Federal appeals court upholds trespassing charge used in hundreds of Jan. 6 prosecutions
WASHINGTON – A divided federal appeals court upheld a trespassing charge Tuesday against a defendant in the Capitol attack on Jan. 6, 2021, reinforcing a charge that contributed to nearly 300 sentencings so far.
Couy Griffin, who was a New Mexico county commissioner at the time, was convicted of trespassing for making his way to the inaugural stage on the west side of the Capitol despite the area being restricted. He was sentenced to 14 days behind bars and a year of supervised probation.
Griffin appealed by arguing that he didn’t know a Secret Service protectee – in this case, Vice President Mike Pence – was in the Capitol when he was there, which he said was a requirement of the statute.
A three-judge panel of the D.C. Circuit Court of Appeals ruled 2-1 that signs that warned of a restricted area were enough to notify Griffin the area was off limits while Congress counted Electoral College votes.
“Neither the text nor the context of the statute supports” Griffin’s interpretation of the statute, Judge Cornelia Pillard wrote for herself and Judge Judith Rogers. “It would require Secret Service agents preventing members of the public from encroaching on a temporary security zone to confirm that each intruder knows that a person under Secret Service protection is or is expected to be there.”
But Judge Gregory Katsas disagreed. Katsas said some evidence in the case suggested Griffin wasn’t aware that Pence was still in the building when he arrived, so he would have sent the case back to the District Court for further action.
“In my view, statutory text, history, and basic interpretive presumptions all point in the same direction: To be convicted of knowingly entering a ‘restricted building or grounds,’ the defendant must know that the area in question satisfies the statutory definition of that term,” Katsas wrote.
The decision upheld a statute charged repeatedly against defendants in the Jan. 6 riot. At least 279 defendants have been sentenced for trespassing convictions.
Griffin was an elected Republican Otero County commissioner when he arrived at the Capitol as a member of “Cowboys for Trump.” Evidence at the trial showed Griffin attending Trump’s “Stop the Steal” rally near the White House before walking to the Capitol.
At 2:31 p.m. – as Capitol police were evacuating the House and Senate chambers – Griffin used the seat of a parked bicycle to boost himself over a 5-foot stone wall to get onto the Capitol grounds. He landed on a trampled piece of fencing police had erected to cordon off the area.
Griffin recorded himself heading to the Capitol, saying at an emergency stairwell door at the base of the inaugural platform he would “wait until they get this door broken down.” He then climbed the stairs to get onto the inaugural stage, where he noted the smell of pepper spray officers used to clear the area by saying he “love(s) the smell of napalm in the air.” Griffin stayed on the stage until at least 4:48 p.m.