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Breonna Taylor protest arrest of Kentucky lawmaker shows risk of anti-riot laws' abuse

The Trump administration and local authorities have been using overly broad anti-riot statutes to arrest nonviolent and violent demonstrators alike.
Image: Louisville Police Officer Charged With Wanton Endangerment In Breonna Taylor's Death
Demonstrators raise their fists as they gather on the steps of the Louisville Metro Hall in Louisville, Kentucky, on Thursday.Michael M. Santiago / Getty Images

During the Breonna Taylor protests in Louisville, Kentucky, Thursday night, Attica Scott, the only Black female state representative in the state, was among a handful of people arrested for felony first-degree rioting. A library in Scott’s district had a window broken and a flare thrown inside at the demonstration, though no major damage was done. Scott, an outspoken proponent of racial justice and police reform who authored Breonna’s Law to end no-knock warrants statewide, said it was “ridiculous” and “absurd” that she is being accused of trying to burn down a library she has consistently fought to fund.

The expansive language of these statutes makes them an ideal tool for a government that wants to target demonstrators.

If someone damages property or injures another person, they can always be prosecuted for those crimes. However, the increasingly aggressive use of anti-riot acts against protesters, such as Scott, is a startling and dangerous development. The ongoing nationwide demonstrations for racial justice constitute possibly the largest protest movement ever in U.S. history, and, despite some well-publicized incidents of violence, the overwhelming majority of these demonstrations have been peaceful. Yet authorities have been using overly broad anti-riot statutes to arrest nonviolent and violent protesters alike. The power given by these acts urgently needs to be curbed.

U.S. anti-riot statutes trace their origin to English law, where rioting was vaguely defined as a group that engaged in "tumultuous" conduct that threatened the "public peace." Today, anti-riot acts vary considerably by state. Some require actual violence to bring charges under them, while others just require those in a group engage in still unclearly defined “tumultuous” conduct that might cause “public alarm.”

The expansive language of these statutes makes them an ideal tool for a government that wants to target demonstrators. Consider protesters that hold similar signs or wear similar clothing: If a handful engage in vandalism, like breaking a window, police and prosecutors can potentially arrest and prosecute the entire group under some states’ anti-riot acts.

This is not a hypothetical. During a demonstration in Washington, D.C., on the day of President Donald Trump’s inauguration in 2017, some protesters engaged in vandalism. The Justice Department charged about 200 protesters with violating the district’s anti-riot act. Prosecutors didn’t present evidence that individual protesters committed any crime themselves. Yet a Washington Superior Court judge held the demonstrators could be found guilty of “conspiracy” to riot or “aiding and abetting” a riot — which carried penalties of up to 60 years in prison — because the protesters wore similar colored clothing that allegedly made it easier for those who committed vandalism to blend back into the crowd. The Justice Department was ultimately unable to secure a single conviction from a jury, but not after the defendants suffered substantial costs.

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More recently, Trump has pushed to respond to the ongoing protests for racial justice with calls for law and order and, specifically, a vow to crack down on “anti-American riots.” Attorney General William Barr has called “rioting” by antifa “domestic terrorism” and triggered the use of Joint Terrorism Task Forces. In a memorandum issued earlier this month, Trump directed federal agencies to find ways to withhold federal funding from states and cities he claims are not doing enough to combat rioting. Trump has warned that his administration would put down “very quickly” any “riots” on election night if protesters came out to contest the validity of his re-election.

Many localities have seemed happy to follow Trump’s lead. Texas Gov. Greg Abbott this week announced legislation that would increase penalties for those who participate in a “riot,” require those arrested to stay in jail until they could see a court officer and make it a new felony offense to “aid and abet riots with funds and organization assistance.”

Yet this provides police broad discretion that can easily be abused. Three Dallas women sued the city in June for wrongful arrest under the state’s relatively subjective definition of rioting after police swept them and other protesters up using tear gas and rubber bullets. Texas law defines a riot as seven or more people who engage in conduct that “creates an immediate danger of damage to property or injury to persons.” The women claimed they were peacefully protesting and police simply did not like their Black Lives Matter signs.

Compounding the problem, many anti-riot acts also have broad incitement provisions that can also be abused by prosecutors. Earlier this year, a St. Louis activist was charged for incitement to riot by the Justice Department seemingly on the basis of a Facebook post in which he merely encouraged others to join a demonstration the next evening that he described as a “red action” — an organizing term that indicates protesters might be violently confronted by the police or arrested.

Recognizing the danger of overbroad language against incitement, in August a three-judge panel of the 4th Circuit Court of Appeals based in Richmond, Virginia, unanimously struck out language from the federal Anti-Riot Act that makes it illegal to “encourage” or “promote” a riot (neither word is defined). The panel found the federal Anti-Riot Act violated the First Amendment right to free speech by criminalizing what it called “protected advocacy.” Confronted with similar concerns, a U.S. District Court judge in Los Angeles struck down the entire federal Anti-Riot Act in June 2019.

There have been objections to anti-riot laws going back at least as far as the 1960s, when civil rights leaders criticized them for giving law enforcement too much discretion. These two recent federal court rulings affirm concerns about their overbreadth, and the Supreme Court may ultimately have to decide their precise constitutional limits.

The United States' outdated and poorly framed anti-riot acts add confusion and the potential for politicization into an already volatile political situation. They too often create a subjective legal standard that allows police to selectively engage in mass arrests of protesters and allows prosecutors to harass demonstrators with serious criminal charges. State and federal lawmakers should work to either remove these unnecessary acts from the books altogether, or at least better target them to align with our constitutional values.