In 1968, as the nation was roiled by demands for racial justice, anti-war protests, and violent protests following the assassination of Dr. Martin Luther King, Jr. protests broke out in over 110 cities. It was the year in which the Civil Rights Act of 1968 was signed, but it was also the year in which a law was passed to define “civil disorder.” That law was designed specifically to allow federal officials more leeway in taking action against protests. Rather than charging individuals with specific crimes, they could be charged with civil disorder, and subject to five years in federal prison.
The law was specifically meant to cover people who use large uprisings to conduct acts of large-scale violence—and it’s easy to read through it and see the transparent concerns that the mythical antifa equivalents of 1968 were arming and training Black people for revolt. But it includes some decidedly vague language around both anyone who demonstrates a “technique capable of causing injury or death to persons” as well as anyone who “commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer.”
And now Barr is leveraging this law, and twisting it in a way that could mean that the government could declare anywhere, at any time, to be in “civil unrest.” And make any protester, no matter what their alleged crime, subject to a five-year sentence.
The focus of the original law on concerns about a mass armed uprising can be seen in the way it initially addresses “Whoever teaches or demonstrates to any other person the use, application, or making of any firearm or explosive or incendiary device” as well as those who transport firearms, explosives, of incendiary devices.
In a infamous 1972 case, anti-war protesters at Washington University in St. Louis tossed stones and firecrackers toward the campus R.O.T.C. building. This demonstration was a protest against the killing of four college students by National Guardsmen on the campus of Kent State University that happened earlier on that day. When a fire broke out at the building, firefighters responded, but firefighters left after the rain of stones and fireworks continued. They returned along with a line of police in riot gear. Finally, one police officer was slightly injured by a “cherry bomb” (essentially a round firecracker) before the fire was put out. A law student at the campus testified that he saw two men throw cherry bombs, one of which exploded “five or six feet from a police officer.” That was the sum total of the evidence against the two men. They were convicted and received the maximum sentence of five years in federal prison. They appealed. The conviction was upheld. They got five years for throwing fireworks on the night of the Kent State massacre.
That’s not the last time the law was used. In 2011, a “birther” was charged with violating this law when he made statements that President Obama was guilty of “treason” for faking his birth certificate. He then tried to organize a takeover of a small town in Tennessee and showed up at the courthouse with “a loaded Colt .45, an AK-47, and 300 rounds of ammunition” to meet with like-minded bigots. He was actually sentenced to four years in prison on a related charge of transporting firearms across state lines with the intent to cause a civil disorder.
But what’s going on with the DOJ charges in Portland is substantially different. As The Oregonian reports, the DOJ filed charges against three people on Wednesday—a man who is accused of firing a ball-bearing at a firefighter using a slingshot, a man accused of breaking the glass of a police station with a hammer, and a woman who admits tossing a helmet at a policeman conducting an arrest. The scale of the activities here varies widely. Clearly, if true, the ball bearings could have caused a serious injury, while the woman who tossed the helmet did so out of frustration and concern over a friend then being violently arrested. Following the incident, she immediately apologized and surrendered to arrest without incident.
However, just as in the 1972 case, the civil disorder law doesn’t require that anyone be seriously injured. It also doesn’t require any criminal intent. It allows all actions—minor to major—to be treated with the same level of punishment. In the ruling against the appeal of the 1972 case, the judge specifically denied that the civil disorder law is intended to stop free speech, but that’s exactly its purpose: It’s designed to create a rule allowing any active resistance, whether it causes harm or not, to be treated as a major crime. Taken to extremes, it’s a law that allows the federal government to apply a charge of civil disorder to anyone who resists arrest, or refuses to obey a police order, or doesn’t clear a square fast enough at curfew. It’s a law that criminalizes protesting.
And extremes is where Barr is going. In the Portland case, the three actions charged took place across a period of months. The inclusion of Michelle Peterson O’Connor, the women who tossed the helmet at a cop holding a friend on the ground, was extremely intentional both because it involved no injury and it took place just a week ago. In selecting the cases, the DOJ has defined the entire period, from shortly after the police murder of George Floyd until the present, to be an event of civil disorder within Portland. In fact, “within Portland” isn’t even clear, as these events happened in different locations as well as on different dates. The definition of civil disorder here appears to be unbounded in either space or time, subjecting anyone who demonstrated any disobedience to local, state, or federal police over this period to severe penalty.
There’s also no doubt that this DOJ action is directly connected to Donald Trump’s move to deny legally mandated funds to cities by having Barr draw up a list of “lawlessness zones.” No one believes that Michelle O’Connor, who has never before been charged with anything in her life, was attempting to overthrow civil authority or instigate an uprising when she picked up a fallen helmet and flung it toward a cop. Barr is intentionally creating the lowest possible bar for these actions by cherry picking not the worst events of the last few months, but the ones that allow him to take an overly broad law and make it applicable to an even wider range of events.