Couy Griffin at the U.S. Capitol on Jan. 6, 2021 (DOJ court filing).
A federal court of appeals on Tuesday denied a prominent Jan. 6 defendant’s effort to overturn his misdemeanor trespass conviction.
In March 2022, Couy Griffin, the founder of “Cowboys for Trump” and a former New Mexico county commissioner, was convicted on one count of entering a restricted area on the Capitol grounds and acquitted on one count of disorderly and disruptive conduct in a restricted building. The bench trial was overseen by Donald Trump-appointed U.S. District Judge Trevor McFadden.
On the day of the riot, Griffin made his way into a restricted area that had been cordoned off and closed to the public in order to protect then-Vice President Mike Pence as he waited to oversee vote tallies.
In determining the defendant’s guilt, the lower court judge said Griffin “certainly knew he shouldn’t be there” and “yet, he remained.”
On appeal, the defendant argued his actions did not satisfy the part of the statute that criminalizes trespassing in non-public places.
Griffin said his actions should be reasonably viewed as innocent because the Capitol grounds are typically open to the public, and earlier rioters had dispensed with various law enforcement barriers and signage indicating the area had been restricted.
That argument did not go over well with the majority.
“Under his reading, a defendant would be entitled to acquittal so long as he waited until a sufficiently strong gust of wind, a soaking downpour — or even a less scrupulous prior intruder — disposed of law enforcement tape, fencing, or signage before he entered a sensitive area in full awareness he was not lawfully authorized to do so,” the opinion reads. “We decline to read the statute to allow a mob to de-restrict an officially restricted area encompassing persons under Secret Service protection.”
The court explains its reasoning, at length:
U.S. Capitol grounds qualified on January 6 as a “restricted building or grounds” and were “posted, cordoned off, or otherwise restricted” when Griffin entered and remained there. In anticipation of then-Vice President Pence’s presence at the Capitol to certify the electoral votes on January 6, law enforcement officers had erected barriers around the perimeter of the closed area with layers of snow fencing and bike racks supplementing pre-existing permanent walls to encircle the Capitol grounds. Signs indicating the area was closed were affixed along the barriers. By the time Griffin entered the restricted area, many of those physical manifestations of its closure had been largely trampled, but that fact did not alter the status of the area as closed to the public.
The defendant also argued that he lacked the requisite mental state required to commit the crime because he did not know he was trespassing. A related defense argument on the mental state issue was that the court failed to require the government to prove Griffin knew why trespassing in that particular instance would be a crime.
In what might pass for a rehash of the discussion about what Griffin actually did, the court goes through a lengthy recitation about what the government actually proved during the bench trial.
Again, the majority at length:
The government proved that Griffin saw the rings of fencing and signage encircling the Capitol grounds on January 5, when he recorded a video with the grounds as his backdrop. And it showed that, the next day, when Griffin scaled the stone wall that partially delineated the grounds, he landed on trampled snow fencing and signs, which the district court observed would suggest to a reasonable person “that perhaps you should not be entering the area.” The evidence that Griffin knew he was trespassing only mounted as he continued to progress across the grounds. Arriving at the base of the inaugural stage, he announced, “we’re in now,” and joked that he should hide his identity with a face mask. When Griffin quipped that he loved the “smell of napalm in the air,” he showed he knew that law enforcement officers were using teargas as they battled to expel the mob—a clear sign that the area remained restricted.
As for the argument that prosecutors never proved he knew why the grounds were restricted, the court concluded: “The government was not required to prove that Griffin was aware that the Vice President’s presence was the reason the grounds remained restricted.”
Public policy reasons undergird the appellate court’s interpretation of the relevant statute at issue in the case.
“We hold that knowingly breaching the restricted area suffices, even without knowing the basis of the restriction—here, the presence of Vice President Pence at the Capitol on January 6,” the opinion by Circuit Judge Nina Pillard reads. “Congress intended to criminalize trespasses endangering Secret Service protectees regardless of the trespasser’s awareness of the basis for Congress’s authority to regulate them. And a contrary interpretation would impair the Secret Service’s ability to protect its charges.”
In ruling against Griffin, however, the court did not just reject the defense’s argument. They also rejected a mens rea –mental state – requirement altogether.
The majority said applying such a requirement “would pointlessly hinder the Secret Service’s ability to defend national leaders from would-be assassins and encumber prosecution of persons whose knowing trespasses endanger persons under Secret Service protection.”
In dissent, Circuit Judge Gregory Katsas said the rationale advanced by the majority was actually an argument in favor of retaining a highly specific mental state requirement.
From the dissent, at length:
The statutory definition of “restricted building or grounds” is not “jurisdictional only.” The first element of the definition—that the area in question must be “posted, cordoned off, or otherwise restricted”—is entirely substantive; it defines the area into which entry is prohibited, and it does not make evident the constitutional basis for federal legislation. The second element of the governing definition—that a Secret Service protectee “is or will be visiting” — serves both jurisdictional and substantive ends. It is partly jurisdictional, because Congress could not enact a national prohibition on simple trespass. And it is partly substantive, because it reflects an obvious judgment that trespasses endangering the life or safety of the President, the Vice President, or other Secret Service protectees are substantially more culpable than is trespassing simpliciter. Given that obviously substantive purpose, there is no basis for excepting this provision from the statutory mens rea requirement….
Trespassers unaware that someone like the President or Vice President is present are much less likely to pose a threat to those officials than are individuals who knowingly trespass into an area restricted to protect them. My colleagues suggest that the January 6 riot reveals a significant practical problem with Griffin’s position, given the difficulty of proving that any particular trespasser knows a protectee is present. That concern strikes me as overstated, particularly given the number of Capitol trespassers boasting about their desire to influence (whether peacefully or otherwise) the Vice President’s performance of his official duties. Moreover, the seriousness of an offense is reason to insist on, not depart from, a mens rea requirement.
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