For decades, criminal justice experts have debated the wisdom of “broken windows” policing — but no one ever proposed bringing in the FBI to do it.
As part of a Justice Department-led drive to crack down on violence growing out of protests spurred by George Floyd’s killing at the hands of Minneapolis police, the federal government is prosecuting more than 70 people for alleged behavior that runs the gamut from mere vandalism, to inciting looting through Facebook Live posts, to arson, and, in one case, murder.
While some of the cases are unquestionably grave, others seem less so, and have raised questions about whether the federal government is stretching its authority to satisfy President Donald Trump’s desire to see a forceful federal intervention in the protests.
Two cases, for instance, involve individuals facing federal felony charges for breaking police car windows, relying on federal statutes not often applied in such instances. In another case, federal authorities charged a man with possession of a Molotov cocktail, arguing that because he had used an imported bottle of Patron Citronge Pineapple Tequila to make the incendiary device, the case fell under the federal government’s regulation of foreign commerce.
Critics say the use of federal courts, prosecutors and the FBI to target crimes stemming from the recent protests is largely unnecessary and is at odds with the Constitution’s limited role for the federal government and federal law enforcement.
“I think most of these crimes, even these sorts of local crimes, even local riots, the Constitution leaves to state jurisdiction,” said Ilya Somin, a professor at George Mason University’s Scalia Law School. “State and local authorities are in a better position to handle this and they appear to be handling it. The violence and looting has in fact been stopped almost everywhere almost entirely through the applications of state and local authorities.”
Since the first days of the recent protests, Trump has repeatedly taken to Twitter to call for “LAW & ORDER,”pushed governors to be more forceful against any unrest and even urged use of deadly force against looters. He also has explicitly endorsed aggressive use of federal statutes.
“Crossing State lines to incite violence is a FEDERAL CRIME!” Trump tweeted late last month. “Liberal Governors and Mayors must get MUCH tougher or the Federal Government will step in and do what has to be done, and that includes using the unlimited power of our Military.”
Somin said he believes federal officials, including Attorney General William Barr, are responding to the political imperative Trump sees to use federal power to quell any disturbances.
“Trump and Barr want to trumpet themselves as law and order people,” he said. “Bringing some people up on federal charges can help with that even if, as in this case, there are people in the state that are capable of prosecuting.”
While prosecutors describe the defendants’ activities ominously, there are early signs that some judges do not see them all that way. In some instances, judges have freed the defendants to await trial at home, over the objections of Justice Department attorneys.
One prominent example of a controversial federal case spurred from an incident on May 31, when protesters rallying against police brutality took to the streets of Mobile, Ala., holding a series of vigils and marches. Most were peaceful, but in the late afternoon a crowd of hundreds of people attempted to march up a ramp onto an interstate highway. Police blocked the onramp and a tense standoff followed.
At some point, police used tear gas to disperse the crowd. In the ensuing chaos, a woman with a red bandana around her neck used a bat to break a window of a parked, empty police cruiser and ran off, according to video from a local TV station, WKRG.
The woman, Tia Pugh, 21, was later arrested by Mobile police and charged with inciting a riot and criminal mischief, both misdemeanors under Alabama law. After Pugh was released on bail, the FBI and federal prosecutors stepped in, charging her with an obscure federal felony offense: interfering with a police officer in the course of “civil disorder.”
The crime was one of several anti-riot provisions included in the Civil Rights Act of 1968, passed in the wake of civil unrest in cities across the U.S. in the mid-1960s.
“I consider it a very weak case,” Pugh’s court-appointed lawyer, Gordon Armstrong, said in an interview. “This is just a 21-year-old, impressionable, proud, young woman with no criminal record who’s never been arrested. She did something dumb. Does she need to have a federal felony follow her around for the rest of her life?”
After Pugh’s arrest on the state charges, she spoke briefly to reporters as she was walked in handcuffs past cameras to a waiting police car.
“Genocide is happening. We’re being murdered in the streets for no absolutely no reason and unarmed. We’re being disarmed when we arm ourselves,” Pugh said.
“Why do you think that helps your cause, by breaking a window?” a reporter asked.
“This is not the point,” Pugh replied, arguing the focus on the window was “a distraction.”
The Justice Department is also invoking the same rarely-used “civil disorder” statute to prosecute a Washington state man, Aaron Wood, 21, for breaking a police car window during a roving protest in Wilmington, Del., on May 30.
The federal complaint says Wood threw a brick through the back window of an occupied Wilmington police cruiser during an evening of protests and violence that included the looting of a number of stores in the city’s downtown area.
Wood was initially arrested by Wilmington police, released due to a computer failure and then rearrested on state charges, the affidavit says.
“Peaceful protest does not extend to the lawless destruction of private or public property,” U.S. Attorney David Weiss said in a press release. “Thankfully, the defendant’s violent actions did not result in physical harm to the [Wilmington Police Department] officer driving the police car attacked by the defendant. I commend WPD’s collaboration with the FBI and their efforts to quickly identify and bring the defendant to justice.”
Asked about criticism that federal prosecutors are overreaching in some cases, the Justice Department defended its decisions.
“U.S. attorneys are vested with the clear discretion and authority to bring federal charges where they are warranted by facts and the law,” a DOJ spokesman said. “They are also the chief law enforcement officers in their districts and have worked together with federal, state and local law enforcement to hold those accountable who have exploited a legitimate protest movement to seed chaos and commit crimes.”
Weiss, the U.S. Attorney in Delaware, said in a statement to POLITICO: “My office will continue, as it always has, to carefully consider and exercise its discretion and authority to prosecute violations of federal law in support of public safety.”
A spokesperson for the U.S. Attorney in Mobile, Richard Moore, declined to comment.
Justice Department guidelines detail a series of factors for federal prosecutors to consider when deciding whether to bring charges in a case that can be or is being prosecuted by local authorities.
“When it appears that the federal interest in prosecution is less substantial than the interest of local, state, or foreign authorities, consideration should be given to referring the case to those authorities rather than commencing or recommending a federal prosecution,” the DOJ policy says.
Like many other federal laws, the “civil disorder” statute uses a connection to interstate commerce as a hook for federal jurisdiction. Under the Constitution’s Commerce Clause, the federal government has authority to regulate activities that impact either foreign or interstate commerce.
Prosecutors allege the Alabama and Delaware protests impeded interstate commerce in the form of traffic on interstate highways and that the Wilmington unrest also did so through damage to businesses in that city.
However, Pugh’s attorney Armstrong says that connection is shaky in her case. Protesters never made it onto the highway. Prosecutors say commerce was impacted because drivers of trucks bearing hazardous materials were told to divert in case the protesters made it onto the interstate.
At a court hearing last week, Armstrong questioned an FBI agent about whether any trucks actually diverted during the demonstration. The agent had a letter from an Alabama highway official confirming the directive to divert, but no proof anyone was impacted.
“I spent quite a bit of time on: Is there evidence any truck was diverted? The answer to that is, ‘No,’” he said. “If they can’t show commerce was in any way affected, then it’s no longer a federal matter. That’s the real issue in the case, not whether she broke a window.”
At the hearing, U.S. Magistrate Judge Bradley Murray said there was enough evidence to let the case against Pugh proceed, but he said prosecutors would need more to press forward with the case, according to Armstrong. The judge also ordered Pugh’s release over the objections of prosecutors.
Unlike the demonstrators in Mobile, some of the protesters in Wilmington actually made it onto the interstate, blocking I-95 for about an hour. However, the shattering of the police cruiser window that led to the federal case against Wood took place roughly an hour after the demonstrators left the highway.
Among the prominent lawyers and policymakers who have warned about the federal government using the Commerce Clause to claim expansive power is Barr.
“The framers believed in the principle of subsidiarity — that is, that matters ought to be handled by the smallest, lowest competent authority that was closest to the people,” Barr said in February at a conference for religious broadcasters. “The framers conceived that the vast majority of collective decision-making by the people about their affairs would be done at the state and local level.”
Barr directly criticized the federal government’s reliance on the Commerce Clause, saying it has “ballooned far beyond its original understanding.”
Despite the warnings from Barr and some legal academics, the Supreme Court has endorsed the federal government’s power to intervene in situations with marginal impact on interstate commerce, although it has occasionally ruled that measures go too far.
Other recent cases have taken a different tack as establishing federal jurisdiction: arguing that defendants used the internet to foment illegal activity.
Prosecutors grabbed headlines earlier this month when they arrested Ca’Quintez Gibson, 26, on a charge of using the internet to incite a riot. Gibson was accused of making a series of Facebook Live posts encouraging looting at a large, indoor shopping mall in Peoria, Ill., as well as at a strip mall and other locations.
“It’s going up tonight. Long as you all at Northwoods Mall. It’s going up. Period. ’cause I know it’s more than just me gonna step. Period,” Gibson said in one video. “We ain’t with that peaceful s—.”
Following Gibson’s arrest, U.S. Attorney for Central Illinois John Milhiser, said it was important to put people like Gibson behind bars.
“We will use all available resources to identify bad actors and get them off the streets to keep our communities safe,” Milhiser said.
However, just five days later, a magistrate judge ordered Gibson released on a fairly lax form of home detention, with permission to work, attend church and other activities. He was ordered to stay off the internet and keep away from any devices with access to the web.
Federal charges can also bring harsher potential sentences.
The rarely invoked charge of using “a facility of interstate … commerce” to incite a riot carries a maximum penalty of up to five years in prison and fine of as much as $250,000. Most federal defendants get shorter sentences under federal sentencing guidelines.
And a man charged this week with throwing a burning glove under a New York Police Department cruiser, Victor Sanchez-Santa, is facing a five-year mandatory minimum and a total of as much as 20 years in prison if convicted on a federal arson charge. Prosecutors say the matter can be prosecuted in federal court because the NYPD receives federal funds. Others, including two Brooklyn lawyers, face 50-year mandatory minimums if convicted on a slew of federal charges stemming from arson attacks on NYPD cars during recent unrest.
The U.S. Attorney in Manhattan, Geoffrey Berman, said in a statement Thursday that arson deserves serious prosecution because it involves serious danger.
“Arson is … a threat to more than its immediate victim, with the potential to destroy and terrify far beyond the place where a fire is set,” Berman said.
Leah Nylen and Betsy Woodruff Swan contributed to this report.