Over the past year, the federal government has been leaning on a Civil Rights-era law to charge people involved in violent protests at Black Lives Matter rallies and then at the U.S. Capitol this past month.
But defense attorneys for those charged for their involvement in the racial justice protests now say the law is unconstitutional and rooted in racism. And their arguments are strong enough to complicate — at least momentarily — those prosecutions and potentially the ones related to the Capitol riots.
The pushback has created the oddest of dynamics: violent MAGA agitators potentially benefiting from efforts to expunge the legal system of racist statutes.
The law in question was enacted in 1968. It prohibited interference with police or firefighters during group violence, amid devastating riots in Washington D.C. and across the country that followed the assassination of Rev. Martin Luther King Jr. in April of that year.
Southern senators hastily passed the measure as a way to counter civil rights laws by getting tough on African Americans accused of attacking law enforcement.
Now, attorneys are pointing to that history to question its current application. A series of motions attacking the law have been filed in recent weeks in at least five different criminal cases, which have garnered the attention of top officials at the Justice Department in Washington.
The motions note that the ‘68 law was championed by Sen. Russell Long (D-La.) and that he formally titled it “the Civil Obedience Act,” in a snarky swipe at civil disobedience advocates like King.
The powerful and avowedly segregationist senator said missives like King’s famous letter from a Birmingham jail caused “the ultimate in lawlessness, wanton killing, and senseless, destructive rioting.”
“Because Senator Long believed that criticism of white supremacy and demands for racial justice were bound to cause riots, he proposed the Civil Obedience Act as a tool to suppress such expression,” the newly filed motions argue. “The legislative history … shows that it was enacted to suppress messages in support of civil rights and racial justice for Black Americans.”
The brief quotes Long, the law’s chief proponent, as saying a 1964 floor debate: “Would it not be fair to ask what kind of fix the colored folks would be in if they had not been brought to this country, but had been allowed to roam the jungles, with tigers chasing them … compared with the fine conditions they enjoy in America?”
Gordon Armstrong, a defense attorney who has joined in the challenges to the law, said it was “shocking and shameful to read the debate on the Senate floor” that led to the passage of measure now being used.
Last week, federal prosecutors told a judge that they need more time to formulate a consistent response.
One of the filings led a judge in Mobile, Ala. to postpone the trial of Armstrong’s client, Tia Pugh. She was set to go before a jury later this month on the federal civil disorder charge for allegedly breaking a police car window during a racial justice protest there in May.
“Pugh’s motion to dismiss appears to be part of a coordinated, nationwide effort by defense counsel representing defendants charged” under the civil disorder statute, Assistant U.S. Attorney Christopher Bodnar wrote.
“In recent days, nearly identical motions to dismiss have been filed in multiple districts across several circuits. … This afternoon, it was decided that a coordinated response from the United States was necessary, and that such response would have to be vetted and approved by Main Justice,” Bodnar wrote, asking for 45 days to reply.
So far, more than 30 defendants arrested for their alleged roles in the Capitol riot are facing charges under the same civil disorder statute — which carries a maximum sentence of five years in prison — although their cases have not yet progressed to the point where dismissal motions are filed.
It’s unclear whether the use of that same law to charge the Capitol rioters would be jeopardized by rulings in favor of the defendants charged in last year’s unrest.
All those charged with civil disorder in the Capitol riot also face other, less-serious charges prosecutors could fall back on, such as misdemeanors involving disorderly conduct or entering restricted grounds. Some also face more serious felony charges, such assaulting police officers.
One difference is that the charges in the Capitol riot invoke different language in the civil disorder statute: a provision prohibiting interference with “a federally-protected function.” The charges filed in the cases linked to racial justice protests focus on civil unrest that interferes with goods moving in commerce. Both options are offered to prosecutors in the same subsection of the law.
While the historical roots of the statute remain the same, the Capitol riot cases may not suffer from the main legal infirmity defense lawyers are complaining about in the Floyd-related cases. After a lengthy discussion of the roots of the legislation, the latter’s motions zero in on a more technical argument suggesting the link between the actions prohibited under the statute and interstate commerce is too tenuous to justify federal legislation.
Lawyers for the racial justice protesters contend that the statute “unconstitutionally exceeds Congress’s authority and intrudes into the States’ primary role in general law enforcement because it broadly applies to purely local conduct and requires only an attenuated connection to interstate commerce.” The motions compare the anti-riot law to gun-free schools legislation that the Supreme Court struck down in 1995, holding that the statute overstepped federal authority.
Getting the statute struck down based on Long’s statements and views could be challenging.
Courts are typically loath to declare a law unconstitutional on that basis, in part because it’s difficult to ascribe collective motivation to all the legislators involved. But the defense motions draw a direct parallel between the civil rights protests of the 1960 and the more recent Black Lives Matter demonstrations, arguing that the history of the statute highlights persistent threats to the First Amendment that continue in the current era.
Ilya Somin, a George Washington University law professor who criticized the Trump administration for filing too many federal cases related to last year’s protests, said the new motions face long odds in court.
“At the very least, these arguments will be an uphill struggle,” Somin said. “I think a lot of judges might be wary of digging into what really was the history behind this law.”
Some defendants arrested amid last year’s unrest have already pleaded guilty under the civil disorder law. It was also used in 2017 to charge protesters who tried to block construction of the Dakota Access pipeline.
One federal appeals court, the Eighth Circuit, upheld use of the law a half century ago. The case involved defendants who allegedly peppered police and firefighters with cherry bombs as they attempted to put out a fire at an ROTC building at a Missouri university in 1970.
Even if the new legal challenges fizzle, defense attorneys for those arrested in connection with racial justice protests hope raising the racist history of the civil disorder law will encourage new Biden appointees to take a second look at the hundreds of criminal cases federal prosecutors filed last summer and fall.
“I hope that that happens,” said Armstrong. “You’ve got to take into account that you have a new administration here and you’ll have a new attorney general who I hope would take a fresh look at all these cases making use of federal statutes to prosecute local crimes ... Two seconds of time in this girl’s life has been turned into a federal offense.”
But the Justice Department’s use of the civil disorder charge in dozens of Capitol riot cases is certain to complicate those considerations.
“I do think this has changed the atmosphere at least somewhat,” said Somin. “Maybe the Biden appointees will be a bit more sympathetic than the Trump appointees. Maybe not.”
A Justice Department spokesperson had no comment on the 45 days prosecutors asked for to sort out their position on the defense motions, but said the agency intends to press on with the rioting prosecutions it filed last year, even under the new administration.
"I can assure you that our commitment to prosecuting these cases is as strong today as it was before January 20th," the spokesperson, Marc Raimondi, said.
Armstrong said he thinks the racial protest cases are weaker than those related to the mob that stormed the Capitol, but said he still favors wiping the Civil Obedience Act from the books.
“If it is wrong in one case, it is wrong in 30 cases,” Armstrong said. “If they’ve got to back up and dismiss and find a new charge, so be it. If someone is invading the Capitol, you’d think there’d be some statute they could use other than this one.”
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