Yesterday I noted reports in Oregon media about the growing reliance on federal charges under 18 U.S.C. Sec. 231 being used to prosecute rioters in Portland based on any actions taken by them directed at local, state, or federal law enforcement agencies engaged in the performance of their duties during an episode of “civil disorder.”

A “civil disorder” is defined as a public disturbance involving acts of violence or property damage by assemblages of three or more persons.    The statute also covers interference with the efforts of firefighters to do their jobs during any “civil disorder.

The US Attorney’s Office in Portland issued a press release earlier this week on one such case, and the details are instructive on how the local and federal police agencies — working with the FBI and US Attorney in Portland –are going to use this statute to positive effect against the protesters in an effort to “thin their ranks” over time.

Jesse Herman Bates, 38, of Seattle, Washington, has been charged by criminal complaint with civil disorder after shooting a firefighter with a ball bearing during a protest in Portland on July 13, 2020, announced Billy J. Williams, U.S. Attorney for the District of Oregon.

in the early morning hours of July 13, 2020, a firefighting crew was working to put out a fire burning in the middle of an intersection in downtown Portland that was blocking traffic. A crowd of approximately 300 people were in the immediate area, some of whom were assaulting police officers and committing acts of vandalism and property damage. A firefighter, who was wearing a grey uniform with a large medic patch, was walking across the street to brief his team when he was shot in the chest with a round metal ball bearing.

The firefighter said the shot came from a protester armed with a “wrist rocket” style slingshot. A Multnomah County Sheriff’s Office deputy saw the suspect on camera and identified Bates as the slingshot shooter.

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On August 25, 2020, detectives from Seattle Police Department’s Robbery Unit received Bates’ outstanding federal arrest warrant and promptly issued a department-wide notice…. On September 1, 2020, bicycle officers spotted Bates on East Broadway Avenue near the park and arrested him without incident. He was then transferred to the District of Oregon by the FBI.

….

This case was investigated by the FBI. It is being prosecuted by the U.S. Attorney’s Office for the District of Oregon.

As I noted in the earlier article, this statute is a felon and is punishable by up to 5 years in federal prison.

The US Attorney’s Office does not function like the local district attorney’s office.  The US Attorney is not what I call a “prosecutor of last resort.”  The US Attorney’s Office only files cases it intends to pursue.  A district attorney receives stacks of paperwork regarding recent arrests by police and must make “charging” decisions on each case.  A substantial volume of cases gets closed with no charges being filed for any number of reasons.  After those cases are closed, there is no other option for pursuing those individuals who were arrested.

In federal court, a case begins with either a Criminal Complaint or an Indictment.  As noted in the Bates case, he was charged by way of Criminal Complaint in order to get an arrest warrant for him issued by a federal judge.  Those complaints are filed by federal prosecutors.  That step only happens after the prosecutor has accepted the case for filing based on a determination that there is sufficient admissible evidence to obtain a conviction at trial.  These cases don’t evaporate because the Assistant US Attorney who filed the case changes his or her mind.  Bates is likely headed for federal prison before it’s all done.

Weeks ago it was being reported that among the “bail” conditions being imposed on defendants being charged in federal court was the requirement that they no longer participate in illegal protests.  If that condition still being enforced, the ranks of the protesters will grow thinner with each “wave” of federal charges filed using this “civil disorder” statute.