As a top federal lawyer, I have been recently asked to explain the federal civil disorder statute. First of all, the federal civil disorder statute can be found at 12 United States Code (U.S.C.), Section 231. The statute makes the following conduct a federal crime: 1) to teach or demonstrate to another person the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to persons; 2) knowing or having reason to know or intending that the device will be unlawfully employed for use in, or in furtherance of, a civil disorder; 3) that may in any way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in commerce, or the conduct or performance of any federally protected function. To be clear, federal prosecutors have to prove each and every one of those elements beyond a reasonable doubt.
The statute also makes it a federal crime for one who: transports or manufactures for transportation in commerce any firearm, or explosive or incendiary device; 2) knowing or having reason to know or intending that the device will be used unlawfully in furtherance of a civil disorder. Again, federal prosecutors need to prove, beyond a reasonable doubt, each of those elements.
So, the question is: how does this federal criminal law define what constitutes a “civil disorder” in the first instance? The statute defines “civil disorder” it as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.”
Accordingly, the statute cannot even be applied unless and until at least three or more persons are assembled.
The maximum sentence that a defendant can receive if he or she is convicted under this federal criminal law is a term of imprisonment in the federal Bureau of Prisons of up to 5 years.
In practice, this status was recently used frequently by federal prosecutors to bring charges arising out of the riots/demonstrations in 2020 after the George Floyd riots. It has also been used in prosecutions arising out of the January 6 riot.
Leonard Trial Lawyers and Michael Leonard have been retained to represent defendants charged under this federal criminal statute. Most notably, Mr. Leonard represented the defendant who was called by the press as “the Joker” because he wore a Joker mask (like in the Batman movies) during the alleged commission of a criminal offense. Mr. Leonard was able to get the charges reduced against that defendant. The charges were originally brought by federal prosecutors under the federal arson statute. That statute has a five-year mandatory minimum. Ultimately, Mr. Leonard was able to obtain a favorable sentence that required the defendant to serve slightly more than a time served sentence.
Written by Michael Leonard
Leonard Trial Lawyers
November 19, 2022