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Selective Enforcement: A Case Study From Pittsburgh

The late Supreme Court justice Robert H. Jackson (1892 – 1954) was known for his commitment to due process under the law. A famous speech of his to rookie federal prosecutors in 1940 contained this classic passage:

Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.

In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.

Jackson’s “great assortment of crimes” has ballooned to ever more enormous proportions since 1940. Congress and state legislatures have spent the last 82 years busily creating new felonies, but almost never repealing existing laws, making “a technical violation of some act” virtually impossible for anyone to avoid. Picking the man and pinning offenses on him has become standard practice at all levels of law enforcement – if indeed it was ever otherwise, Jackson’s plea not withstanding. Nowhere more so than in Pittsburgh. Our city has been proven to yield the most unequal outcomes for Black residents, particularly women, of any major US metropolis, in large part due to racist policing and prosecution (1, 2). Pittsburgh law enforcement is based, not on a Jacksonian commitment to prioritizing the most serious offenses without fear or favor, but on wholesale railroading of poor and Black residents for whatever crimes can be hung on them. The 2020 protests against the murder of George Floyd provide an instructive case study.

Shortly after the initial march for George Floyd on May 30, 2020, the Pittsburgh police formed the so-called Damage Assessment and Accountability Task Force for the sole purpose of investigating crimes committed during protests. While we do not know the exact number of officers assigned to the task force, information from protesters’ docket sheets shows that at least 18 to 25 officers have been involved at various times since it was founded. The DAAT was still making arrests at least as late as July of 2021, 14 months after the first George Floyd protest. The task force’s work is labor intensive. Officers spend their time trawling through surveillance footage from hundreds of cameras, tracking individuals’ movements from camera to camera, looking up statutes they can be alleged to have violated, identifying them through social media, facial recognition technology, and tips, and finally hunting them down and arresting them. Prosecutors must then assemble a case based on a lengthy chain of video evidence and make it presentable to a jury. All this during the pandemic, which must have further hampered an already burdensome operation.

The obvious question here is what heinous crimes prompted this outpouring of investigative fervor? Was an ISIS cell lurking among the protesters? Did any police stations get torched? Molotov attacks against riot cops? None of the above. The overwhelming majority of offenses were vandalism, petty theft, and trespassing, inflated into felonies by imaginative interpretations of overly broad laws. Let’s take a look at some of the most common charges.

Far and away the most popular was Riot, a third degree felony in Pennsylvania, the lowest grade. The statute reads as follows:

A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of disorderly conduct:
(1) with intent to commit or facilitate the commission of a felony or misdemeanor;
(2) with intent to prevent or coerce official action; or
(3) when the actor or any other participant to the knowledge of the actor uses or plans to use a firearm or other deadly weapon.

There are a lot of issues with this law. For starters,  a “riot” requires a mere three participants. Then there’s the part where it’s a felony to help someone else attempt to commit a misdemeanor. In addition, no definition of “disorderly conduct” is provided. There is a separate offense of that name, but no language is included in either statute connecting the two, allowing police to apply whatever definition suits them in any given situation. Worst of all, there are obvious First Amendment problems with the second section, which on its face violates the rights to free speech, free assembly, and petition for redress of grievances. In short, Pennsylvania’s riot law is tailor made to criminalize protesting.

Another very common charge is Burglary, which against protesters is generally graded as a second degree felony. The statute is lengthy, so we’ll just skip to the good part – you don’t have to actually steal anything to be charged with burglary. Section a, paragraph 2 reads “enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.” That’s it. There is no requirement to have removed anything inside. The protesters charged with burglary are mostly just people who wandered inside a building during a protest and wandered out again. Contrast the extreme criminalization of what amounts to mere trespassing with the police’s neglect of actual burglaries. Homeowners are lucky just to get a report for their insurance company, never mind solving the crime and getting their valuables back.

Moving on to the misdemeanors, one favorite is Propulsion of Missiles. No, nobody fired a MANPAD at a passing helicopter during a protest. The statute, which would be more accurately titled “Throwing Stuff,” goes like this:

(a) Occupied vehicles.–Whoever intentionally throws, shoots or propels a rock, stone, brick, or piece of iron, steel or other like metal, or any deadly or dangerous missile, or fire bomb, into a vehicle or instrumentality of public transportation that is occupied by one or more persons commits a misdemeanor of the first degree.

(b) Roadways.–Whoever intentionally throws, shoots, drops or causes to be propelled any solid object, from an overpass or any other location adjacent to or on a roadway, onto or toward said roadway shall be guilty of a misdemeanor of the second degree.

The first paragraph is fairly reasonable. The second one, which is the one being used against protesters (as evidenced by the fact that the misdemeanor grade is almost always second degree), is violated every day by people who do nothing more dangerous than toss an apple core into a roadside garbage can. The apple core doesn’t even have to miss the can – the paragraph says it need only be moving “toward said roadway.”

Failure to Disperse is another misdemeanor charge that has been thrown liberally at protesters. The statute reads simply: “Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.” Again, there is no definition of “disorderly conduct.” Again, a gathering of only three people is considered an element of a crime. The law even explicitly allows criminalization of bystanders in the “immediate vicinity” of a disturbance, even if they didn’t participate in it, freeing police and prosecutors from any responsibility to determine who did what. Perhaps worst of all, the law gives explicit permission to the police to decide which “course(s) of disorderly conduct” should be dispersed, throwing the door wide open to abuse.

The above statutes are not reasonable laws being misapplied to repress protesters (although there are plenty of those as well). As bad as that would be, the current situation is even worse. The laws in question were obviously written to be catchall charges, weapons against anyone the government deems it expedient to criminalize. An illustrative comparison can be made with enforcement at the protest march downtown on May 30, 2020 to Kenny Chesney’s concerts at Heinz Field. Before the pandemic, Chesney’s No Shoes Nation descended on Pittsburgh every summer for a day of drunken mayhem on the North Shore. Attendance at his shows is generally around 50,000, at least ten times the participation in the march, and with a lot more alcohol. There’s less window breaking and graffiti than at the protest march, but much more assault and drunken driving. Propulsion of missiles is rampant. If the police genuinely believed that public order offenses are real crimes worthy of comprehensive enforcement, they could send hundreds of riot cops to the show every year, issue dispersal orders every time they witnessed three of more people engaged in “disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm,” and arrest anyone who remained in the “immediate vicinity.” They could set up drunk driving check points beside parking lots to pull over erratic drivers and subject them to breathalyzer tests. They could form a Kenny Assessment and Accountability Task Force to investigate crimes committed on the North Shore on the day of the concert, which would examine surveillance footage from Heinz Field, local bars, and city-owned street cameras (which are numerous in that area). The evidence gathered by the KAAT would lead to hundreds of prosecutions for assault, sexual assault, public urination, and that reliable standby Riot, among many others.

Of course if Pittsburgh police ever did anything of the sort, Kenny Chesney would never return to Heinz Field. If police strictly enforced public order offenses everywhere he went, his career would be ruined. If all major stadium events were treated so, the entire industry would shut down, and the National Football League would have to limit games to television only. And this, of course, is why in real life the county is prosecuting protesters so vigorously. It’s not because they care about the supposed crimes committed – those are just an excuse to discourage anyone from protesting in Pittsburgh again.

One thing is for sure, prosecutors are not prioritizing protest cases for cheap victories to pad their stats. All the time and effort spent on persecuting activists is yielding remarkably little in the way of actual felony convictions. Of the 62 protesters with felony charges we have been able to identify, 13 had their felonies, and in some cases all of their charges, dropped before trial. Another 11 felony cases were settled by the defendant pleading guilty only to misdemeanors and summary offenses, with sentences of two years probation or less. Only 11 cases resulted in a felony conviction (with the remainder still pending). That works out to 31 percent of concluded felony cases that have ended with at least one felony conviction, less than half the usual rate, based on protest-unrelated felony docket sheets from the same time period.

Usually prosecutors, who are judged on their conviction rate, don’t like to accept cases they aren’t sure of winning. Accordingly they encourage police not to make arrests without sufficient evidence, and drop charges that are unlikely to stick at the preliminary hearing stage. That even after an exhaustive investigation, backed by laws designed to ensnare protesters, the Allegheny County DA’s office has been unable to make even a third of their felony charges stick, tells us that for protest cases harassment is the main goal, not conviction. Even when defendants ultimately manage to get all their charges dropped, their lives are turned upside down by the stress, uncertainty, and expense of the legal process. Getting arrested, raising bail money, finding a lawyer, and dealing with onerous pre-trial release conditions constitute a punishment on their own, regardless of the outcome of the case. The county relies on this to chill activism and free speech. Here it is relevant to note that no protest cases have gone to trial as of this writing, nearly two years after the protests. Protesters who want to fight their cases are subjected to repeated continuations, in an attempt to drag out the process and persuade defendants to settle just to get the ordeal over with, regardless of guilt or innocence.

This is worse than the behavior Robert H. Jackson cautioned against. Pittsburgh law enforcement isn’t just “picking the man” and looking for offenses that can be pinned on him. They’re singling out protesters, and in many cases forcing them to defend themselves against charges that are completely spurious, that can’t be supported even under the most favorable interpretations possible.

Even worse than that, the police have targeted protesters with tactics straight out of Putin’s Russia. One video shows a protester essentially being kidnapped by what turned out to be undercover police in an unmarked van. Granted, this proved to be a bridge too far, and the tactic was widely criticized in the media and disavowed by then-mayor Bill Peduto. However, it shows what the police would do if they could get away with it. The threat to democracy is obvious and clearly intentional. For an explanation of the strategy behind it, we turn not to a jurist, but to a soldier named Frank Kitson. Kitson is a retired British general and scholar of counterinsurgency, who fought to uphold British colonialism in Northern Ireland, Kenya, and Malaya. Low Intensity Operations, Kitson’s manual of counterinsurgency warfare, offers this nugget of sage advice: “.…the Law should be used as just another weapon in the government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public.” Between the Kitsonite and Jacksonian approaches to law enforcement, it’s obvious which one is favored in Allegheny County.

While we wait for the rule of law to become something more than propaganda cover, the Pittsburgh chapter of the National Lawyers Guild stands in solidarity with all unwanted members of the public. Toward that end we are raising money to aid in the legal defense of those accused of felonies for protesting in Pittsburgh. Please donate to our GoFundMe.

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