Special Counsel to the U.S. Attorney for the District of Columbia Elana Suttenberg Delivers Testimony before the D.C. Council regarding Policing Reform and Proposed Amendment of Rioting Statute

Chairman Allen and Members of the Council:

            My name is Elana Suttenberg, and I am the Special Counsel for Legislative Affairs at the United States Attorney’s Office for the District of Columbia. I thank you for the opportunity to appear today to share the Office’s views regarding the proposed legislation.

            As members of this community, we remain deeply disturbed by the death of George Floyd, and the circumstances surrounding his death. We support the fair and equitable treatment of individuals, regardless of race. In this time, we recommit ourselves to our duty as prosecutors—that is, to uphold the Constitution and the laws of the District of Columbia, and to serve justice for all. We support many of the goals of these bills, which include ensuring accountability for police misconduct, and we commend the Council for its role in furthering this goal.

Bill 23-0882, the “Comprehensive Policing and Justice Reform Amendment Act of 2020”

            As to Bill 23-0882, the “Comprehensive Policing and Justice Reform Amendment Act of 2020,” we have several concerns regarding proposals in this bill relating to body-worn camera (BWC) footage. First, the bill proposes prohibiting MPD members from reviewing their BWC recording or BWC recordings that have been shared with them to assist in initial report writing. It bears emphasizing that, before this same change was implemented by the Council’s emergency legislation, MPD members were generally permitted to review their BWC recording or BWC recordings that had been shared with them to assist in initial report writing, but were precluded from reviewing their own BWC recording before writing an initial report where a police shooting was involved. As detailed in our June 8, 2020 letter to the Council regarding the emergency legislation, we support expanding that exception (that is, the preclusion of review) to encompass cases involving officer conduct that results in serious bodily injury or death, even where there is no firearm involved.

            Our concerns, therefore, only apply to cases that do not involve a police shooting, or officer-involved death or serious bodily injury. These include homicides, sexual abuse, domestic violence, robberies, burglaries, assaults, and other violent crimes committed by civilians against other civilians.

            Our primary objective is to ensure the accuracy of the initial police report. Particularly in less serious cases, where a detective may not be assigned, the initial police report is a crucial way to inform prosecutors, the defense, and judges about the facts of the case. Officer accuracy in report writing is paramount, and we are concerned about any change in law that could infringe on accuracy. Frequently, the language in the initial police report is the same language used in a Gerstein affidavit filed in court or in an arrest or search warrant, upon which judges rely when making decisions that affect a person’s liberty and privacy.[1]

            Further, BWC footage may contain exculpatory material that is favorable to a defendant. This could include exculpatory statements made by civilian witnesses, exculpatory evidence captured on video, exculpatory suspects that could exonerate the accused, and misidentification of an arrestee. The law should encourage police to discover and capture exculpatory material at the earliest opportunity, and should not prohibit police from reviewing BWC footage where exculpatory material may exist.

            Moreover, if officers are not permitted—outside of the context of officer conduct that results in serious bodily injury or death—to review BWC footage before writing a report, officers may be incentivized to write very brief initial reports that do not contain meaningful details, to the detriment of prosecutors seeking to make just charging decisions, defense counsel arguing probable cause and release conditions, and judges making probable cause and hold determinations.

            Finally, the Police Executive Research Forum (PERF) clarified in a letter to this Committee that it continues to recommend that officers be allowed to view BWC recordings before writing an initial police report. We agree with PERF on this issue, and appreciate PERF resolving any ambiguity as to their current position.

            Second, the bill proposes requiring the Mayor, within 5 business days after an officer- involved death or the serious use of force, to publicly release the names and BWC recordings of all officers who committed the officer-involved death or serious use of force, with certain exceptions. The Mayor would retain discretion to release other BWC recordings in matters of significant public interest.

            We are concerned that this modification would, in fact, make it more difficult to investigate a serious officer-involved death or serious use of force. Such a result, of course, would be contrary to our shared goal of ensuring officer accountability for misconduct. Once the BWC footage is public, both the officer involved and any civilians involved would be able to watch it. The early publication of BWC could, in certain situations, create a narrative that makes it difficult to conduct an investigation, as it may lead witnesses to a conclusion that affects their testimony, or otherwise influence witness testimony. In our June 8, 2020 letter to the Council, we expressed concern about the initial proposal that BWC footage must be released 72 hours following an incident. This proposal has now been modified to mandate release after 5 business days, rather than 72 hours. Although 5 business days could allow for more investigation than 72 hours, it would still be very difficult for our office to conduct a full investigation within 5 business days, as a full investigation could include all relevant parties, including involved civilians, testifying before the grand jury.

            Because there are situations where it could be appropriate for the Mayor, in consultation with the relevant agencies, to release BWC footage, the Mayor should have discretion to release BWC footage at an appropriate time, balancing the needs of the community to see the footage with the needs of prosecutors to accurately investigate what happened, and the security and privacy rights of civilian witnesses who may be depicted in the footage.

Bill 23-0723, the “Rioting Modernization Amendment Act of 2020”

            As to Bill 23-0723, the “Rioting Modernization Amendment Act of 2020,” we agree in principle with what we understand the Judiciary Committee Chairman’s goal to be in proposing an amendment to the rioting statute: to clarify the current statute so that it is clear to all and to ensure that it provides for public safety by appropriately capturing rioting versus otherwise protected conduct. We have several concerns, however, with this amended offense as drafted.

            Under current law, a “riot” is “a public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger or injury to property or persons.” D.C. Code § 22-1322(a). A person can be liable for the offense of rioting either for “willfully engag[ing] in a riot” or for “willfully incit[ing] or urg[ing] other persons to engage in a riot.” D.C. Code §§ 22-1322(b) and (c).

            Further, under current law, a riot is a group activity, and the presence of a “riot” must first be established. The subsequent question of whether a particular person is “engaging” in a riot is an individualized determination. Courts have upheld a wide range of behavior as “engaging” in a riot. In Matthews v. United States, 419 F.2d 1177 (D.C. Cir. 1969), the Court of Appeals for the D.C. Circuit held that a defendant who took liquor from a liquor store during a riot was deemed to have engaged in the riot. In Carr v. District of Columbia, 587 F.3d 401, 406 (D.C. Cir. 2009), the D.C. Circuit stated that “if members of the crowd were cheering acts of violence committed by other marchers, they would be engaging in criminal conduct” under the rioting statute.

            The proposed bill would modify the rioting statute to create liability for rioting where 10 or more people are each committing or attempting to commit a specified criminal offense in the area perceptible to one another. By changing the law in this manner, it would be more difficult to establish both that a riot exists and that an individual is engaging in a riot—even under circumstances where most members of our community would agree that the conduct at issue constituted rioting.

            This is the case because the bill would change the offense of rioting by making rioting liability contingent upon each individual’s criminal or attempted criminal conduct, rather than contingent upon each individual’s willful participation in the group activity. In other words, to prove rioting under this bill, we would first have to prove that the defendant engaged in the underlying criminal conduct (for example, an assault, destruction of property, etc.), and then also prove that nine (9) other individuals engaged in underlying criminal conduct in the area perceptible to one another. Because this rioting bill provides the same maximum penalty as the penalty for much of the underlying criminal conduct on which the amended offense would rely, and creates additional elements to prove, there would be little incentive for prosecutors to charge a defendant with the offense of rioting. Rather, where appropriate, prosecutors likely would charge the defendant only with the underlying criminal conduct, such as assault or destruction of property.

            Further, this proposal would remove liability for inciting or urging others to engage in a riot. This means that a person who organizes and coordinates a violent riot, but does not physically participate in it, would have no liability under this provision. Although other theories of accomplice liability could potentially apply, we believe that specific provisions for inciting a riot are warranted. Dispensing with specifically enumerated criminal liability for inciting others to riot will create gaps in the ability of law enforcement to address situations where a person or persons are actively encouraging others toward criminal behavior, and may reduce law enforcement’s ability to thwart such rioting behavior before it even begins.

            Moreover, this proposal limits rioting to a misdemeanor offense, and eliminates a felony gradation of rioting. Under current law, felony liability attaches where, “in the course and as a result of a riot[,] a person suffers serious bodily harm or there is property damage in excess of $5,000.” D.C. Code § 22-1322(d). We recommend that the rioting statute maintain felony liability based on the level of bodily harm or the amount of property damage incurred.

            Finally, the bill appears to use some language from the draft recommendations of the Criminal Code Reform Commission (CCRC). Without the context of the CCRC’s full recommendations, however, this language creates gaps in liability. For example, the bill references “a criminal offense that causes or would cause . . . [b]odily injury.” Under the CCRC’s recommendations, the corollary offense to simple assault would require “bodily injury.” Under current law, by contrast, simple assault does not require bodily injury as an element of the offense, see D.C. Code § 22-404(a)(1), although felony versions of assault do require various levels of bodily injury, see D.C. Code § 22-404(a)(2) (assault with significant bodily injury); D.C. Code § 22-404.10 (aggravated assault, which requires serious bodily injury). Because simple assault under current law does not require “bodily injury” as an element of the offense, simple assault would not constitute “a criminal offense that causes or would cause . . . bodily injury” under this bill. Thus, under this bill as drafted, a defendant who commits simple assault would not be liable for rioting—a result that we do not believe would be intended by the drafters.

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            The U.S. Attorney’s Office for the District of Columbia looks forward to continuing to work with the Council, the community, and other stakeholders to ensure that our laws are just and equitable.