Appeals court upholds Jan. 6 trespassing misdemeanor faced by scores of rioters

A federal appeals court on Tuesday upheld a Jan. 6 rioter’s misdemeanor trespassing conviction in connection with the 2021 Capitol attack.

Couy Griffin, a founder of “Cowboys for Trump” and former New Mexico county commissioner, challenged his 2022 conviction for entering and remaining in a restricted building or grounds.

A decision in favor of Griffin could have upended the cases against hundreds of fellow rioters facing the same charge.

The law bars “knowingly” entering a restricted zone, described as areas “posted, cordoned off or otherwise restricted,” and later defines “otherwise restricted” as an area where Secret Service protectees will be visiting.

Griffin claimed that he could not have “knowingly entered” the restricted zone without knowing the reason for the restriction was to safeguard a person under the Secret Service’s protection — on Jan. 6, then-Vice President Pence during his time at the Capitol.

A District of Columbia Circuit Court of Appeals panel affirmed 2-1 that breaching a restricted area alone suffices as a violation of the law, even without knowing why the restriction is in place.

“A contrary interpretation would impair the Secret Service’s ability to protect its charges,” Judge Cornelia Pillard wrote in the majority opinion. “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. Neither the text nor the context of the statute supports that reading.”

Griffin also contended that troves of rioters ahead of him trampled fencing and signage that would have designated restricted areas, but the panel held that Capitol grounds were “adequately ‘posted, cordoned off or otherwise restricted’ when Griffin clambered over a stone wall and jumped inside.’”

Judge Gregory Katsas wrote in a dissenting opinion that both elements of the law — knowledge of an area being restricted and the reason why — must be satisfied to successfully convict for entering and remaining in a restricted building or grounds.

“My colleagues try to split the difference,” Katsas wrote. “They agree the defendant must know that the relevant area satisfies the first part of the statutory definition — i.e., that the area was ‘posted, cordoned off, or otherwise restricted’ at the time of the trespass. But there is no textual or contextual basis for projecting the knowledge requirement only halfway through the definition.”

More than 1,400 Jan. 6 rioters faced the count as a misdemeanor, and 171 rioters saw felony charges under the statute when entering and remaining in the restricted zone with a deadly or dangerous weapon.