A man and a woman appeared before a federal judge Wednesday in Portland, becoming the first in Oregon to face the rare federal charge of civil disorder for alleged violence during this summer’s turbulent protests.
A Seattle man is accused of launching a ball bearing with a slingshot during a downtown demonstration in July and striking a Portland Fire Bureau medic.
A local woman is accused of throwing a helmet that struck a police sergeant in the head outside North Police Precinct early on Aug. 24.
The felony cases against Jesse Herman Bates, 38, and Michelle Peterson O’Connor, 31, mark a significant detour from past practice in Oregon — the federal court here hasn’t used the charge in recent memory.
But federal courts in half a dozen other cities have brought similar civil disorder charges tied to violence that has erupted during protests nationwide decrying the May 25 death of George Floyd, a Black man who died after a white Minneapolis police officer knelt on his neck for more than eight minutes.
The Oregon U.S. Attorney’s Office is reviewing other violent actions from the last three months of protests and is expected to pursue similar civil disorder prosecutions.
The action reflects the repeated pledge by President Donald Trump, who sent teams of federal officers to Portland in July to help secure the Mark O. Hatfield United States Courthouse, to charge “the violent agitators who have hijacked peaceful protest.”
Until now, federal prosecutors in Oregon have filed more specific allegations, such as assault on a federal officer, arson and attempted arson, and disobeying a federal officer.
Critics have argued that such prosecutions represent a stretch of federal authority to appease Trump’s desire for forceful federal intervention in the protests and is at odds with the Constitution’s more limited role prescribed for the federal government in what have routinely been handled as state crimes.
Attorney Steven Kanter, dean emeritus at Lewis & Clark Law School, said, “It’s dangerous to allow the federal government to dip in and supersede state and local criminal authority , except in the most extreme , most justified cases.”
Kanter noted that the federal civil disorder statute was adopted in 1968 in the midst of civil rights turmoil. “Often times, these kinds of broad statutes can be misused when there are not more substantive, underlying crimes,” he said.
If the allegations don’t directly apply to federal property or acts against federal officers, which is absent in the cases brought against these first two defendants, it’s also wiser for the federal government to defer resolution to the state for the same allegations.
Jonathan H. Adler, a law professor at the Case Western Reserve University School of Law, wrote for Reason Magazine this summer, that destruction of property and violence against others “should be prosecuted by state and local governments, not the feds.”
He said such broad federal criminal statute “allows federal prosecutors to select cases for federal prosecution not based upon any legitimate federal interest, but rather on whether a given case serves the political interests of the office, the Justice Department, or the Administration.”
The charge
Under federal law, civil disorder is defined as a “public disturbance involving acts of violence” by three or more people, “which causes an immediate danger of or results in” injury to someone else or their property.
To prove the crime has occurred, prosecutors must show someone committed or attempted to “obstruct, impede or interfere with” any law enforcement officer or firefighter who is engaged in the lawful performance of their official duties during a civil disorder.
Further, prosecutors must prove that the civil disorder “obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function.”
In Bates’ case, prosecutors intend to show that the actions occurred when police had declared an unlawful assembly or riot as demonstrators had blocked a street.
About 2 a.m. on July 13, a fire medic was struck on the left side of the chest by a silver ball that was approximately one centimeter in diameter at Southwest First and Main Street. Bates is accused of using a “wrist rocket” to launch the ball bearing near Southwest Third and Main.
The medic was assigned to a Portland police Rapid Response Team of officers, wearing a special gray uniform which displayed Fire Bureau patches and large lettering on the back of his vest that said “Medic.” The medic suffered bruising, police said. About 3:50 a.m., police moved in to arrest Bates in Lownsdale Square, but police said he ran, holding a crowbar, and was arrested after officers fired an impact munition at his back. Police said they seized a crowbar, a knife, flares, spray paint, and two slingshots from Bates. Bates was arrested and initially faced state allegations, including third-degree assault, assaulting a public safety officer, Interfering with a police officer, carrying a concealed weapon, and disorderly conduct.
On Wednesday, the FBI returned him to Portland after taking him into custody in Seattle.
Bates appeared before U.S. Magistrate Judge Jolie A. Russo Wednesday afternoon. Federal prosecutor Thomas Ratcliffe asked that Bates be released with a curfew from 9:30 p.m. to 5 a.m. and GPS monitoring. His assistant federal public defender urged Bates to be released with no conditions, noting that he is facing a pending case in state court related to the same incident.
“This is a very different case for two reasons,” Ratcliffe argued. “The defendant is charged with attacking a firefighter using a wrist-rocket slingshot and a steel ball.”
The judge issued the curfew but did not require GPS monitoring for Bates.
In O’Connor’s case, she’s accused of throwing a helmet that struck a police sergeant as police were attempting to arrest a friend around 1:17 a.m. near the North Precinct building on Aug. 24. She was arrested by Portland police, accused of accused of attempted second-degree assault, interfering with police and disorderly conduct.
Defense lawyer Hamilton argued that O’Connor has no criminal history and recognized that when she threw a helmet, she knew it was wrong but was concerned about a friend being arrested.
The prosecutor acknowledged that the allegations against O’Connor are less serious than the circumstances of Bates case but argued it still involves assaultive behavior against an officer.
If convicted of federal civil disorder, the charge brings a sentence of up to five years, a fine up to $250,000 and three years of supervised release.
Cherry bomb case
Since the federal civil disorder charge hasn’t been filed much, there’s limited case law on it.
But a 1972 decision by a federal appeals court that upheld a civil disorder conviction of man who threw a cherry bomb at a line of police officers responding to a fire at a riot on a university campus provides some guidance.
The case went before the 8th U.S. Circuit Court of Appeals in 1972 after two men were convicted of federal civil disorder, found to have thrown cherry bombs at the feet of officers during a demonstration May 4, 1970, outside the Air Force and Army R.O.T.C buildings on the campus of Washington University, St. Louis County, Missouri. The demonstration was in protest of the killing of four college students by National Guardsmen on the campus of Kent State University in Ohio, which had occurred earlier in the day.
The defendants in the appeal argued that the federal civil disorder statute was invalid because it exceeded Congress’ power under the Commerce Clause.
The court didn’t consider that. “We need not determine whether Congress has power to reach the conduct involved in this case under the Commerce Clause, since the statute is also directed at such activity when it affects “… the conduct or performance of any federally protected function.”
The appeals court did find that the criminal charge should apply “only to violent physical acts,” and that the First Amendment doesn’t preclude such prosecution.
“This Court stands ready to protect constitutionally guaranteed activities or conduct from interference by either the State or private individuals. We are willing to do so even though the conduct may be offensive to others…But the conduct involved here is not entitled to constitutional protection….The First Amendment has not been extended to protect rioting, inciting to riot, or other forms of physical violence,” the court ruled then.
The crime “is not mere presence at a civil disorder,” the appeals court found, but must apply to “an act committed during the course of such a disorder. The term ‘civil disorder’ simply describes the environment in which the act must be committed in order to be subject to prosecution.”
The civil law crime includes only public disturbances that involve an act of violence, three or more people and cause immediate danger or result in injury to the “property or person” of another, the appeals court found.
Reference to a “law enforcement officer,” may include federal, state or military personnel, yet prosecutors must show that the officer acted lawfully during the alleged crime, according to a June paper by the Congressional Research Service written by legislative attorneys Peter G. Berris and Michael A. Foster Legislative Attorney.
This week, Oregon’s Gov. Kate Brown announced she was sending Oregon State Police troopers back to Portland to assist local police in protest response.
The U.S. Marshals Service earlier this summer deputized Oregon State Police troopers who were sent to Portland to help safeguard the downtown federal courthouse. That special deputization lasts for one year, according to the marshals service.
These state troopers will be authorized to detain and make arrests on federal charges, and, when necessary, “to protect and defend federal government buildings and personnel during a civil disturbance,” according to Kevin Sonoff, a spokesman for the U.S. Attorney’s Office. The U.S. Attorney’s Office will evaluate all arrests made by Oregon State Police troopers under this authority for federal prosecution.
Other recent prosecutions elsewhere in the country
Similar federal civil disorder prosecutions are pending in Pittsburgh, Knoxville, Tenn., Boston, Mobile, Alabama, and Naperville, Illinois.
Prosecutors have charged a Worcester, Mass., man with the allegation of civil disorder. The 18-year-old is accused of possessing a Molotov cocktail with the intent to obstruct officers from responding to a violent demonstration in Worcester on June 1.
A Pittsburgh man was charged in June with civil disorder, accused of spray painting an unoccupied police car, smashing its windshield , jumping on its hood, and then others set it on fire on May 30, throwing objects at officers who attempted to respond on horseback, according to a federal complaint.
In Knoxville, an 18-year-old man was charged in federal court in June, accused of civil disorder by allegedly trying to use his Snapchat account to incite and organize a riot at a mall in the city, instructing people to bring hammers and bricks at a certain hour, and the next day striking an officer seated in a car in the head with a trash can lid.
In July, a Boston man was charged with interfering with law enforcement during a civil disorder, accused of firing a gun 11 times towards officers about 3 a.m. on June 1 after he had been ordered a short time earlier to drive off from an area where a business was getting looted.
Near Chicago, a man accused of throwing an explosive device near a Naperville police car where officers were standing nearby in June was charged with federal civil disorder.
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