With 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.