DOJ Makes use of Civil Rights-Period Legislation To Cost Protesters And Insurrectionists : NPR

Federal law enforcement officers fire ammunition and tear gas at protesters demonstrating against racism and police violence in Federal Court of Mark O. Hatfield in Portland, Oregon on July 16, 2020. By late 2020, the majority of the last civil unrest charges of the year were filed in Oregon. Jonathan Levinson / OPB hide caption

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Jonathan Levinson / OPB

On August 26, Kevin Phomma was arrested outside the Immigration and Customs Building in Portland, Ore, during a racial justice demonstration.

Prosecutors say Phomma sprayed bear repellent on police officers and the US Department of Justice accused him of civil disorder, a crime.

Fast forward to January 6, where Reed Christensen, a Republican Party leader from Oregon’s Washington County, walked up the steps of the US Capitol in Washington, DC

According to the FBI, Christensen hit the police with his fist. Prosecutors later filed charges, including civil unrest.

Over the past year, the Department of Justice has been deeply concerned with riot, a once seldom used law to combat crimes that they say were committed during protests and other civil unrest.

“How do we deal with this extremism?” asked former Oregon attorney Billy Williams, who was part of the federal government’s response to protests in Portland last summer, describing the attack on the US Capitol as “a deterrent”.

“What we’re watching, and what we’ve been observing for some time, are the individuals at the extremes of the spectrum, either far left or far right, both. And people who make decisions to engage in extreme behavior that is criminal in nature.”

In 1968, at the height of the civil rights movement, Congress passed the Civil Obedience Act.

The law makes it a crime, among other things, to disrupt police or firefighters who are performing their official duties during a protest or civil disturbance that “adversely affects trade” or “conducts or performs a federally protected function.” The charges are up to five years in prison.

“There are openly racist feelings from the drafters of this statute,” said Lisa Hay, federal defender for Oregon district. “The statute was written at a time when senators were dealing with the civil rights movement and wanted to stop the civil rights movement by arresting their leaders.”

Hay’s office represents Phomma and others in Portland who are charged with rioting. She said it was wrong to use the charges against racial justice protesters now.

Civilian disruption has been used in around a dozen cases across the country over the past 30 years. The federal prosecutor filed it in response to crimes the government said had been committed during a number of protests, including actions over the Dakota Access Pipeline and the Baltimore police murder of Freddie Gray.

In the past 12 months, the Justice Department has appealed to the indictment more than 125 times.

First, in protests following the murder of George Floyd by the Minneapolis police. The prosecution filed cases of civil disturbance in North Dakota, Alabama, Wisconsin, and Minnesota. By late last year, most 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 that the indictment was never aimed at lawful protests for police reform and social justice.

“Those are powerful calls,” he said. “Separate that from those who are extremely criminal.”

As of January 6, federal attorneys have filed hundreds of cases against people who stormed the U.S. Capitol. About a quarter of the defendants face civil unrest.

While the cases are very different, the charge – civil disorder – is the same. Lawyers representing racial justice protesters have been trying to throw off this charge for months. Their arguments serve as a test of those who face civil unrest following the attack on the Capitol.

“There are many other specific federal and state laws that could prosecute the people of Portland and the people of the Capitol,” said Hay.

Beyond its racist origins, argues Hay, the law is unconstitutional.

“The fact that the law is widespread proves the point of our dispute, which is that this widespread and vague law can apply to so many circumstances, including innocent behavior, that it discourages the exercise of constitutional rights,” said Hay.

The Justice Department did not respond to a request for comment. Oregon’s US Attorney’s Office declined an interview request.

In court documents, federal prosecutors argue that the civil disorder charge is constitutional and urge the conception of any racist intent. “The riots that took place in Portland last year were violent,” the federal prosecutor wrote in court documents. “Dozens of police officers and demonstrators were injured. Local businesses suffered millions in losses. These violent activities occurred during and sometimes after peaceful protest activities. And it is this violence – not the peaceful protests – that underlies the government’s prosecution.”

They say civil disorder applies to a defendant’s conduct, whether it be a protest against racial justice or what happened in the U.S. Capitol. In many cases across the country, defense lawyers and prosecutors are making the same arguments that were developed in Oregon.

“We spoke with defense lawyers across the country about the application of this law and ways to challenge it,” said Hay.

One such case was in Mobile, Ala., Where Tia Pugh was charged with civil disorder after prosecutors said she broke the window of an occupied police cruiser during a racial justice protest following Floyd’s murder in Minneapolis last May.

Federal defenders in Alabama challenged the case using the arguments of the Oregon defense attorney.

And the Justice Department replied.

In April, Michael Dittoe, a district attorney with the National Security Division’s counter-terrorism division who had indicted supporters of the Islamic State in recent years, traveled to Alabama to defend the broken window charges. The hearing was first reported by Politico.

“At the very basic level, the government thinks, ‘At least we need to maintain our ability to bring these charges,'” said Tung Yin, a professor at Portland’s Lewis and Clark Law School, where he researches terrorism and national security law.

Earlier this month, the federal judge overseeing Pugh’s case threw back arguments from the defense that the charges were unconstitutional and allowed the process to move forward.

On Wednesday she was found guilty by a jury.

It is one of many cases in which similar arguments could crop up again and again in the coming months when the Justice Department prosecutes crimes allegedly committed during the racial justice protests as well as those related to the siege of the U.S. Capitol on January 6th.

“That decision can be made in the court of public discourse,” said Margaret Russell, a law professor at Santa Clara University, where she specializes in civil rights and freedom of expression.

From a legal standpoint, Russell said the most powerful argument against the statue of civil disorder was that it violated the First Amendment. Though Russell adds that defense attorneys may have another goal of bringing out the civil rights-era racist history of the law.

“If federal defenders and others point out the origins of this law and the abuse and probable abuse here, then it may point out reasons not to use this particular law to persecute people.” Says Russell.