Court fight to protect racial justice protesters could benefit US Capitol attackers
Federal law enforcement in Portland announced last summer they were going to step up efforts to prosecute people who committed crimes during nightly protests outside the federal courthouse.
“There was certainly a sense that something needed to be done,” said former Oregon U.S. Attorney Billy Williams, who at the time was part of the federal government’s response.
As part of that effort, the U.S. Department of Justice turned to a little used felony charge: civil disorder. It was passed by Congress in 1968 and known as the Civil Obedience Act.
“In terms of responding within the law to what was occurring in Portland, this is one we researched and decided, where factually appropriate, to bring charges,” Williams said.
During the last 30 years, civil disorder was used in roughly a dozen cases nationwide. Federal prosecutors filed it in response to crimes the government says occurred during a variety of protests, including actions over the Dakota Access Pipeline and the Baltimore police killing of Freddie Gray.
Prior to last summer, the little-known charge was seldom used. But in the wake of months of civil unrest and political violence, it’s quickly become a go-to for the U.S. Department of Justice as it asserts itself amid a rise in domestic extremism.
“What we’re witnessing, and what we have been witnessing for some time, are the individuals at the extremes of the spectrum — either far left or far right, both,” Williams said. “And people making decisions to engage in extreme conduct that is of a criminal nature.”
In the last 12 months, the Justice Department turned to the charge again and again, first, during protests that followed George Floyd’s murder by police in Minneapolis. Prosecutors filed civil disorder cases in North Dakota, Alabama, Wisconsin and Minnesota. Through the end of last year, the majority of the charges were filed in Oregon, where protesters in Portland took to the streets for more than 100 nights of direct action against police violence.
Williams stressed the charges were never aimed at addressing lawful protests for police reform and social justice. “Which are powerful calls,” he said. “Separate that from those on the extremes who engage in criminal conduct.”
Since Jan. 6, federal prosecutors have brought hundreds of cases against people who stormed the U.S. Capitol. Nearly a quarter of those charged in the attack face a charge of civil disorder. Between the insurrection and racial justice protests, federal prosecutors have filed it that charge in more than 125 cases during the last year.
While the cases are very different, the charge — civil disorder — is the same. For months, attorneys representing racial justice protesters have been trying to get those charges thrown out. Their arguments serve as a test for those facing civil disorder after the Capitol attack.
“There’s plenty of other specific federal and state statutes that could be used to prosecute people in Portland and the people at the Capitol,” said Lisa Hay, the federal public defender for the District of Oregon. Her office is representing protesters charged with civil disorder in Portland.
In 1968, when Congress passed the civil disorder charge, a pro-segregationist U.S. senator wanted the federal government to be able to crack down on the civil rights movement. Hay argues it’s wrong to use the charge against racial justice protesters now.
“The statute was written during a time when senators were concerned with the civil rights movement and they wanted to stop the civil rights movement by arresting its leaders,” Hay said. “That was the specific goal of the statute.”
Among its aspects, the statute makes it a crime to interfere with police or firefighters doing their official duties during a protest or civil disorder that “affects commerce” or ‘the conduct or performance of any federally protected function.”
Beyond its racist origins, Hay argues, the law is unconstitutional.
“The fact that the statute is being used widely proves the point of our litigation, which is that this overbroad and vague statute can apply to so many circumstances, including innocent conduct, that it will chill the exercise of constitutional rights,” Hay said.
One of the people Hay’s office represents is Kevin Phomma.
On Aug. 26 in Portland, Phomma was arrested during a protest outside the U.S. Immigration and Customs Enforcement facility on the city’s South Waterfront. The government has charged him with civil disorder. In court documents, prosecutors say Phomma sprayed Portland police officers with bear spray.
“The officers were wearing gas masks, but one officer noted that his neck and arms ‘started to burn,’” the federal prosecutors stated in court documents filed in March. “When he and the others removed their gas masks, their faces felt the same burning sensation.”
Phomma has also been charged by the Multnomah County district attorney for the same incident.
Federal prosecutors noted that, on the night of Phomma’s arrest, protesters filled the streets, “making passage by cars or delivery vehicles impossible” and triggering their use of civil disorder charges.
The Justice Department argues that the civil disorder charge is constitutional and, in court documents, downplayed the notion of any racist intent. Instead, prosecutors focused on the fact that it was law passed by Congress.
The Justice Department didn’t respond to a request for comment. Oregon’s U.S. Attorney’s Office declined an interview request.
In many cases across the country, defenders and federal prosecutors are making the same arguments developed in Oregon.
“We’ve talked with defenders around the country about the use of this statute and ways to challenge it,” Hay said.
One of those cases is in Alabama, where a woman is charged with civil disorder after allegedly breaking the window of an occupied police cruiser during a Black Lives Matter protest last May
Federal defenders have challenged that case, using Hay’s same arguments.
And the Justice Department responded. In April, it sent one of its top counter-terrorism prosecutors, who has spent the last several years charging supporters of the Islamic State, to defend the charge over the broken window. The hearing was first reported by Politico.
“At the very basic level, the government is thinking, ‘At the minimum, we have to preserve our ability to bring this charge,’” said Tung Yin, a professor at Lewis and Clark Law School in Portland, where he researches terrorism and national security law.
If a federal judge in Alabama found the statute unconstitutional, the ruling wouldn’t necessarily apply to other cases, Yin said. But it could ultimately persuade other judges, like those managing the Capitol attack cases, to closely examine whether the law is being correctly applied.
If the law were thrown out in a case connected to a Black Lives Matter protest, “you could expect that the defense lawyers in Washington, D.C., will definitely make big noise out of that particular case,” Yin said.
The judge in Alabama hasn’t ruled.
Whether a federal judge would actually find the statute unconstitutional is up for debate.
“It’s possible, it’s certainly possible. It would not be an irrational decision,” said Margaret Russell, a professor of constitutional law at Santa Clara University, where she specializes in civil rights and free speech.
Russell said the most powerful legal arguments against the civil disorder statute would be that infringes on the First Amendment. Though, she said, federal defenders may have another goal in mind when bringing up its racist origins.
“The decision on this may be in the court of public discourse,” Russell said. “If the federal defenders and others are pointing out the origins of this law, and the misuse of it, and the likely misuse of it here, then it calls attention to reasons to not use this particular statute to prosecute people.”
Defenders agree they’d like to see the Biden Justice Department stop using the charge, no matter the incident.
Still, for now, there’s no signs of the practice changing.
On April 26, federal prosecutors announced several charges, including civil disorder, against a former leader of the Washington County Republican Party for his alleged role in the January insurrection.
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