On the morning of January 20th, the day Donald Trump was inaugurated, in
Washington, D.C., a large group of anti-Trump protesters, dressed in
black, roamed through the city for close to an hour. Some chanted, some
dragged newspaper boxes into the street, and some smashed the windows of
various stores. In response, the police arrested more than two hundred
people, setting in motion a complex legal saga that, months later, is
far from over.
On Wednesday, the American Civil Liberties Union of the District of
Columbia filed a federal lawsuit accusing the police of violating the
rights of several people by using pepper spray and explosive devices
without warning or justification; by making a mass arrest without
differentiating between those who had broken laws and those who hadn’t;
and by holding detainees for hours without food, water, or access to
toilets, and subjecting some to “humiliating and unjustified” invasive
searches.
The four plaintiffs in the A.C.L.U.’s lawsuit include Shay Horse, a
twenty-three-year-old whose Twitter account identifies him as a
photojournalist and “scrumptious/rambunctious anarchist.” According to
the lawsuit, Horse broke no laws on the day of the protest but was
doused with pepper spray, trapped between police lines for several
hours, and then arrested and subjected to a rectal probe. In February,
prosecutors dropped all charges against him. The other plaintiffs are
Milo Gonzalez, a protester who, the lawsuit says, was also subjected to
a rectal search after his arrest and was denied access to a bathroom for
nine or ten hours; Elizabeth Lagesse, who, according to the suit, did
not break any laws before being arrested but was handcuffed so tightly
her wrists bled; and a lawyer named Judah Ariel, who said that he was
among a group of people on a sidewalk who were pepper-sprayed without
cause but not taken into custody.
The protest—which used tactics long associated with anarchists and
anticapitalists, including dressing in black to create a sense of
solidarity and to make it difficult to distinguish individuals—was the
most confrontational to take place in Washington in more than a decade,
and it provoked an unusual response from local prosecutors: they
obtained indictments charging more than two hundred people with
conspiracy and with instances of property damage that appear to have
been carried out by only a few individuals.
The morning protest was broken up following a mass arrest that police
conducted around 11 A.M. on L Street, but others continued for hours
afterward, causing a significant disruption in the city. According to
the authorities, protesters damaged more than a hundred thousand
dollars’ worth of property in the course of the day. On K Street, some
protesters threw rocks and set a limousine on fire. Police officers,
wearing helmets and carrying plastic shields, tried to quell that crowd,
and officials have said that several officers were injured in the clash,
including one who was briefly knocked unconscious.
Dustin Sternbeck, a spokesman for the D.C. Metropolitan Police
Department, said that the police do not believe that the protesters
participated in “a First Amendment assembly.” Instead, he said, they had
acted in “a concerted effort” to destroy property, using crowbars,
hammers, and collapsible metal batons. “We stand by our assertion that
officers acted responsibly and professionally during the riot and
believe our officers made reasonable decisions during extremely volatile
circumstances,” Sternbeck wrote recently, in an e-mail. In response to
the A.C.L.U. lawsuit, he added, “All instances of use of force by
officers and allegations of misconduct will be fully investigated.”
While it seemed clear on the day of the protest that the vandalism and
property damage were committed by a small number of people, a
superseding indictment handed down in late April charged two hundred and
twelve people with rioting, inciting a riot, and engaging in a conspiracy
to “damage, destroy, or deface property.” Because participants in a
conspiracy can be held responsible for an offense committed by a
co-conspirator, the defendants were all charged with breaking the
windows of a Bank of America branch, a McDonald’s restaurant, a café, and
two separate Starbucks stores. All of them faced the possibility of
lengthy prison sentences.
According to defense lawyers, there appears to be no modern-day
precedent for charging everyone arrested during a particular protest
with conspiracy, and, in May, thirty of the accused filed a motion
saying that those charges lacked merit and asking that the superseding
indictment be dismissed. Lawyers from the Georgetown Criminal Justice
Clinic, white-shoe firms like Arnold & Porter Kaye Scholer, and D.C.’s
Public Defender Service joined in the motion, which argued that the
indictment had attributed crimes “collectively and indiscriminately” to
defendants without offering evidence of individual culpability.
Some of the defendants have said that they believe they are being
targeted for their perceived political identity. Calls for an
“anti-capitalist anti-fascist bloc” on Inauguration Day had begun
circulating soon after the election in November. Social-media messages
included a photograph of a group of black-clad figures brandishing
flags and what appear to be flares along with the hashtag #disruptJ20 and the words “wear
black.” A communiqué on the Web site CrimethInc read, “If Trump is to be
inaugurated at all, let it happen behind closed doors, showing the true
face of the security state Trump will preside over. It must be made
clear to the whole world that the vast majority of people in the United
States do not support his presidency or consent to his rule. . . . We
must take to the streets and protest, blockade, disrupt, intervene, sit
in, walk out, rise up, and make more noise and good trouble than the
establishment can bear.”
The authorities seemed aware of the political leanings associated with
the protest. Charging documents said that police officers had been
“monitoring a planned assembly of individuals that were known to be
associated with an anarchist group” and that intelligence-division
officers knew that they would be gathering “with the express intent to
disrupt Inauguration-related activities.”
Prosecutors in D.C. now face a potentially daunting number of cases, and
whether they will be able to come up with individual evidence for each
defendant’s case remains to be seen. So far, according to court
documents, they have looked at photographs taken by police officers,
reviewed video footage, and obtained a judge’s permission to search more
than a hundred cell phones seized from those who were arrested. In March,
they obtained a warrant to search the home of a man described as a
protest organizer and to take computers, cell phones, tablets, and any
material documenting the planning of a “riot or ‘Black Bloc’ march” or
the planned destruction of property.
The A.C.L.U. suit doesn’t address decisions made by prosecutors in the
past few months but it does call into question the police tactics that
preceded the Inauguration Day arrests. Scott Michelman, the senior staff
attorney for the A.C.L.U. who is handling the case, told me that he and
his colleagues had been troubled by the events of January 20th, saying
that officers had “forced a bunch of people into a mass detention
whether or not they had any involvement in unlawful activities.” The
suit, he said, was meant, in part, to send a message to the city that it
should avoid “guilt by association policing,” which could threaten First
Amendment rights, particularly during events of national political
significance, when protests are bound to take place.
“When this sort of thing happens on Inauguration Day, it raises a
special level of concern,” Michelman said. “People in the future will
start thinking, Well do I want to go to this demonstration, or is there a
chance somebody’s going to break a window and I’m going to end up
getting charged with multiple felonies that could put me away for more
than ten years?”