Prosecution Of Inauguration-Day Protesters Is A Threat To Dissent
Screenshot 2017-10-21 at 9.24.27 AM
By Chip Gibbons, www.thenation.com
October 21st, 2017
Above Photo: Activists and journalists get hit by a stun grenade during the
J20 protest against Donald Trump in Washington, DC. (Reuters / Adrees Latif)
The government keeps expanding its efforts to prosecute J20 protesters, and
this should alarm all of us.
Late next month, the first mass trial will be held for some of the roughly
200 people facing yearsor even decadesin prison after being arrested
during an anti-capitalist, anti-fascist protest that took place on the day
of Donald Trumps inauguration. The J20 cases, as they are known, offer a
glimpse at the treatment of dissent in this country, and the story they tell
is one of overreach and criminalization. Defense lawyers have described the
governments approach as unprecedented, its indictments as littered with
fatal irremediable defects. Sam Menefee-Libey of the DC Legal Posse, a
group of activists who provide support to the defendants, was more blunt,
criticizing the cases as blatant political prosecutions designed to chill
resistance.
The story of the J20 protesters should frighten anyone concerned about the
future of both free assembly and dissent in the United States. The
chargeswhich include felony rioting, inciting or urging others to riot,
conspiracy to riot, and property destructionall stem from the same mass
arrest, during which police indiscriminately swept up protesters,
journalists, and legal observers. What makes the charges all the more
troubling is that prosecutors then failed to allege that the bulk of
defendants did anything specifically unlawful; rather, merely being at the
protest was a crime.
A case in point: The prosecution charged all of the defendants (at one point
numbering 214) with breaking the same windows. Prosecutors, of course, know
that 200 people cannot break the same windows. But the logic of the case
dictates that the defendants mere presence at a protest during which
property damage occurred makes them guilty.
Meanwhile, compounding the concerns raised by the J20 prosecution are a
series of parallel legal skirmishes that have been playing out around
several warrants for information issued by the Department of Justice (DoJ).
Lawyers and activists have charged that these warrantswhich are part of the
governments attempt to prove that the protest was the result of planned
riotare dangerously overbroad and, as such, pose serious First Amendment
challenges. Particularly in their initial forms, they have argued, the
warrants could have resulted in a dragnet-style collection of electronic
information related to political speech and organizing.
In the first of these warrants, the DoJ requested that the web-host provider
DreamHost share all of the information associated with its customer
DisruptJ20.org. DisruptJ20.org served as the information hub for protests
during the inauguration, but the government has since sought to portray it
as the organizer of a premeditated riot. To comply with the DoJs initial
warrant, DreamHost argued, it would have needed to turn over the 1.3 million
IP addresses of those who visited DisruptJ20.orga move that would have
amounted, essentially, to a list of individuals politically opposed to
Trump.
While the DoJ subsequently amended its warrant to exclude the demand for IP
addressesthanks, largely, to widespread outrageit continued to alarm
activists and legal experts with its ongoing quest for a broad range of
information from the site, including e-mails from individuals, not suspected
of any crime, who wrote to the site inquiring about protest activities or
offering lodging for out-of-town protesters. Civil libertarians hoped the
warrant would be thrown out, but Chief Judge Robert Morin of DC Superior
Court declined to do so. Instead, he ruled that DreamHost was to redact the
identities of individuals in order to safeguard their First Amendment
rights; if, after reviewing the redacted information, the DoJ finds evidence
of a crime, the court will un-redact the information.
Similarly, the DoJ has issued a warrant against Facebook that would have
required the company to turn over the names of all 6,000 people who liked
the DisruptJ20 page. At a hearing on October 13, the DoJ dropped this
demand, although it maintains that it still needs to obtain information on
likes in certain cases, as liking a specific post, such as how to dress
in black bloc for the riot, while not a crime in and of itself, could be
probative of criminal intent. In addition to asking for the information
associated with the DisruptJ20 Facebook page, the DoJ is also demanding that
Facebook turn over information from the personal accounts of two organizers
who have not been charged with any crime.
These cases are important because here we are at the beginning of the
administration of a president many of us [fear will be] very repressive and
intolerant of dissent, says Paul Alan Levy, of the Public Citizen
Litigation Group, which has intervened on behalf of unnamed Facebook and
DisruptJ20.org users seeking to protect their right to anonymous speech in
both cases. How Chief Judge Morin treats their fishing expedition could set
either a very good precedent or a very bad precedent about how they will use
the criminal-justice system going forward.
So what does all this mean? For protest? For dissent?
To understand how all the pieces fit togetherthe arrests and the
prosecutions and the warrantsit helps to rewind the clock to January 20,
when more than 200 protesters, journalists, and legal observers were
arrested as they marched through the streets of the capital. The march was
one of many actions that took place that day, part of an outpouring of
outrage that included a permitted march and blockades of inauguration
entrances. What made this protest distinctive was that it was a black-bloc
action, powered by anarchists, anti-capitalists, and anti-fascists, among
others.
Few people dispute that property destruction took place during the march.
Some individuals smashed windows, including those of a Bank of America
branch and a limousine; prosecutors allege that there was more than $100,000
in property damage and that six police officers received minor injuries.
Where things get thorny is that many of the people who have been charged did
not commit property damage or violence but have been deemed guilty by their
mere presence at the protest.
The problems began during the arrests themselvesarrests deemed so troubling
that the ACLU has brought a lawsuit against the Metropolitan Police
Department (MPD) accusing its members of using excessive force, making
unconstitutional arrests, and more.
Among the controversial practices police engaged in that day, lawyers and
observers say, was a tactic called kettling. Kettling is a form of
indiscriminate mass arrest, wherein police block off a given area and arrest
everyone within it. To be lawful, an arrest requires probable cause based on
individual suspicion. Yet, inevitably, this heavy-handed tactic often sweeps
up other protesters and bystanders whose only offense was their physical
proximity to the alleged crime. Indeed, a report on the inauguration by the
DC Office of Police Complaints noted that it seems that proximity to the
area where property damage occurred was a primary factor in the arrests.
Arrests made through kettling are problematic not only because of their
indiscriminate nature but also because they ultimately deprive individuals
of their right to free assembly. As the United Nations Special Rapporteur on
the rights to freedom of peaceful assembly and of association explained in a
2016 statement on the policing of protests in the United States: Acts of
violence by a few do not make an entire protest violent; nor do they strip
other individuals of their right to continue the assembly.
In the case of the January 20 protests, the use of kettling was a surprise,
as it broke with standard police protocol in DC. After facing criticism for
wrongfully arresting individuals during IMF/World Bank protests in 2002, DC
passed legislation to protect free assembly. The use of kettling during
Trumps inauguration constitutes the first mass arrest of protesters since
these reforms.
A spokesperson for MPD declined to comment on the arrests because of pending
litigation, but did offer a statement saying, Each year, the men and women
of MPD protect the rights and ensure the safety of thousands of First
Amendment assemblies, demonstrations and protests, including during Trumps
inauguration. Unfortunately, the statement continued, there was [a] group
of individuals who chose to engage in criminal acts, destroying property and
hurling projectiles, injuring at least six officers. The statement
concluded with a promise that all instances of use of force by officers and
allegations of misconduct will be fully investigated.
The mass arrests gave birth to the next government overreach, mass felony
riot charges against those arrested. Felony rioting carries a penalty of up
to 10 years in prison and a $25,000 fine, and applies when the alleged riot
results in more than $5,000 in property damage. This is opposed to
misdemeanor rioting, which can get you only 180 days in jail.
Attorneys who have long represented protesters in DC report never having
encountered mass felony charges stemming from a protest before. Not the
least of the reasons is that its difficult to produce enough evidence to
sustain felony charges against dozensor in this case, some 200people. Yet,
rather than backing down, prosecutors expanded the case by filing additional
charges, and, in April, a grand jury returned a superseding indictment that
added inciting or urging to riot and conspiracy to riot to the list of
crimes. These new charges brought the number of felony counts up from one to
eight and the amount of time defendants could face from 10 years to more
than 70 years in prison.
In a sign of just how wide a net the government has cast, many of the
defendants have not even been named as having committed specific acts in the
indictment. Instead, actions are attributed to the amorphous rioting
defendants or individuals participating in the black bloc.
Moreover, some of the actions recounted in the indictmentsuch as chanting,
Whose streets? Our streets! or Fuck capitalism!are hallmark elements of
a political demonstration, yet prosecutors are claiming these acts are
elements of a felony. As troubling, one of the superseding indictments
accuses the undifferentiated Rioting Defendants of merely walking in
certain directions, wearing certain clothing, observing law enforcement, and
not dispersing, according to a motion filed by defense counsel for some of
the defendants.
The governments overarching theory, then, seems to be one of guilt by
association. Or that, as Assistant US Attorney Jennifer Kerkhoff asserted
during a hearing about dismissing the charges, it is the group that is the
danger, the group that is criminal. Thus one need not have committed an act
of vandalism as an individual; just being present at the protest makes one
guilty. (The DoJ declined to comment for this story, as the cases are
currently pending.)
Among those swept up in this overbroad approach was a group of at least
seven journalists who were covering the J20 protests. While prosecutors
ultimately dismissed the felony rioting charges against the bulk of the
journalists nearly as quickly as they were filed, two journalists remain in
the crosshairs: Aaron Cantú, then a freelancer who has published with The
Nation and The Intercept, and Alexei Wood, who livestreamed the event. In
April a grand jury brought a superseding indictment of eight felony charges
against both reporters along with the other defendants. They face as many as
70 years in prison, possibly more.
The indictment against Cantú deploys the same guilt-by-association approach
that mars the entire case. Per prosecutors, Cantú moved in proximity to the
marchsomething that would be necessary in order for him to do his job as a
journalist. But prosecutors have additional evidence against Cantú: He wore
the color black.
It is this nine-month chain of events that gives such a troubling twist to
the warrants for information targeting both Facebook and DreamHost. In the
case of the DreamHost warrant, the government claimed during an August
hearing that it was only seeking evidence of planning a riot, such as a
listserv discussion of who was bringing crowbars to the riot. But given
the conduct of the government from the time of the arrest to the
indictments, this was hardly reassuring. Moreover, while Chief Judge Morin
has since placed some protective restraints on the information DOJ is
allowed to collect, the fact that the underlying prosecution conflates
political and criminal activity means that no amount of safeguards can alter
the chilling nature of the search.
Indeed, as weve already begun to see, the problem with these types of
political witch hunts is that, once begun, they continue to expand and grow
based on their own twisted logic. The illegal mass arrests of protesters,
journalists, and legal observers during the inauguration produced the
unconstitutional prosecutions of around 200 defendants. Those
unconstitutional prosecutions have, in turn, produced a chilling search
request.
No one knows what will come next or how far this will go, but anyone who
cares about freedom of association, assembly, or speech should be deeply
troubled.
