Overcharged? Capitol protesters weigh community service deal

A Richmond prosecutor has dropped the unlawful assembly charge against 30 protesters arrested last month on the steps of the state Capitol and offered a community service deal that would ultimately expunge a trespassing charge for those who were hauled off after objecting to ultrasound legislation.

"It was going to be difficult to prove certain elements in the unlawful assembly charge," says Richmond Deputy Commonwealth's Attorney Colette McEachin.

Indeed, Virginia Code defines unlawful assembly as three or more people gathering with the intent to commit "unlawful acts" and "violence" and who provoke "well-grounded fear of serious and immediate breaches of public safety."

"We weren't going to be able to prove that," says McEachin.

However, she does not agree with the notion that it was overkill to levy such charges in the first place.

"The magistrates heard from various police officers, and those were the charges the magistrates came up with," she says.

McEachin plans to drop the trespassing charges against protesters who agree to perform 25 hours of community service, a way for the protesters to repay the Commonwealth, presumably for having to muster the troops and arrest them in the first place.

The case began drawing national attention in February when comedians, including Saturday Night Live, began parodying the General Assembly's passage of a bill that required women seeking abortions to first obtain a transvaginal ultrasound. Governor Bob McDonnell later signed a law that requires an abdominal ultrasound, which critics still decried as both medically unnecessary and a government invasion into the doctor-patient relationship.

The national attention grew with the March 3 protest, particularly after the publication of photographs of riot-geared State Police lining up in front of the Capitol, while the protesters, many of them middle-aged women, were getting hauled off.

House Minority Leader David Toscano has questioned whether the response was proportional for a peaceful demonstration, and the American Civil Liberties Union has questioned whether the Constitution– which specifically recognizes "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" has been violated.

"I don't see this as a First Amendment case," says McEachin. "It had been a very exciting week at the Capitol because of the ultrasound activity."

Jean Burke, one the 17 female arrestees and one of three hailing from the Charlottesville area, says she hasn't decided whether to take the deal.

"There are very strong reasons for me to do so," says Burke, "and very strong reasons for me to not do so.

"I read the statute, and what we were doing seemed to not jibe in any way with the statute," she says. "Even before talking to my attorney I felt there was no way they could prove that."

Richmond attorney Wayne Powell, representing 16 of the 30 arrestees including Burke– says his clients want to meet without an attorney to discuss the offer. He's prepared to file a motion to dismiss for those who want to fight the trespassing charge.

"I don't think there's anything illegal about them being there," says Powell. "The burden of proof is on the Commonwealth to prove they weren't where they were supposed to be."

Now running for the 7th District Congressional seat held by Republican Eric Cantor, Powell says he believes the Capitol Police were surprised by the number of people protesting that day. ("As a Richmonder, I was surprised by the number of people," he says.)

As a military officer, Powell says the response to urban rioting– "and this was not a riot," he notes–  is supposed to be measured.

"In this case, the reaction exceeded the threat," says Powell. "If the folks had been left alone, they all would have left in an hour."

Trespassing is a Class 1 misdemeanor, and in Richmond, prosecutor McEachin says that sentences can include  community service, a ban on returning to the property, dismissal– or 12 months in jail.

"It depends," she says, "on how involved or incensed the property owner is."


"It depends," she says, "on how involved or incensed the property owner is."

Who owns the Capitol? We the people! Egad! This is insane. It should all be dismissed and we should get Governor Bob McDonnell out of office ASAP! (Or I like to refer to him as Ronald McDonald.)

"We can't prove the charges, but we will drop the charges if you do 25 hours of community service!" This guy is a commonwealth attorney? Good grief. And then to blame it on the magistrates??? Blame it on the cops, they made the silly arrests!

@Gasbag ... that's what i thought too, but then i reread that section of the article. it appears they dropped the "unlawful assembly" charges b/c they were difficult to prove. the 25 hrs. of community service is in exchange for dropping the trespassing charges, which i assume they feel they can prove (somebody told them to leave, they didn't. ergo, trespassing).

@Cville Native ... just because the state owns the capitol does not mean that any resident of VA is free to come and go there as they please. here's a good article on just how "public" our public property can be ... http://www.citmedialaw.org/legal-guide/access-public-property

@ C'ville Native, they knew that the steps were out of bounds for them but they went there looking for the publicity anyway. Break the rules and you should pay the consequences. Without consequences, nothing holds society together.

So they cannot protest where anyone will see them? Typical way to sideline our constitution rights -- you can exercise them, but only if nobody has to see or hear you. What use is a right to assembly if you cannot assemble in a public place? How are the steps to the capitol not public?

How this is not a first amendment issue is a mystery to me. I hope the commonwealth is embarrassed over and over again in court for this.

Just like those terrible Jews learned their lesson if they didn;t wear their Star of David armband, right WhoaNelly? The Constitution only applies when it fits the agenda of right leaning folks, that's your motto.

I do understand that one can not just protest anywhere. If you go to DC you must register with the Capitol Police and the Parks up there, for safety and order. But really - 75 people tops on the Capitol steps and they would have probably left in an hour - they were not rioting, they were not preventing traffic, blocking or distracting. Meahwhile we have the whosey whatsit ignorant right to lifers on Rio Road outside Planned Parenthood holding up their inaccurate graphic signs and that is a distraction to drivers there! But we allow that on a public sidewalk - fine.

The fact is a majority of "we the people" in the Commonwealth found the police in riot gear, arrests and treatment of these peaceful protestors was "overkill". The fact is the whole nation is laughing at us for allowing our State laws to send us back to the 20th century. The fact is doctors out there are now limited in the care they give patients. The fact is that a woman has no choice in the tests and treatments and procedures she is endure? Really?

If anyone is diagnosed with cancer, or any other disease, we have the right to choose treatment or not. We have that choice. But become pregnant, by whatever means, we don't have a choice. Next they will require all women to forgo c-sections and to hell with the deaths that occur! Come on, it isn't natural or good for the baby so we need to eliminate them! (I'm being sarcastic here - but it isn't far off!)

This Commonwealth has two codes against same-sex marriages, they have muliple laws on terminating pregnancies, they have so many codes that are a waste of my tax dollar - and intrude on our personal rights!

And in this state, if you are male and have no children and under a curtain age - did you know you have to apply to have a vasectomy? Yeah, that ought to get you males in an uproar - you know the STATE tells you if you can have that procedure.

@caesonia..a little out in left field there fella'..don't presume to know what my motto is, you make a fool of yourself.

"just because the state owns the capitol does not mean that any resident of VA is free to come and go there as they please. here's a good article on just how "public" our public property can be ... http://www.citmedialaw.org/legal-guide/access-public-property

@MightyHorse but people ARE free to come and go on the capitol steps (from 6am-11pm), i dont get what some people dont understand about this. this was PUBLIC property, and they were there within the allowed hours. they were also not blocking anybody from walking up the stairs as they left plenty of room for people to walk up it. time, place, and manner restrictions are perfectly valid, but they were there in a time that was allowed and they were in a place open to the public, and their manner wasnt obstructive or disruptive. i read your link, and i appreciate it because it actually helps their case. The steps are "Property That Historically Has Been Open to the Public," meaning "Your right to access public property is strongest when the area you wish to access has historically been open to the public for the exercise of speech, public debate, and assembly. These areas are known as public forums and include spaces such as sidewalks, parks, and town squares. You may freely enter and gather information while in these public spaces, but you should do so without disturbing the peace or interfering with those around you."