Support For Citizen’s Arrests Over Roe at Homes of Justices; Planned Protests at Judges’ Homes Violate Federal and State Criminal Laws
Citizen’s Arrests Over Roe at Homes of Justices
WASHINGTON D.C. (May 7, 2022) – The suggestion by a law professor that anti-abortion activists might seek to make citizen’s arrests, if Roe supporters protest as planned at the homes of anti-Roe Supreme Court justices, has triggered support on the Internet.
Many of the comments indicate strong support for such citizen's arrests: e.g., "Let's get a right wing militia to defend them"; "Vigilantes for Justices! Assemble!"; "violence, extreme violence is just what they need ... broken bones at a minimum ...,"; "A 'whiff of grapeshot' would do the trick"; "I fully support a copper jacketed hosedown if they turn violent"; "The republic is in danger of unravelling. Citizen's arrest is the least people could do but I guess they want the government to do everything so keep doing that"; and "Virginia is a serious right to carry State. everyone who can shoot a gun in Alexandria is going to stand with their backs to Alito."
Some suggest a lack of confidence that law enforcement will provide sufficient protection for the targeted justices - e.g., "as soon as anyone actively opposes these goons, the cops will swoop in and arrest...us. Until then, they will standby and protect the "protesters"; "Cops in major urban areas have joined the other side"; "If the police will not enforce the law, the citizens eventually will, and they will not be as nice about it. I would prefer not to live in such a society, but it's better than letting the tyrants win" - and at least one has offered a suggestion regarding tactics: "Anyone attempting a citizens arrest of these people should remember to mask up and maintain social distancing for safety."
A detailed legal analysis by public interest law professor John Banzhaf, posted on the Internet, suggested that protesting at the home of any judge is a crime under both federal and Virginia law, and that Virginia authorizes any person who witnesses such a crime to make a citizen's arrest, especially if law enforcement - as has too often occurred - fails to make arrests where warranted.
Banzhaf cites 18 U.S.C. 1507, which provides: "Whoever, with the intent . . . of influencing any judge . . ., in the discharge of his duty, pickets or parades in or near . . a building or residence occupied or used by such judge . . . or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both."
He also notes that Virginia law expressly makes such behavior criminal, even if there is no showing that it is designed to influence a judge or any other resident :§ 18.2-419. "Picketing or disrupting tranquility of home. provides that:
"Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor."
Breech Of The Peace
In Virginia, based upon legal precedent which goes back hundreds of years, any person who witnesses a "breech of the peace" is authorized to make a citizen's arrest of the perpetrator.
The legislative declaration of policy upon which § 18.2-419 is based makes it clear that protesting at a home would constitute a "breech of the peace." § 18.2-418. Declaration of policy, explains that:
"It is hereby declared that the protection and preservation of the home is the keystone of democratic government; that the public health and welfare and the good order of the community require that members of the community enjoy in their homes a feeling of well-being, tranquility, and privacy, and when absent from their homes carry with them the sense of security inherent in the assurance that they may return to the enjoyment of their homes; that the practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants; that such practice has as its object the harassing of such occupants; and without resort to such practice, full opportunity exists, and under the terms and provisions of this article will continue to exist, for the exercise of freedom of speech and other constitutional rights; and that the provisions hereinafter enacted are necessary in the public interest, to avoid the detrimental results herein set forth." [emphasis added]
The use of § 18.2-419 against those who protest at a residence is far from theoretical. Banzhaf notes that the wife of Senator Josh Hawley filed a complaint against the organizer of a protest outside her Virginia home, and that a local magistrate did find probable cause to issue a legal summons based upon that complaint. However, the law professor notes that the law is not crystal clear.
So activists who oppose Roe who might seek to make the citizen's arrests, and the activists who are protesting and presumably would forcefully oppose any such arrests, could well clash violently, especially if duly authorized law enforcement officers do not make arrests or otherwise act to prevent violations of federal and state laws by the pro-Roe groups.
This could, of course, happen if the police are overwhelmed, or, as has sometimes happened, law enforcement fails to arrest protestors engaging in illegal actions even when fully legally warranted.