US Current Trends in Civic Space


These trends provide succinct overviews of emerging issues affecting civic space in the United States.

For an analysis of collective liability provisions in critical infrastructure bills see ICNL’s legislative briefer “Guilt by Association”: Critical Infrastructure Bills and the Right to Protest.


 

The Rise of Collective Liability at Protests

The U.S. has witnessed collective liability increasingly being applied in the context of demonstrations. This development not only can be personally unjust to protesters or organizations charged on these grounds, but also chill the right to protest, by discouraging individuals from joining or groups from helping organize demonstrations because they fear being held liable for others actions.

The J20 Protests

In the aftermath of the “J20 protests” in Washington D.C. on inauguration day in January 2017, the U.S. Attorney’s office pursued a highly aggressive prosecution strategy. During the demonstration against President Trump, some protesters engaged in vandalism and assaulted a limo driver. Over 200 protesters were corralled and trapped by law enforcement, in a tactic known as kettling, and subsequently arrested. The U.S. Attorney’s office brought multiple felony and misdemeanor charges of inciting a riot and destruction of property against each of over 160 protesters that could lead up to 60 years in jail. Significantly, prosecutors did not claim that they had evidence that those charged damaged property or hurt anyone themselves, but rather they accused them of taking part in a demonstration that they should have known would lead to illegal behavior.

The trial of the first batch of accused protesters began only in November 2017, some ten months after they were charged. In December of 2017, a jury found the first six defendants in the case not guilty on all charges. In January 2018, charges were dropped against over 100 defendants. Charges were eventually dropped against all remaining defendants by July 2018. None of the J20 protesters were convicted although 21 did plead guilty to at least some charge. Those that went through trial or faced trial underwent significant financial, professional, and emotional costs. As one protester explained, she went to the protest “to make a political point, as [she had] at many other protests.” Minutes after arriving she was arrested, subsequently charged with multiple felony and misdemeanor charges, and ended up having her life transformed as she awaited trial for well over a year. 

State Legislation

It is not only prosecutors that have used a theory of collective liability in the context of demonstrations. States have also passed or are considering legislation that would make it even easier to hold protesters, or organizers of protests, liable for the actions of others. For example, after the Dakota Access Pipeline demonstrations in North Dakota, Oklahoma’s governor signed a bill into law in May 2017 that increased penalties for protesters who trespass on or damage “critical infrastructure” (defined broadly as anything from a power plant to a telephone pole). Under the new Act, an organization that is found to be a “conspirator” in any of the crimes listed in the legislation can face a fine of up to $1,000,000. Rights advocates have raised concern that this would stop organizations from organizing protests because they fear they might be held liable for trespass or property destruction that might occur during a demonstration.

In December 2017, the American Legislative Exchange Council (ALEC), a free market advocacy organization, released a model bill, based on and inspired by the Oklahoma legislation, which it is calling on state governments to adopt. In January 2018, a bill was introduced in Ohio broadly based on this model that would fine organizations if they were found to be “complicit” in trespass or mischief offenses.
Similarly, Arizona introduced a bill in 2017 that would broaden the definition of “riot”” to include actions that merely cause property damage (but don’t threaten anyone physically). Under the bill, riots would be included under “racketeering” offenses intended for organized crime. As a result, organizers of demonstrations and protesters, who do not themselves cause property damage, could be charged as conspirators under the Act.

The application of collective liability in the context of protests is a troubling development. Such prosecutions can chill participation in demonstrations if potential protesters think they may face severe sanctions by just taking part in a protest. As the Inter-American Commission noted in December 2017, these and other restrictive measures in the U.S. also set bad international precedent. The U.S. has long viewed itself as a beacon of free expression and these developments provide cover for governments elsewhere to use tactics, like collective liability, to suppress demonstrations.

July 16, 2018


For more information contact: Nick Robinson at nrobinson@icnl.org

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