On Aug. 26, Kevin Phomma was arrested during a racial justice demonstration outside the Immigration and Customs Enforcement building in Portland, Ore.
Prosecutors say Phomma sprayed police officers with bear repellant, so the U.S. Department of Justice charged him with civil disorder, a felony.
Fast forward to Jan. 6, where Reed Christensen, a Republican Party leader from Oregon’s Washington County walked up the steps of the U.S. Capitol in Washington, D.C.
According to the FBI, Christensen struck police with his fist. Later, federal prosecutors filed charges, including civil disorder.
In the last year, the Justice Department has turned extensively to civil disorder, a once rarely used law, to crack down on crimes they say were committed during protests and other unrest.
“How do we deal with that extremism?” asked former Oregon U.S. Attorney Billy Williams, who was part of the federal government’s response to protests in Portland last summer and called the attack on the U.S. Capitol, “chilling.”
“What we’re witnessing and what we have been witnessing for some time are the individuals at the extremes of the spectrum, either far left or far right, both. And people making decisions to engage in extreme conduct that is of a criminal nature.”
In 1968, Congress passed the Civil Obedience Act during the height of the civil rights movement.
Among its aspects, the statute makes it a crime to interfere with police or firefighters doing their official duties during a protest or civil disorder that “adversely affects commerce” or the “conduct or performance of any federally protected function.” The charge carries up to five-years in prison.
“There’s overtly racist sentiments of the drafters of this statute,” said Lisa Hay, the federal public defender for the District of Oregon. “The statute was written during a time when senators were concerned with the civil rights movement and they wanted to stop the civil rights movement by arresting its leaders.”
Hay’s office is representing Phomma and others in Portland charged with civil disorder. She said it’s wrong to use the charge against racial justice protesters now.
During the last 30 years, civil disorder was used in roughly a dozen cases nationwide. Federal prosecutors filed it in response to crimes the government says occurred during a variety of protests, including actions over the Dakota Access Pipeline and the Baltimore police killing of Freddie Gray.
In the last 12 months, the Justice Department turned to the charge more than 125 times.
First, during protests that followed George Floyd’s murder by police in Minneapolis. Prosecutors filed civil disorder cases in North Dakota, Alabama, Wisconsin and Minnesota. Through the end of last year, the majority of the charges were filed in Oregon, where protesters in Portland took to the streets for more than 100 nights of direct action against police violence.
Williams stressed the charges were never aimed at addressing lawful protests for police reform and social justice.
“Which are powerful calls,” he said. “Separate that from those on the extremes who engage in criminal conduct.”
Since Jan. 6, federal prosecutors have brought hundreds of cases against people who stormed the U.S. Capitol. About a quarter of those charged in the attack face civil disorder.
While the cases are very different, the charge — civil disorder — is the same. For months, attorneys representing racial justice protesters have been trying to get those charges thrown out. Their arguments serve as tests for those facing civil disorder after the Capitol attack.
“There’s plenty of other specific federal and state statutes that could be used to prosecute people in Portland and the people at the Capitol,” Hay said.
Beyond its racist origins, Hay argues, the law is unconstitutional.
“The fact that the statute is being used widely proves the point of our litigation, which is that this overbroad and vague statute can apply to so many circumstances, including innocent conduct, that it will chill the exercise of constitutional rights,” Hay said.
The Justice Department didn’t respond to a request for comment. Oregon’s U.S. Attorney’s Office declined an interview request.
In court documents, federal prosecutors argue the civil disorder charge is constitutional and push back on the notion of any racist intent. “The riots that took place in Portland last year were violent,” federal prosecutors wrote in court documents. “Dozens of police officers and protesters were injured. Local businesses suffered millions in losses. These violent activities took place during, and sometimes after, peaceful protest activities. And it is this violence – not the peaceful protests – that underlie the government’s prosecution …”
They say civil disorder applies to a defendant’s conduct whether it’s a racial justice protest or what happened at the U.S. Capitol. In many cases across the country, defenders and federal prosecutors are making the same arguments developed in Oregon.
“We’ve talked with defenders around the country about the use of this statute and ways to challenge it,” Hay said.
One of those cases was in Mobile, Ala., where Tia Pugh was charged with civil disorder after prosecutors said she broke the window of an occupied police cruiser during a racial justice protest last May, following Floyd’s murder in Minneapolis.
Federal defenders in Alabama challenged that case, using the Oregon defender’s arguments.
And the Justice Department responded.
In April, Michael Dittoe, a prosecutor from the National Security Division’s Counterterrorism Section who has spent the last several years charging supporters of the Islamic State, traveled to Alabama to defend the charge over the broken window. The hearing was first reported by Politico.
“At the very basic level, the government is thinking, ‘At the minimum, we have to preserve our ability to bring this charge,'” said Tung Yin, a professor at Lewis and Clark Law School in Portland, where he researches terrorism and national security law.
Earlier this month, the federal judge overseeing Pugh’s case tossed out arguments from the defense that the charge is unconstitutional and allowed the trial to move forward.
On Wednesday, a jury found her guilty.
It’s one of scores of cases where similar arguments could play out over and over again in the months to come as the Justice Department pursues both crimes they say were committed during racial justice protests and those involved in the Jan. 6 siege on the U.S. Capitol.
“The decision on this may be in the court of public discourse,” said Margaret Russell, a law professor at Santa Clara University where she specializes in civil rights and free speech.
From a legal perspective, Russell said the most powerful arguments against the civil disorder statue would be that it infringes on the First Amendment. Though Russell adds defense attorneys may have another goal in highlighting the law’s racist history from the civil rights era.
“If the federal defenders and others are pointing out the origins of this law, and the misuse of it, and the likely misuse of it here, then it calls attention to, perhaps, reasons to not use this particular statute to prosecute people,” Russell says.