In a new decision issued Thursday, the Oklahoma Court of Criminal Appeals found that riot charges in Oklahoma require the state to “prove the defendant’s mutual or common intent with two or more others to use or threaten violence, accompanied by an immediate power to carry the threat into being.” Under the ruling in Terry v. Drummond, prosecutors must prove a “common intent” in order to bring riot charges successfully.
The case, involving Oklahoma’s riot statute, was referred to the state’s top criminal court by the 10th Circuit U.S. Court of Appeals, which occasionally certifies questions of first impression to state appellate courts when a law is unclear. The plaintiffs were charged in Oklahoma County with inciting a riot during a June 2020 incident with a police officer while painting a street mural, and they filed their federal lawsuit in an effort to prevent enforcement of Oklahoma’s century-old riot statute.
The federal court asked the state appellate court whether Oklahoma’s riot statute “require(s) the state to prove the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence toward another to convict for threats constituting riot?”
Judge David Lewis wrote for the unanimous majority in Thursday’s decision.
“We therefore answer the certified question in the negative. Section 1311 of Title 21 does not require the state in a charge of riot to prove the defendant ‘consciously disregarded a substantial risk that his communications would be viewed as threatening violence toward another,'” Lewis wrote. “We add, however, that the combined factual elements of a mutual or common intent to use or threaten violence, and that the violent threats be ‘accompanied by immediate power of execution,’ substantially produces the same effect.”
While a riot may be “when lightning hits the right spot,” Title 21, Section 1311 defines a riot under Oklahoma law and has gone unchanged for over 130 years.
“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot,” the provision reads.
The plaintiffs in the federal case — Sincere Terry, Mia Hogsett, Tyreke Baker, Preston Nabors, Trevour Webb and Austin Mack — alleged that Oklahoma’s anti-riot statute is overly vague and overbroad. They filed suit in the U.S. District Court for the Western District of Oklahoma seeking an injunction preventing enforcement of the law for violating the First and Fourteenth Amendments.
District Court Judge Charles Goodwin found the plaintiffs were not likely to succeed in their request for an injunction and denied the motion, finding Oklahoma’s courts would likely uphold the riot statute and read in a mens rea, or intention, requirement as required by the 2023 U.S. Supreme Court decision Counterman v. Colorado. The Counterman case established that, “in true-threat cases,” states are required to show that defendants acted “recklessly” or “consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another.”
The plaintiffs appealed to the 10th Circuit Court of Appeals, where judges seemed less sure, noting they were “uncomfortable attempting to decide” the issue “without further guidance” on the issues of state law.
Asked to review the statute, the Oklahoma Court of Criminal Appeals agreed with the federal district court and adopted a 1977 ruling from the South Dakota Supreme Court — a case involving the convictions of several tribal citizens for rioting during a protest following the murder of Wesley Bad Heart Bull in 1973, just weeks prior to the Wounded Knee occupation — to read in a mens rea of “common intent.” The court noted its common intent standard was not identical to the “recklessness” standard set forth in Counterman, but the judges argued that requiring common intent and the “immediate power of execution” produced the “same effect” as the recklessness standard.
Judge Scott Rowland wrote separately to explain why the court’s new standard met the constitutional standard from Counterman.
“Judge Goodwin, in my view, correctly surveyed the cases of this court dating to statehood and concluded that a criminal conviction under Section 1311 requires ‘willfulness and a common intent as to “any threat to use force or violence,'” Rowland wrote. “The additional elements in Section 1311 coupled with the mens rea identified by the district court sufficiently narrow its application to avoid First Amendment concerns in a riot prosecution based upon threats alone.”
While the court largely agreed with Goodwin’s analysis, the 10th Circuit could still overturn the decision as unconstitutional under Counterman and hinted it did not find Goodwin’s analysis persuasive in their request for the opinion.
“Even assuming the district court correctly identified willfulness as the requisite intent, we cannot say with confidence that willfulness, under Oklahoma law, comports with the recklessness standard in Counterman,” the 10th Circuit request reads. “We are aware of no OCCA decision considering the Oklahoma riot statute in the context of a threats prosecution since Counterman.”
First passed by the Oklahoma Territorial Legislature in 1890, Oklahoma’s riot law was copied verbatim from the Dakota Territory Code of 1887, and while it has been renumbered several times, it has never been amended. Both North Dakota and South Dakota, the successors to the Dakota Territory, amended their definitions of a riot within the past 10 years. Terry and the other plaintiffs argue the Oklahoma statute is unconstitutional and has never been scrutinized under modern constitutional principles.
Dispute over barricades during mural painting led to incitement to riot charges
The lawsuit stems from an incident in Oklahoma City in June 2020, after the murder of George Floyd in Minneapolis. Amid protests across Oklahoma, a group of citizens obtained a permit to paint “a mural in support of Black lives and racial justice” in front of the Oklahoma City Police Department headquarters. The plaintiffs’ brief says city employees set up barricades blocking the street for the mural painting, while the state’s brief argues “one plaintiff” with an “AR-15 style rifle” moved the barricades on the third day of painting.
On the third day of painting, Oklahoma City Police Mst. Sgt. Nicklas Wald reached the area while transporting someone to the station and moved the barricades to drive his vehicle to the station. Painters quickly objected to Wald’s actions and “it does not appear disputed that plaintiffs stood near and around the officer’s vehicle, which was occupied by the officer and the homicide witness, with their fists raised and shouted, ‘Fuck the police!,’ ‘Hit me if you want to!’ and ‘Now who got a mother fucking barricade?'” according to the state’s brief.
After Wald reviewed the permit, he left, and some of the plaintiffs “briefly followed on foot.” Former Oklahoma County District Attorney David Prater’s office charged the plaintiffs with incitement to riot, and they learned of the charges while leading another protest in Edmond. The plaintiffs’ attorneys allege protesters in Edmond dispersed after news of the charges were announced and nightly protests in front of the OKCPD headquarters ceased. In October, the plaintiffs pleaded guilty to the lesser offense of obstructing a police officer.
Oklahoma’s highest criminal court’s ruling does not immediately affect the federal case. The 10th Circuit Court of Appeals will now review whether the state law laid out by the court is up to the federal constitution’s requirements. The eventual ruling from the 10th Circuit on Oklahoma’s riot laws will be binding precedent in Oklahoma courts.
