any situation involving 7 or more people. Here's the statutory definition:
Sec. 42.02.  RIOT.  (a)  For the purpose of this section, "riot" means the assemblage of seven or more persons resulting in conduct which:

(1)  creates an immediate danger of damage to property or injury to persons;

(2)  substantially obstructs law enforcement or other governmental functions or services;  or

(3)  by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.
So if an "assemblage of seven or more persons" resulted in conduct that, by "physical action ... deprives any person" of "the enjoyment of a legal right," then they're engaged in a riot under Texas law.

Notably, under the statute, "It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection (a), the actor retired from the assembly." But that's just a future defense, it doesn't keep you from getting arrested in the first place!

Can you think of any behavior which truly constitutes "rioting" that isn't already criminalized somewhere in the law? Disorderly conduct? Property damage? Physical altercations? Obstructing a peace officer? IANAL, but creating an uber-offense that lets police indiscriminately round up everyone in a given location to me ignores the need for particularized accusations. I'm glad someone is litigating it.

For that matter, on the podcast, Mandy wondered if there were any activity seven people could engage in in a public setting that might not disrupt others' enjoyment of their rights? She also suggested the law is "so poorly written that it is essentially unenforceable."

As such, the law gives police maximum authority in the moment, almost on the assumption that charges will be dismissed later. In all cases I've seen stemming from the George Floyd protests, that appears to be what happened. (You might beat the rap but you won't beat the ride.)

An open-ended penal statute designed to empower police officers, regrettably, isn't that unusual in Texas. This one was passed 55 years ago but there were probably other examples passed in every session since.

What IS extraordinary is the array of additional police powers granted to officers in Chapter 8 of the Texas Code of Criminal Procedure to "suppress" riots when they happen. First, individual officers are authorized to convene their own counter-mob, if necessary supplemented by the military, to combat the first mob:
When any officer authorized to execute process is resisted, or when he has sufficient reason to believe that he will meet with resistance in executing the same, he may command as many of the citizens of his county as he may think proper; and the sheriff may call any military company in the county to aid him in overcoming the resistance, and if necessary, in seizing and arresting the persons engaged in such resistance.
Officers must urgently address these 7+ person riots with the full force of law:
Whenever a number of persons are assembled together in such a manner as to constitute a riot, according to the penal law of the State, it is the duty of every magistrate or peace officer to cause such persons to disperse.  This may either be done by commanding them to disperse or by arresting the persons engaged, if necessary, either with or without warrant.
And they operate under a special use of force standard that's different from those articulated elsewhere in the statute. Instead, the Legislature gave us this super-vague alternative:
The officer engaged in suppressing a riot, and those who aid him are authorized and justified in adopting such measures as are necessary to suppress the riot, but are not authorized to use any greater degree of force than is requisite to accomplish that object.
So, to summarize, a "riot" is seven or more people doing anything that might be construed as disturbing any other person in the enjoyment of a legal right. And if there is a "riot," then a police officer can round up a posse of available folks (perhaps including the ones whose enjoyment was disturbed in the first place) to suppress the riot using whatever degree of force "requisite" to accomplish such suppression. This was a horrific thought in 1965, a half-decade before the UT-Austin football team would integrate. Today it is ridiculous.

These special rioting statutes are unnecessary. The massive, militarized response by police to the George Floyd protests demonstrated that law enforcement is more than capable of crushing the protests themselves, Tienanmen-Square-style, if they chose to do so. Who today of any political stripe wants to give officers authority to round up civilian mobs, much less to violate protesters' rights by arresting them for "rioting" offenses that can't be prosecuted?

If anything, officers' special powers should be replaced with special duties to protect protesters' First Amendment rights. Texans wouldn't be one iota less safe, and probably would be even safer, if all these old rioting statutes were just repealed.


Steven Michael Seys said...

I find it fascinating that the national leadership of the Democrat party backed the claims of "communist infiltration" of the civil rights movement in the 1960s, but provide material support to the actual communists, all white middle and upper class youth, who have suborned the BLM movement in recent months to harm black communities in the name of "fundamental transformation" of "the system." I know the police need to be held in check when the bad officers act out. But the "reform" these people espouse is idiotic and doomed to devolve into chaos, as it did in Seattle.

Gritsforbreakfast said...

Steven, I would submit that polling confirms the proportion of "these people" who advocate outright abolition or 100% defunding of police is relatively small. A much greater number support *reducing* police budgets and spending the savings on social-services-based approaches to solving social problems. (I myself fall into that camp.) As a practical matter, that's the agenda real-world city councils are considering, not the most extreme versions you can imagine based on interpreting a protest slogan.

That said, interpreting the BLM movement in Cold War terms is a mistake. Those of us who grew up in that environment see the world in more binary terms than the age groups who followed us, for whom those debates carry little or no meaning. If you look at what happened in the streets recently and think "Communists," you're a long way from understanding what's really going on.

Oil Lease said...

I had no idea 7 cheerleaders on the courthouse lawn constituted a "riot". And those horrible, violent words they use, knock em back, knock em back, waaaay back probably adds assault to the charge also. The legislature is a consortium of perfection while the general public is constantly on the verge of riot or quite literally, in the act.

We need more laws. We just never seen to get enough. God forbid a cop ever having to hear or witness anything that bothers him. We need to be like a county in some yankee state I forget the location, where they passed a law making it a crime to "hurt the feelings" of an LEO. Hitler, Marx, Mao, Stalin, Lenin are all leading their own cheer in whatever cheery place they now reside.

Anonymous said...

I too find it odd that the BLM is attacking statues of historic figures they feel represent past oppression, while never attaching the political party that does have a history of oppression of the black community, the Democrats. Even Grits admits this in this blog. The media may have everything to do with that.
I agree that police should be accountable for their actions, and that it is there job to protect the free speech rights of protesters. It is also there job to protect their communities from lotters, arsonist, and those who are destroying public or private property. There is a big difference in an organized protest and a mob of thugs rioting.

Gritsforbreakfast said...

Well, yes, 10:18, the Democrats historically were responsible for Jim Crow. Then came George Wallace, Nixon's Southern Strategy, which spawned Reagan Democrats and led to the complete realignment of white, pro-segregationist opinion toward the GOP, while black folks left the party of Lincoln in droves. There's a story to be told there, but it's bigger than the small-potatoes gotcha points you're trying to score.

Also, the overwhelming majority of protests have been nonviolent, and when they weren't, often the police instigated. These events were too big and broad based to paint them all with the same brush. Try to avoid doing so.