On August 24, 2020, in a unanimous opinion authored by Judge Diaz, the Fourth Circuit affirmed District Court Judge Moon’s refusal to strike down the Anti Riot Act as unconstitutional. In what can fairly be described as a convoluted and illogical rationale, the Fourth Circuit found large parts of the Act unconstitutional but upheld certain narrow segments of it. Then, based on the defendants’ plea agreements and the narrow segments found constitutional, it concluded that the Act, although unconstitutional in other respects, was constitutional as applied to them. The decision is unfair and highly result-oriented. Essentially it holds that a defendant can be coerced into accepting a plea agreement by the threat of prosecution under an unconstitutional Act, and then the Act will be upheld as constitutional as applied to that defendant based on the plea agreement.
The defendants’ attorneys have vowed to seek review and reversal of the decision in the Supreme Court, by means of a petition for certiorari. FEF will support that petition as amicus.