DC Police raid houses, seize property as part of “riot conspiracy” investigation

#WeDisrupt email sent 4/5/2017

On April 3, 2017, DC police searched the house of a local activist looking for evidence of a “conspiracy to riot” in connection with the January 20th mass arrests. They also seized various electronic devices, including computers and phones belonging to roommates of the targeted individual.

Local organizers immediately launched a campaign to replace the seized items, but were promptly flagged by the crowdfunding platform GoFundMe.

Organizers have set up a separate donation page on their website, in addition to complying with the GoFundMe requirements.

As jarring as this situation must be for those who lost expensive electronic devices — not to mention the expectation of privacy in their own home — it is also a stark demonstration of how aggressively the government is pursuing these charges. It might even hint at some fundamental weaknesses in the overall case.

Dangerously Inelegant

The DC rioting statute used to indict over 200 inauguration protesters is short and more than a little vague:

DC Code § 22–1322. Rioting or inciting to riot

Section (b) — which covers willfully engaging in a riot — qualifies as a misdemeanor (a maximum prison sentence of less than one year).

But section (d) — which covers incitement of a riot — qualifies as a felony.

This law essentially encourages the government to charge window-smashers with misdemeanors, while chanting protesters get slammed with felonies. Never mind the First Amendment. This mis-calibration should trouble thoughtful people — regardless of their stance on the spectrum of protest tactics.

The pen being mightier than the proverbial sword, it’s probably wise of the government to fear the songs of protest over less property damage than your average World Series victory party.

On the other hand, this wording isn’t particularly helpful for the government’s current project of securing felony convictions against a large and varied group of protesters — most of whom cannot be shown (beyond a shadow of a doubt, no less) to have ‘organized’, ‘urged’, or in any other way ‘incited’ riot behavior.

It will be exceedingly difficult to find proof that any given crowd member is somehow responsible for inciting a riot. Presumably it will be even harder to convince a jury that vaguely encouraging someone to commit a crime should carry a heavier sentence than that crime itself.

To bolster a case otherwise built entirely on photographic evidence that arrestees exist (and were somewhere near the intersection of 12th and L on inauguration day), prosecutors sought warrants and subpoenas to show that at least some of their targets had used social media in the days leading up the January 20th. Presumably to plan all that inciting.

Police seized at least 100 phones from arrestees, and are working hard to access the data they contain. Kerkhoff has confirmed in court filings that they have accessed at least some locked devices.

Which brings us back to these most recent searches.

Flaws that highlight themselves

Searching for a conspiracy in the homes and digital lives of unindicted individuals nearly 4 months after-the-fact serves only to make the government look desperate. Lacking any real evidence on the people they’ve already indicted, and running out of time before defendants’ due-process rights force them to lay out their hand, prosecutors are hoping for a last-minute ace.

Sadly, these activists (and their roommates) are paying the price of this desperation.