Toss charge, Barnett lawyers ask in filing
WASHINGTON — A “civil disorder” charge to which Richard “Bigo” Barnett of Gravette was found guilty in January should be dismissed because it’s unconstitutional under Supreme Court precedent, one of his lawyers wrote in a federal court filing on Friday.
Jonathan S. Gross was referring to 18 U.S. Code Section 231(a)(3).
In this case, the charge involves interfering with a police officer who is trying to do his job during a civil disorder.
Barnett was yelling in the face of Metropolitan Police officer Terrence Craig for one minute in the U.S. Capitol Rotunda during the riot on Jan. 6, 2021, Gross wrote in the federal court filing in the District of Columbia.
Gross wrote that “the Defendant discovered Supreme Court authority that is directly on point and suggests that Section 231(a)(3) is unconstitutional.”
He cited a 1987 U.S. Supreme Court case regarding a municipal ordinance in Houston.
“The Court held that an ordinance that makes it unlawful to interrupt a police officer in the performance of his duty is substantially overbroad and therefore invalid on its face under the First Amendment,” wrote Gross.
He quoted this part from the Supreme Court ruling: “[The] ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance’s plain language is admittedly violated scores of times daily, yet only some individuals — those chosen by the police in their unguided discretion — are arrested.”
“Houston v. Hill is exactly analogous and indistinguishable from Mr. Barnett’s case,” wrote Gross. “According to Supreme Court precedent, Section 231(a)(3) is unconstitutional, and therefore the charge against Mr. Barnett should be dismissed.”
On Jan. 23, after a twoweek trial, a jury in Washington, D.C., found Barnett guilty of all eight charges against him in connection with the Capitol riot.
Barnett became well known after posing for photographs with his foot on a desk in House Speaker Nancy Pelosi’s office suite. He faced enhanced charges for carrying a stun gun into the Capitol.
Barnett faces a maximum penalty of 47 years in prison.
The civil disorder charge carries a maximum penalty of five years in prison. His sentencing is scheduled for May 3.
Barnett was yelling at Craig because he realized he had left his American flag in Pelosi’s office and he wanted a police officer to retrieve it for him, according to court filings and testimony. Craig testified that he had more pressing issues to deal with because a riot was underway in the U.S. Capitol.
In Friday’s filing, Gross quoted a federal prosecutor from Barnett’s trial transcript: “The defendant’s presence up in Officer Craig’s face, belligerent, yelling at him, all of that impeded or interfered with Officer Craig’s ability to hold that line, because all of his attention had to be focused on the man in his personal space right in front of him. And because he can’t focus — if he’s distracted from the defendant, if he’s looking somewhere else, there’s a whole mob of people trying — ready to surge past him, or the defendant’s ready to surge past him.”
On Feb. 5, Barnett’s attorneys filed motions asking for a new trial or acquittal on all charges “because the government did not present evidence to prove every element for any count, where a rational, fair, and impartial jury could find guilt beyond a reasonable doubt.”
In Friday’s filing, which was a supplement to the motion for acquittal, Gross noted that the Section 231(a) (3) charge has been used extensively against defendants in cases from the Jan. 6, 2021, breach of the U.S. Capitol.
Citing a spreadsheet released by the government on Thursday in another court case, Gross wrote that, over the two-year period that ended Jan. 6, 2022, federal prosecutors charged 206 defendants with Section 231(a)(3) in the District of Columbia alone (only two of which were charged prior to January 6, 2021).
In the rest of the country, a total of 65 defendants were charged under Section 231(a) (3) during that same time period, according to the filing.
“The sudden pandemic of violations of Section 231(a) (3) in the District of Columbia after January 6, 2021, cannot be attributed to January 6 being a singular event in history,” wrote Gross. “The same two-year period saw the deadly season of Black Lives Matter riots when cities burned for days in federal districts throughout the country.”