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Almost as soon as the police killing of George Floyd brought crowds to the streets across the United States, President Trump and Attorney General William Barr urged federal prosecutors to pursue charges against protestors who allegedly damaged property or provoked violence. Many U.S. attorney’s offices obliged: Within weeks, the federal government brought more than 120 different cases against protestors for a range of crimes, as documented by the Prosecution Project. Although this tally includes prosecutions against members of far-right groups, many of these cases concern defendants who were protesting George Floyd’s death and who face charges for relatively minor offenses—such as damaging police vehicles, resisting arrest, carrying a Molotov cocktail and calling for riots on Facebook.
The Department of Justice’s aggressive stance implicates two separate constraints that guide federal prosecutors’ charging decisions: the legal boundaries governing the reach of federal criminal statutes that address civil disturbances and the traditional policies that restrict the Justice Department from stepping into the territory of state and local authorities. By pursuing charges against protestors who allegedly damaged property or committed other nonviolent offenses, the department has broken with its historical stance of leaving low-level crimes to state and local authorities. Moreover, its use of two different criminal statutes raises questions about the limits of its ability to pursue defendants whom it accuses of inciting disturbances and unrest.
The Commerce Clause and Federal Criminal Jurisdiction
The bulk of the federal prosecutions levied against protestors have relied on three different statutes. The first statute is 18 U.S.C. § 922(g), which bans any person convicted of a felony from possessing, shipping or transporting a firearm that in any way traveled through interstate commerce. More than 30 defendants with previous felony convictions have been arrested at protests and charged with possessing firearms. For example, the U.S. Attorney’s Office for the Middle District of Florida charged Ivan Jacob Zecher with violating § 922(g) after police officers at a protest in Jacksonville found a Molotov cocktail made from a tequila bottle in his backpack. Though Zecher is not the only defendant facing a § 922(g) prosecution, most are accused of illegally possessing guns, rather than Molotov cocktails.
The second statute frequently used by the Justice Department against protestors is 18 U.S.C. § 231(a)(3), which prohibits impeding or attempting to impede law enforcement officers performing official duties during a “civil disorder” that disturbs interstate commerce or the performance of any “federally protected function.” The statute’s broad parameters have enabled prosecutors to pursue protestors for a variety of minor crimes, often with an element of property damage. Adrian Wood and Tia Pugh face § 231(a)(3) charges for breaking the windows of police cars during protests—Wood in Delaware and Pugh in Alabama. Yet property damage is not a prerequisite for a § 231(a)(3) case. In Texas, federal prosecutors charged Travis Martin III with violating the statute after he attempted to break through a police line onto a ramp for Interstate 45 and then passively resisted arrest by Houston police officers.
Finally, the Justice Department has charged six different protestors with separately violating 18 U.S.C. § 2101. That law bans using the facilities of interstate commerce or traveling across state lines to organize or incite a riot. Prosecutors have used § 2101 to pursue protestors for allegedly inciting riots via social media, which is an established facility of interstate commerce. In recent weeks, federal prosecutors have separately charged six individuals—Michael Avery, Ca’Quintez Gibson, Carlos Matchett, Jaywuan Peavy, Dominic Brown and Shamar Betts—with inciting riots in violation of § 2101, all based on the men’s respective social media posts. Each defendant is charged with roughly similar conduct—typically for allegedly posting threats toward law enforcement or encouraging riots. For example, Matchett is accused of posting “LET’S START a RIOT [sic]” on Facebook; Betts allegedly shared a poster on Facebook of a burning vehicle with a caption urging his followers to riot at a local mall on a specific day and time; and Gibson allegedly livestreamed for approximately 40 minutes while at a protest, encouraging his followers to riot.
The ability of Congress to criminalize such activity derives from Article I, Section 8, of the Constitution, known as the Commerce Clause, which endows Congress with the power to “regulate commerce … among the several states.” When it comes to criminal law, the Supreme Court has upheld an expansive interpretation of the Commerce Clause that allows Congress to regulate or prohibit all manner of illegal activity that could have wider interstate consequences. In Gonzalez v. Raich, the high court ruled that the Commerce Clause allowed Congress to prohibit the intrastate cultivation and use of marijuana because that activity had a “substantial effect” on the broader narcotics market that Congress was attempting to regulate. Therefore, modern Commerce Clause doctrine dictates that, broadly speaking, the federal government can pursue criminal charges if the conduct in question involved interstate commerce or was intrastate but had a substantial effect on interstate commerce, with “substantial effect” being interpreted very broadly.
The Commerce Clause underpins several of the statutes used to prosecute protestors, even if their conduct at first glance does not seem to involve interstate commercial activity. As discussed above, 18 U.S.C. § 922(g) bans any person convicted of a felony from possessing, shipping or transporting a firearm that in any way traveled through interstate commerce. To prove the interstate commerce element of a § 922(g) charge, prosecutors must demonstrate that the weapon somehow traveled through interstate commerce. Therefore, the complaint against Zecher alleges that the bottle of tequila was manufactured in Mexico, meaning that it traveled through interstate commerce before Zecher acquired it.
By prohibiting any conduct that interferes with law enforcement functions during a civil disorder, § 231(a)(3) rests on an even wider application of Congress’s commerce powers. The department’s use of § 231(a)(3) is notable because prosecutors have used it to creatively pursue conduct that is not the subject of separate federal criminal laws, like vandalizing local police cars in the cases against Wood and Pugh or resisting arrest by local police officers in the case of Martin. Of the numerous protestors around the country who face § 231(a)(3) prosecutions, many of the relevant charging documents cite the broader interstate commerce disruptions of the protests themselves, not the actions of the individual defendants.
Prosecutors have not connected the specific actions of Wood and Pugh to disruptions in interstate commerce; rather, their charges are based on the commercial disruptions caused by the protests in which they participated. In justifying their use of § 231(a)(3) against Pugh, prosecutors argued that the protest in which she participated caused local officials to close several highway exits, forcing several commercial trucks on interstate journeys to make a 20-mile detour. Pugh’s attorney has identified the interstate commerce claim as the weakest element of the case against his client and has alreadychallenged it in court.
The Justice Department has rarely employed § 231(a)(3) since the statute’s enactment in 1968, when conservatives in Congress insisted on including it in the landmark Civil Rights Act of that year as a response to the civil unrest then shaking the country. As such, no court has ruled specifically on the constitutionality of the law’s interstate commerce provision. In light of the expansive holding adopted by the Supreme Court in Raich, however, it is unlikely that Pugh or any other defendant will be able to convince a court that the interstate commerce provision of § 231(a)(3) oversteps Congress’s powers under the Commerce Clause.
As for § 2101, it is the most controversial of the statutes employed by the Justice Department, as its legal framework has garnered criticism for its First Amendment implications since its passage. Also passed as part of the Civil Rights Act of 1968, it is often referred to as the H. Rap Brown Act after one of the leaders of the Student Nonviolent Coordinating Committee, a prominent civil rights group that encouraged civil disobedience as a form of protest. Brown was charged by Maryland authorities with inciting a riot in Cambridge, Maryland, in 1967—spurring conservatives in Congress to insist on an equivalent federal statute in the upcoming civil rights legislation. The statute has a divisive history, as it was the basis for the prosecution against the Chicago Seven, a group of protestors accused of inciting riots during the 1968 Democratic National Convention in Chicago.
The Justice Department has almost never used the statute since the Chicago Seven trial, invoking it only four timesbetween 1970 and 2018. But recently the department has begun to embrace it. Prosecutors have repeatedly charged white supremacist protestors with § 2101 in the past two years. And now, in recent weeks, federal prosecutors have used it repeatedly to pursue defendants who were protesting the death of George Floyd.
Because it broadly prohibits a class of speech without tying that speech to any imminent action, § 2101 has long beencriticized as unconstitutionally infringing defendants’ First Amendment rights. A federal judge agreed with that argument in 2019 and dismissed § 2101 charges against three members of the Rise Above Movement, a white supremacist group that had violently disrupted gatherings and protests in California. Yet a federal judge in Virginia refused to dismiss the indictment against three other Rise Above Movement members whom federal prosecutors accused of violating § 2101 during the violent confrontations in Charlottesville, Virginia, in 2017. Although prosecutors have dropped the § 2101 charge against Avery, the cases against the other five defendants remain active, meaning they will likely challenge the statute’s constitutionality in the coming proceedings.
Federalism and Justice Department Policies
The broad powers granted to Congress by the Commerce Clause and enacted in the federal criminal code stand in sharp contrast with the Justice Department’s traditional reluctance to pursue less severe crimes that are usually the purview of local prosecutors. Unless the crime occurs in an area in which the federal government has primary jurisdiction, like federal parks or certain tribal reservations, the Justice Department has historically been reluctant to pursue relatively minor offenses, instead preferring to leave them for state or local authorities.
The department’s adherence to federalism has led it to focus on bringing cases that implicate a substantial federal interest—such as conspiracies that cross state lines—leaving more common crimes of violence or property damage to state and local authorities. When considering whether a crime implicates a substantial federal interest, Justice Departmentguidelines instruct prosecutors to consider federal law enforcement priorities, with the aim of “focus[ing] federal law enforcement efforts on those matters within the federal jurisdiction that are most deserving of federal attention and are most likely to be handled effectively at the federal level.”
This hands-off policy vis-a-vis crimes typically handled by state and local authorities is reflected in the statistical breakdown of cases brought by federal prosecutors around the country. For example, from 2012 to 2016, federal prosecutors brought an average of 116 cases a year against defendants for nontheft property crimes like arson—roughly 0.002 percent of all federal prosecutions during that time frame. The majority of cases brought in that period indicate established federal law enforcement priorities: drug trafficking, especially across state lines; fraud cases implicating computer or bank systems; and immigration offenses.
In June 2020 alone, the Justice Department brought at least 40 such cases against protestors between arson prosecutions and the § 231(a)(3) charges based on destruction of property. That number is more than a third of its typical annual total. In contrast, the Justice Department pursued its normal level of nontheft property damage cases in 2014, bringing 115 cases that year even after the widespread protests sparked by the killing of Michael Brown in Ferguson, Missouri.
Beyond the department’s traditional hesitation to pursue relatively minor cases, what makes the federal government’s pursuit of protestors even more anomalous is the fact that Attorney General Barr has publicly criticized the expansive enforcement powers granted to the department by Congress under the Commerce Clause. Indeed, Barr argued in a February 2020 speech that the Framers of the Constitution “believed … that matters ought to be handled by the smallest, lowest competent authority that was closest to the people.” He went on to say that the Framers created the Commerce Clause to ensure the regulation of a single national economy, but that the provision has now “ballooned far beyond its original understanding.” Yet despite his professed enthusiasm for federalism, Barr has spurred the Justice Department into charging violent protestors with federal crimes even as local prosecutors have done the same, sometimes concurrent with federal charges.
By pursuing cases against protestors that are typically handled by state and local authorities, the Justice Department has opened itself up to questions and criticism regarding its long-standing policy of federalism. As discussed above, federal prosecutors rarely bring arson charges, so their pursuit of protestors who have allegedly attempted arson resulted in a storm of criticism from certain quarters. The case that has attracted the most attention is that against Colinford Mattis and Urooj Rahman, two lawyers in New York City who allegedly attempted to set fire to an empty NYPD police cruiser with a Molotov cocktail. Federal prosecutors in the Eastern District of New York charged them with arson, use of an explosive device to commit a felony, and other crimes related to that attack. The hardline approach against Mattis and Rahman—who face a maximum of life sentences if convicted—has sparked controversy, with critics accusing the Justice Department of overreach by not following its typical approach of leaving a victim-less property crime to the King’s County district attorney’s office in Brooklyn.
And Mattis and Rahman are not the only protestors facing federal arson charges for attempting to light empty NYPD vehicles on fire. The U.S. Attorney’s Office for the Southern District of New York charged Victor Sanchez-Santa with arson for allegedly lighting a glove on fire and placing it underneath an empty NYPD vehicle in Manhattan.
Another case in which federal prosecutors have been accused of foregoing Justice Department policies is that of Courtland Renford, who faces both federal and state arson charges after allegedly throwing a burning laundry basket into the City Hall in Buffalo, New York. When announcing the case against Renford, James Kennedy Jr., the U.S. attorney for the Western District of New York, cited Barr’s call for a federal crackdown against protestors as justification for the charges. Kennedy’s office has so far ignored legal observers and local government officials who have argued that the federal charges against Renford are unnecessary in light of the simultaneous state prosecution.
Not all of the charges against protestors raise questions of federalism or the limits of federal criminal statutes, however. Some, like those against Zecher and other protestors accused of being felons in possession of a firearm, fall squarely within accepted legal limits and norms. Federal prosecutors bring thousands of felon-in-possession charges each year, and the interstate commerce hook in § 922(g) is well established. But between the Justice Department’s increased usage of the federal arson statute and its creative use of § 231(a)(3) to pursue minor criminal conduct not otherwise federally prohibited, the department has temporarily departed from its stated policy of federalism.
This is especially significant given the ability and willingness of state prosecutors to pursue crimes committed by protestors, meaning that the Justice Department is not stepping in to fill a void created by the absence of local prosecutions. It is too soon to tell whether these charges mark a fundamental change in department policy—but they are certainly a departure from its traditional behavior.
As for the legal constraints that guide the department’s prosecution of participants in protests, the Justice Department’s use of § 231(a)(3) and particularly its embrace of § 2101 call into question the scope of its statutory ability to pursue protestors of any political persuasion. Should courts declare § 2101 to be constitutional, it will be a powerful weapon with which the federal government can pursue protestors, even when the conduct at issue is speech disconnected from any immediate acts of violence.
Correction: A previous version of this article misidentified the institutional affiliation of the Prosecution Project.