Mr. WHITENER. As I understand it, we do have the common law that we can resort to in the District of Columbia for prosecution for riots and incitement to riot. This bill would have the effect of lowering the maximum imprisonment from five years to one year, and also the committee amended it for riot or incitement to riot.

The present common law does not have graduated punishment based upon property damage and serious injury, as this bill is proposing

Mr. KNEIPP. Mr. Chairman, I might mention these bills do omit two elements that appear in the classic definition of “riot” as it occurs in the common law, and this would make Mr. Bress' job much easier. In the common law definition there was the “purpose to resist opposition" element and then there was the element of inspiring of terror.'' Those would have to be alleged and proven under the common law, I would think.

Mr. WHITENER. The fear of injury-it must be a situation where a person with reasonable firmness

Mr. KNEIPP. As it appears in Section 2 of American Jurisprudence classic definition declares a riot is disturbance by three or more persons, assembling of their own authority with an intent mutually to assist one another against anyone who shall oppose them in the execution of some enterprise of a private nature and afterwards actually executing the same in violent or turbulent manner to the terror of the people, whether the act itself or intended act was lawful or unlawful.

Mr. Bress. Mr. Chairman, with respect to the discussion of the last few minutes about the common law, I think I have a different view of it. My study indicates that the common law of Maryland with respect to riot, or incitement to riot, could not be resorted to in the District of Columbia for prosecution.

Mr. WHITENER. Maryland has a riot statute and they operate under the common law.

Mr. Bress. It is certainly in a state of uncertainty. Title 22, section 107, of the District of Columbia Code provides that criminal offenses not covered by the code shall be punished by a $1,000 fine or up to five years, or both. But in Maryland the offense of rioting or incitement to riot is a misdemeanor at common law.

It appears as Mr. Vinson has indicated that the disorderly conduct statutes in the District of Columbia may have pretty well pre-empted a good part of what constituted common law riots. Therefore, since there is some pre-emption, we would not be able

to resort to Maryland common law by virtue of the provisions of Title 22, Section 107, because that kind of conduct is already proscribed by other provisions of the D. C. Code. For that reason I think that we are in the position in the District of Columbia now in dealing with the subject matter of riots and incitement to riot, to either rely upon our present disorderly conduct statutes or to have separate legislation and I think as between those two alternatives, the need for this bill is emphasized.

Mr. WHITENER. Don't you have a statute in the District Code that provides punishment for felonies for which no specific punishment is provided by other statutes?

Mr. Bress. Yes. I think that is the $1,000 and up to five years.

Mr. WHITENER. This is similar to what we have in our state. We have said the common law is still in effect unless modified or changed by statutory enactment of the legislature. We have a statute saying

a felony for which there is no statutory punishment is punishable by not more than ten years in the state prison. When you have a common law offense like riot or incitement to riot, the court advises the individual if he is found guilty that it is a felony under the common law so the statutory penalty for felonies which are not the subject of statute, then comes into force. This has been before the Supreme Court many times.

Mr. Bress. The anomalous thing here is that under the cases in the state of Maryland, which declare that common law riot and incitement to riot constitute a misdemeanor, if brought into the District of Columbia by reason of 107 of Title 22, the punishment would be as for a felony even though it is a misdemeanor in Maryland.

Mr. WHITENER. What the Maryland court might say in 1965 would not have any effect on common law as of that date back in the 1800's. Rioting is a felony in common law.

Mr. Vinson. Not in Maryland, sir.
Mr. Bress. I think it is a misdemeanor in Maryland.

Mr. WHITENER. The law in Maryland makes riot a felony, does it not?

Mr. BRESS. In 1937, Mr. Chairman, the Court of Appeals of Maryland handed down the case of Cohen vs. Maryland, 173 Maryland, 216, and in that case it was stated that common law inciting to riot was a misdemeanor in the State of Maryland.

Mr. WHITENER. What did it have to say about riot? Mr. Bress. My recollection is that it was the same. Mr. WHITENER. In common law, all British statutes in force in Maryland, February 27, 1901, et cetera, shall remain in force except inconsistent with present legislation. That is what D.C. Code, Tit. 49. sec. 301, provides.

Mr. GUDE. Under this common law definition where it says, “incite," does that mean in the sense that it is urged or promoted but the riot does not actually take place? For example, in the Maryland law, how would that be determined?

Mr. BRESS. I don't know that we have any case in Maryland which involved incitement where riot did not result. I think it is a unique situation where the prosecution is for incitement where no riot does result.

Mr. GUDE. In this legislation there could be a case of incitementin this case incitement would be urging or trying to promote but not actually having the riot take place. Isn't that

Mr. BRESS. Under this bill that is correct. That is my understanding

Mr. WHITENER. Thank you very much, gentlemen. We are sorry we kept you so long.

The Committee will proceed in executive session.

Mr. Gude. I was wondering whether we were going to hare further hearings. There were persons who wanted to be heard and I wondered whether we would have further hearings.

Mr. WHITENER. The Chairman says these are all the witnesses he intends to hear. Their statements will be included in the record. (The statements referred to follow :)



Washington, D.C., October 2, 1967. Representative John McMILLAN, House Office Building, Washington, D.C.

DEAR MR. MCMILLAN: We have just learned that the Committee on the District of Columbia intends to hold hearings this Wednesday, October 4, 1967 on H.R. 12328 which discusses new penalties for those inciting or engaging in riots in the District.

We would like to request permission to testify before the sub-committee which is holding these hearings. The National Mobilization Committee to End the War in Vietnam is planning a large march, rally and non-violent direct action for October 21-22. A direct action team which is a project of the National Mobilization has already participated in certain activities in the District. Because of the nature of our activities we are particularly concerned with the language, interpretation and content of H.R. 12328. Over one hundred organizations are part of the National Mobilization and will be most interested in the bill.

Thank you for your consideration of this request. We consider it imperative that we be able to testify. Sincerely yours,

Bob Greenblatt
Professor Robert GREENBLATT,

National Coordinator.



Washington, D.C., October 4, 1967. Representative BASIL WHITENER, House Office Building, Washington, D.C.

DEAR MR. WHITENER: The National Mobilization Committee to End the War in Vietnam opposes H.R. 12328 and H.R. 12557 and similar bills to prohibit riots and incitement to riot in the District of Columbia. These bills-under cover of attempting to prohibit riots-appear, in fact, directed towards prohibiting persons from expressing legitimate grievances against present American policies. These bills are being considered at the end of the summer when no riots such as occurred in Detroit or Newark seem likely. However, this legislation is being considered just prior to the planned October 21-22 "Confrontation with the Warmakers” sponsored by the National Mobilization, and just prior to the announced "Stop the Draft and Draft Resistance” week.

The language of both bills is so vaguely phrased that anyone could be accused of violating its provisions if they were considered by a policeman or other official to be posing "á danger” or “a grave danger” of damage or injury to property or persons. There is no clear definition of when such danger might exist or whit it might entail.

The Department of Justice has written the bill introduced by Mr. McMillan and to our knowledge it already has support from the Administration. Therefore, since no riot appears likely in the District, we believe that this legislation is intended primarily to limit dissent to the War in Vietnam and is being considered at this time to prevent certain political views from being expressed. We do, then, consider this legislation as discriminatory in intent of its application.

We only learned of this bill Monday, October 2, and our lawyers have not yet had an opportunity to consider its full legal implications. However, upon superficial examination, they believe that these bills raise serious constitutional questions of due process of law, and violations of rights to free assembly and to free speech.


Under these circumstances we would like to request permission to testify before this Sub-committee in opposition to the bill, one week to ten days hence so that we might be able to prepare our complete legal and political objections. Thank you for your consideration. Sincerely yours,

Bob Greenblatt


National Coordinator, National Mobilization. Mr. WHITENER. We will now go into executive session.

(Whereupon, at 12:00 noon, the Subcommittee proceeded into executive session.)

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By Robert L. Thornton and Bayard Marin, Legislative Attorneys, American

Law Division, August 22, 1967


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Introduction.. I'nited States Code. Title 18. District of Columbia Code. Code of Alabama, Title 14 Alaska Statutes Annotated. Arizona Revised Statutes Arkansas Statutes Annotated. Caliiomia Penal Code Colorado Revised Statutes Connecticut General Statutes Annotated. Delaware Code Annotated. Title 11.. Florida Statutes Annotated. Georgia Code Annotated. Revised Laws of Hawaii, Title 31. Idaho Code Annotated Minois Annotated Statutes, Title 38 Indiana Statutes Annotated. lowa Code Annotated Kansgs Statutes Annotated. Kentucky Revised Statutes. Maine Revised Statutes Annotated, Title 17. Minnesota Statutes Annotated Venon's annotated Missouri Statutes. Revised Code of Montana Revised Statutes of Nebraska.. Nevada Revised Statutes. New Hampshire Revised Statutes Annotated. New Jersey Statutes New York Penal Law North Dakota Century Code. Page's Ohio Revised Code Annotated Oklahoma Statutes Annotated, Title 21. Oregon Revised Statutes Purdon's Pennsylvania Statutes Annotiated, Title 18 General Laws of Rhode Island. Code of Laws of South Carolina. South Dakota Code of 1939 Temon's Texas Penal Code l'tah Code Annotated Permont Statutes Amotated, Title 13 Code of Virginia.. Revised Code of Washington. West Virginia Code. Wyoming Statutes.. Appradix A-State Provisions Retaining the Common Law in Those States Without Specific Riot Provisions...

1. Maryland
2. Massachusetts
3. Michigan
4. Mississippi.
5. New Mexico
6. North Carolina.
7. Tennessee
8. Wisconsin (Retains Common Law Criminal Procedure With Limitations But Abolishes

Common Law Crimes)
Appendix B-llouse Report 472, 90th Congress-“Penalties For Inciting Riots”

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The Federal response to riots in the States is of necessity a limited one because the Federal Government is one of limited, or delegated, powers. Article IV, Section


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