Federally Prosecuting Rioters

As nationwide unrest continues over the tragic death of George Floyd, conversations continue on how to prosecute individuals who resort to violent tactics including rioting and looting. Attorney General William Barr has suggested that the Anti-Riot Act be utilized to hold criminals who co-opt peaceful protests accountable for their destructive behavior. 

How exactly does this play out in practice?

Hans von Spakovsky and Cully Stimson of the Heritage Foundation explain:

The Federal Anti-Riot Act (18 U.S.C § 2101) allows the federal government to go after anyone who “travels in interstate or foreign commerce” or who uses “any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio or television” to “incite a riot; or to organize, promote, encourage, participate in or carry on a riot; or to commit any act of violence in furtherance of a riot.”

So anyone who travels from out of state or uses his phone or his computer with the specific intent to instigate and participate in riots is violating federal law. It also applies to those who “aid or abet” anyone else to carry out such acts. Someone found guilty can be fined, imprisoned for up to five years or both for each violation.

The text of the Act makes it clear that Congress intended the law to be used quickly to quell the source of violent unrest.  Recently, the Act has been used to prosecute the organizers of the 2017 white supremacist protest that turned deadly in Charlottesville, Virginia.

Senator Tom Cotton pointed out in the New York Times last week that the Anti-Insurrection Act could also be used in rare circumstances. Additionally, he noted that the widespread pain experienced by Americans resulting from a tragedy has been taken advantage of by groups seeking to destroy everything in their path without regard for the communities being affected:

[N]ihilist criminals are simply out for loot and the thrill of destruction, with cadres of left-wing radicals like antifa infiltrating protest marches to exploit Floyd’s death for their own anarchic purposes.

These rioters, if not subdued, not only will destroy the livelihoods of law-abiding citizens but will also take more innocent lives. Many poor communities that still bear scars from past upheavals will be set back still further. . . . 

Some elites have excused this orgy of violence in the spirit of radical chic, calling it an understandable response to the wrongful death of George Floyd. Those excuses are built on a revolting moral equivalence of rioters and looters to peaceful, law-abiding protesters. A majority who seek to protest peacefully shouldn’t be confused with bands of miscreants. . . . 

In normal times, local law enforcement can uphold public order. But in rare moments, like ours today, more is needed, even if many politicians prefer to wring their hands while the country burns.

Senator Cotton's Op-Ed led to the New York Times' Editor resigning.  Even someone saying that the Anti-Insurrection Act could be utilized in "rare moments" is too controversial for the New York Times.  As Senator Cotton tweeted:

The first person to be charged under the Act during the most recent riots was an Illinois man who travelled to Minneapolis where he allegedly distributed explosives, lit a building on fire, and looted buildings – all on video.

Von Spakovsky and Stimson also propose that 18 U.S.C. §241 be used to prosecute those who use masks or disguises to intentionally hide their identity while engaging in the violent behavior that cities are experiencing. Ironically, the statute was originally used to prosecute members of the KKK who Antifa and other similar groups claim to be countering with their activities.

All agree the KKK is bad, but it is unfortunate that some cannot agree that rioting and looting are bad.