The trial concluded in mid-December for six of the more than 200 people arrested for their alleged roles in Inauguration Day protests in Washington, D.C., on January 20th, 2017—collectively known as the "J20 defendants." The not guilty verdict returned by the jury cleared protesters of seven charges and up to 50 years in prison. In response, the United States Attorney's office announced that it was dropping cases against another 129 demonstrators.
While these developments bode well for the First Amendment rights of activists across the country, 59 defendants still remain—the first seven of whom will go to trial in March. Should prosecutors be able to convict these protesters, movements for social justice in the U.S. could be facing a new wave of repression, one predicated on guilt by association.
INSIDE THE J20 PROSECUTION: How the Feds are criminalizing dissent.
The lynchpin of the prosecution's case against the J20 defendants is the charge of conspiracy to riot. Initially delivered as a felony, and later reduced by the presiding Judge Lynn Leibovitz to a misdemeanor, as no such felony exists in the Washington, D.C., penal code, the conspiracy charge allows the state's lawyers to assert guilt by association, rather than by individual unlawful conduct.
During the trial, prosecutors attempted to establish a conspiracy by pointing to the routine behavior that activists were involved in for the hour between the rally's start and their "kettling," or surrounding by police officers. Protesters' calls to "stay together" were allegedly evidence of collusion, their possession of first aid kits proof of premeditated violence, and their similarly colored clothes considered uniforms. In the most extreme instance, the mere presence of demonstrators was claimed to prove proof of their support for rioting.
While such criminalization of routine protest behavior could give the state new precedent by which to prosecute activists in the future, the danger does not end there. Successfully convicting demonstrators of conspiring to riot could open them up to other charges as well. J20 defendants, for example, also face five counts of felony property destruction for which the prosecution has no individualized evidence. (As the lead prosecutor in the case, Assistant U.S. Attorney Jennifer Kerkhoff, admitted during the previous trial, "We don't believe any of the defendants personally engaged in property destruction.") A conspiracy to riot conviction could therefore also implicate defendants in all of the consequences of said riot.
The laws being used to prosecute the J20 defendants have been contentious since their introduction 50 years ago. The D.C. statute regarding rioting—or the D.C. Riot Act, as it's colloquially known—was enacted during the late 1960s in response to the civil rights movement. The statute criminalizes "tumultuous and violent conduct" by five or more people that "creates grave danger of damage or injury to property or persons." But, as Gabe Rottman points out in the Washington Post, the act is silent on what constitutes such conduct or danger. Furthermore, the statute does not require prosecutors to establish intent—a necessity under common law. Prosecutorial discretion therefore allows the state to cast as wide a net as it would like in charging the participants of a demonstration where any property destruction occurs, regardless of whether they had a hand in the damage or even wanted it to happen.
Other recent mass mobilizations illustrate the danger of treating routine protest behavior as conspiracy and mere presence as participation in a riot. From July of 2016 to January of 2017, five Black Lives Matters demonstrations in New York, Maine, Minnesota, Louisiana, and Virginia involved thousands of participants, but resulted in only 242 arrests—mostly misdemeanors, which were subsequently dropped.
Similarly, the National Lawyers Guild reports that, of the 750 arrests made at Standing Rock, there were only 40 felony indictments—despite the protest camp being home to thousands for nearly a year. In other words, prosecutors have leveled more charges against J20 defendants for a single hour of action than have been brought against other mass mobilized social justice demonstrations over a period of months. Should the legal efforts against the J20 defendants succeed, the next Black Lives Matter rally or Standing Rock demonstration could result in hundreds, if not thousands, of convictions.
The next seven J20 defendants will go to trial on March 5th. Like the cohort before them, they are facing seven charges—misdemeanor conspiracy to riot, misdemeanor rioting, and five counts of felony property destruction—and up to 50 years in prison. Should they be less lucky than their comrades, their misfortune could also be the misery of activists across the country for years to come.