United States v. Griffin

• Citation: 549 F.Supp.3d 49
• Decision Date: 02 July 2021
• Docket Number: Case No. 21-cr-00092 (TNM)
• Parties: UNITED STATES of America v. Couy GRIFFIN, Defendant.
• Court: U.S. District Court — District of Columbia

549 F.Supp.3d 49

UNITED STATES of America

v.Couy GRIFFIN, Defendant.

Case No. 21-cr-00092 (TNM)

United States District Court, District of Columbia.

Signed July 2, 2021

Janani Iyengar, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Criminal Division, Washington, DC, for United States of America.

David Benjamin Smith, David B. Smith, PLLC, Alexandria, VA, Nicholas D. Smith, David B. Smith, PLLC, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

TREVOR N. McFADDEN, U.S.D.J.

Couy Griffin faces charges for entering a restricted area outside the U.S. Capitol on January 6, 2021. He now moves to dismiss the Information, arguing that because the Capitol Police—not the Secret Service—barricaded the area, the charged offenses do not cover his alleged conduct. See 18 U.S.C. § 1752. The Court does not read the statute to provide such tenuous security for Secret Service protectees. It will therefore deny his motion and permit the case to proceed.

I.

The Court treats the allegations in the Government's Complaint as true for now. See United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009). According to it, a joint session of Congress gathered at the Capitol on January 6 to certify the Electoral College results of the 2020 Presidential Election. Compl. Ex. 1 ("Gov't Facts") at 1–2, ECF No. 1-1.¹ Vice President Mike Pence presided over, and Vice President-elect Kamala Harris attended, the joint session. Am. Information at 1, ECF No. 31. To protect the Capitol and the people and proceedings inside, the U.S. Capitol Police ("USCP") erected a perimeter of barriers around the Capitol grounds. Gov't Facts at 1. USCP officers patrolled the barriers, and signage read "Area Closed by order of the United States Capitol Police Board." Id.

As the election certification proceedings began, a large crowd of protestors approached the Capitol. Id. at 2. In the crowd was Defendant Couy Griffin. Id. at 3. Griffin is the founder of an advocacy group, "Cowboys for Trump." Id. He and a videographer traveled to Washington, D.C., on January 6 to protest the results of the 2020 Presidential Election. Id. at 3. After attending a rally hosted by President Trump on the National Mall, Griffin headed toward the Capitol as the crowd formed around the barricades. Id. at 3–4. Griffin noticed that "there was some fencing up and they were saying that you could not go any further because this was being reserved for Joe Biden and his inauguration." Id. at 6.

Numerous protestors, including Griffin, breached the barricades and entered the area around the Capitol. Id. at 3. Griffin and his videographer climbed up a permanent wall and onto the Capitol's west-facing patio. Id. at 4. Griffin then took a temporary staircase to the outside deck of the Capitol, where the Presidential Inauguration was set to occur in a few weeks. Id. at 4, 6. There Griffin borrowed a bullhorn and led a group of protestors in prayer. Id. at 4. He remained on the deck for about an hour and a half before voluntarily leaving the Capitol grounds with his videographer. Id. at 3.

Three days later, the FBI received a tip that Griffin had entered the Capitol grounds on January 6. Id. The FBI also discovered Griffin's videographer had recorded much of his visit. Id. at 4.

The Government charged Griffin by Information with misdemeanor violations of 18 U.S.C. § 1752(a)(1) and (2). Information at 1–2, ECF No. 14. Section 1752(a)(1) criminalizes "knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so." 18 U.S.C. § 1752(a)(1). Section 1752(a)(2) further prohibits "knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engag[ing] in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds ...." 18 U.S.C. § 1752(a)(2).

The Government moved to detain Griffin before trial. It described Griffin's political views as "inflammatory, racist, and at least borderline threatening advocacy." Gov't’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin. Id. at 2–3. A magistrate judge ordered Griffin detained. Minute Entry (Feb. 1, 2021). But Chief Judge Howell granted Griffin's motion to overturn the pretrial detention order, Minute Entry (Feb. 5, 2021), and he remains on pretrial release with conditions.

Griffin now moves to dismiss the charges for failure to state an offense. Def.’s Second Mot. to Dismiss the Am. Information ("Def.’s Mot.") at 5, ECF No. 32.² He argues that the Capitol was not restricted by the U.S. Secret Service, a requisite for a § 1752 offense. Id. at 13–16. The Government opposes Griffin's motion but does not contest his allegation that the USCP was responsible for the restrictions. See Gov't’s Resp. to Def.’s Mot. ("Gov't Resp."), ECF No. 33. The Court granted Def.’s Motion for a Hearing and heard arguments from both sides. Griffin's motion to dismiss is ripe for disposition.

II.

Before trial, a defendant in a criminal case may move to dismiss an information for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). A valid information must set out "the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet." United States v. Pickett , 353 F.3d 62, 67 (D.C. Cir. 2004). The Government must state the essential elements of the crime and allegations of "overt acts [constituting the offense] with sufficient specificity." United States v. Childress , 58 F.3d 693, 720 (D.C. Cir. 1995).

When ruling on a motion to dismiss, the Court "is limited to reviewing the face of" the Information and "the language used to charge the crimes." United States v. Payne , 382 F. Supp. 3d 71, 73 (D.D.C. 2019) (cleaned up). The Court must accept the allegations of the Information as true. Id. at 74. At this stage, "[t]he operative question is whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed." United States v. Sanford, Ltd. , 859 F. Supp. 2d 102, 107 (D.D.C. 2012).

III.

Griffin contends that he cannot be found guilty under 18 U.S.C. § 1752 as charged because the offense requires that the Secret Service—not another agency—restrict the area covered by the statute. See Def.’s Mot. at 6–30. The Government responds that the statute does not compel this narrow reading.³ Gov't Resp. at 9–17. The Government is right.

A.

The Court starts, as it must, with the text of the statute. In relevant part, 18 U.S.C. § 1752 ("Restricted building or grounds") criminalizes:

(a) Whoever—

(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;

(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;

(c) In this section—

(1) the term "restricted buildings or grounds" means any posted, cordoned off, or otherwise restricted area—

(A) of the White House or its grounds, or the Vice President's official residence or its grounds;

(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or

(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance.

(2) the term "other person protected by the Secret Service" means any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.

18 U.S.C. § 1752.

To interpret the statute, the Court looks to its plain language. Jimenez v. Quarterman , 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). It is not complex. The text prohibits certain conduct in and around specified "restricted buildings or grounds." 18 U.S.C. § 1752. The conduct includes, as relevant here, knowingly and unlawfully "entering or remaining" in a restricted area, § 1752(a)(1), and engaging in "disorderly or disruptive conduct" that "impedes or disrupts" government business in that area, § 1752(a)(2). The statute gives three definitions for the term "restricted buildings and grounds," see § 1752(c)(1), including "any posted, cordoned off, or otherwise restricted area ... of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting," § 1752(c)(1)(B). And Secret Service protectees include the Vice President and the Vice President-elect. See 18 U.S.C. § 3056(a)(1).

In other words, someone can violate the statute by knowingly "entering without lawful authority to do so in any posted, cordoned off, or otherwise restricted area of a building or grounds where a person protected by the Secret Service is or will be temporarily visiting." Wilson v. DNC Servs. Corp. , 417 F. Supp. 3d 86, 98 (D.D.C. 2019), aff'd , 831 F. App'x 513 (D.C. Cir. 2020). So too if someone intends to and does impede government business through disorderly or disruptive conduct while in the restricted area.

The statute focuses on perpetrators who knowingly enter a restricted area around a protectee, not on how it is restricted or who does the restricting. This flexible approach reflects the various temporary and permanent ways an area may be restricted—such as the White House fence, posted signs on a secure building, or police tape or barricades at an outdoor event—depending on where the protectee happens to be and the security threats he faces. It also reflects the reality that while the Secret Service has primary responsibility for guarding its...