Over 200 people were arrested in Washington, DC, on the morning of January 20, 2017. (photo: Andrew Stefan/RSN)
By Mark Hand, ThinkProgress
20 May 17
Legal experts say Trump’s ‘law-and-order’ administration is emboldening authorities to crack down on protests in D.C. and beyond.
ith multiple felony charges brought
against more than 200 people on Inauguration Day, police and
prosecutors in the District of Columbia are putting activists on notice
that legal protections ingrained in the Constitution may not apply to
them, according to legal experts.
This new era of law enforcement is affecting policing
tactics beyond Washington. The harsh treatment of protesters in the
District since Donald Trump assumed the presidency — with a large number
of people who did not engage in violence facing decades in prison for
simply taking part in a protest — lets law enforcement officials across
the nation know that a tough-on-dissent policy is acceptable, the
experts said.
“The federal prosecutor’s office in D.C., by the
influence and directives of the Sessions Justice Department, is now
engaged in an all-out repression of dissent and sending the message
across the country that we are going to crush you,” said Jason
Flores-Williams, an attorney who is representing three people who were
arrested in Washington on Inauguration Day.
Shortly after Trump took the oath of office on January
20, the official White House website published statements outlining the
new president’s six top priorities, including one titled “Standing Up For Our Law Enforcement Community.”
The White House page explaining this priority said Trump’s
administration “will be a law-and-order administration,” committed to
ending the “dangerous anti-police atmosphere in America.”
Trump’s attorney general, Jeff Sessions, issued a memorandum
last week in which he directed federal prosecutors across the country
to charge suspects with the most serious offense they can prove. The
memo was seen as a reversal of President Barack Obama’s policy shift
toward fewer mandatory minimum sentencing guidelines and a rethinking of
how people charged with non-violent drug crimes are prosecuted and
sentenced.
The memo also aligns with how the Justice Department
is ratcheting up its prosecution of protesters and could serve as a
guide for how state and local jurisdictions treat expressions of
dissent, according to Flores-Williams. “Under the Sessions DOJ, states
are going to have carte blanche to pass whatever local ordinances they
want to eliminate, outlaw, and make protests extremely difficult,” he
told ThinkProgress.
As the nation’s capital, “the District is a microcosm
of what’s happening outside in the world at large,” said Ria
Thompson-Washington, executive vice president of the National Lawyers
Guild. Police in other parts of the country will take their cues from
how the police in Washington act. If police in the nation’s capital are
assuming an increasingly hard line stance against protesters, other
jurisdictions will follow suit, she said.
“What I’ve seen is that police are feeling more empowered by the current administration,” she said.
States and localities are already passing measures to
deter or prepare for protest activities. Individuals opposed to the
construction of the Dakota Access Pipeline in North Dakota faced fierce
attacks from police. In reaction to these protests and other actions
against the fossil fuel industry, the state of Oklahoma adopted a
measure designed to suppress protests.
Under the Oklahoma law, individuals will face
a felony and a minimum $10,000 fine if a court determines they entered
property intending to damage, vandalize, deface, “impede or inhibit
operations of the facility.” The statute also targets any organization
“found to be a conspirator” with the trespasser, threatening these
groups with a fine “10 times” that imposed on the intruder, or as much
as $1 million.
In Pennsylvania, a Republican state lawmaker invited North Dakota law enforcement representatives to provide lessons learned
from the Dakota Access protests to government officials in Lancaster
County, where a large movement has grown against construction of the
Atlantic Sunrise natural gas pipeline.
The same state lawmaker is drafting a bill
that would make people convicted of “rioting or public nuisance” pick
up the tab for policing and other public costs from protests in the
state.
In February, the Washington Post reported
that since the election of Trump, Republican lawmakers in at least 18
states had introduced or voted on legislation similar to the
Pennsylvania proposal that would increase punishments for protesters.
The police tab for Inauguration Day in Washington was huge, with estimates totaling
$100 million. Officers from various federal police agencies, as well as
National Guard members, joined a large number of militarized city
police officers to patrol downtown D.C.
A portion of the inauguration security funds were spent on a wide array of weapons, many of them similar to the ones
used against Dakota Access Pipeline protests a few months earlier. For
several hours, D.C. police fired pepper spray, tear gas, flash grenades,
and rubber bullets on people gathered in the streets, giving it the
look and feel of a war zone.
The vast majority of these people in the streets of
Washington were not involved in smashing the windows of coffee shops or
banks. And yet D.C. police still rounded up people indiscriminately,
including more than a handful of journalists and legal observers, and
arrested them.
The police corralling of the 200-plus people occurred
well over an hour before a limousine was set on fire approximately four
blocks away. The people spent the night in jail, with the bulk of them
initially facing felony rioting charges that carry a possible penalty of
10 years in prison.
The D.C. police used a similar mass roundup tactic at
2002 World Bank protests in a downtown park. The District of Columbia
ended up settling with nearly 400 protesters and bystanders — who sued
over the mass arrests — for more than $8 million.
But this time, the police, along with prosecutors, are
not backing off from their handling of the protests. “For the District,
I have genuine concerns about the number of people who will be
embroiled in litigation with regard to just exercising their First
Amendment right to protest,” Thompson-Washington said.
The new policing doctrine in Washington represents an
effort by the Trump administration to “chill” a citizen’s right to
engage in protest, Flores-Williams said. “They’re prosecuting people for
their associations, which violates the First Amendment,” he argued.
Civil liberties activists are concerned by the lack of
media attention — what Flores-Williams views as “radio silence” — on
the multiple felony charges brought against the Inauguration Day
protesters in Washington. Fairness and Accuracy in Reporting, a media
watchdog group, said
the lack of media coverage of the federal prosecutors’ conduct “seems
to be what’s holding together the government’s case for felony riot
charges against some 214 people arrested en masse on Inauguration Day.”
Federal prosecutors dropped most of the charges
against the journalists. But in a surprise move, the prosecutors in
April, without providing any new evidence, filed new charges — what is
known as a superseding indictment — against the protesters that included
felony “inciting or urging to riot,” “rioting,” “conspiracy to riot,”
“destruction of property,” and misdemeanor “assault on a police
officer.”
The large group of people rounded up by D.C. police,
or “kettled,” are now being hit with up to eight felonies and could end
up facing up to 75 years in prison.
“Once that superseding indictment was issued, it was
an historic crossroads moment,” Flores-Williams said. “If you’ve looked
at what they’ve done, from the police all the way up to the prosecutor,
this is a systematic attack on the First Amendment rights of these
people at a time when the First Amendment couldn’t be more important.”
The protesters will have plenty of time to think about
the extensive charges filed against them — and perhaps that is the
prosecutors’ intention. The first trials are not expected to start until
March 2018. “In my mind, that violates their right to a speedy trial,”
Flores-Williams said.
“Having serious felonies like this hanging over you is
an incredible burden on your life,” he said. “Chances are that at a
certain point, they’ll either roll on each other or we’ll see plea
agreements regardless of their guilt or innocence.”
However, many of the defendants have pledged to reject any plea deal offered by prosecutors. In a statement outlining the pledge,
the defendants said: “The risk of imprisonment, fines, and probation is
far less meaningful than giving even tacit legitimacy to these
charges.”
Flores-Williams’ clients have no intention of
accepting any possible plea deal. And he expressed great confidence his
clients will prevail at a trial. “The government is going to have a hard
time proving what they need to,” he said.
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