Federal prosecutors slap felony charges on more than 200 inauguration protesters

Break with D.C. tradition follows Trump pledge to check “the violent disrupter.”

Police deploy pepper spray on Inauguration Day in Washington, D.C., after “kettling” a large crowd. 230 people were eventually arrested and charged with felonies, seemingly without distinguishing between bystanders and those who damaged property. CREDIT: AP Photo/John Minchillo
Police deploy pepper spray on Inauguration Day in Washington, D.C., after “kettling” a large crowd. 230 people were eventually arrested and charged with felonies, seemingly without distinguishing between bystanders and those who damaged property. CREDIT: AP Photo/John Minchillo

Some 230 people have been charged with felony rioting in Superior Court after Washington, D.C. police responded to a handful of property destruction incidents on Inauguration Day by rounding up everyone who was in the area at the time.

The charges and street tactics shocked legal observer groups that provide volunteer jail support around high-profile street protests in the nation’s capitol, where police have a long track record of handling demonstrators with a subtler approach. The decision by United States Attorney Channing Phillips leaves plainclothes marchers and provocation-minded radicals alike facing maximum punishments of 10 years in prison and a $25,000 fine.

Arrest reports show the department is using the exact same language to describe its reasons for arresting all 200-plus caught in the round-up, without offering specific allegations of individual property destruction.

There is no argument that some marchers near the area on Friday morning smashed windows, and that others lit small fires after police had “kettled” hundreds of reporters and marchers near a downtown park. But Phillips’ choice to collectively pursue a much larger group based on their proximity to the action strikes longtime protest legal observer Ria Thompson-Washington of the National Lawyers Guild as a dark turn away from the restraint that law enforcement have shown with protests and unrest in the past.

If I’m a bystander to this, and I know I’m being charged with a 10 year sentence…I’m going to plead out even if I’m innocent.

“The police here always give three warnings to protesters before they give any action. In this case, there was nothing,” Thompson-Washington said in an interview. “There was no order of dispersal, no warnings. They just immediately brought out their batons and pepper spray without any warning.”

One of the NLG-trained legal observers, who wear bright green hats or shirts so police can distinguish them from protesters, was pepper-sprayed straight in the face, said Thompson-Washington, and several other green-hatted observers were arrested and charged. The kettling tactic meant anyone who’d been inside the initial police perimeter was not allowed to leave as several hours passed before the arrests began.

At least half a dozen journalists are facing charges from Phillips’ office as well. Vocativ’s Evan Engel, 30, and RT’s Alex Rubinstein, 24, were among those rounded up Friday evening after police used “kettling” tactics to block hundreds of reporters and protesters into a small patch of downtown D.C. last Friday. The Guardian reported late Tuesday that another four of those charged are journalists, and that police have kept the cell phone of at least one of them

Scores of riot officers kept the group boxed in for hours, deploying both pepper spray and “sting-ball” grenades on the crowd. Engel’s camera was confiscated as evidence and had not been returned as of late Monday, a source familiar with his case told ThinkProgress.

A demonstrator carrying a large red flag was able to run past police and apparently escape the initial push to “kettle” everyone in the area. CREDIT: YouTube/Screengrab
A demonstrator carrying a large red flag was able to run past police and apparently escape the initial push to “kettle” everyone in the area. CREDIT: YouTube/Screengrab

In video reviewed by ThinkProgress, police can be seen spraying a pair of protesters with a pepper cannon while they knelt in the middle of an empty intersection with their hands aloft. Cops then kept the large group kettled for several hours, looking on as some in the crowd lit small fires and others stood peacefully, arm in arm, across from the police lines.

“I don’t know at what point the District has devolved into using those kinds of tactics to get people to comply,” Thompson-Washington said. “I hope it’s not an indication of what this coming administration is going to be like for the rest of us, because that’s not how it’s been thus far with protesting in the district.”

Within minutes of President Donald Trump being sworn in, the White House website had posted a note on law enforcement policy which included the line, “Our job is not to make life more comfortable for the rioter, the looter, or the violent disrupter.” By that time, police had been pepper-spraying and kettling the downtown marchers for over an hour.

Phillips’ office declined to answer questions regarding any contact with main Department of Justice officials about the cases and defended the charging decisions. “Based on the facts and circumstances, we determined that probable cause existed to support the filing of felony rioting charges,” the office said in a statement. A spokesman declined to discuss individual charges since they remain pending.

A break from tradition

Thompson-Washington’s group is accustomed to protesters being released the same day in D.C., usually after paying a fine rather than facing formal charges. She cited two recent major street protests, including one in which activists chained themselves to the Fraternal Order of Police headquarters for 18 hours without a police crackdown.

“It’s really uncharacteristic of other actions we’ve seen in DC,” she said of the kettling. “And then to ratchet up from fines to felony riot charges, that’s ridiculous.”

By pursuing serious felonies against a large block of arrestees who were in the area of property crimes committed by just some of the marchers, U.S. Attorney Phillips is abusing his office, said American Civil Liberties Union D.C. chapter head Monica Hopkins-Maxwell said in an interview.

“If I’m a bystander to this, and I know I’m being charged with a 10 year sentence and I know what it would cost to get an attorney, of course I’m going to plead out,” she said. “Even if I’m innocent.”

It’s a tactic known as overcharging, where prosecutors use the threat of long jail terms to induce guilty pleas. Even if Phillips ultimately drops some of these 200-plus felony cases after reviewing evidence more carefully, Hopkins-Maxwell said, he’s already sent a clear and ugly signal.

“When the state comes down this hard in imposing this sort of charge from the get-go, it inevitably has a chilling effect on speech,” she said. “Regardless of if it’s applied to these protesters, individuals engaged in vandalism, innocent bystanders, or for that matter outside of this context, the strategy of overcharging individuals in the first place is a gross abuse of government power.”

The exact timeline of police actions and protester vandalism is still murky. Charging documents provided to press by Phillips’ office state that officers saw black-clad protesters begin destroying windows and vehicles at 10:00 and began kettling the group at 10:28. The document does not acknowledge that hours passed before arrests began, or that the group kettled included unarmed people not dressed in anarchist garb, who are seen in videos from the day.

It is unclear if the individuals who actually smashed the first few windows were even caught in the sweep.

The Metropolitan Police Department is still conducting an after-action review and would not discuss exact details of the day until it is complete, a spokeswoman told ThinkProgress. It is unclear if the individuals who actually smashed the first few windows were even caught in the sweep, which the charging document acknowledges.

“There is talk that perhaps even individuals responsible for this violence actually aren’t part of this 200-plus group arrested, and the actual perpetrators might have gotten away,” Hopkins-Maxwell said. Indeed, at least one black-clad “antifas” protester can be seen in video from The Guardian eluding police and fleeing at around 10:40 a.m., just as police deployed riot gear and pepper cannons to begin kettling both antifas and plainclothes marchers alike.

The vast majority of inauguration protesters were elsewhere, lined up to block many of the entrances that Trump supporters were using to enter the National Mall to see their man take office. These protests did not provoke aggressive police responses, even when a group of activists from the Movement for Black Lives chained themselves to an entrance cordon and prevented anyone from using it throughout the day.

A masked, black-clad demonstrator jabs at an officer with a pole as the officer sprays him with a pepper cannon. CREDIT: YouTube/Screengrab
A masked, black-clad demonstrator jabs at an officer with a pole as the officer sprays him with a pepper cannon. CREDIT: YouTube/Screengrab

But three blocks north from the edge of the secured zone, a crowd of black-clad “antifas” marchers — some allegedly carrying cudgels — drew sterner action from police. By roughly 10:45 a.m., according to a ThinkProgress review of The Guardian’s live video stream of the day’s events, officers were yelling that it was time to “kettle” the group. Some individuals marching with the radical group can be seen smashing the windows of a McDonald’s. At least one is captured swinging a flagpole at an officer who was pepper-spraying others in the group.

The exact timeline of police actions and protester vandalism is still murky. The Metropolitan Police Department is still conducting an after-action review and would not discuss exact details of the day until it is complete, a spokeswoman told ThinkProgress.

“To have the U.S. Attorney slam down felony charges sends a really strong message that the government is willing to silence people, whether or not you were involved in criminal activity.”

The District’s felony rioting statute is broad enough to support charges against people who were actively encouraging riotous activity, the ACLU’s Hopkins-Maxwell said, “but we don’t necessarily know that’s true in this case.” The group is still reviewing more than 400 video clips from the kettling, standoff, and arrests to pin down exact details of the hours-long interaction. But she seconded the NLG’s Thompson-Washington in noting that police never gave an order to disperse or offered peaceful bystanders the chance to extricate themselves from the kettle.

“What’s stuck in my craw is, this is an incredibly heavy hand,” Hopkins-Maxwell said. “It’s the first day of the transition to power of a new administration that has made such an aggressive stance against immigrants, and women, and people are upset and want to exercise their First Amendment rights.

“To have the U.S. Attorney slam down felony charges sends a really strong message that the government is willing to silence people, whether or not you were involved in criminal activity.”

This piece has been updated to reflect the rising number of journalists who were charged in the roundup. There are at least six members of the press facing felony charges.