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Feds go after protesters with rarely used civil disorder law enacted in 1960s

NBC News logo NBC News 10/30/2020 Erik Ortiz and Steven Vago
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When announcing federal charges against four men accused of torching police cars in Philadelphia during a protest in May, U.S. Attorney William McSwain gave a stark warning: He would use the full force of the federal government against others who cause mayhem.

"If you engage in violent civil unrest and commit a federal crime in this district, we will come after you as hard as we can," McSwain, of the Eastern District of Pennsylvania, said at a news conference Thursday. "You will go to jail."

In addition to the arson charges, federal prosecutors said a grand jury had charged the men with one count each of "obstructing law enforcement in the commission of their duties during a civil disorder."

The statue, which dates back to 1968 and was enacted during a tumultuous period of civil rights and anti-war protests, has rarely been used following the Nixon administration, legal scholars say. But this year, in the aftermath of nationwide unrest set off by the killing of George Floyd, a Black man in Minneapolis who died after being pinned by a police officer's knee, federal prosecutors have leveled the civil discourse-related charge in at least two dozen cases across the country, a review by NBC News has found.

a man wearing a suit and tie: Image: William McSwain (Jacqueline Larma / AP file) © Jacqueline Larma Image: William McSwain (Jacqueline Larma / AP file)

While Philadelphia is now the latest city where the charge has come up, U.S. attorneys have included them in cases in Houston; in Boston; in Chicago; in Delaware; in South Carolina; in Mobile, Alabama; in Rochester, New York; in Erie, Pennsylvania; and in Portland, Oregon, where there has been no fewer than seven cases of protest-related civil disorder charges.

"It was almost never used until this current administration," said Stephen Kanter, an attorney and dean emeritus at Lewis & Clark Law School in Portland.

"It's not normal to have this amount of aggressive, federal law enforcement in situations where the state and local jurisdictions are functioning well and can handle these cases," Kanter said, "and so in some cities, prosecution is being done against the will of even the local prosecutor."

This past summer, the newly elected district attorney in Portland, Mike Schmidt, said he would not prosecute people who have been arrested since late May for minor offenses, including interfering with the police, disorderly conduct and trespassing at protests.

The city became a flash point for daily violence and unrest when residents and local leaders accused federal officers — dispatched under the Trump administration — of acting beyond the scope of protecting federal property while using "police state-like tactics."

Scores of people were arrested on various federal charges by agents guarding the federal courthouse, and the alleged crimes have ranged from arson to setting off explosives.

While it is routine for the federal government to seek prosecution of someone who damages federal property or assaults a federal officer, taking on cases with clear, underlying state or local crimes suggests the feds are overstepping and choosing to apply laws that might incur a heavier penalty, Kanter said.

The civil disorder charge is a felony offense that carries up to five years in prison. What makes it of federal interest is when the protest in some way obstructs, delays or adversely affects commerce between states, like when demonstrators shut down highways and effectively stop trucks from delivering goods.

The civil disorder charges in Philadelphia involve two separate cases. In one case, three men — identified as Khalif Miller, 25, and Anthony Smith, 29, both of Philadelphia, and Carlos Matchett, 30, of Atlantic City, New Jersey — are accused of starting a fire in a Philadelphia police patrol car with a road flare and putting combustible materials in the vehicle, prosecutors said.

The other case involves a man — Ayoub Tabri, 24, of Arlington, Virginia — who on that same day is accused of using a road flare to set a Pennsylvania State Police vehicle on fire.

A six-page indictment against Miller, Smith and Matchett does not detail who specifically set the patrol car on fire or provide evidence that the men knew one another or were part of a larger network.

Supporters of Smith, a Black activist and social studies teacher in West Philadelphia, believe he was specifically targeted by federal prosecutors. He is also a member of the grassroots Philadelphia Coalition for Racial Economic and Legal Justice.

"The charges are ridiculous," said coalition spokesperson Deandra Jefferson, adding that Smith has yet to see his lawyer or obtain a bail hearing.

Another supporter, Jackson Kusiak, of the Human Rights Coalition of Pennsylvania, said the charges are politically motivated by the U.S. attorney.

"I think this is case-in-point where they're taking orders from Attorney General William Barr, they're unsealing indictments within a week of an election, and they're applying a law that hasn't been used since the Nixon administration," Kusiak said.

McSwain, the U.S. attorney in Philadelphia, denied his office charged Smith because he is a prominent activist, telling reporters on Thursday that "we do not investigate people at the U.S. Attorney's Office; we investigate alleged criminal behavior."

McSwain has previously sparred with Philadelphia's district attorney, Larry Krasner, a Democrat, accusing him of supporting anti-law enforcement rhetoric and "making excuses for criminals."

Krasner's office on Friday declined to comment about the civil disorder charge brought by McSwain against protesters, but confirmed that the cases against those individuals had not been referred to the district attorney for review.

When asked about the use of the civil disorder charge, McSwain's office said Friday that it does not comment on charging decisions but "when the facts of a case fit a particular statute, we use it."

The Justice Department did not immediately respond to a request for comment about the apparent rise in civil disorder charges against demonstrators and whether it's part of a larger directive by Barr and the Trump administration to federal prosecutors to aggressively pursue charges for violent actions, which The Associated Press previously reported.

President Donald Trump has painted certain protesters in major cities as being affiliated with left-wing extremist groups and attempting to sow anarchy — tied to his broader effort to use "law and order" as a major message of his re-election campaign.

An AP report this month found that very few of those arrested during racial injustice protests this year were linked to anti-fascist extremist organizations, and many were young, from the suburbs and had no previous run-ins with police, according to court documents.

In Mobile, Alabama, protester Tia Pugh, 21, became the focus of a federal investigation after authorities say she used a bat to smash the window of a Mobile Police Department cruiser while an officer was in it as demonstrators took to the streets on May 31.

a lot of smoke on the side of a road: Image: Philadelphians Kneel In Protest To Systemic Police Violence (Cory Clark / NurPhoto via Getty Images) © Cory Clark Image: Philadelphians Kneel In Protest To Systemic Police Violence (Cory Clark / NurPhoto via Getty Images)

Initially, Mobile police arrested Pugh and charged her with inciting a riot and criminal mischief, which are both misdemeanors in Alabama. But a week later, the U.S. Attorney's Office in the Southern District of Alabama announced it was going further, charging her with civil disorder.

A trial is set for December, a spokesman for the U.S. attorney said, referring questions about the case to the criminal affidavit. The affidavit argues that although protesters were unsuccessful in getting onto Interstate 10, which provides access to downtown Mobile, "this civil disorder still affected interstate commerce."

Pugh's attorney, George Armstrong, said he's never had to deal with a civil disorder charge and believes federal prosecutors should have left the case to the local municipal court.

"I've been practicing in defense in the federal court system since 1990, and this is the first time I'm aware this has ever been charged or brought in this district," Armstrong said.

Pugh has no criminal record, he added, and on the day of the protest, two weeks after Floyd's death, "emotions and passions were still high. She was a young, African American woman reacting to that moment."

Kanter, the law professor, said people engaged in illegal activity must be held accountable. But "it's a dangerous road to go down," he added, if the government chooses to misuse the law.

"It's one thing if state and local officials are asking for the federal government to prosecute," Kanter said, "but the mere fact you did something criminal doesn't mean you somehow violated federal interests."

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