When “Riot” is in the Eye of the Beholder: The Critical Need for Constitutional Clarity in Riot Laws
In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who take their outrage to the streets are frequently met with police decked out in militarized riot gear who engage in disproportionate heavy-handedness culminating in mass arrests, including of the non-violent protesters. The irony is compounded when the police turn a blind eye to comparatively violent counter-protesters, some of whom were the actual instigators of the violence for which comparatively non-violent protesters were later blamed and labeled “rioters.”
This Article documents conflicting descriptions of the same protests either as riots or not, both by media sources and even by court opinions. The Article explains how the problem of inconsistent interpretations of “riot” is rooted in and aggravated by the unclear and overbroad language of a substantial number of riot laws. Whether due to sloppy drafting or less benign reasons (as may be the case with riot laws granting immunity to those who drive vehicles into crowds of protesters), such flawed legislation endangers the liberty and potentially even lives of protesters. A misplaced comma can thus potentially become a matter of constitutional crisis, as poorly drafted legislation risks violating due process prohibitions on vague laws that foster discriminatory or arbitrary enforcement, First Amendment prohibitions on overbroad laws that chill and punish constitutionally protected expression.
To address the problem of inconsistent and unclear riot laws, this Article engages a comparative analysis of litigation in which riot statutes have been challenged as unconstitutional. Correspondingly, the Article also catalogs dozens of state statutes that remain on the books despite being dangerously vague or overbroad in a variety of respects. The Article proposes various specific revisions legislators should make to constitutionally flawed legislation, while also making substantive suggestions for those challenging the laws. Fundamentally, riot laws must provide sufficiently clear standards that unambiguously limit the potential prosecution of “rioters” to those with intent to commit imminent violence. Riot laws must carefully, clearly, and precisely define their key terms and delineate the intent requirements and requisite violent conduct to constitute rioting, rather than risk being struck down as unconstitutional.
While there is a strong governmental interest in protecting public safety, even that interest does not excuse laws that fail to clearly define what constitutes unlawful rioting, resulting in sweeping dragnets that ensnare non-violent and violent protesters alike. It is imperative that when history has its eyes on these unfolding chapters of political dissent and division, what it records is a respect for constitutional rights, not a continued pattern of those in power violating the rights of passionate, but non-violent, protesters.
Nancy C. Marcus,
When “Riot” is in the Eye of the Beholder: The Critical Need for Constitutional Clarity in Riot Laws,
Am. Crim. L. Rev.
Available at: https://scholarlycommons.law.cwsl.edu/fs/419