WASHINGTON ― Attorney General William Barr’s Justice Department is calling out D.C. Mayor Muriel Bowser (D) ― who had a massive “Black Lives Matter” mural painted on a street near the White House that she renamed to honor the movement for Black lives ― for blowing off the constitutional rights of anti-racist protesters in her own city.
This story begins on the evening of Aug. 13, when a group of protesters was being trailed by police officers in the Adams Morgan neighborhood of the nation’s capital. After some people damaged property, D.C. Metropolitan Police Department (MPD) officers encircled a large number of protesters ― maybe one-third of the overall group ― in a “kettle,” detaining them for hours as they processed the arrests.
Protesters on the scene didn’t understand why officers swept them up, deployed pepper spray and shoved them. Police released very little information justifying an aggressive response that swept up so many people. A MPD press release showed images of a Starbucks umbrella and newspaper boxes that had been set ablaze, but didn’t explain why police kettled protesters, a tactic that has often been found unconstitutional.
Dozens of people were seized and held overnight. MPD wanted 42 of them charged with felonies under a rioting statute. But MPD officers didn’t identify the individuals actually responsible for property damage. Instead, they just sought to bring felony charges against most of those they’d trapped in their kettle.
In the nation’s capital, the U.S. Attorney’s Office ― currently headed by a Trump administration official Barr appointed ― prosecutes both federal and serious local crimes. Prosecutors in the office evaluated MPD’s arrest reports and determined that nearly every one lacked probable cause. The office essentially determined that the rioting arrests, based on the information presented by MPD, were not justified.
Absent a lawsuit against the city by the people who were arrested, that likely would’ve been the end of the story. But in an Aug. 31 letter to Acting U.S. Attorney for the District of Columbia Michael Sherwin, Bowser wrote that she was “dismayed” that prosecutors in his office “declined to prosecute 41 of the 42 rioting arrests” that were made on Aug. 13 and 14.
It was a strange position for the mayor to take, but one that highlights the tension nationwide between anti-racist activists and protesters and the primarily Democratic mayors that preside over their cities.
Khalid Naji-Allah Executive Office of the Mayor/Handout via REUTERS Mayor Muriel Bowser looks out over a Black Lives Matter sign that was painted during anti-racism protests in Washington, D.C., on June 5, 2020.
Bowser, a Black female Democrat in an overwhelmingly Democratic city, renamed a part of 16th Street NW “Black Lives Matter Plaza” in defiance of Trump and spoke out against the federal government’s response to protests on the city’s streets. Yet here she was, accusing the Trump administration’s Justice Department ― which has enthusiastically seized any opportunity to prosecute left-leaning rioters since protests broke out after the death of George Floyd in May ― of going soft on protesters who were indiscriminately seized by her own police force.
So instead of quietly fading away, Bowser’s letter set off a new round of media coverage and allowed Sherwin to criticize Bowser ― quite credibly ― of brushing aside the protections guaranteed in the U.S. Constitution because she wanted to see “rioters” locked up. Bowser’s office did not respond to a request for comment.
“As I am sure you are aware, without some evidence to establish probable cause of a particular arrestee’s criminal conduct ― e.g. police officer’s observations or video footage of the alleged crime ― we cannot bring federal charges,” Sherwin wrote. “Surely, by your comments, you are not suggesting that this Office skirt constitutional protections and due process.”
Sherwin went on to say that “MPD’s arresting documents lacked sufficient probable cause to support any criminal charge,” publicly airing an embarrassing MPD failure that likely would’ve stayed mostly quiet were it not for Bowser’s letter. Sherwin also wrote that he met with MPD leadership to help develop the cases and “establish a bare minimum of probable cause” but said “no sufficient evidence” had materialized to justify the arrests of Aug. 13 and 14.
“The ‘42 rioters’ were arrested as a collective by MPD and presented to the Office without any articulable facts linking criminal conduct to each individual arrested,” he wrote. “Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”
U.S. Attorney Sherwin's Response to Mayor Bowser's August 31, 2020 Letter pic.twitter.com/kZnpAUpESi
— U.S. Attorney DC (@USAO_DC) September 1, 2020
Sherwin said the pattern repeated itself when MPD arrested 19 people for rioting over the weekend, but officers “failed to provide the bare minimum of articulable facts linking the charged persons with alleged individual criminal conduct.” Due to MPD’s lack of evidence, just one individual was charged.
Sherwin also seemed to hint at the irony of Bowser laying into the federal response to protesters in D.C. even as her own police force engaged in what looked like unconstitutional conduct.
“Your recent portrayal fo the federal response to violence in the District as insufficiently vigorous seems to contrast sharply with your earlier criticism of the federal response in the District as overly aggressive,” Sherwin wrote.
There’s one huge factor looming over the U.S. Attorney’s Office’s decision-making process: Its near-total failure to secure convictions against hundreds of defendants swept up in a police kettle during demonstrations and rioting surrounding President Donald Trump’s inauguration on Jan. 20, 2017.
The government took an extremely aggressive posture in the “J20” cases, pursuing felony rioting conspiracy charges against defendants who they never alleged actually destroyed any property or committed any acts of violence.
In an admission that sheds some light on Bowser’s current push for prosecutions, a former government prosecutor told HuffPost that Bowser’s office was advocating for charges against the J20 protesters as well.
In tweets sent the day of Trump’s inauguration, Bowser wrote that she could “not condone crime and vandalism which are the antithesis of what we hope to accomplish today” and said that they would not allow visitors to “destroy our neighborhoods.” She tweeted that she supported MPD “as they have handled crowds and this event.”
Rizwan “Rizzy” Qureshi was one of the Justice Department prosecutors on the J20 case. Now in private practice, he said he’s a Democrat who supports the Black Lives Matter movement and attended the 2017 Women’s March, which took place the day after Trump’s inauguration.
Qureshi said it was important to note that Bowser’s office “pushed hard” for prosecutions after J20, and that politicians like her were no longer supportive when the case became a political liability for them. Now Bowser’s political rhetoric is impacting another case, only this time her actions are backfiring on the MPD.
“Is Muriel Bowser taking political advantage of this because the guy who happens to be there happens to be a Trump guy? Yeah, sure, why wouldn’t she? Trump’s easy to rag on, and I think people should rag on him more often, especially after what his Department of Justice did in Roger Stone and other cases,” Qureshi told HuffPost. “But you shouldn’t make the prosecutors and the police officers who work tirelessly to enforce the laws and protect victims the collateral damage of your politics.”
Qureshi said he believed that career prosecutors in the U.S. Attorney’s Office were making the calls on prosecutions and were not allowing politics to dictate their charging decisions.
“What the acting U.S. attorney’s letter to Bowser makes clear is exactly what the jurors told us in the J20 cases,” Qureshi said. “Prosecutors are not going to proceed unless there’s actual evidence of that individual breaking property or engaging in violence, and I think that makes sense. You have to listen to juries because their guidance is instructive on the viability of a prosecution.”
Photo by Samuel Corum/Anadolu Agency/Getty Images Anti-Trump protesters face off with police after Donald Trump was sworn into office in Washington, D.C. on January 20, 2017.
Kropf said there’s “no question” that Sherwin’s concerns about MPD’s lack of probable cause were rooted in the legal issues that came up during the J20 trial. She finds the politics of the dispute fascinating.
“I’m like, wait a minute, I’m on the side of a Donald Trump-appointed prosecutor more than the mayor,” Kropf said. “The alignments here are interesting.”
It may have taken a lot of resources, but Kropf said prosecutors were generally able to individually identify defendants using surveillance video and connect them with specific actions, even though most were wearing all black. She said there’s no reason why police couldn’t do the same here: actually attempt to connect individuals to specific conduct, and charge them under law.
“I don’t think he’s holding MPD to an absurd standard,” Kropf said. “I do think what he’s saying is you can’t just kettle a big group of people, knowing that some people in that group committed property damage or assault on an officer, and expect that we’re going to charge all of those people. There’s nothing unusual about that standard.”
Even in Democratic D.C., Kroft said, jurors would be willing to convict defendants if the government proved they engaged in property damage and violence.
“D.C. is obviously a liberal community, but you don’t meet a lot of people who say, ‘Yes, in support of a cause ― no matter how much I agree with that cause ― that it’s OK to destroy property or, particularly, injure a police officer.’ I don’t think you’re going to see a lot of potential jurors who say that,” Kropf said. “If they can show it’s a person who’s actually damaging property or throwing something at an officer and so forth, I think a jury in D.C. would absolutely find someone guilty.”
Steven McCool, a former federal prosecutor and defense attorney who represented a J20 defendant, said that D.C. jurors would fairly consider cases against people “destroying personal or business property,” so long as they believe “they have been fairly investigated and are prosecuted in an unbiased manner.”
Broadly speaking, MPD had been known for taking a more progressive approach to protest policing than departments in many parts of the country. That’s both because protests occur so frequently in the nation’s capital and because extensive litigation has forced MPD to curb some of its worst behaviors.
Yet despite their extensive protest experience and the outcome of the J20 cases, MPD has occasionally continued to kettle protesters. In the early days of the Floyd protests, a man living near D.C.’s historic U Street became a local folk hero after he allowed protesters into his home to protect them from the police officers who kettled them on his street.
Bowser is “trying to say that she protected D.C. citizens, but under her watch mass arrests became a common police tactic to suppress demonstrators,” said Dylan Petrohilos, a J20 defendant who was also caught in the police kettle last month and was among those D.C. police wanted to charge, yet again, with a felony. “No one should expect to be mass arrested in the nation’s capital, right? This is where politics happens.”
OLIVIER DOULIERY via Getty Images Mayor Muriel Bowser waits at Black Lives Matter Plaza to watch the funeral procession for Congressman and civil rights leader John Lewis (D-Ga.) in Washington, D.C., on July 27, 2020.
Bowser’s decision to go to the mat to defend questionable arrests has many wondering why she picked this battle. D.C. hasn’t exactly been overwhelmed by unrest in recent weeks. There have been a few high-profile incidents ― one involving confrontations between protesters and customers dining in outdoor street cafes amid an ongoing pandemic ― but nothing that would necessarily rise to the level of making Bowser politically vulnerable.
“The only thing I can imagine is that she is feeling pressure from MPD, from the police union, to back up MPD, and the officers who are arresting people and believe they should be charged,” Kroft said.
Bowser’s support for police ― even when they’ve tried to bring charges the Trump administration considered an overreach ― reveals why she’s not beloved by many in the local activist movement. She supported billionaire Michael Bloomberg in the Democratic primary and opposed a $15 million cut to the police department from the city’s overall $8.6 billion budget back in July.
Anthony Lorenzo Green and other Black Lives Matter DC organizers denounced Bowser for touting her Black Lives Matter Plaza during the Democratic National Convention while opposing shrinking the police budget in her own city. Activists want governments to downsize their police budgets and reallocate that funding to integral, and often underfunded, social services like mental health care, affordable housing, job programs and education.
“Mayor Muriel Bowser must be held accountable for the lip service she pays in making such a statement while she continues to intentionally underfund services and programs that meet the basic survival needs of Black people of Washington, D.C.,” Green told HuffPost in the days following Bowser’s DNC speech. “Mayor Bowser refused to answer the call and chose to stand with our oppressors.”
“She is the closest thing to a Republican in Washington, D.C.,” says Petrohilos.
Looking back at the J20 cases, Qureshi said the prosecutions would have been “way more successful” if prosecutors had “focused on only the breakers” instead of pursuing what he acknowledged was a “novel” and “aggressive” prosecution strategy under a law that hadn’t been used since the 1960s.
McCool said elected officials in D.C. need to revisit the city’s rioting laws, especially considering the history of the statute.
“These vague DC anti-rioting laws were written, after Dr. King was assassinated, to deter Black people, during the civil rights movement, from exercising their constitutional rights or even peacefully using the public streets,” McCool said. “The Council should take a hard look and rewrite these statutes so that those who commit crimes are prosecuted and people who are protesting or merely present at an assembly are not arrested without cause.”
Qureshi pointed out that many of the victims who testified during the J20 trial were working-class people of color, and that the vast majority of J20 defendants were white.
“There’s no question that the statute is imperfect,” says Qureshi. “But overwhelmingly, the breakers and the people who were arrested in connection with the Inauguration Day riots were white people, not Black people.”
Additional reporting by Alanna Vagianos.
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