On November 20, 2017, trial began in Washington DC superior court for six defendants arrested during the protests that took place on Inauguration Day. More than 200 people were arrested that day after a small number of protesters clashed with police, smashed windows, and committed other acts of property destruction. Six police were injured, and an estimated $100,000.00 in damage resulted from the violence.
The six now on trial are the first of over 200 arrested on Inauguration day who have all been charged with felonies. Those charges include conspiracy to riot, engaging in a riot, inciting a riot, and multiple property damage charges, and come with a maximum ten-year prison sentence for each count. Some have already pleaded guilty to lesser charges and some have had the charges dropped. But nearly 200 people still face felony convictions, and possible 60-year sentences, if found guilty.
The prosecution in this first trial has made it clear they don’t intend to prove that any of the six defendants personally caused any property damage or injury, but rather that all who face charges are guilty because they are all collectively responsible for the actions of a few. US Attorney Jennifer Kerkhoff said in her opening statement, “though there is no evidence the defendants caused any of the damage directly, the government considers the entire group of protesters to be responsible.”
“The prosecution is pursuing a somewhat unusual strategy: Rather than trying to prove that any of individual defendant was personally guilty of destruction, prosecutors are arguing that all demonstrators present that day were aware and supportive of the violent intentions of the others.
Assistant U.S. Attorney Jennifer Kerkhoff, in her comments, has repeatedly referred to the ‘black bloc tactics’ of the protesters as part of a message that everyone participating in the protest came with either the intention to commit violence or the knowledge that violence was part of the plan.”
Ashraf Khalil, Associated Press November 21, 2017
The government is arguing that all of the defendants conspired to cause the violence and rioting, regardless of whether they participated in any advance planning. They argue that the defendants intended for the property destruction and violence to occur even if they didn’t cause damage themselves. They argue that by continuing to move together down the street as some in their midst engaged in criminal behavior, everyone arrested became responsible for the resulting damage.
This idea of collective liability is what makes this trial so important, and all Americans should be paying attention. The mere act of charging so many, with the possibility of such severe punishment, threatens to stifle legitimate protest and first amendment activity. If exercising one’s right to peacefully protest comes with the risk of felony charges for the criminal behavior of others, many will opt to stay home. If these six are convicted, it sets a very dangerous precedent.
Kris Hermes, an organizer of a support group for the defendants called Defend J20, is quoted in the Washington Post as saying, “what the government is saying to us is, dissent is not an acceptable form of expression in this country, and if you choose to go out on the street and express yourself, then you risk being arrested and seriously prosecuted.”
Eoin Higgins wrote in an October 25, 2017 article for the Intercept, “by charging everyone together with conspiracy counts, the government seems intent on making an example of the J20 protesters.” He also writes, “that the government’s case does not differentiate between actors and bystanders could be an indication of future clampdowns on protest.”
There are other very important aspects of this case, such as the tactics used during the arrests, the arrests of journalists covering the protests, the methods of evidence gathering employed in the months after the arrests, etc. But the very fact that these defendants face these charges when there is no evidence they personally caused any damage should have us all very concerned. Any threat to an individual’s first amendment right is a threat to all of our first amendment rights.
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