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Suppose an amateur photographer, i.e. does not get paid for her work and has no press credentials. The photographer does post photos to social media, e.g. instagram. The photographer attends the rally in Washington D.C on January 6 for photography purposes only. The photographer is wearing neutral clothing, has a camera bag over her shoulder, and a DSLR camera with a large lens. The photographer starts with the crowd at the White House and follows the crowd to the Senate building and even into the building itself, all the while taking photos. Is the photographer guilty of a crime at any point? Are press credentials required as a form of immunity from arrest/prosecution?

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    "follows the crowd to the Senate building and even into the building itself," would this be at a door where police are permitting people to enter? Or though an entry broken open? Or how? Woulfd the photographer hear instructions to leave? – David Siegel Jan 13 at 18:28
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    Can you define "press credentials"? Credentials issued by whom - a media employer, the House, the Senate? The "press" doesn't, in a general sense, have more right to access than the general public. Some organizations, such as the U.S. House, will issue credentials to certain individuals as a means of pre-screening to gain access to certain functions or areas of the building. – Dave D Jan 14 at 15:31
  • I don't know exactly what press credentials are. I read that, for example, the CNN crew had something with them identifying them as such. As far as access goe take, for example, the now infamous photo of the guy sitting at Pelosi's desk. Just being there is apparently a crime. Somebody had to take that photo. If they were to be arrested they could then say to the judge "I'm with CNN" (or whoever) – Al Lelopath Jan 14 at 16:06
  • CNN Press credentials are a CNN issued card with photo and pretty much "We, CNN, Employ this person as reporter/crew". – Trish Jan 14 at 20:42
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While at times the Capitol building is open to the public, as the answer by hszmv mentions, at other times it is not, particularly when "an event designated as a special event of national significance" is in progress.

Breaking open a door or window, or entering through a door or window that someone else has broken open, could not be thought of by a reasonable person as a legitimate entry. During any period when the Capitol Police were admitting people, those people were allowed to enter, but the question speaks of one who "follows the crowd to the Senate building and even into the building itself" which sounds like one who entered via one of the forced openings, although possibly not.

In any case my understanding is that the Capitol Police and other security troops made announcements instructing people to leave the building. Once this was done, reaming in the building willingly would have been a violation of law.

That a person was holding a camera, or indeed had press credentials, would not be a defense to such a charge, although it might be seen as a mitigating factor. In general Press credentials do not give a person greater rights of access anywhere. In recent years with the rise of armature or semi-pro journalism via the net, courts have been more careful to treat uninvolved citizens as potential journalists.

In addition to ordinary trespassing charges, 18 U.S. Code § 1752 - Restricted building or grounds is applicable, and according to news reports has been used to charge various people who were filmed in the Capitol.

18 USC § 1752 imposes penalties on anyone who:

  • (a)(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;

  • (a)(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions

  • (a)(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds

  • (a)(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds

  • (a)(5) knowingly and willfully operates an unmanned aircraft system with the intent to knowingly and willfully direct or otherwise cause such unmanned aircraft system to enter or operate within or above a restricted building or grounds

It would seem that (a)(1) would apply to a person acting as described in the question, or at least it might. Several of the other sections would apply to at least some of the intruders, but not to an amateur photographer as described in the question.

A "restricted building" is defined by 18 USC § 1752 as:

(c) (1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area—

...

(c) (1) (B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or

(c) (1) (C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance

This would seem to apply to most, if not all of the Capitol Building during the counting of Electoral votes, due to the presence of the Vice President, particularly to any area behind locked doors or to any area at all once police had instructed people to leave.

Possible penalties under 18 USC § 1752 include a fine and up to 1 year of imprisonment, or up to 10 years for anyone who "uses or carries a deadly or dangerous weapon or firearm" or whose offense "results in significant bodily injury". A person acting as described in the the question would presumably not have either aggravating factor apply.

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  • Would the downvoter please explain the downvote? – David Siegel Jan 13 at 21:12
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Before worrying about specific legal details, I'd first think about how a Reasonable person would see the situation.

The situation is: someone entered someone else's property by going through a broken window.

A reasonable person would almost certainly say that no reasonable person would do such a thing without being aware that:

  • It isn't normal to enter a building that way.
  • It isn't an appropriate way to enter a building.
  • The owner of the property wouldn't want them to enter the building that way.

So no reasonable person would enter the building that way, without knowing it is definitely wrong, and is possibly illegal.

In general, in any country whose laws are based on British Common Law (as is the US), the laws almost always end up matching the view of this hypothetical reasonable person. That's one of the reasons why juries are composed of one's peers; if other people like you don't see your actions as reasonable, you shouldn't have either.

Of course there can be exceptions. A fireman might enter that way while fighting a fire, they might even have broken the window themselves, but a reasonable person would consider them to be reasonable actions.

Would a reasonable person think that entering that way is a reasonable thing for a law-abiding citizen to do? Would a desire to take a photograph make it reasonable? If not, you can be reasonably sure that the law won't think it justified either.

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  • not necessacily always but mostly - for example, a perfectly reasonable person would presume a flamethrower is a weapon, but indeed it is not. – Trish Jan 14 at 20:45
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So this seems to be a source of confusion, but the Capitol Building is typically open to the general public, and there seems to be some indications that Capitol Police at certain entrances were letting people in while unaware of the riot in the main building.

You can even walk into offices of Representatives and Senators (don't expect to meet them, as they are really busy... but their staffers will take comments and you can pre-arrange a meeting with them as part of a D.C. trip by calling their offices. Usually they'll make time for visiting constituents with notice as it's part of their job). Representatives are usually much more flexible than Senators due to the better spread of work loads and smaller size of constituencies. On a trip a few years ago, I was meeting with a family member who was a staffer and while I didn't get to meet my Rep, I was able to talk with his staff. (I wasn't sure he was mine, as I was living close to the district line at the time, but I worked in his district).

Suffice it to say, the trespassing might be charged only to those people who entered the floor of either chamber as those are off limits to the public without an invitation from the Speaker of the House or President Pro Tempore of the Senate respectively (if you watch the State of the Union, even the President must be invited into the House chambers to give his speech). That doesn't mean you cannot see the floor in action, as both chambers have a Gallery on the second floor which the public could quietly observe the floor debates (it was a regular source of entertainment for D.C. residents back in the day, and many a First Lady would often watch the discussions with interest, as seen with Mary Todd Lincoln in the Steven Speilberg film about her Husband's final months in office). Beyond a security check not atypical of entering your local court house, the Capitol Building and complex are pretty open to the public. (There are three office buildings for each house of Congress, for 7 buildings total, The famous Capitol Building, Russell, Dirken, and Hart Senate Office Buildings, and Cannon, Longworth, and Rayburn House Office Buildings.) From what I've gathered, it was only the Capitol Building itself, and only the floors of both chambers and the Speaker of the House's Hideaway office. (Hideaways are unregistered office spaces in the Capitol Building proper that typically are used by Senators and Senior House Leadership as a second office closer to the chambers and for more discreet functions, typically work, relaxing, and entertainment when not on the floor and distance from the staffers in their listed office, who might have media posing questions.)

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  • I think you are saying that an amateur photographer, as opposed to a professional with press credentials, is no different that a citizen. Correct? – Al Lelopath Jan 13 at 16:29
  • Correct... doesn't mean they were "trespassing" as ordinarily you are allowed to walk into the capital building to speak with the politicians. – hszmv Jan 13 at 17:50
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    What a horrible answer - "is typically open to the general public" does not prevent entering a non-typical times from being trespassing. Target is typically open to the public but not usually at midnight. – George White Jan 13 at 17:59
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    And no riots occured at midnight... but certain entrances were still operating under public opening during the riots. All of the buidings are connected via tunnels underground so if one entered through an office building legally and walked to the Capital Building during the height of the riot, they could be in completely legally through no fault of their own. – hszmv Jan 13 at 18:14
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    -1 People who entered through doors and windows broken open were clearly acting unlawfully. People remaining after police instruction to leave were also acting unlawfully. The question foes not discuss a person who entered with the permission of the Capitol Police..If that is the intent the question should be edited. – David Siegel Jan 13 at 18:25

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