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."