The Confederate Statue Topplers Are Already Screwed

When a crowd yanked down the Confederate Soldiers Monument in Durham, North Carolina, late Monday, the statue's head and torso crumpled on impact. But what's going to happen to the people who pulled it down?

Takiyah Thompson, the 22-year-old who took credit for putting the lasso around the statue's bronze neck, was arrested Tuesday afternoon. Her detention was followed by the arrests of at least seven fellow activists. All eight face identical charges that go a lot further than a slap on the wrist: not just three misdemeanors for property damage and defacing, but also two felonies, inciting a riot and participating in a riot where there is property damage in excess of $1,500.

The heavy-handed state response is not going unanswered: On Thursday morning, a crowd of several dozen people showed up to turn themselves in, "I'm Spartacus!"-style, at the Durham Detention Center. They were turned away by law enforcement, but solidarity groups are already forming to help the Durham statue-topplers.

T. Greg Doucette is a Durham-based criminal defense lawyer, fierce civil libertarian and anti-Trump conservative whose perspicacious twitter essays on the grinding nastiness of America's criminal justice system have earned him a wide following. This week, he went semi-viral with his objections to the charges slapped on Durham's statue-topples—and his clear-eyed view of their potential human consequences. As so often happens with a mediagenic case, the aftermath of Charlottesville and ensuing vigilante statue removals has cast new light on the everyday reality of this country's steroidal prosecutorial state.

I called up Doucette for some perspective on how this might play out from here.

VICE: The two felony charges are pretty damn harsh. Do you expect them to stick?
T. Greg Doucette: There's no conceivable way. The sheriff himself said that they [police] didn't intervene when the crowd was pulling down the monument because they didn't want the demonstration to turn violent. That means the demonstration was not violent.

And if you look at North Carolina's riot statute, it requires there to be a combination of violence and disorderly conduct. So legally, there's no riot if the violence piece is missing.

So wait, why is Durham District Attorney bringing the felony charges then?
It's actually the sheriff, Mike Andrews, who filed the charges. Law enforcement makes the initial charging decision, then it's up to DA to take it up. To be honest with you, I think the charges are politically motivated to satisfy the public's bloodlust because they saw a black girl take down a confederate statue.*

Typically the way this works the DA will develop a plea agreement of some kind to see if the defendant wants to take it, then it's up to the defendant to take it or go to trial. At least one of the two misdemeanors will wind up in the plea deal, but the felonies? No chance. And if it does somehow go to a felony plea, then I would take it to trial.

What are the collateral consequences here to the people charged, especially given their age?
The main issue is that the info gets disseminated all over the place. A lot of websites go through the newspapers every day for the mugshots.

We have a paper here called the the Slammer that's nothing but mug shots from the week before. You also have the social media consequences. Also, we have a system in North Carolina, ACIS (Automated Criminal & Infraction System), to handle the court calendar. Private companies that do background checks buy access to ACIS and see that, even if you're completely not guilty and you never get convicted of anything, 20 years from now, you apply for a job, those charges come up, and they're not going to stick around to find out what happened.

What do you think these protesters should be charged with? Nothing at all?
You have to look at how we'd enforce it in a private property context. If I and three friends went to your house and slashed your tires because we didn't like VICE or something, we'd be charged with misdemeanor property damage and we'd have to pay restitution to make the victim whole. You make the government whole with some form of punishment—most of the time it's community service, sometimes it's jail. That's enough, we call it square and everyone goes about their business.

And I think that would be appropriate here. The laws need to be enforced equally. If it's misdemeanor property damage for slashing tires, then it should be misdemeanor property damage for tearing down a participation trophy erected to traitors.

What do you see as the future of monuments in North Carolina and throughout the country?
When it comes to decisions about these monuments, our state legislature has taken local power away from people.They took that away in 2015 with a law that says cities and counties can't touch these monuments without the approval of the state legislature. There's some kind of state commission that has to approve the removal or movement of any state monument. If it's moved, it has to be moved to a place of equal prominence. State law actually forbids taking a monument and putting it in a museum.

A lot of people are figuring out that local elections for prosecutor and sheriff in this country can be a major lever for criminal justice reform. Are there likely to be consequences for Sheriff Mike Andrews if the public concludes he's overcharging these protestors?
I don't know what the political fallout will be. I think it'll be a factor in the City Council races. But when it comes to the county, none of them are up again until a year and a half from now, and that's an eternity in politics, especially the Donald Trump era.

Another thing to keep in mind is that the sheriff's race is county wide. Only about one third of the electorate in the county is people of color. But you do have "law and order" Republicans who are thinking this is just the bees' knees. Then you have progressives, really people who Martin Luther King would've called white moderates, people who claim to believe in anti-racism but clutch their pearls whenever there's a demonstration. You piece those two groups together and you've got a majority.

Recently on Twitter, you pointed to local youth named Lewis Little, who was charged with murder he didn't commit in 2013. Now he has those false criminal charges around his neck for life, even without a conviction. Aren't cases like that the one we should be more concerned about?
The horrific ones matter, but they're rare. The bigger problem is the mundane ones that happen every day—that's the real issue. A few years ago, I was representing at 17-year-old black kid charged with reckless driving. The accusation was he was doing donuts on a residential street. The police officer claimed there were 360-degree skid marks, but Mom had picture of the skid marks and they weren't like that. I took out a tape measure and the street's not even wide enough to do donuts. The kid was trying to dodge a cat. You're driving, you dodge a cat and all of a sudden you have the full weight of the government coming down on you threatening with 60 days detention and it's a disgusting thing.

We're so focused on people tearing down a statue but we should be more focused on people getting beaten in the street and the police charging people with things the government can't possibly prove. It's political maliciousness.

*Reached for comment, a Durham County Sheriff's Office spokesperson declined to respond to the thrust of Doucette's allegations, other than to note that the other seven alleged monument-topplers face the identical set of charges as Ms. Thompson. The Durham County District Attorney's office did not respond to a request for comment.

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