Federal prosecutors have lashed back, arguing in their own court submission that the statute is valid regardless of the motivation of its primary author.
“Constitutional statutory analysis begins with the statute’s plain language, not its provenance,” the brief prosecutors filed Friday in U.S. District Court in Portland, Ore., says. Spokespeople for the Justice Department could not say on Monday whether senior officials in Washington had approved the arguments submitted in Oregon late last week.
In their defense of the civil disorder law, the Oregon-based prosecutor wasted little time invoking the Jan. 6 riot thousands of miles away, mentioning in the second paragraph of the new filing that the law is being used to prosecute suspects in “the January attack on the U.S. Capitol.”
More than 60 of those charged with involvement in the storming of the Capitol face the civil disorder charge, a felony that carries a possible sentence of up to five years in prison.
The government’s detailed new defense of the law came in the case against Kevin Phomma, an Oregon man charged with assaulting police officers last August during a protest outside a Portland Immigration and Customs Enforcement building.
The allegations against Phomma closely resemble those against several participants in the Capitol riot — an uncanny similarity that might underscore why prosecutors are reluctant to give up on his case.
Phomma is accused of deploying bear spray at police — the same kind of act alleged in some high-profile cases stemming from the Capitol riot, including charges unveiled Monday against suspects accused of assaulting a Capitol Police officer who later died, Brian Sicknick.
In addition to the bear spray, prosecutors say Phomma also had a three-inch dagger in a sheath on his waist during the confrontation last August.
Defense attorneys, led by the federal public defenders’ office in Portland, have noted that the 1968 civil disorder law was dubbed the “Civil Obedience Act” by its main proponent, avowed segregationist Sen. Russell Long of Louisiana. The title appears to have been a deliberate swipe at civil rights leaders urging civil disobedience, such as Rev. Martin Luther King, Jr.
“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,” defense motions filed in several cases earlier this year argued.
The prosecution brief dismisses Long’s racial comments as “stray remarks from a Louisiana senator who sponsored the Civil Disorder bill.”
The Justice Department’s new brief also makes some inflammatory suggestions about last year’s racial justice protests, including an assertion that demonstrations across the country involved “people receiving payment to participate in protests.” The filing cites a police chiefs group’s report that 29 percent of major city law enforcement agencies reported paid protesters. The claim appears to go beyond the widely reported solicitation of bail funds for people arrested during those demonstrations.
In their initial responses to motions filed in various cases across the country challenging the law, prosecutors said that the Justice Department needed to vet and approve a coordinated response. The request led to the postponement of at least one scheduled trial last month, for a woman in Alabama accused of breaking a police car window during a racial justice protest.
It’s unclear whether Friday’s filing, submitted by lawyers from the office of the acting U.S. Attorney in Portland, Scott Asphaug, received such approval. Justice Department spokespeople did not respond to several requests Monday for comments on the brief.
Legal experts said the defense motions face long odds, but might be successful at prompting a Justice Department led by Biden appointees to take a closer look at the slew of criminal cases filed by federal prosecutors last year stemming from protest-related activity.
About 40 of those defendants face, or faced, charges under the disputed statute.
The stiff federal charges came after then-President Donald Trump and then-Attorney General Bill Barr pressed for tough action against antifa, a loose collection of self-styled “anti-fascist” groups and individuals, and others committing violence in connection with the widespread demonstrations, which erupted after the death of George Floyd in the custody of Minneapolis police.
A Justice spokesperson said Monday he was unaware of any review of those cases at DOJ headquarters, but even as prosecutors in Portland defend the civil disorder statute and their case against Phomma, they have been quietly dismissing numerous federal charges related to the protests there last year.
Earlier this month, prosecutors dropped their case against Jesse Bates, a Seattle man accused of shooting firefighters with a ball-bearing wrist slingshot during a protest in Portland last July that occurred as a building burned nearby. The case against Bates was the first one where defense lawyers filed their motion challenging the civil disorder law.
The dismissal motion made no mention of the dispute about the underlying law. However, prosecutors said they were dropping the case with prejudice, which means it could not be refiled.
Another civil disorder case in Portland was dropped last November, days after the presidential election. Prosecutors said a local court was addressing the matter.
Despite the Trump administration’s vow that serious prison time was awaiting violent protesters, the U.S. attorney’s office in Portland has quietly dropped more than 30 of 90 cases it brought on various charges related to the racial justice protests and more generalized unrest in the city last year, KGW-TV reported earlier this month.
While the historical roots of the 1968 statute are clearly rooted in backlash to the civil rights movement, the Capitol riot cases might not suffer from the main legal infirmity defense lawyers are complaining about in the cases stemming from last year’s protests.
That’s because the Capitol cases rely on language in the statute aimed at preventing interference with “any federally protected function,” but the cases from last year’s unrest establish federal jurisdiction by claiming the crimes took place during protests that interfered with interstate commerce.
Much of both the prosecution brief and the defense challenge focuses on economic issues related to whether the civil disorder law violates the Constitution by exceeding federal power.
While defense lawyers argue that Congress could only regulate activities that have a “substantial” impact on interstate commerce, prosecutors say a minimal impact on commerce from the civil unrest is sufficient to employ the law and the individual defendant’s actions don’t have to have had any direct impact on commerce.
Prosecutors left themselves an out that minimizes the impact of the motions on the Capitol cases: The Justice Department said that even if a court ruled the protest Phomma was involved in had too little connection to commerce to involve the federal courts, he could be re-indicted based on the protest’s impact on operations in a federal building. That’s the clause in the law that prosecutors in Washington have seized on to use the statute against those who stormed the Capitol in January.
Prosecutors stressed that none of those charged with violating the civil disorder law were merely exercising their First Amendment rights and they rejected as “remote at best” defense arguments that the law could be read to cover activities such as yelling at police during a disturbance.
“No one involved in the Portland riots was arrested and charged with violating [the civil disorder law] for participating in a peaceful protest, even if that protest blocked traffic or impeded commerce,” prosecutors wrote. “No one was charged under [the law] for shouting or chanting ‘All Cops Are Bastards.’ Instead, the arrests were all aimed at those individuals who proactively assaulted police officers or fire fighters after a civil disorder had been declared and at a time when the civil servants were actively attempting to maintain peace and order.”
One of the first of last year’s wave of civil disorder cases to reach sentencing was that of Abdimanan Habib, a Fargo, N.D., resident who admitted to throwing rocks at police and attempting to ignite an alcohol-filled bottle during unrest that followed racial justice protests in that city last May.
Habib was arrested last October and pleaded guilty in January. When Habib came up for sentencing in February, the judge released him with a sentence of time served.
The U.S. attorney in North Dakota at the time, Drew Wrigley, issued a press release touting Habib’s four-month sentence. The statement did not mention that it amounted to the time Habib had already spent in jail. The following day, Wrigley announced his resignation as part of the wave of such departures requested by the Biden administration.