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Anti-Riot Act Prosecution Over August 2020 Looting Messages Can Go Forward

"Lets get ready to steal bitch."

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From U.S. v. Massey, decided Friday:

In November 2020, a grand jury returned an indictment alleging the following facts. Massey maintained a Facebook account under the name "Steve Nash," and on August 9 and 10, 2020, he posted a handful of live Facebook videos and messages. These messages included the following:

  • "ATTENTION ATTENTION LOTTING [sic] START AT 12am tonight … WE WILL NOT BE FUCKING UP THE SOUTH SIDE EAST SIDE OR WEST SIDE DOWNTOWN AREA AND UP NORTH AREA ONLY BRING YA TOOLS SKI MASK AND GLOVES #LETSGOOOOO."
  • "Bro im hitting phone store."
  • "Lets get ready to steal bitch."
  • "I finna link up with everybody …. Y'all ready? I sent everybody the location to link up at bro. I trying to get something. I need to hit a couple stores."

Later that night, Massey and three other individuals broke into and stole merchandise from four different stores in the Loop and across the near north side of Chicago.

The indictment alleges that Massey used a telephone and the internet, including Facebook, with intent (1) to incite a riot, and (2) to participate in and carry on, a riot, in violation of [the federal Anti-Riot Act] ….

The Anti-Riot Act in relevant part, makes it a federal felony to

Travel[] in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including [communications systems], with intent

(1) to incite a riot; or

(2) to organize, promote, encourage, participate in, or carry on a riot; or

(3) to commit any act of violence in furtherance of a riot; or

(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot

and … during the course of any such travel or use or thereafter perform[] or attempt[] to perform any other overt act for any purpose specified [above] …

The Act defines riot as a "public disturbance involving":

(1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or

(2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

And it defines "to incite a riot" and "to organize, promote, encourage, participate in, or carry on a riot" to include

urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.

The court rejected Massey's facial challenge, citing binding Seventh Circuit precedent, U.S. v. Dellinger (7th Cir. 1972):

In Dellinger, the Seventh Circuit narrowly interpreted the Anti-Riot Act so that it fell within constitutional limits allowing the government to criminalize incitement of imminent lawlessness. The Seventh Circuit reviewed the four paragraphs in section 2101(a) and held that each was "sufficiently closely related as a propelling cause of a riot" to be constitutional. The court also considered the term "urge" in section 2102(b) and concluded that it too "embod[ied] a relation to action" consistent with constitutional requirements. The court then interpreted the double negative phrase at the end of section 2102(b): a violation "shall not be deemed to mean … ideas or [] expression … not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts." Over a dissent, the majority theorized that the statute's drafters included this "unnecessary" and "awkward phraseology" based on the assumption that proscribable inciting speech would necessarily include advocacy of violent acts as well….

Massey … asserts that the Seventh Circuit would overrule Dellinger today if given the chance…. [S]ubsequent Supreme Court precedent has provided additional detail around the constitutional bounds regarding prohibition of incitement. See, e.g., Ashcroft v. Free Speech Coal (2002) ("[T]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."); Hess v. Indiana (1973) (explaining that "advocacy of illegal action at some indefinite future time" cannot be punished). Furthermore, two other circuits have recently declined to follow parts of the Seventh Circuit's reading of the Anti-Riot Act and have held that certain provisions of the statute run afoul of the First Amendment. See United States v. Rundo (9th Cir. 2021) (holding that prohibition of encouraging, promoting, or urging is overbroad but finding those provisions severable from the rest of the statute); United States v. Miselis (4th Cir. 2020) (same).

The Court is unpersuaded that it can appropriately disregard Dellinger. The law requires a lower court to adhere to precedent from a higher court unless it is "almost certain that the higher court would repudiate the doctrine if given a chance to do so." The other circuits that have considered the Anti-Riot Act have made arguably viable points. But the Court does not believe Massey has established the requisite level of certainty that the Seventh Circuit would, today, repudiate all or parts of Dellinger.

The Court further notes that even if it were to follow the Fourth and Ninth Circuits and find some aspects of the statute unconstitutional, the surviving provisions would still preclude dismissal of Massey's indictment. Of note, the indictment charges him with both inciting and participating in and carrying on a riot, which the courts in Rundo and Miselis did not find constitutionally problematic. Yet the bulk of Massey's briefing does not actually address the specific statutory terms undergirding the indictment in his case. Similarly, his challenge to the term "urging" in section 2102(b)'s definitional provision, if successful, would still leave intact the term "instigating." …

As a word of caution, … [g]iven that two courts of appeal have recently held that the term "urging" in section 2102(b) as well as that subsection's double negative clause run afoul of the First Amendment, prudence might counsel in favor of steering clear of the use of those terms (if feasible) once the case gets to trial.

And the court also held that the alleged conduct would, if proven, fit within the Anti-Riot Act:

[1.] The indictment alleges that in addition to broadcasting over Facebook Live, Massey sent some of his messages to a specific group of Facebook users. Additionally, the indictment alleges that his messages contained a time (12 am) and place ("north area," "phone store," and "the location to link up"). Taking these facts as true, "it's possible to view [Massey's] conduct" as likely to produce imminent lawlessness.

[2.] Massey argues that the indictment does not show any "organizational relationship" between him and those listening to him. But he does not cite any authority indicating that such a relationship is required, nor has the Court found any….

[3.] Massey argues that the Anti-Riot Act does not contemplate damage to the property of a store because section 2102(a) specifies "damage to the property of any other person." The Dictionary Act, however, clarifies that every federal statute's use of the term "person" includes "corporations, companies, associations, forms, partnerships, societies, and joint stock companies, as well as individuals" unless the context of the statute indicates otherwise….

[4.] Massey argues that the circumstances surrounding the police shooting of Latrell Allen, rather than Massey's speech, precipitated the property damage alleged in the indictment. This isn't a basis for dismissal, however; at most it amounts to an evidentiary issue to be addressed at trial.

NEXT: Federal Court Blocks State Prosecution of Law Professor for Sharing Police Body Camera Footage

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  1. Wow this is so racist. This will get overturned by the Department of Anti-Racism, so no worries fellow liberals!

    1. This seems a sound prosecution.

      CharlieBravoDelta sounds like a standard-issue, disaffected right-wing bigot.

      Who has been predictably lathered by a cynical, partisan, downscale provocateur (with a misappropriated mainstream affiliation).

      1. I've ordered farts in jars off of OnlyFans that have arrived fresher than your schtick.

        1. I would have bet on that, based on my limited understanding (most of it developed by reading this blog) of incel behavior.

          1. Lame attempt at recovery fails.

  2. <

    WE WILL NOT BE FUCKING UP THE SOUTH SIDE EAST SIDE OR WEST SIDE DOWNTOWN AREA AND UP NORTH AREA ONLY BRING YA TOOLS SKI MASK AND GLOVES #LETSGOOOOO."

    Must be a Paper Lace fan.

    1. And the door burst open wide
      And my Daddy stepped inside...

  3. Regarding rioting,

    I routinely hear over 700 people have been arrested and prosecuted for the January 6 Capitol riot.

    Has anyone made a tally of those arrested and prosecuted for the various "mostly peaceful protests" earlier?

    It seems that if indicted Trump could some of these arguments in his defense. It seems the Fourth Circuit has a narrower interpretation than the Seventh.

    1. With some limited exceptions involving damage to federal property, earlier outbreaks of looting were local crimes, responsibility for which lies exclusively with state and local prosecutors, absent similar evidence of direct incitement over interstate media.

      1. Translation: "It's different when WE do it."

        How many people were prosecuted over the more fiery and otherwise violent riots on Trump's inauguration, or the DC riots in the summer of 2020?

        1. Translation: "It's different when WE do it."

          That would be a translation prepared by someone unfamiliar with the English language.

          If you wanted to be a bit wittier and more accurate, you might have said, "It's different where we do it."

          1. As I wrote, it was different when leftists did it in DC. The 2020 riots included attacks on the White House, and there was an organized assault on the Senate during Kavanaugh's confirmation.

            1. there was an organized assault on the Senate during Kavanaugh's confirmation.

              Remember all the windows smashed in and people climbing through them, and the hundreds of people injured after being attacked with makeshift weapons of all kinds? Yeah, me neither. Please stop lying.

      2. It's possible that the feds could intervene that the rioters violated civil rights of the people in the area, similar to how they prosecuted criminals in the deep south during the civil rights movement after juries refused to convict klansmen

        1. I don't much care whether prosecutions are federal or state, but I sense that many of the prosecutions with respect to spring 2020 protests and violence in my area have been federal prosecutions.

          This won't stop the right-wing whining, of course.

  4. Who is the lawyer representing him?

    This seems like a fairly robust defense for an obviously losing cause. Would an experienced lawyer take this case? Would a public defender make these arguments?

    Is this a pro bono defense by some sort of activist organization?

    I'm genuinely curious, but I'm not a lawyer so I don't know how we wind up in these circumstances.

    1. Defense attorneys very rarely get sanctioned for making losing arguments, and I think federal public defenders in felony cases are a step above the often useless municipal court appointed lawyers that so much has been written about.

      Maybe this is a step towards a guilty plea with a reservation of the right to appeal the denial of the motion to dismiss. Usually you see those with motions to suppress. I don't know how much of this motion could be considered on appeal from a guilty plea. There is a rule in some places saying a jury conviction bars appeals from claims that insufficient evidence was presented to the grand jury.

      1. This is not a "claim[] that insufficient evidence was presented to the grand jury." Indeed, in the federal system there is no such claim.

        1. So if the grand jury heard no evidence on an essential element of the crime, the defendant still has to go to trial?

          1. Correct

            “An indictment fair upon its face, and returned by a properly constituted grand jury,” we have explained, “conclusively determines the existence of probable cause” to believe the defendant perpetrated the offense alleged. And “conclusively” has meant, case in and case out, just that. We have found no authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof. To the contrary, “the whole history of the grand jury institution” demonstrates that a challenge to the reliability or competence of the evidence supporting a grand jury’s finding of probable cause will not be heard. The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime.

            Kaley v. United States, 571 U.S. 320, 328 (2014) (cleaned up).

      2. The fact that courts of appeals had accepted arguments that the statute was overbroad makes the argument in this case very clearly non-frivolous and completely appropriate for a defense lawyer to make, even if ultimately losing.

        It’s a better argument than typical for criminal defense lawyers, who often make arguments that have no chance at all of succeeding. This one had an arguable chance.

    2. The motion was filed by Ilia Usharovich, who appears to be a sole practitioner. Mr. Usharovich's notice of appearance indicates that he was privately retained. It does not indicate the source of that funding.

      1. He seems to like high profile cases and posting pictures of himself. Young lawyer trying to make a name for himself?

        http://usharolaw.com/media/

        and

        A group of American Airlines workers are asking a judge to blunt the reach of the airline’s COVID vaccine mandate, saying in a recently filed lawsuit that the vaccine mandate, alone, does little to actually stop the spread of COVID and make the airlines’ operations any safer.

        Late last year, American Airlines employees Clarence J. Stephens, Nancy M. Stephens, Donna Guzzio and Andrea Stahl filed suit in Cook County Circuit Court in Chicago against their employer. They are represented in the action by attorney Ilia Usharovich, of Wheeling.

      2. Those Russkie lawyers, such troublemakers. Especially the Ilyas. (Ilia and Ilya are both English transliterations of the same name.)

        1. I used to work with an Ilya. He'd be talking about his fiancee Anna, and then his other fiancee Anya.

          1. Normally you have to pay double for that kind of action.

  5. So much for the claim that the January 6 rioters are being prosecuted but the BLM ones aren't.

    1. Yes, one indictment is conclusive evidence.

      There are some scattered prosecutions but the FBI has had a full court press for months over the Capitol riot.

      Here is their tip line. Look at the tabs up top, none for the BLM riots.

      https://www.fbi.gov/wanted/capitol-violence

      Terrorism, 10 most wanted and people "who made unlawful entry" a year ago are FBI priorities.

      1. Bob, you have zero numbers. You just are super sure there's a double standard.

        Plus, of course, Jan 06 was a purely federal matter. The 2020 riots/looting were not.

        1. That, I think, is a very important point that has not been well made. Almost all of the BLM prosecutions would be state and local, not federal. So even if there were zero BLM prosecutions, it would still not be an apples to apples comparison since the feds are prosecuting the Capitol rioters.

          1. "Almost all of the BLM prosecutions would be state and local, not federal."

            There absolutely was a federal hook for prosecution, if the feds had wanted it; Not only were federal court buildings under attack in multiple states and DC, you had people crossing state lines to do the rioting.

            For some reason the feds didn't want to touch it, though. Even refused to declare Antifa a terrorist organization. They've got some high level protection, for sure.

            1. This is not how Federal practice works, Brett.

              If there is a state case to be made, the Feds generally don't bother to get involved except for extraordinary circumstances.

              As for the Federal court buildings 'under attack' considering how that went, I can figure out why prosecutions were not decided upon.

              1. So why weren't the rioters in DC who attempted to storm the White House (causing POTUS Trump to be locked down by USSS), and burn down St. John's Church tracked down and arrested? That would seem to fit the bill on prosecuting BLM rioters under federal statutes, no?

                1. You’d have to ask the Trump Justice Department why it declined prosecution since it was his DOJ at the time.

                  1. Well, nominally, anyway. Kind of hard to get operational control of an agency if every time you fire somebody you get accused of obstruction of justice, and a special counsel gets appointed. Nobody thinks they have to obey orders if they can't be fired.

                    1. Right. You have an answer for everything.

                    2. No matter what speculation about sekret liberal sabotage you create, federal practice is as I said, and has been for decades.

                    3. What? Are you going to try to claim that didn't happen? That when he fired somebody in the DOJ who was violating his orders, he didn't get a special counsel sicced on him? That if he'd continued firing people who didn't do as he said, you wouldn't have been screaming "obstruction of justice" at the tops of your lungs?

                    4. You think the fact that Trump couldn't fire Comey without consequence is a sign the DoJ is corrupt?!

                      Because that's topsy-turvey. Layig supine while the President just ended any investigation into his conduct would be pretty freaking corrupt.

                      The unitary executive is not something you can just assume; internal controls exist, as do political realities.
                      Letting Trump fire Comey without any action would have been awful for the Administration. And for rule of law.

                    5. And more importantly, this is not a diversion from long-standing practice.
                      So unless the FBI saw Trump coming in like the 1970s and set this up, you're just spinning a yarn out of nothing.

                1. Think for a moment why the Feds may have been involved there.

              2. In SF, the vast majority of charges, most of them minor were dropped. Felony charges were pursued where there was available evidence, though evidence was not in abundance like on January 6th.

                Unlike the insurrectionists, rioters, and mere trespassers on January 6th, the criminals that piggybacked on the George Floyd protests in San Francisco knew better than to post video of themselves committing crimes.

                1. SHAWN_DUDE

                  Ther was no insurrection. You know how I know that? Not one has been charged with it.

                  1. That's a dumb metric.

                    How many criminals in 2020 were charged under the riot act? I guess there was no riot!

                    1. You know those were protests, right?

              3. Is "the Feds generally don't bother to get involved except for extraordinary circumstances" true, Sarcstr0? In the very case described in this post, the Feds seem to have got involved, though I rather suspect that Illinois has laws prohibiting breaking and entering, larceny, and conspiracy to commit these. Nor does this case seem to be one that calls for Federal involvement; the only Federal nexus seems to be the use of telephones and/or Internet to plan the crime.

                1. I don't know why the choice was made in this particular case, but I do know the general practice is not to second a state prosecution.

                  Which is why Brett seeing a double standard is just a mirage.

      2. You appear to be uninformed, Bob from Ohio.

        Convictions -- and sentences ranging from a few months to four years -- are being reported regularly in my local newspapers concerning prosecutions deriving from the spring 2020 protests and violence.

  6. I think the Biden administration would be wise to prosecute more people who organized looting and arson during the summer of 2020 riots, and be more public that they are doing so. I think the FBI should be asking for tips.

    1. I don't much like the making of prosecutorial policy based on optics.

      Yes, the FBI already does this. But it's not good practice.

      1. I don't much like the making of prosecutorial policy based on optics.

        The you must hate what the Biden admin is doing with the detainees from Jan. 6.

        Now let's see if you slip up again, forget which sock puppet account you're using and respond to me again after claiming that you have me muted.

        1. You sound like a bitter, disaffected old loser, Wuz.

          I guess I might be cranky, too, though, if my preferences were doomed in modern America and I hated all of this damned progress, tolerance, modernity, science, education, reason, and inclusiveness.

          Fortunately, I am not a bigoted old White clinger.

        2. I unmute and remute people all the time.

          Do tell, who do you think my sock puppets are?

          1. They're flailing, Sarcastr0. It's about all they have left.

    2. I have been reading about such prosecutions, convictions, and punishments for some time now. Perhaps you should expand your reading horizons to include mainstream sources?

  7. This reminds me of George on Seinfeld when he gets caught having sex with the cleaning lady at work:

    "Was that wrong?" With so many prosecutors refusing to charge criminals, he's surprised that he was arrested.

    1. "But a Sponge Bob meme floating around twitter told me looting was good as it shocked the low end establishment store owners, to hopefully apply more pressure for change! Is my legal defense."

      You pay your money, and take your chances.

  8. What's a "finna" and what language is that?

    1. “Fixing to”—like I’m fixin’ to invade Iraq to slaughter us Muslims as George W Bush would say.

      1. Not something I think I have ever heard or seen before. Not a big fan of lazy slang. I think it does a poor job of conveying ideas and meaning.

        1. “Fixing to” or “fixin’ to” is a southern expression. “Finna” is what people type in text messages and it might be young Black people that type it like “finna buy a pack of Newports”.

        2. "[I am] not a big fan of lazy slang."

          Fixed that for you.

        3. "Fixing to" is a very common southern expression that means "about to."

          "I'm fixing to go to work." In my experience it is widely used by people of all races and classes. My guess is it's a variation on "preparing to."

          If I said "I'm preparing to go to work," you might think me pompous, but the meaning would be clear and the sentence grammatical.

    2. Contraction for "fixing to." Means something like going to/intending to. Its common in the AAVE dialect of English.

  9. I don't understand why the Act would need to be read narrowly.

    The message(s) in question go entirely beyond "urging" the commission of non-imminent crimes, to actually planning the crimes, and they are felony-level property crimes. That has always been, and should be, illegal.

    What have I missed?

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