“We can get ammo and weapons available to law enforcement. . . . The fight has only just begun,” Reffitt allegedly wrote, Assistant U.S. Attorney Jeffrey S. Nestler said earlier this year.
Reffitt, of Wylie, Tex., previously pleaded not guilty to three charges of obstructing Congress’s joint session to confirm the 2020 presidential election results, trespassing on restricted Capitol grounds and witness tampering. Prosecutors in court filings said he brought an AR-15 rifle and a Smith & Wesson on his trip, and was recorded telling his family he carried them to the Capitol.
“I did bring a weapon on property that we own. Federal grounds or not. The law is written, but it doesn’t mean it’s right law. The people that were around me were all carrying, too,” prosecutors quoted Reffitt saying in a court filing.
Reffitt attorney William L. Welch did not respond to a request for comment. In an unsuccessful hearing for bond May 13, Welch argued that Reffitt harmed no one, that no government recordings or photographs showed he was armed at the Capitol, no police officers mentioned it, and he had not been charged with weapons offenses.
Four defendants in the Capitol riots have now been charged with firearms offenses. They have been accused respectively of bringing five loaded guns and 11 molotov cocktails in a truck; carrying a loaded semiautomatic handgun and large-capacity magazine at the entrance of the Capitol Visitor Center; and threatening elected officials after arriving in Washington with a semiautomatic rifle, Glock handgun and more than 2,500 rounds of ammunition.
Many charged defendants allegedly carried knives, bats, crowbars and other weapons to the Capitol.
They also discussed bringing firearms and planned for the District’s strict gun laws, the FBI and prosecutors have said in charging papers. But how many actually carried firearms is likely to remain unknown, as police were unprepared to make mass arrests at the scene and focused on clearing the Capitol building instead, authorities have said.
A Justice Department website listing Capitol breach cases shows the unique charge against Reffitt. An agency spokeswoman declined to comment beyond court filings.
The rioting statute has provoked debate among defense lawyers, civil liberties advocates and prosecutors. After decades of virtual disuse, the Justice Department turned broadly to the civil disorder law in 2020 to prosecute protest-related unrest after the death of George Floyd in Minneapolis police custody.
Prosecutors in Portand, Ore., and a few other states and the District of Columbia applied the law as a lead charge in more than two dozen cases as then-Attorney General William P. Barr urged a crackdown on violent or destructive demonstrators. Barr last September told federal prosecutors to aggressively pursue cases, controversially suggesting they might apply a rarely used law against sedition.
Critics say the statute dates to 1968 when southern Senators pressed Congress to pass the Civil Obedience Act as an amendment to the Civil Rights Act, to “protect the public from irresponsible rabble rousers” in the civil rights movement. Its most frequently invoked provision makes it a crime among other things to interfere with police or firefighters doing their official duties during a civil disorder, punishable by up to five years in prison.
Since Jan. 6, U.S. prosecutors in Washington have charged at least 120 riot defendants in 90 cases with violations of that or a related section in the afternoon storming of the Capitol that authorities said led to five deaths, assaults on nearly 140 police officers and forced lawmakers to be evacuated from the premises.
However, another section — the one used to charged Reffitt — imposes the same penalty against “whoever transports or manufactures . . . any firearm, or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder.”
The count is extremely uncommon, experts say. Prosecutors typically file charges under statutes that bar certain types of firearms from being transported across state lines or prohibit categories of people such as felons or fugitives from carrying them between states, said Stephen Kanter, emeritus dean and professor at Lewis & Clark Law School.
But in the Capitol cases and others, prosecutors may add charges in multi-count indictments to use as leverage or bargaining chips that they negotiate away in plea talks.
Without commenting on the facts of Reffitt’s case or Capitol defendants’ alleged misconduct, Kanter argued against expanded use of federal rioting charges, which he called “a fairly broad-gauge tool . . . that could federalize an awful lot of low-level, local and state criminal behavior. That is not good for our federal system or constitutional order.”
Defendants say the law is vague and overbroad, defining civil disorder as any violent, public disturbance involving more than two people. They also say it infringes on constitutional rights to free speech, association and bear arms, while holding individuals criminally liable for “having reason to know” a firearm might be used unlawfully.
In 2015, the U.S. Circuit Court of Appeals for the 6th Circuit upheld the law, saying the statute does not criminalize speech or any protected rights.
“Unlawful conduct is not protected conduct,” a three-judge panel ruled, upholding the 2011 conviction at trial of Darren Wesley Huff, a former Georgia militia member found guilty of bringing an AK-47 rife, Colt .45-caliber handgun and 300 rounds of ammunition and trying to rally others to take over a Monroe Co. (Tenn.) courthouse after a grand jury wouldn’t charge President Barack Obama with treason.
“Nothing in the statute prevents Huff from expressly associating with those who might share his beliefs. . . . Nothing in the statute prevents him from bringing firearms to such an assembly,” wrote the panel, which including appointees of presidents Ronald Reagan, George W. Bush and Bill Clinton. However, they wrote, “the First Amendment does not give individuals the right to break a generally applicable law for expressive purposes.”
Introducing the Biden administration’s strategy to counterterrorism on Tuesday, Attorney General Merrick Garland struck a similar note. “We are focused on violence, not on ideology,” Garland said in a live-streamed address from the Justice Department. “In America, espousing a hateful ideology is not unlawful. We do not investigate individuals for their First Amendment-protected activities.”