Jan. 6 Trespasser’s Appeal Rejected by U.S. Court of Appeals for D.C. Circuit

On Oct. 22, the U.S. Court of Appeals for the District of Columbia upheld the 2022 misdemeanor trespassing conviction of Couy Griffin, a New Mexico county commissioner who participated in the Jan. 6 attack on the Capitol. Griffin was found guilty, after bench trial, of “entering and remaining in a restricted zone” under 18 U.S.C. Section 1752.

The issue, over which federal district judges in Washington, D.C. were roughly split, was whether, in such cases, the government need only prove that the defendant knowingly entered into an area that is “posted, cordoned off, or otherwise restricted,” or whether it must also prove that the defendant knew that “the President or other person protected by the Secret Service”—in this instance Vice President Mike Pence—“is or will be temporarily visiting.” 

The majority opinion of the court, filed by Circuit Judge Nina Pillard and joined by Senior Circuit Judge Judith Rogers, concluded that the government need only prove the former and that the latter requirement in the statute “merely confirms that such trespasses are within Congress’s legislative authority.”

Circuit Judge Gregory Katsas dissented, finding that the literal text of the statute required that the government prove the defendant also knew of the presence of a Secret Service protectee.

Griffin had effectively completed his 14-day sentence—less than the time he had already served in pretrial detention as of February 2021—long before his appeal even began. In September 2022, his involvement in the Capitol siege formed the basis of his historic expulsion from his office as county commissioner under Section 3 of the Fourteenth Amendment.

This has been a closely watched case, with more than 1,400 individuals charged with the same offense in connection with the Jan. 6 attack on the Capitol—over 90 percent of all charged. The charges of at least 171 of those individuals were upgraded to felonies for alleged possession of a dangerous or deadly weapon at the time of the trespass.

The court’s opinion is available here, or can be read below: