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Demonstrators gathered during a night of protest against police brutality and the deployment of federal troops in Portland, Ore., in July 2020.
Analysis

They Were Accused of Messing With Local Officers. Should the Feds Intervene?

In Oregon and across the country, protesters charged with “civil disorder” say the vague federal law is unconstitutional.

Early on July 13, 2020, another protest against police brutality in Portland, Oregon, turned into a clash with armed police in riot gear. Multnomah County law enforcement officials claim that during the melee a Seattle man named Jesse Herman Bates fired a small metal ball from a slingshot on his wrist, hitting a nearby firefighter in the chest. (Police say the firefighter was bruised but otherwise OK.)

This article was published in partnership with The Oregonian.

Local police arrested Bates that night, but the county prosecutor ultimately decided not to pursue charges. District Attorney Mike Schmidt declined most of the thousand-plus cases referred to his office from local protests, saying he was reserving resources for the most serious crimes.

Normally, that would be the end of any legal entanglement for someone like Bates. He wasn’t on federal property and the firefighter wasn’t a federal employee, so usually local authorities would have the final word. But Bates is now facing up to five years in federal prison, under a rarely-used “civil disorder” law that his defense attorneys argue is unconstitutional.

Since the violent storming of the U.S. Capitol in January, policymakers and pundits have debated how best to pursue and prosecute domestic terrorism. There was a surge in such cases last year, but it was driven by a crackdown on racial justice protests rather than right-wing militias. And while the insurrection in Washington, D.C., took place on federal property, in the case of Black Lives Matter marches, the federal nature of many offenses is murky.

Last year, Justice Department prosecutors filed the most “domestic terrorism” charges of any year on record, many against those accused of crimes during demonstrations that followed the police killing of George Floyd. The biggest group of these cases—78—came from the Oregon U.S. Attorney’s office for offenses ranging from assault on a federal officer to creating a hazard on public property.

Bates and at least 14 other Portland protesters have been charged with “civil disorder,” defined as interfering with any firefighter or law enforcement officer during a civil disturbance that interrupts commerce. (He pleaded not guilty.) Others charged with civil disorder in Portland were accused of acts like throwing a helmet at a local cop while they arrested someone, shining a laser in police’s eyes, smashing windows and stoking fires.

Bates's lawyers filed a motion to dismiss his charges in late January, saying the obscure statute “is hopelessly overbroad and invalid... [Its] legislative history shows that it was enacted to suppress messages in support of civil rights and racial justice for Black Americans.” Multiple nearly identical motions have been filed in other civil disorder cases across the country, including in Alabama, where 21-year-old Tia Deyon Pugh was charged for allegedly breaking the window of a Mobile Police Department car.

The Oregon U.S. Attorney’s office said it could not comment on ongoing cases. The U.S. Attorney in the Southern District of Alabama, in his motion asking for more time to file a response, wrote that the Counterterrorism Section of the Justice Department is now working on a coordinated response to all such cases.

The civil disorder law was proposed as an amendment to the 1968 Civil Rights Act. Democratic Senator Russell Long of Louisiana, the bill’s author, said, “If we are going to seek to pass a civil rights bill, it should be a bill that would protect the public from irresponsible rabble rousers, instead of a bill that would protect such persons from the public.” He offered the amendment as a way to “do something” about the activism by Dr. Martin Luther King, Jr., Stokely Carmichael, H. Rap Brown and other civil rights leaders.

Federal prosecutors have rarely used the charge since its passing. But the statute found a new life this fall under former Attorney General William Barr. As the protests in Portland continued, and the Multnomah County district attorney passed on most cases, the feds stepped in. In September, Barr sent a memo instructing federal prosecutors to aggressively pursue protesters they deemed violent or destructive. According to the Associated Press, federal authorities have arrested over 300 people across the country involved in recent racial justice protests. Justice officials told the New York Times that this intense focus on people they considered antifa or anarchists sapped resources and attention from pursuing a growing white supremacist movement.

“Make no mistake: Those who commit violence in the name of protest will be investigated, arrested, prosecuted and face prison time,” Oregon U.S. Attorney Billy J. Williams said in a late September press release. “Already more than 100 people have been arrested and more than 80 people are facing federal charges related to protest violence. Our office will work closely with our law enforcement partners...and will bring federal charges where appropriate.”

The law has more recently been used against pro-Trump D.C. rioters. Of the more than 160 people currently facing charges in D.C. federal court for the storming, around 30 are accused of crimes involving “civil disorder.” Most of those cases have other federal charges attached, as their alleged crimes took place on federal property, many against federal police.

Many cases from this summer’s protests against police brutality have been delayed, in part because COVID-19 stalled court hearings across the country. Now there is a new president and attorney general, but that doesn’t necessarily mean much will change for those already charged.

“Generally speaking it’s unusual for cases to be dismissed in the event of a changing administration,” said Taryn Merkl, senior counsel in the Brennan Center’s Justice Program and a former federal prosecutor. “There typically has to be substantial change in circumstances or some deficiency in the evidence that develops for the charge to change course.”

It remains unclear what the motion will mean for Bates’s case and others charged under the statute. As of now, the Oregon U.S. Attorney’s response is due March 15.