It was a crisp winter morning when Shay Horse set out to cover the protests against Donald Trump’s inauguration. The Brooklyn-based freelance photojournalist was one of hundreds of reporters who traveled to Washington, DC, to cover a demonstration that would set the tone for Trump’s presidency: defiant chants, smashed windows, and hundreds of people, including Horse, surrounded by police.
The segment of the protest Horse followed gathered around 10 AM at Logan Circle, a couple miles northwest of the Capitol. The energetic, enthusiastic crowd attracted the attention of journalists as they slowly marched south. They didn’t get far—at the corner of L and 12th streets, the march was surrounded by police, who subjected Horse and the rest of the group to clouds of pepper spray, dozens of “stingball” grenades, and strikes from batons. According to a lawsuit later filed by the ACLU, the protesters, legal observers, and journalists were hemmed in so closely by cops they didn’t have room to sit down; officers spent most of the day arresting people, taunting them in response to requests for food, water, and toilets. When they got around to Horse, he was handcuffed so tightly he lost feeling in two fingers.
It would take the courts and police more than a day to process all the arrests made. Horse was initially charged with felony rioting and released. The police kept his camera. Weeks later, the charges against him would be dropped.
Others weren’t so lucky. A total of 194 people arrested that day have been charged with felonies related to rioting and property damage and face decades in prison. The indiscriminate nature of the arrests and the harsh charges have many observers characterizing the government’s treatment of the protesters as an assault on freedom of assembly. Chip Gibbons, an attorney for Defending Rights and Dissent, a legal advocacy group, said that if the prosecutions hold up, “the result would be the criminalization of dissent.” Six defendants are currently on trial, with the rest slated to be tried in 2018; on Wednesday, the judge dismissed felony “inciting a riot” charges for the group of six, but they still are on the hook for other felonies.
Adding insult to injury, some defendants, as well as people like Horse who are no longer facing charges, have another problem: The cops don’t seem to know exactly what they took from those arrested, or from who.
Horse is one of an estimated eight journalists detained on January 20, two of whom are still charged. One of them, Alexei Wood, is on trial right now. But Horse doesn’t know what separates him from Wood and the other reporters. “If anything,” he told me, “Alexei is more professional than I am. I don’t know why the prosecutor is going after him so hard.”
That prosecutor, assistant US attorney Jennifer Kerkhoff, admitted during opening arguments that she wouldn’t attempt to connect the first six defendants on trial to any act of property destruction that occurred during the inauguration protests. Instead, the government’s case against the defendants relies in part on proving the items they brought with them to the protest are evidence of a planned riot.
One item, initially presented by the prosecution as a “baton,” turned out to be a camera tripod belonging to Wood. But the sloppiness of law enforcement in this case extends much deeper: On Monday, it was revealed in court by Wood’s defense counsel that his property logs from his detention did not match the belongings the prosecution claims are his.
These property logs are documents the police give you when they are claiming your belongings as evidence in an investigation. Since the police arrested more than 200 people, they needed to fill out more than 200 receipts, many with multiple items each. But in the courtroom, it was obvious that the process hadn’t been smooth: In several cases, arresting officers could not confirm which items belonged to which defendant. Forensic scientists testified under cross-examination they had not performed any DNA analysis to definitively connect items likely intended to be used as weapons—such as a crowbar—with the defendants.
Another item—a wool knit cap that could likely be found in your average department store—was held up by Kerkhoff as an indication of a deep and organized conspiracy. To make the case against another defendant, a self-described street medic named Brittne Lawson, the prosecution held up supplies from Lawson’s first-aid kit: “These medics,” said Kerkhoff, “they’re not your first-aid technician at a charity walk. They had tourniquets and gauze.” (The Red Cross recommends that gauze be stocked in all first-aid kits.)
“I carry these medical supplies when I travel, even in my day-to-day backpack,” Elizabeth Lagesse told me. She is one of the defendants set for trial in 2018, and a plaintiff alongside Horse in a brutality and false arrest lawsuit against the police filed by the DC branch of the ACLU.
Lagesse thinks the cops are keeping protesters’ wallets because they plan to use ID cards from the International Workers of the World—a left-wing labor union—as evidence of nefarious motives. Gibbons of Defending Rights and Dissent told me “it’s a stretch” that the police would need to keep IDs and wallets as evidence.
Properly documenting the items that are allegedly key pieces of evidence has proven a challenge for the DC Metropolitan Police Department (MPD). In the aftermath of the mass arrest, Horse said at least one person had the wrong property returned to them: “The police sent them shin guards that weren’t even theirs.”
(Inquiries to the MPD as to the accuracy of property receipts during the J20 arrest were not returned.)
An activist I’ll call Jamie, who spoke on condition of anonymity, ran jail support on behalf of the National Lawyer’s Guild following the arrests. Their role was to ensure those arrested had food and water to tide them over the night. Jamie saw that the police were not returning accurate property receipts to the detainees, and many did not have their wallets and driver’s licenses returned. “They tried to keep everything,” Jamie told me. For the out-of-towners arrested, Jamie said it was “a transparent attempt to punish them just for being there.”
Alex Rubinstein, who covered the inauguration protests on assignment for RT America, also described difficulties getting the police to return an accurate property log in a Medium post recounting his experience: “They kept telling me that even if my property wasn’t documented, I would get it back nonetheless. I knew better than to think that items deprived of a paper trail last very long in any government office.”
Lagesse experienced similar resistance getting the police to return an accurate property receipt. “Mine didn’t list my cellphone,” she said. “Some people’s phones were listed on their receipts, others weren’t.” Her phone was one of more than 100 seized by police, a move criticized by civil liberties activists.
Lagesse has been studying the prosecution’s strategy in the first trial group in a bid to understand her own case. Her impression so far? “When people ask me for the weirdest parts, I literally don’t know where to start.”
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