Being Numerous Read online

  On the night that the Ferguson QuikTrip convenience store was gutted by fire after being looted, DeAndre Smith, a thirty-year-old local resident, told the St. Louis Post-Dispatch what the destruction meant to him: “This is exactly what’s supposed to happen when an injustice is happening in your community. When you have kids getting killed for nothing … I don’t think it’s over. I think they just got a taste of what fighting back means.”

  To tell a furious community that their riotous actions are counterproductive patronizes the very groups who know too well that “acceptable channels” of political engagement have failed, again and again, to deliver dignity and justice to black life. Further, it ignores, as Osterweil notes, that major riots (and the threat of more) during the civil rights era helped force JFK’s hand in calling for historic legislation: “To argue that the movement achieved what it did in spite of rather than as a result of the mixture of not-nonviolent and nonviolent action is spurious at best.”

  The wave of Black Lives Matter protests—catalyzed by events in Ferguson but fueled by years of police killing black youth with impunity—was remarkable in size, scope, and resilience. Without central planning, and eschewing the defanged respectability politics of elder statesmen and politicians calling for calm, these protests consistently shared the aim crystallized in the hashtag #ShutItDown. As movement journalist L. A. Kauffman pointed out in a December 2014 article in the Baffler, although protesters have in the past “used their bodies to block bridges, tunnels, intersections, and roadways,” the amount of “spontaneous and simultaneous disruptive action” we saw during these mobilizations was unprecedented.

  When more than 700 Occupy Wall Street participants blocked the Brooklyn Bridge in late 2011, it made headlines around the country. I was there and felt that weighted rush of something significant happening as, for just a few hours, bodies disrupted the ordinary flows on that great stone artery above the East River.

  That was a few hours on one drizzling October afternoon. During the most visible days of protests for black lives, major infrastructure was blocked nightly, and often in more than one place at the same time. On one December night in 2014, following the failure of a New York grand jury to indict the cop who choked Eric Garner to death, demonstrations blocked the I-93 entrance in Boston, the 110 Freeway in Los Angeles, I-80 in Berkeley, and every major highway, bridge and tunnel in and out of Lower Manhattan. A traffic map of New York City, highlighting jams in red, looked like a heart pumping blood.

  Blocking infrastructure turns a demonstration of collective anger into a manifestation. Planned and permitted protest parades, however large, are folded into the ordinary metabolism of city business. March routes are delineated; traffic, while slowed, is smoothly redirected and at the end of the day, traffic and commerce buzzes along as if nothing ever happened. The largest climate march in history was held in Manhattan in September 2014 and amounted to little more than a grand parade. Parades are scheduled in the city every year. Disruptions, by definition, are not. Not every disruption is a riot, but most every riot is a disruption.

  Beyond questions of justifying riots, a categorical error is made in any narrative resting on the idea of a violent “turn” in such protests. The very idea of a demonstration like those in Ferguson “turning violent”—as it was described in standard media parlance—mislocated and thus misframed violence in this context.

  The error exists in the tacit suggestion that there was a situation of nonviolence, or peace, from which to turn. To be clear: any circumstance in which cops take black life with impunity, any context in which it is still necessary to state that Black Lives Matter, is a background state of constant violence.

  Riotous protesters do not bring violence; the violence was there in the DNA of white supremacy and our world through which it permeates. Protester violence here is counterviolence in history’s unbroken dialectic of violence and counterviolence. Even a rhetoric of police turning violent during a specific protest ignores that policing, as an institution in this country, functions as a force of consistent violence against black life. And more often than not, cops’ roles as violent instigators are erased from media narratives. The malignant euphemism “officer involved shooting” says it all.

  But even in the rare moments, as during the beginning days of the Ferguson uprising, when a show of militarized policing draws public outrage, it tends to be the bellicose spectacle of tanks and smoke that draws ire. Quotidian policing is not marked as a violence, and law enforcement is praised when protests are contained and calm. When effective police crowd control—the avoidance of major property damage, the minimal disruption of business and traffic, de-escalation of intensity—gets celebrated as the maintenance of peace, the myth perpetuates that we have a baseline state of peace, peppered with violent turns. Which may ring true for America’s white and privileged. But the lie is exposed, overexposed, glaring: people who have to assert that their lives matter exist in a state of constant violence. As political activist and scholar Angela Davis said in a 1972 interview, “If you are a black person and live in the black community all your life and walk out on the street every day seeing white policemen surrounding you … And when you live under a situation like that constantly, and then you ask me, you know, whether I approve of violence. I mean, that just doesn’t make any sense at all.”

  The institutions and vectors of white supremacy have never turned from structural violence. Yet the media consistently attributes the act of turning to violence to people who literally cannot turn from it; whose lives and deaths are organized by it. Why not end the cycle? A better question: is it not cruel to demand peace from those who are not permitted to live in it? I repeat here the words of late philosopher Bernard Williams, who noted that “to say peace when there is no peace is to say nothing.” In Ferguson and Baltimore, with smashed glass and fire, something was said.

  4

  Making Felons

  “It’s crazy, a few windows got smashed,” twenty-three-year-old Olivia Alsip said, two months after her arrest on felony riot charges. “Why are 214 people looking at ten years in prison?”

  Alsip knew only one other person at the protest march on the day of her arrest. The political science graduate student from the University of Chicago had met her partner in November, when the two had joined the camps at Standing Rock opposing the Dakota Access Pipeline. When they heard about calls to protest Donald J. Trump’s inauguration under the banner “Disrupt J20,” on January 20 in DC, they felt they had to be there. “I identify as an anarchist, and I’ve been an activist for women’s and queer rights since the eighth grade,” Alsip told me over the phone from Chicago.

  Alsip was among 214 defendants facing felony riot charges, up to a decade in prison and a $25,000 fine for their participation in the anti-capitalist, anti-fascist march, which ended with a mass arrest on the morning of Inauguration Day 2017. As far as the student understood, the evidence against her amounted to little more than proof of her presence at the unruly protest, as indicated by her arrest. Like the vast majority of her codefendants, Alsip didn’t break or throw anything. Yet, until the last of the charges against the Disrupt J20 defendants were dismissed in July 2018, she would live in shock over the steep price she and her fellow protesters might have to pay as the new administration and police forces set the tone for how they would deal with the spike in organized dissent.

  Anarchists and anti-fascist activists across the country have responded to Trump’s ascendancy, and particularly the attendant emboldening of white supremacists, with confrontational protest. Rivers of digital ink were spilled approving and denouncing the meme-friendly punch delivered to neo-Nazi Richard Spencer, as well as the militant demonstrations that prevented far-right troll Milo Yiannopoulos from waxing hateful at UC Berkeley (see chapter 1). But while scattered vandalism and punching (of neo-Nazis) were deemed headline-grabbing militancy, the media relegated the most extreme incidents involving anarchists and anti-fascists—namely, their subsequent treatment by the
state—to footnotes.

  A New York Times article about anarchist protests, published two weeks after the 2017 inauguration, accorded just half a sentence to the fact that a Yiannopoulos supporter in Seattle shot and seriously injured an anti-fascist activist. Fifteen paragraphs down, a mere mention was given to the mass arrest of the 200-plus anti-fascist protesters on Inauguration Day. The fact that these arrestees went on to face felony riot charges would go unmentioned by the Times—blanket charges, which carried a heft unheard of in recent decades of protest history.

  “In my over thirty years of practicing law, I’ve never seen anything like this,” said veteran DC attorney Mark Goldstone, of the charges. Goldstone, who has defended dozens of activist cases and represented six of the J20 defendants, called the charges “unprecedented territory.”

  Dragnet arrests at protests are nothing new—recall the fall 2011 arrest of over 700 Occupy protesters on the Brooklyn Bridge. Nor is the leveling of serious criminal charges to demonstrators accused of property damage: with a legal logic seemingly opposite to that in the J20 cases, just one man was blamed for the $50,000 of property damage wrought during the 2009 Pittsburgh G20 Summit; he was convicted of felony criminal mischief and three misdemeanors. But the charge of felony riot is in itself rare, let alone when applied to over 200 people.

  The charges all stemmed from a single mass arrest of protesters who had taken part in the Disrupt J20 march. It was a typical “black bloc” march, in which protesters mask their faces and wear all black. More than 500 participants gathered some two miles north of the inaugural parade route and surged southward, marching, chanting, and crowding the streets as an aesthetically united force. Whether illegal activity occurred in the context of the march is not in question. By the time the DC Metropolitan Police moved in with pepper spray and flash-bang grenades, a number of march participants were smashing windows—of banks, of chain restaurants, of a limo. Some pulled trash cans into the street, some set off handheld fireworks, and one cop was hit by a rock. Police filings claim that protesters damaged more than $100,000 worth of property that day (a figure that includes destruction caused after the mass arrest).

  But no one—neither the police nor the government—suggested that most, or even many, of the arrestees directly engaged in property destruction or violence. Nonetheless, the police department and the government maintained not only that a dragnet arrest was appropriate, but that the police had probable cause to believe that each and every one of the more than 200 arrestees had “willfully incited or urged others to engage in the riot.” On this point, the law is precise: even in the case of an alleged riot, the police must have probable cause to arrest each and every individual.

  “All the police officers were outstanding in the judgment that we used,” Metropolitan Police Department Chief Peter Newsham said the day after the inauguration. “I couldn’t be more proud of the way this department responded.” Mayor Muriel Bowser tweeted her support for “our officers as they handled crowds.” In fact, it was precisely police judgment that problematized these riot charges.

  The original arrestees included a handful of professional journalists, medics and legal observers, most of whom would have their charges dropped over the subsequent days and weeks. Of the remaining 214 arrestees, a handful of individuals also faced property damage charges, having been allegedly identified smashing windows. One man, Alsip’s partner, was charged with felony assault on a police officer for allegedly throwing the rock that struck a cop; he was identified by his shoes.

  As pretrial court proceedings entered the discovery phase, the prosecution’s position became clear: the evidence against numerous defendants amounted to no more than video footage of their continued presence in the march and their choice of black bloc attire. If the mass arrest was imprecise enough to sweep up journalists and legal observers, how can it be maintained that the police had probable cause to arrest every single other protester for riot and incitement? If continued presence, proximity and black garb are sufficient to meet the necessary legal standard of individuated probable cause for arrest and prosecution under these charges, the DC police and the government have, from day one of Trump’s presidency, lowered the standard for what it takes to turn a protester into a felon.

  Mara Verheyden-Hilliard, the executive director of the Partnership for Civil Justice Fund, a legal organization that has long fought civil and human rights cases, expressed concern about police employment of dragnet mass arrests without particularized probable cause. She said that arrests “simply based on proximity or shared political views at a march” set a troubling precedent for all protests—not just for anarchist marches. She explained that “it means at any demonstration,” if a participant or a provocateur commits an illegal act, then “the entire demonstration can be subject to indiscriminate force and large groups of people can be suddenly arrested without notice or opportunity to disperse, and face life-altering charges.”

  Mass arrests, let alone those carrying felony charges, have been rare in DC since 2002, when then–assistant police chief Peter Newsham (a position made permanent in February 2017) ordered the arrest of around 400 people during an anti–World Bank / anti-IMF demonstration in Pershing Park. The dragnet arrest included both peaceful protesters and bystanders walking to work, leading to years of litigation and an $8.25 million settlement on the part of the Justice Department and Department of the Interior. It also led to the establishment of policies and statutes governing protest policing and defending First Amendment activity in the capital. “From the first day of the Trump administration, Newsham and the police department have really stepped back in time,” said Verheyden-Hilliard.

  I had joined the march at its genesis at Logan Circle, as participants tightened black bandanas around their faces and gathered in formation behind block-wide banners. I heard glass crack around us as we snaked through the city’s wide boulevards, and some protesters peeled from formation to take a rock or a stick to a window. Chants common to contemporary US protest boomed louder than any breaking glass: “No Trump, no KKK, no fascist USA!” At no point did the police move in to grab individuals as they destroyed property, but after minutes that felt longer than they lasted, cops charged the group en masse.

  After one group of protesters broke through a police line on the intersection of L and Twelfth Streets, cops penned in the remaining crowd of 230 and held them there for more than four hours before taking them into holding. In the chaos of charging police, wafting pepper spray, and scrambling protesters, I had detached from the crowd just half a block before the cops closed in. “When the police kettled us [corralled them into a net], they pushed us all into one big writhing mass with not enough room to stand,” Alsip recalled. “When they stepped back, people were screaming and crying because they had just been maced or hit.”

  The government claimed that First Amendment protections didn’t apply in the J20 cases, because property damage began “from the jump” (i.e., immediately). Their indictment states that protesters “did not exercise multiple opportunities to leave the Black Bloc,” and that they cheered and chanted “Fuck it up,” “Fuck capitalism” and “Whose streets?” (slogans that have peppered most every protest I’ve attended, from Occupy to environmental marches to Black Lives Matter).

  According to Verheyden-Hilliard, such a claim goes against fifty years of cases in which property damage or violence occurs during First Amendment activity. “The glue that holds this group together is First Amendment activity,” she said. “The line that violence began ‘from the jump’ distracts from the fact that the police acted unlawfully, as we can see from the fact that the government is trying to extricate particularized probable cause after the fact.”

  At a pretrial status hearing I attended in March at the high modernist DC Superior Court building, Assistant United States Attorney Jennifer Kerkhoff told the court that the government had collected more than 600 hours of video footage and data pulled from more than one hundred cell phones taken from the arre
stees. She said that each defendant would be shown individuated evidence of their participation in the riot and its incitement. But during a late-March conference call with fifteen other lawyers representing J20 clients, Mark Goldstone learned that for a number of defendants this alleged evidence amounted to no more than, as he put it, “Here’s your client at the beginning of the march, wearing black clothes and goggles, your client could have left but did not, and here is your client at the end, in the police kettle.” “The scary thing about it,” said Goldstone, “is that defendants who want to test that theory have to be willing to face a jury, who could uphold the government’s line.” It’s not hard to demonize a masked protester.

  As such, while civil liberties groups and legal support groups stress police misconduct and prosecutorial overreach, the pressure for defendants to plead out in such cases is high. And where pleas are extracted from defendants, the ability to bring civil litigation against the police department is significantly diminished—if not foreclosed. In their use of lengthy prison sentences to attempt to extract pleas out of court, the J20 cases recapitulated a predicament all too typical of the judicial process in this country.

  Early in the court proceedings, in spring 2017, an eighteen-year-old man pleaded guilty to one count of misdemeanor rioting or inciting to riot, a suspended 180-day sentence, one year of supervised probation, a $500 fine, and fifty hours of community service. Because he was under twenty-three years of age, the defendant was charged under the Youth Act, which allows for a young person who “will derive benefit” to get special treatment under the law. This did not apply to most every other arrestee, most of whom were between twenty-five and forty. “The plea deal that was accepted by one defendant was both a bad deal and irrelevant to everyone else’s cases,” the Dead City Legal Posse, a DC volunteer legal support group set up to assist the J20 cases, wrote in a statement.