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I urge you to go down town, to me this means I said, "Mr. Vinson, I know you don't want to go, but come on, let's go down town.”
Now, "urging” to me—the word "urging" does not mean something that you can presume from conduct short of a fervent request.
Mr. VINSON. It is just hard for me to conceive of incitement by "merely physical conduct."
I can certainly think of situations where it would be a combination of the two, but in any event I think it would be my position that “urging" contemplates words and/or conduct.
Mr. WHITENER. I have not had an opportunity to read through the study made by the Library of Congress, which we have here.
In Illinois it says "The assembly of two or more persons without authority of law for the purpose of doing violence to persons or properties.”
Mr. VINSON. That is what we would refer to as a "mob action" law.
Mr. WHITENER. Here is Kansas. “Three or more persons who assemble together with the intent to do an unlawful act or to do any unlawful act against the peace or, being lawfully assembled, shall agree with each other to do any unlawful act aforesaid, shall make any movement or preparation therefor."
This is somewhat along the line of what I was referring to.
Mr. Vinson. I think the Kansas statute is an "unlawful assembly" statute.
Mr. WHITENER. The Missouri statute says: If three or more persons being assembled shall proceed to carry out or accomplish their purposes or do any unlawful act in furtherance, or supposed furtherance of said purposes in a violent, unlawful or tumultuous manner to the terror, or disturbance of peaceful citizens.
Any use of force or violence disturbing the public peace or any threats to use force or violence if accompanied by the immediate power of execution, by two or more persons acting together and without authority of law is a riot.
What do you think of that?
Mr. Vinson. This is pretty close to the common law definition, Mr. Chairman, and actually our definition is pretty close to the common law.
Mr. WHITENER. In Nebraska, they say, "shall make any movement of preparation therefor."
I am sure we are just as interested as any committee could be in trying to get adequate statutes to cover this type of unlawful conduct.
Here is New York:
Being assembled, attempt or threaten any act tending toward a breach of the peace or an injury to persons or property.
Mr. VINSON. Now, New York has a new statute that became effective in September of this year.
Their new law breaks it down into first degree riot and second degree riot. We felt breaking it down into degrees, as some states have done, overly complicates the situation.
They talk in terms of second degree riot. "Four or more persons engaging in tumultuous and violent conduct" et cetera, and first degree riot, "ten or more persons." They have another provision where a person is guilty of inciting a riot when he urges ten or more persons to engage in certain conduct tending to create public alarm.
Mr. WHITENER. South Dakota: Any use of force or violence or any threat to use force or violence, if accompanied by immediate power of execution. Three or more persons acting together without authority of law is a riot.
The Texas law says, “If persons unlawfully attempt together,” and so forth.
Utah has the same as South Dakota apparently. The Wyoming statute reads: Whoever in any manner or by any means incites, advises, advocates, suggests or encourages crime as a means of coercion or for the accomplishment of any political or industrial reforms, change or purpose in this state, or any foreign state or country, whether action may follow such incitement or not, shall be deemed guilty of incitement to crime.
In the bill passed recently, H.R. 421, it says this in subsection (c), Section 2102: “ 'Inciting a riot’ shall mean urging or instigating other persons to riot, but shall not mean the mere advocacy of ideas or the mere expression of belief. The phrases “to incite a riot” and “incite a riot" shall be construed”, and so forth.
The word "instigation” might clarify that.
Mr. WHITENER. What would you think about “whoever willfully incites?"
Mr. VINSON. “Urges or instigates."
Mr. WHITENER. Instigating the riot is the offense, so you wouldn't want to create an offense of instigating or urging a riot. “Whoever willfully incites a riot by urging or instigating other persons,” would that be the best way to rewrite subsection (c) of 12328?
Mr. Vinson. From the top of my head, Mr. Chairman, I would say that would be entirely acceptable.
Mr. WHITENER. Mr. Bress then might be able to file an indictment for instigating a riot or inciting a riot.
I think the Chairman would like for us to report out a bill as soon as we can. I thought if we could just think this thing through together, we might get something.
Mr. Bress, what do you think about including the word "instigate” in H.R. 421?
Mr. Bress. I think it would help cover the point which you have already mentioned with respect to the inadequacy of the word "urge." I would have no objection to that. I think it would help.
Mr. WHITENER. Mr. Kneipp, you have been listening to this.
COUNSEL, DISTRICT OF COLUMBIA Mr. KNEIPP. I think "instigate" is narrower. "Urge" might be quite broad. If you say "incite or instigate" this does work in the element of "willfully" I believe, or "with intent,” and it would be perhaps more effective from a prosecution standpoint.
Mr. Vinson. "Instigate" would connote to me that a riot would actually have had to occur, whereas you can urge or incite and create a very troublesome atmosphere without the riot actually exploding.
Mr. WHITENER. Suppose we say “or attempt to instigate?” Then we would get away from that problem, wouldn't we?
Mr. VINSON. Yes.
Mr. WHITENER. "Whoever willfully incites, urges, "-"instigates or attempts to instigate.” Would that be too much?
Mr. Bress. I am concerned about the implication of the use of the word “instigates” now as implying that,
Mr. WHITENER. There ought to be a better word.
Mr. Vinson. You want to be clear that "incite" or "urge” would include the words and conduct."
Mr. WHITENER. “Instigate" has already been written into the National Anti-riot Law.
Mr. BRESS. There is one difference between the National Anti-Riot Law and this bill, which may explain the reason why the word "instigate” is proper in that one and may not be proper in this one and that is, as I read 421, the National Bill, it is that a person cannot be charged under that bill with incitement to riot in the absence of the accomplishment of his objective. That is, there must be a riot.
Mr. WHITENER. A violent act.
Mr. BRESS. There must be a riot that results. Whereas, under the bill the committee is now considering, 12328, it appears to me that it is being proposed that the incitement to a riot is, per se, an offense, even though a riot may not result, and therefore the word “instigate” has a proper place in the National Bill, but would be inappropriate in this one and therefore my prior indication that I would be content with that word, I would like to modify at this time.
Mr. WHITENER. To go back to this proposition of how the court would define the word "urge,” what factual situation other than the utterance of words which would constitute an urging, would bring the man to the bar of justice for inciting a riot?
Mr. Bress. I haven't got a prepared definition-
Mr. Bress. I think it means and the court would probably instruct the jury as to its meaning along the line of by words or contending to influence, persuade or encourage. Something along that line. That would be urging; persuading. You can persuade either by words or by conduct.
Mr. WHITENER. In Black's law dictionary there is not a definition of “urge." Do you know of any cases where the courts have given a legal definition?
"Incites" is defined in Black as follows: To arouse, urge, provoke, encourage, spur on, goad, stir up, instigate, set in motion, as to incite” a riot. Also, generally in criminal law, to instigate, persuade or move another to commit a crime, in this sense nearly synonymous with "abet."
What would you think of the words "move another"?
Black says "or move another to commit a crime” is synonymous with “incite.” “Urge, or move another.”
Mr. Vinson. I don't know the answer.
Mr. KNEIPP. Mr. Chairman, I wonder if I might offer a suggestion? In existing law, in D.C. Code, title 22, section 105, it reads this way, the short section:
In prosecutions for any criminal offense, all persons advising, inciting or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals.
There are some words that indicate direct involvement in the furtherance of the offense.
Mr. Bress. I think it would be inappropriate to use that section here because the fellow who does the inciting is charged under certain circumstances in this bill with a more serious offense or felony than the fellow who merely engages in the riot.
Mr. WHITENER. Let me argue against myself a little bit. The use of the word “incite.” How broad is that? It seems to me we are saying “incite or urge.”
Now, Black says that “incite”—“to incite means to arouse, urge, provoke, encourage, spur on, goad, stir up, instigate, set in motion so as to incite a riot."
Suppose we leave the language as it is and in the committee report refer to the definition in Black's and other reputable law dictionaries and in our report say that the committee intends that the use of the word “incites” means arousing, provoking, encouraging, spurring on, goading, stirring up, instigating, setting in motion a riotous situation.
Do you think that would be adequate?
Mr. WHITENER. What do you think about that, Mr. Kneipp? The thing that you read caused me to believe that perhaps the way this language was drawn here, “whoever willfully incites" or "urges”.
Mr. KNEIPP. The problem in my mind is one of statutory interpretation. If ‘'incite” or “urge” is clear on its face in the bill, you couldn't go to the committee report.
Mr. WHITENER. I will argue against myself again. If we are going to take Black's definition, we don't need the word "urge,” because "incites" embraces the word "urge."
Mr. VINSON. I think your last comment, Mr. Chairman, is entirely correct. We gave serious thought to just having it "whoever willfully incites other persons” as being inclusive of “urge,” “arouse,” et cetera.
Mr. WHITENER. If we undertake to define "riot” in Subsection (a), what do you think of defining “incitement to riot” at some point in the bill, using language comparable, if not beyond the language in Black's definition? Would that be better than putting it in the report?
Mr. Vinson. It is my feeling, Mr. Chairman, that "incite” has a well-established, clear, legal meaning.
Mr. WHITENER. What would it do to the bill if we strike out"urge”? Mr. VINSON. I don't think it would affect the bill.
Mr. WHITENER. Perhaps we could strike out "urge" and then in the report refer to the definition of Black's as to what constitutes “inciting.”
What do you think, Mr. Bress?
Mr. Bress. I think, Mr. Chairman, that the word "urges” probably means something less than "incites," and the bill as drafted would make it the offense to engage in the kind of conduct that one might not characterize as satisfying the common law meaning of the word "incite.” Even if you do less than that. But, what you do amounts to some persuasion, strong suggestion; that is, "urging," and although I wouldn't be
Mr. WHITENER. What you are saying, as I understand it, is that urge” may be an element in "inciting" under a given set of facts, but "urging" alone may not under another set of facts be adequate to support a prosecution. So if you leave "urge” here, you might conviet a man of “urging” a riot, where you could not convict him of "inciting" a riot under the accepted definition of inciting.
Mr. BRESS. That is correct. It is making it a criminal offense to do something short of actual common law incitement and I don't know that it is intended to be exactly synonymous with incitement.
Mr. VINSON. The word "urge” is a word in more common usage and does give it a little flavor.
Mr. WHITENER. Are there any other questions?
Mr. Kneipp, you are here for the District Government. Do you a prepared statement?
Mr. KNEIPP. I have no prepared statement. I merely want to set forth the position of the District Commissioners. Commissioner Tobriner said in his letter in which he joined with the Attorney General, dated August 5,
Mr. WHITENER. May 1 interrupt you there? This report from Commissioner Tobriner has not been made a part of the record. We will so make it at this time.
Mr. KNEIPP. Mr. Tobriner, as well as the Attorney General, feel there should be an adequate statutory law to deal effectively with riots in the District of Columbia.
This is not to say, sir, that the District is without a body of law to deal with this problem. Mr. Vinson has referred to the common law offense of riots which is available in the District. No one yet has mentioned that there is a general penalty of $1,000 or not more than five years in jail available in the event there was successful prosecution under the common law. This is in Section 910 of the Act of March 3, 1901 that prescribes a general penalty for any offense for which there is no specific penalty and I think that penalty would apply.
Mr. WHITENER. This statute would then reduce the punishment.
Mr. KNEIPP. It would be this way, sir: The bills offered by Mr. McMillan and Mr. Nelsen would have that effect unless there was serious bodily injury or damage in excess of $5,000. I might mention that I believe the Commissioners support those bills.
The bill offered by Mr. Scott is substantially the same except it would apply to three or more persons rather than five or more.
The bill introduced by Mr. Bevill (H.R. 12557) is somewhat different. It would create a felony. It would make the offense of riots and the offense of incitement to riot a felony as it would be under common law and it would increase the fine to $10,000 instead of the general penalty of $1,000. It would keep the term of imprisonment at the same level. I think with regard to H.R. 12557, while I haven't discussed it with the Commissioners, they would feel it is too severe in its terms. They have approved the bills introduced by Mr. McMillan and Mr. Nelsen. I have not discussed H.R. 12557 with them, but I believe they would prefer the McMillan-Nelsen bills as against the bill introduced by Mr. Scott and the bill introduced by Mr. Bevill.
Further, as has come out in the course of this hearing, there are other provisions of law that are available to deal with the problem. The unlawful assembly provision, the disorderly conduct provision; they are all available. As the chief has indicated, the penalties are very minor: $250 and 90 days in those cases. While there is law, it is in a rather, shall we say "slightly confused state." Of course, a specific statutory provision dealing with this problem is preferable to the slightly confused state of the law as it now stands.
I have nothing further, Mr. Chairman.