Free Assembly and the First Verdicts from the Trump Inauguration Mass-Arrests

A protester shows the police her peaceful intentions by raising her hands. (Jewel Samad/AFP/Getty Images)

A protester shows the police her peaceful intentions by raising her hands. (Jewel Samad/AFP/Getty Images)

While Donald Trump was being sworn in as president, a small group of protesters took their anger out on K Street property, broke bank windows, and set fire to trashcans and a limo. Law enforcement arrested them... along with hundreds of innocent bystanders, peaceful protesters, human rights observers, and journalists. The charges included rioting, property destruction, and felonies that would leave many in prison for decades.

20 plead guilty. Charges were dropped against another 20. 166 cases went to trial. Few had anything to do with the destructive behavior.

Last week, after a month-long trial and two days of deliberation, a District of Columbia Superior Court jury delivered not-guilty verdicts for the first six defendants. (Defendants are being tried in groups of six or seven.) For those concerned about the long-term implications these trials could have on the fate of the first amendment freedom of peaceful assembly, these verdicts were encouraging.

Government prosecutors never tried to prove the individual roles of these first six defendants. They merely sought to prove that everyone they charged was guilty because they were allied with the rioters. The prosecution argued that anyone who failed to walk away from a riot is participating in (or at least aiding) a riot.

Guilt by association? This was guilt by proximity.

It's not as far-fetched as it sounds. At the center of the debate is the definition of what constitutes a riot in DC: "an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons."

If you read this literally, one can be convicted of rioting if they find themselves in an "assemblage" in which others are engaged in "tumultuous and violent conduct", even if their own conduct is entirely peaceful. This literal interpretation is precisely what the prosecution was peddling.

Imagine that, in your everyday life, you could be charged for any crime committed you are witness to. You might think twice about leaving the house! When this threat exists for first amendment activities like free assembly, it’s said to have a chilling effect. The inauguration day mass-arrests were a coordinated legal effort to dissuade civic participation and dissent.

Maina Kiai, the former UN authority on free assembly, said, “One person’s decision to resort to violence does not strip other protesters of their right to freedom of peaceful assembly. This right is not a collective right; it is held by each of us individually.” Yet police rarely distinguish between peaceful protesters and nearby rioters or looters, especially when the protesters are people of color.

In this first trial, the judge threw out felony charges of inciting a riot and the jury didn’t buy the prosecution’s arguments or flimsy evidence, which included a controversial video from a far-right group, Project Veritas.

“All the government proved was that these individuals showed up and walked as protesters,” said defense attorney Sara Kropf.

Government prosecutors may need to shift strategies or drop some charges. Only when the 166th case is closed will we know what the inauguration day mass-arrests mean for free assembly in DC and the US.