Assassination Attempt and Illegal Intimidation – Blame Virginia; VA Law, Unlike the Federal One, Doesn’t Require Intent and is Constitutional
An Assassination Attempt
WASHINGTON, D.C. (June 15, 2022) – An armed gunman intent on assassinating a Supreme Court justice, angry mobs outside the justices’ homes with chants that warn of riots if they don’t get their way, frightened and intimidated family members and neighbors – all of this grows out of or is tied to the refusal by authorities in Virginia to enforce a law which makes picketing any home a crime, even without the illusive requirement of “intent” required by the federal statute, and without the statute raising constitutional problems, says public interest law professor John Banzhaf.
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With the "pro-abortion terrorist group" which claimed responsibility for May 8th fire bombing of the Wisconsin Family Action office issuing a "Night of Rage" message, urging followers to carry “anger out into the world” by “expressing it physically” on the night when the Supreme Court hands down an expected decision ending constitutional protection for abortions, things could get very violent if authorities continue to defiantly refuse to enforce existing law, he warns.
While most of the discussion - and attempts to pin blame - for permitting the intimidation outside the homes of justices to continue unabated has been directed towards Attorney General Merrick Garland, the much cited federal statute under which he or other federal officials might seek to make arrests has a major impediment and a possible constitutional problem, argues Banzhaf, who notes that the corresponding state statute under which Virginia law enforcement authorities clearly could make arrests has no such problems or limitations.
The relevant federal statute, § 18 U.S.C. 1507, makes picketing or parading in or near a building or residence occupied or used by a judge a federal crime, but only if it is done "with the intent . . . of influencing any judge . . ., in the discharge of his duty."
So, for example, if people who support overturning Roe v. Wade marched outside the homes of the anti-Roe justices in order to congratulate them or to simply show support, the statute would not be violated, any more than it would be if supporters of Roe picketed outside the homes of pro-Roe justices in support and appreciation of their views.
Thus, to make a valid arrest, and especially to be able to even initiate a prosecution (much less obtain a conviction), authorities must have specific evidence that the intent of each protestor arrested and charged was to influence a justice.
But many of the individuals picketing claim that their intent is and was to simply share their outrage at what they believe is already a done deal, and not to try to influence a justice to change his or her vote. While some people might well doubt the sincerity of such self-serving claims, there may be no (or at least insufficient) evidence of the key element of any protestor "intent" of "influencing any judge . . ., in the discharge of his duty" to warrant an arrest, much less a prosecution.
The same limitation - that picketing near the home of a judge is illegal only if done with the specific intent spelled out in the statute - could also create serious constitutional problems, say many experts.
Picketing is clearly "speech" protected by the First Amendment, so punishing only a specific and narrow category of this type of speech based solely upon the intended message - e.g., permitting picketing congratulating or supporting justices, but criminalizing speech criticizing and/or intimidating justices to change their vote - might make the law unconstitutional, or at least raise serious constitutional problems.
Indeed, as some experts have pointed out, other parts of the same federal statute, which purport to punish as a criminal any person who "pickets or parades in or near a building housing a court of the United States" "with the intent of influencing any judge . . in the discharge of his duty," could well make criminals of hundreds picketing in front of the Court every year regarding cases being decided at the time by the justices.
Virginia's Picketing Law
In stark contrast, the corresponding picketing law in Virginia is crystal clear and without any such problems. Because it does not require any specific intent, Virginia law enforcement authorities may - and, under applicable Virginia criminal law and procedure, should - arrest any persons picketing any residence.
Virginia's § 18.2-419 mandates that: "Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor."
Unlike the federal statute, the Virginia law is also clearly constitutional since picketing is prohibited only in a certain place (near a residence), rather than because of the message the "speech" communicates.
In other words, it constitutes what judges call "time, place and manner restrictions" which are government limits imposed on expressive activity, but are nevertheless constitutional because they apply regardless of what is being said; i.e., are content neutral.
As Prof Banzhaf - whose legal complaint triggered the criminal investigation of former President Donald Trump in Georgia - explained in putting Virginia Governor Glenn Youngkin on formal notice of this legal requirement and requesting enforcement:
"Please note that the statute does not criminalize only picketing done with a specific intent, but rather makes criminal any and all picketing, as well as any activity which disrupts "tranquility," at any "residence or dwelling place of any individual" in Virginia. This is important because the corresponding federal statute, § 18 U.S.C. 1507, only makes picketing or parading in or near a building or residence occupied or used by a judge criminal if it is done "with the intent . . . of influencing any judge . . ., in the discharge of his duty. Thus it is not clear that any federal officers [e.g.. U.S. Marshals, member of the Secret Service, Supreme Court police, etc.] who might be on scene would - or even legally could - arrest persons who picket or protest near a justice's residence in Virginia without direct evidence in their possession of the specific intent which the federal statute requires. It is even more doubtful that they would or even legally could arrest protestors for violating Virginia's criminal statute."
The law professor reminded Youngkin of how strongly Virginia's legislators feel about the statute, and about its need for enforcement, especially before violence breaks out. More specifically, he wrote to Youngkin:
"The legislature of Virginia, in its declaration of policy for this statute [ §18.2-418], has made it abundantly clear that it regards such demonstrations as serious crimes which must be met with arrests: "protection and preservation of the home is the keystone of democratic government"; "good order of the community require that members of the community enjoy in their homes a feeling of well-being, tranquility, and privacy"; "picketing before or about residences and dwelling places causes emotional disturbance and distress"; "its object [is] the harassing of such occupants";and enforcing the provisions of the statute"are necessary in the public interest, to avoid the detrimental results herein set forth."
Virginia Attorney General Jason Miyares agrees, conceding that: “Section 18.2-419 of the Code of Virginia states that protesting in front of an individual’s private residence is a class 3 misdemeanor."
The law professor has pointed out that it seems clear that the legislators wrote the criminal statute, prohibiting demonstrations at private residences, to permit police to act when any such criminal activity begins, rather than waiting until it becomes violent. That's because, once such a demonstration becomes violent, it may be difficult to bring it under control, with arrests or otherwise, without causing injury to demonstrators, police, and perhaps even innocent bystanders. In other words, an ounce of prevention (before) may be worth a pound of cure (later).
That, of course, is a major concern when a pro-Roe terrorist organization, which has already admitted to engaging in criminal violence, has publicly announced that it is planning a "Night of Rage" when the Court's abortion decision is released.
Protests at the homes of influential people can easily become violent and even terrifying, says Banzhaf, citing this example, which also supports the applicability of the Virginia statute to the current situation.
As described just last year by Senator Josh Hawley: "Tonight while I was in Missouri, Antifa scumbags came to our place in DC and threatened my wife and newborn daughter, who can´t travel. They screamed threats, vandalized, and tried to pound open our door." The Senator confessed that, as a result, his family was "terrorized." Fortunately, a local magistrate did find probable cause under Virginia's § 18.2-419 and issued a legal summons.
Of course Virginia's clear and clearly constitutional statute prohibiting picketing at a residence does not directly apply to the assassination plot and picketing of Justice Brett Kavanaugh in Maryland.
But seeing, virtually on a daily basis, the images of angry protestors marching just outside justices' homes - including those of Clarence Thomas, Samuel Alito, and Amy Coney Barrett in Virginia - could well encourage a mentally unbalanced individual to believe that he would be able to get very close to the home of any justice, whether they live in Maryland or Virginia, suggests Banzhaf.
To deter other mentally unbalanced individuals who might want to assassinate a justice (or at least die trying in the attempt), as well as those planning to engage in a "Night of Rage" near the homes of anti-Roe justices once a decision is released, Virginia law enforcement authorities would do well to announce that they will begin following and enforcing § 18.2-419 by making arrests, even in the absence of other criminal activity such as blocking streets, etc.
If not, and authorities wait for violence to break out before even trying to make arrests, many protestors, police, and even neighbors and other bystanders may well be injured, and there will be charges and counter-charges of overreacting and of triggering violence issued by both sides involved in this controversy, warns Banzhaf.
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