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Feds, under Trump, stepping in to prosecute crimes tied to civil unrest, gun violence

Looting of stores on Broadway near Union Square

Looting of stores on Broadway near Union Square in Manhattan during a night of protests on June 1 over the police killing of George Floyd. Credit: Newsday / Alejandra Villa Loarca

As unrest flared this summer over the police killing of George Floyd, two activists allegedly walked near Union Square and passed an unoccupied police vehicle.

One was later accused of pouring out liquid from a Patrón tequila bottle, and setting an early-morning fire that damaged the vehicle, parked at University Place and East 12th Street, according to a federal complaint.

The Manhattan U.S. attorney's office noted that the vehicle, a blue-and-white NYPD van that was part of the department's Homeless Outreach Unit, was "in whole and in part owned and possessed by an institution and organization receiving Federal financial assistance."

Relying on the NYPD’s federal funding, the U.S. Department of Justice asserted jurisdiction, and the activists, if convicted, now face a minimum of 5 and a maximum of 20 years in federal prison.

Across the country, the Justice department under the Trump administration has been taking on certain lower-level criminal cases tied to civil unrest and gun violence that are typically left to local prosecutors, experts say.

On May 30, five days after Floyd’s killing, President Donald Trump tweeted: "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 and many arrests. Thank you!"

The next day, Trump’s attorney general, William Barr, foreshadowed the approach.

"Federal law enforcement actions will be directed at apprehending and charging the violent radical agitators who have hijacked peaceful protest and are engaged in violations of federal law," according to a statement from Barr issued on May 31.

Such interventions have not always been welcome.

Burt Neuborne, a civil liberties professor at New York University School of Law, says they risk "federal authorities displacing the political judgments of local people who elected officials to enforce the law in a particular way."

Defendants are facing hefty bail and yearslong prison sentences in cases in which municipal laws might call for neither, or in which local district attorneys might have declined to prosecute, according to Richard Klein, a distinguished professor of law at Touro Law school in Central Islip.

"Typically, the federal government is more than happy to let states proceed with prosecution of low-level offenses," Klein said.

Messages left with the U.S. attorney’s office for the Southern District of New York, which covers Manhattan, the Bronx, and the northern suburbs, were not returned.

Michael Loadenthal, an adjunct professor at Georgetown who was among more than 200 arrested in 2017 in Washington, D.C., during protests over Trump’s inauguration, said the federal government has used the sorts of higher level investigatory techniques — DNA evidence, cellphone data, pinpointing via GPS — that are unusual for protest-related offenses.

Loadenthal, who has reviewed about a thousand protest-related cases for the Prosecution Project and is its founder and director, estimates that as of Nov. 10 there have been about 20,000 protest-related arrests nationwide since the Floyd killing, of which about 325 have been prosecuted by the federal government.

The charges against him, including rioting, inciting a riot, and conspiracy to riot, were dismissed in 2019.

It is difficult to systematically track how all charges related to civil unrest are prosecuted because they sometimes are covered by more general offenses such as arson and assault.

But the provision of the United States Code criminalizing "civil disorders" was involved in federal prosecutions 29 times in 2020 under Trump. Before 2020, it had apparently never been used under the Reagan presidency, was used eight times under George H.W. Bush, three under Clinton, once under George W. Bush and six times under Obama, according to the Transactional Records Access Clearinghouse at Syracuse University, whose records go back to 1986 and cover only the last three years of Reagan's presidency.

This year in the Eastern District of New York, which covers Long Island, Queens and Brooklyn, five defendants have been charged with the civil disorders offense, according to spokesman John Marzulli. It had been used in one case before, in 1993, according to clearinghouse records, which tracks cases, not number of defendants.

Klein said the Trump administration's policies can also be seen in the federal prosecution of lower-level gun crimes, particularly those committed in municipalities run by Democrats, a noticeable change from prior Justice Department administrations.

The spike in crime, looting and other unrest surrounding the recent protests "created an opportunity that Trump sought to exploit," Klein said, and "what's happening now ... is a result of the Trump administration feeling that New York State prosecutors haven’t been tough enough, and they’ve allowed this looting and this surge of crime."

Last month, Seth DuCharme, the acting U.S. attorney for the Eastern District, stood with representatives of federal law enforcement agencies — as well as NYPD Police Commissioner Dermot Shea — promising that his office would be "[a]ggressively using federal firearms statutes and other statutes like Hobbs Act robbery to address gun violence in the district."

"The city and certain other pockets has become an environment which is too permissive for armed criminal offenders to walk the streets at the peril of the public, and we are going to restore that balance," DuCharme said last month, citing "alarming spikes in violent crime."

In an email Tuesday, Marzulli wrote that such prosecutions are "a response to the rise in gun violence and addresses the drivers of gun crimes."

To be sure, the federal government has long stepped in to prosecute certain higher-profile or serious cases. But it’s "most unusual" for lower-level street crime to be prosecuted federally, according to Klein.

Marie Ndiaye, supervising attorney of the Legal Aid Society’s Decarceration Project, said what she considers to be the meddling of federal prosecutors in local matters began early in 2020, soon after New York State loosened bail laws to grant more defendants the ability to await trial out of jail by ending cash bail for most misdemeanors and nonviolent felonies.

The "political posturing," Ndiaye said, "is clearly a concerted effort to make a point … and the people who suffer in making that point are our clients who have done nothing but be arrested and are presumed innocent, and they’re the pawns in this game that’s happening between our local police and our federal system."

In response to a question Tuesday about the federal role, New York City Mayor Bill de Blasio said: "We do have a reality right now where our court system has been obviously profoundly slowed down" and "if the federal government is able to take them on and move them, that's in everybody's interest."

Federal prosecutors took on the case of two lawyers partaking in the Floyd protests who allegedly attacked an empty NYPD vehicle in Brooklyn with a Molotov cocktail and were later arrested. Also arrested was a woman who allegedly ignited a Molotov cocktail and threw it at an NYPD vehicle occupied by four officers. All were arrested by the NYPD.

In September in Rochester, two men were charged with causing civil disorder in attacks on officers there. Federal prosecutors invoked the civil disorders statute, as it has this year in jurisdictions such as Charleston, South Carolina, Portland, Oregon and Jacksonville, Florida.

In the Florida case, a complaint charging a protester with possession of a Molotov cocktail stated there is federal jurisdiction, in part, because the device was made with an imported bottle of Patrón Citrónge Pineapple tequila, and the federal government regulates foreign commerce.

Swearing to an affidavit, the local sheriff's detective wrote in the complaint: "I have reviewed images of the Patron bottle, which states on its label that it was 'Produced & Bottled in Mexico.'"

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