Federal prosecutors are dropping felony rioting charges against 129 of the nearly 200 people they have spent a year pursuing in cases stemming from a protest that turned violent on Inauguration Day last year.
The news came late Thursday in an email from representatives of the U.S. Attorney’s Office for the District of Columbia. Prosecutors will continue to pursue cases against 59 others from the march, the email said.
“This is a victory, but the fight is far from over,” Sam Menefee-Libey, one of several activists and legal support volunteers helping defendants in the case, said in a statement on the decision. “The US Attorney’s office continues to zealously prosecute many who were protesting a proto-fascist president and the solidarity among defendants and supporters remain strong. We will keep fighting until everyone is free.”
In December, a jury refused to convict any of the first six defendants in the riot case on any of the charges the feds brought. The case centered on reams of video from the protest, showing a crowd of between 300 and 500 people mostly dressed in black marching through parts of downtown Washington, D.C., last January.
Prosecutors acknowledged they had no evidence any of the six had personally smashed a window, thrown a rock, or clashed with police, but asked jurors to hold the entire group of marchers criminally responsible for the destructive actions of a handful. They pursued charges that could have conferred maximum sentences of roughly 60 years in prison.
Judge Lynn Leibovitz took the extraordinary step of striking one of the original eight charges from the case herself after the prosecution rested, signalling the feds had failed to provide sufficient evidence to support it even under the most generous interpretation of what was presented in Leibovitz’s court.
Police and prosecutors have expended significant resources on the cases already, including the full-time detailing of one Metropolitan Police Department detective to sift through hundreds of hours of video and clip together highlight reels to be shown to juries.
That detective’s personal politics — including an apparent affinity for President Donald Trump and harshly critical reactions to Black Lives Matter protests — became an issue in the trial. So, too, did the individual conduct of multiple MPD officers on the ground on Inauguration Day — at least one of whom was detailed from a notorious unit that has been accused of abusive patterns of enforcement action in one of D.C.’s most neglected neighborhoods.
The additional cost of pursuing the same thin case before another 20-plus separate juries would have been astronomical. Thursday’s decision to surrender on 129 of the cases likely spares the government hundreds of thousands if not millions of dollars in additional expenses.
But the commitment to continue the other 59 prosecutions — which spokesman William Miller wrote are a “smaller, core group that we believe is most responsible for the destruction and violence that took place” — keeps some chilling possibilities on the table.
In the first trial last year, prosecutors showed jurors evidence pertaining to fewer than a dozen individuals who they believe they have identified as actually smashing a window or otherwise behaving in criminal fashion. The decision to go after nearly 60 people for that criminality represents an ongoing, if greatly downsized, threat to the rights of free assembly, protest, and dissent that have been at the heart of the mass-arrests case since its inception a year ago.
In particular, the government’s filing indicates the ongoing casework will target people who prosecutors know did not break a window but who they believe “demonstrate[d] a knowing and intentional use of the black-bloc tactic” that day.
The prosecutors’ focus on black-bloc tactics — in which marchers make themselves hard to identify through uniformity of dress, and sometimes seek to prevent police from pulling individuals out of a moving crowd to effect arrests — will likely mean that political affiliations with so-called “antifa” organizations and other left-leaning political groups will be a live issue in the remaining cases.
The list of those who still face charges includes one woman, Elizabeth Lagesse, who is among the plaintiffs in a lawsuit alleging police violated protesters’ rights before, during, and after the hours-long “kettle” that ended the march. “I came to D.C. to do a good thing,” Lagesse said at a June press conference announcing the suit. “To express my concern about the direction of our country. You would think that of all the cities in the world, Washington, D.C., would respect my freedom of speech and right to peaceably assemble.”
Indeed, MPD has long boasted a reputation for uniquely calm responses to impromptu, unpermitted protests. The department prides itself on proactively escorting protesters through crowded streets, often blocking traffic to prevent drivers from trying to zip through a group of marchers.
But officers on the scene last year appeared to violate both the letter and spirit of District laws and departmental policies governing law enforcement interaction with protesters. Marchers were given no order to disperse, for instance, and the encirclement tactic colloquially known as “kettling” was employed under circumstances where policy says it should not be used, evidence in the first trial showed.
Lagesse and hundreds of others were penned in by riot police in the late morning of Inauguration Day. Police had struggled to get ahead of the group, evidence from the first trial showed, and ended up employing heavy-handed tactics to corral the march after some in the group began smashing windows. Police continued to use pepper spray cannons on the group even after containing them, the suit alleges and video from the first trial shows.
Other plaintiffs in the ACLU’s lawsuit allege that individual MPD officers went on to abuse them physically after they had been taken from the scene and moved into arrest processing.