Feds Go After Protesters With Rarely Used Civil Disorder Law Enacted in 1960s

The statute has been used in at least two dozen cases across the country. But legal experts worry it can be "a dangerous road to go down"

George Floyd Protest In Philadelphia
Bastiaan Slabbers/NurPhoto via Getty Images

When announcing federal charges against four men accused of torching police cars in Philadelphia during a protest in May, U.S. Attorney William McSwain gave a stark warning: He would use the full force of the federal government against others who cause mayhem.

"If you engage in violent civil unrest and commit a federal crime in this district, we will come after you as hard as we can," McSwain, of the Eastern District of Pennsylvania, said at a news conference Thursday. "You will go to jail."

In addition to the arson offenses, federal prosecutors said a grand jury had charged the men with one count each of "obstructing law enforcement in the commission of their duties during a civil disorder."

The statute, which dates back to 1968 and was enacted during a tumultuous period of civil rights and anti-war protests, has rarely been used following the Nixon administration, legal scholars say. But this year, in the aftermath of nationwide unrest set off by the killing of George Floyd, a Black man in Minneapolis who died after being pinned by a police officer's knee, federal prosecutors have leveled the civil discourse-related charge in at least two dozen cases across the country, a review by NBC News has found.

While Philadelphia is now the latest city where the charge has come up, U.S. attorneys have included them in cases in Houston; in Boston; in Chicago; in Delaware; in South Carolina; in Mobile, Alabama; in Rochester, New York; in Erie, Pennsylvania; and in Portland, Oregon, where there has been no fewer than seven cases of protest-related civil disorder charges.

"It was almost never used until this current administration," said Stephen Kanter, an attorney and dean emeritus at Lewis & Clark Law School in Portland.

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