The Volokh Conspiracy

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Volokh Conspiracy

Turning Local Disturbances into Federal Cases

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


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.