Federalism

Turning Local Disturbances into Federal Cases

The Department of Justice is finding creative ways to file federal charges against rioters and looters.

|The Volokh Conspiracy |

Throughout the country, prosecutors are bringing charges against individuals who used the George Floyd-inspired protests as an excuse for rioting, looting and mayhem. The ubiquity of video cameras has facilitated some of these investigations and arrests, though widespread mask-wearing has made it more difficult to identify some perpetrators who did not otherwise identify themselves, such as through social media posts.

Most charges related to rioting and looting are filed by local prosecutors, but the Feds have gotten into the act as well, filing a wide range of charges against a wide range of activity. Some of these cases involve plausible federal interests, such as alleged interstate conspiracies to use protests as a cover for criminality. Others, not so much.

Josh Gerstein reports in Politico:

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.

Existing doctrine is quite permissive (too permissive, in my view) of attempts by federal prosecutors to turn local criminality into federal crimes. If all a U.S. Attorney has to do is identify some object crossed state lines, virtually every activity becomes subject to federal prosecution. Further, it allows federal prosecutors to select cases for federal prosecution not based upon any legitimate federal interest, bur rather on whether a given case serves the political interests of the office, the Justice Department, or the Administration.

It also seems to me that the Department of Justice, at least at the moment, is the least active in pursuing cases where federal involvement can be most readily justified: Alleged cases of police brutality against peaceful protesters. There is no reason to believe local authorities are incapable of prosecuting local crimes committed by those within their jurisdiction. There are, however, ample reasons to suspect that, at least in some jurisdictions, local authorities cannot be trusted to investigate or prosecute members of law enforcement who violate the rights of citizens. If the Justice Department really wants in on the post-protest prosecutions, this is where it should focus.

The destruction of property and violence against individuals should be prosecuted. Under our constitutional system, primary responsibility for such prosecutions lies with state and local governments, not the Feds.

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  1. There are, however, ample reasons to suspect that, at least in some jurisdictions, local authorities cannot be trusted to investigate or prosecute persons for the destruction of property and violence against individuals.

    1. And many other jurisdictions where, if the accused had their pick, they’d probably prefer to be dealing with the Feds.

        1. Given the state of State vs. Federal prisons; pretty much all of them.

          1. I think Whitey Bulger and Jeffrey Epstein might disagree.

            And don’t you have to serve 85% of a Federal sentence, while many states will waive a greater portion of theirs.

    2. Just like 60 years ago when local authorities in the south could not be trusted to prosecute the Klan. For example, the State of Mississippi refused to prosecute those responsible for the murders of Chaney, Goodman, and Schwerner — so the Feds did.

      Take Boston — the Commonwealth’s Attorney General, Martha “Arson” Healey isn’t going to do anything, nor is (Suffolk County) District Attorney Rachel “Decline to Prosecute” Rollins — so the only justice that we’re going to get is going to come from the Feds.

      Then, and now, the Feds have to step in….

      1. And even more so in cases like Portland, where the mayor and police commissioner are members of Antifa and have allowed the terrorists to control an “autonomous zone” and attack anybody they want with no action for months now.

        It seems self-evident to me that the constitutional duty of Congress “to guarantee to every state a republican form of government” absolutely requires intervention in places like that, by the army if necessary; and if that does not happen, it is time for the people to intervene ourselves, just as we did in 1787.

        1. Given that this Trumpian view is the minority, I suspect the majority would crush any attempt by the law-and-order crown to impose its will. Also, after Nov. 3, the law-and-order crowd will lose its odious champion, and the majority will begin dealing out punishments to fascists everywhere.

          1. Be careful what you ask for as Trump is moderating a lot of radicals, much like JFK did.

            Without Trump, the majority well may deal out extralegal violence (not “punishments”) to fascists everywhere. You just don’t realize whom the fascists are…

    3. I suspect that the federal involvement is, like most organized crime investigations is to start with the low level criminals and move up from them to the instigators and funders.

  2. Thank you, O Great Conservative Hero, Antonin Scalia! Praise be to Gonzales v. Raich, O Your Great Words of Wisdom! Where would we be without it?

    1. O’ wicked Wickard!

    2. I’m not sure why you are criticizing Justice Scalia for Gonzales v. Raich. You realize that Justice Stevens wrote the majority opinion (joined by the three other liberal justices and Justice Kennedy) in Gonazles v. Raich and that Justice Scalia only concurred in the judgement, right?

  3. “ There is no reason to believe local authorities are incapable of prosecuting local crimes committed by those within their jurisdiction.” Adler is smart, and as far as I am aware has not been in a coma the last month, so I can’t believe he actually believes this. Well, to be fair, he may be using “incapable” literally, but I don’t know anyone disputing local prosecutors’ literal capability to file charges (just as I’m sure that’s not Adler’s complaint about DAs giving cops a pass).

    But “extremely unwilling” (bordering on “will never consider” charging), to the point of unequal treatment based on the identity or cause of the alleged criminal? I think we have absolutely seen that in certain left/progressive cities and counties, and I agree it’s not all that different from certain DAs being extremely unwilling to charge a cop. Those DAs don’t want to anger the police, because they need their cooperation in other cases every day, and some may need political support from the union and law-and-order voters. The new brand of progressive DAs, especially, won’t hesitate to charge a cop, but seem extremely unwilling to prosecute the looters, arsonists, those who have assaulted cops, and destroyers and vandals of public (statues?) and private property. (To be fair, with respect to the statues, cops would need to make arrests first, which apparently won’t happen.)

    I certainly would understand an argument against federal prosecution on federalism and liberty grounds. But to make it sound like local prosecutors are out there charging the rioters and vandals (I’m not talking about peaceful protesters), and that the feds are rushing in to Bigfoot them, does not seem to jibe with what I’ve seen.

    1. To be fair, with respect to the statues, cops would need to make arrests first

      Why?

      If you have identifiable video of people doing something, video in some cases proudly posted by themselves in accounts that you can document back to them, why can’t you present that to a grand jury?

      Like the woman seen torching the Wendy’s. Whatever the Feds have *could* have been used by the state to indict her as I assume that burning down a business is a violation of some Georgia statute.

  4. “It also seems to me that the Department of Justice, at least at the moment, is the least active in pursuing cases where federal involvement can be most readily justified”

    I realize a tone of surprise is the politically correct way to say this, but anyone who has been awake the last couple months is well aware of what’s going on here.

    They’re still trying to turn Antifa into some huge boogyman (so much the easier to vanquish when the script calls for it) instead of paying attention to the right-wing anarchists who actually are killing cops.

    And everyone pushing that horse shit is complicit in providing cover for those cop killers.

    1. “instead of paying attention to the right-wing anarchists who actually are killing cops.”

      NAME ONE.

      Name one cop who has been killed by a “right-wing anarchist” — name just one….

      Antafa is an interstate criminal conspiracy that I, personally, had to deal with 20 years ago. It neither is local nor is new — and BLM has a very large payroll.

      1. International. Not just interstate. They are closely allied with sibling groups in Europe, and esp the AntiFA group in Germany, that claims descent from a Stalinist group of the same name (Antifaschistische Aktion) (and similar logo) that fought the Nazis between 1932 and 1933.

        Still, it is their practice of moving their people state to state to commit acts of violence that opens them to federal prosecution. This appears esp prevalent with the members from groups from Portland and Seattle who seem to bounce back and forth a lot.

        1. It’s not even that — they have national organizers that go to various college campi and build/support/nourish local chapters that are either on the campus proper or in the local “college” town. They were doing this 30 years ago and you’d find a lot of radical literature from out of state showing up on campus afterwards.

          Now if they just peacefully assembled and chanted their “We Hate AmeriKKKa” stuff, I’d be the first person to defend their right to do that and would be rather pissed if the Feds went after them. But that is NEVER what this has been about — they have always held the adage of “by any means necessary” and encouraged violence.

          And hence the various AntiKlan Acts come to mind….

          1. “a Stalinist group of the same name (Antifaschistische Aktion) (and similar logo) that fought the Nazis between 1932 and 1933. “

            People tend to forget that Hitler won a plurality in what was a pretty-much fair election in 1933 *because* the Nazis were seen as the “lesser of two evils” — because the voters feared the Stalinists more.

            Just sayin….

          2. I am trying to understand why the anti Klan statutes would not be appropriate here. We have a group of people traveling state to state engaging in violent rioting and arson, wearing masks to hide their identity (long before COVID-19), now wearing body armor, helmets, gas masks, openly carrying weapons, etc. It looks very much to me like a similar situation that caused these statutes to be enacted.

      2. NAME ONE.

        Name one cop who has been killed by a “right-wing anarchist” — name just one….

        Sgt. Damon Gutzwiller, a a Santa Clara sheriff’s deputy, and David Underwood, a federal security contractor, were both murdered by right wing extremist a Steven Carrillo.

        1. Steven Carillo is unlikely to be a “right wing extremist”. He is simply anti-police.

      3. Antafa is an interstate criminal conspiracy that I, personally, had to deal with 20 years ago.

        Ed taking up his Zelig persona.

        1. No, Ed was there….

    2. That is plain silly. Your right wing boogeymen aren’t the ones who have burned city after city this months, attacked, tried to execute, and even succeeded in executing, police, etc. the people who did those things weren’t wearing Hawaiian shirts, but much more likely were dressed mostly in black, wearing masks, even helmets and body armor. Thousands of hours of video of people dressed like AntiFA, and few, if any, of Hawaiian shirted militants on the other side. None that I have seen.

      1. Thousands of hours of video of people dressed like AntiFA, and few, if any, of Hawaiian shirted militants on the other side. None that I have seen.

        You’ve watched thousands of hours of video? And you’re confident that anyone wearing black is a violent Antifa member?

        Sure, Bruce.

        Look, you’ve been taken in on this whole Antifa business. It’s a scam by Trump and the right-wing noise machine. And you swallow it.

        You probably think Soros funds it, too.

        1. If this were true, Antifa would be calling the police and reporting these imaginary right-wing thugs. Or doxing them, they’re real good at that.

  5. Wow, Prof. A, talk about closing the barn door after the horses have escaped. Ever look at the Hobbs Act? The federal arson statute?

    1. The Federal Arson statute is being used…

      1. I wonder if the federal international treaty against chemical weapons is being used, the way the left demanded for that woman who put irritant chemics on the steering wheel of a romantic rival.

  6. “It also seems to me that the Department of Justice, at least at the moment, is the least active in pursuing cases where federal involvement can be most readily justified: Alleged cases of police brutality against peaceful protesters.”

    So, it is ok to attack cops, put them in the hospital, or even te morgue, but it is somehow wrong for them to hurt violent rioters and arsonists.

    “There is no reason to believe local authorities are incapable of prosecuting local crimes committed by those within their jurisdiction.“

    Yet a small fraction of the violent rioters and arsonists are getting arrested by the local authorities.

    “There are, however, ample reasons to suspect that, at least in some jurisdictions, local authorities cannot be trusted to investigate or prosecute members of law enforcement who violate the rights of citizens. “

    But those aren’t the jurisdictions where the police have killed innocent Black civilians. Or not so innocent. And, indeed, in both Minneapolis and Atlanta, the two civilian deaths have resulted in highly politicized, and probably legally indefensible, prosecutions of the police, who probably did little wrong. Indeed, I would suggest that with the riots this month, the problem in big cities under long term Democrat control has probably been over prosecution, not under prosecution, of police.

  7. Since interstate commerce is the quintessential non-private activity, it would seem that under current doctrine Congress could prohibit contraceptives or abortions using materials which had previously crossed state lines.

    1. They probably could, if it wasn’t for Casey.

    2. What do you think the jurisdictional hook for the partial-birth abortion ban is?

  8. While I generally agree with the principle, as long as the left is going to use the existing Commerce Clause “jurisprudence” to justify federalizing virtually ANYTHING, I’m not going to shed a tear when it’s used against those liberals.

    1. A post that goes after the left, but doesn’t also go after the Jews?

      I’m disappointed in you, for the missed opportunity.

  9. So … what are we proposing then? Reintroducing Reinquest and Scalia style limitations on federal authority towards localities?

    1. Perhaps, if the only principle you highly value consistently is situational ethics, the valuation or devaluation of philosophical principles as important depending on utilitarian political goals, sometimes in the same sentence.

  10. Yeah, this is just the next chapter in the left’s recent faux federalism fetish. We’ll be back to our regularly scheduled program next time they control the executive branch.

  11. There is a clear constitutional justification for federal intervention in the CHAZ:
    “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion”

    Replacing local government with a revolutionary junta clearly violates the constitutional rights of people who live and work in the CHAZ. Plus the free speech restrictions and freedom of movement restrictions is a blatent conspiracy to deprive people of their civil rights. And if mayor Durkan is negotiating with CHAZ leaders about just what restrictions will be allowed without intervention then she is part of the conspiracy.

    1. Good to know someone is still watching Infowars now that it’s online-only.

      1. Is the Washington Post good enough for you?

        The dark cloud of fascism is always descending upon Republicans but it usually turns out to be composed of progressives and Democrats.

        Fire set at St. John’s church in D.C. during protests of George Floyd’s death – The Washington Post

        Quote:
        A fire was set in the basement nursery of historic St. John’s Episcopal Church, across Lafayette Square from the White House, during demonstrations Sunday night expressing outrage at the death of George Floyd in police custody.

        Although the protests were largely peaceful in the afternoon and evening, small groups of people began setting fires and smashing windows once darkness fell.

        Shortly after 10 p.m., someone tore down the American flag that hangs outside the butter-yellow church and appeared to toss the flag into a nearby fire. A glass door or window was shattered.

        A person sprayed graffiti: “The Devil is across [the] street.”

        D.C. police said a small fire was deliberately set in the basement. Under police escort, D.C. firefighters quickly extinguished it.

        1. Because arson = “Replacing local government with a revolutionary junta”? Y’all are all crazy.

  12. A good resource on Antifa and associated left wing violence is Andy Ngo:

    https://twitter.com/MrAndyNgo

    His feed has a steady stream of their activities, which they don’t care for and they have attacked and assaulted him for it.

    1. He has also written an undercover story:

      Independent journalist Andy Ngo: My terrifying 5-day stay inside Seattle’s ‘autonomous zone’

      Quotes (but read the whole article):
      During five undercover days and nights in the zone, I witnessed a continuing experiment in anarchy, chaos and brute-force criminality.

      Mainstream media reports have focused on the “block party” atmosphere of the occupation, repeating a talking point from the Seattle mayor. She, along with fellow Democrat, Gov. Jay Inslee, have gone to great lengths to emphasize the “peaceful” nature of the occupation. For media crews that arrive during the day, that is certainly what they will see… But at night, a whole different side of CHAZ emerges.

      Rapper Raz Simone, real name Solomon Simone, patrols CHAZ on some nights with an armed entourage. Simone, originally from Georgia, has an arrest record for child cruelty and other charges. He usually conducts his patrols carrying a long semi-auto rifle and sidearm… Independent Los Angeles-based journalist Kalen D’Ameida recorded Simone and his crew in the early hours of Monday morning. He was spotted by one of Simone’s men, who manhandled him and demanded he turn over his mobile device. Simone’s team chased D’Ameida and tried to drag him to the security tent. He escaped by hiding in a construction site outside CHAZ until police responded to his 911 call.

      Attacks on journalists who are accused of not toeing the line have become commonplace. On Monday, a masked Antifa militant pointed me out to her comrades and tried to assemble a mob. I left before I could be injured. The following day, a Fox News crew was forced out of the zone.

  13. Professor Adler….I don’t think we really have enough information here from you to judge whether this statement is accurate or not.

    Most charges related to rioting and looting are filed by local prosecutors, but the Feds have gotten into the act as well, filing a wide range of charges against a wide range of activity. Some of these cases involve plausible federal interests, such as alleged interstate conspiracies to use protests as a cover for criminality. Others, not so much.

    I hop that you elect to give more information to back up my bolded part of your quote. Whenever I read articles like the one you cited in Politico, I come away saying…you know what, I don’t think I am getting all the information needed to make a good judgment. My view is you’re ‘reaching’ on that last piece. One question I have: where geographically are these questionable cases, specifically?

    That said, I totally agree here, The destruction of property and violence against individuals should be prosecuted. Under our constitutional system, primary responsibility for such prosecutions lies with state and local governments, not the Feds.

    1. There are a host of federal crimes that are federal because the crime or criminal cross state lines. Imagine the chaos if a jurisdiction refused to prosecute calling itself a sanctuary and the Feds had no jurisdiction.

    2. Ummm — while I read Politico with some frequency, I do *not* consider it objective.

      If it leaned any further to the left, it would fall over.

  14. Steven Carillo, just this month.

    1. “Who need antifa to start riots when you have the police to do it for you…”

      That sound like a right-winger?

  15. “There is no reason to believe local authorities are incapable of prosecuting local crimes committed by those within their jurisdiction.”

    Except the part that in many of these jurisdictions the rioters acted with tacit, and often explicit approval of the mayor.

  16. There is precedent for this sort of thing. In the civil rights era, when local governments refused to press charges against white defendants for their crimes (including murder) against black victims. When charges were filed, the court case was prosecuted so lightly that it did little more than grant them double jeopardy protection. In response, the federal government started prosecuting them for violation of civil rights.

    Here, we have a similar case. People who have committed some pretty serious crimes being blanketly let off for political reasons. I question it’s usage in this situation, and I won’t say I’m not worried about it, but this isn’t something novel

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