In Spite of Local Law Limiting Investigations of First Amendment Assemblies, DC Police Infiltrated Organizing Group for Inauguration Protests

Before the Washington, DC Metropolitan Police Department (MPD) had arrested a single  protester at Trump’s inauguration, undercover agents had infiltrated one of the main groups organizing protests according to court documents.

On Inauguration Day, MPD  engaged in a mass arrest of over 200 protesters and in an unprecedented move charged 214 people with felony rioting. To sustain such a charge will require individualized proof that each of the defendants specifically engaging in illegal conduct, a daunting task for the prosecution. As part of their attempt to build a case against 214 people, MPD received a warrant to search the home of Dylan Petrohilos, who has not been charged with a crime. According the Washington Post, police broke through his front door and “seized cellphones, computers and a black ‘anti-capitalist, anti-fascist’ flag from Petrohilos’s front lawn[…]”

The affidavit outlining the MPD’s probable cause to support the warrant shows that the MPD sent undercover officers to infiltrate meetings held by  Disrupt J20, including one chaired by Petrohilos.

Following a series of mass arrests during the early 2000s, the MPD was subject to a number of lawsuits contesting their illegal, unconstitutional actions. The DC City Council responded by attempting to rein in the police by passing the “First Amendment Assemblies Act of 2004” and “Police Investigations Concerning First Amendment Activities Act of 2004”

These two laws affirmed the people’s right to hold a spontaneous demonstration, forbade the MPD ffrom arresting protesters for parading without a permit, and put limitations on infiltration of First Amendment protected activity.

According to DC statute, any investigation or preliminary inquiry involving First Amendment activities must be conducted for legitimate law enforcement purposes only. Additionally:

MPD members may not investigate, prosecute, disrupt, interfere with, harass, or discriminate against any person engaged in First Amendment activity for the purpose of punishing, retaliating, preventing, or hindering the person from exercising his or her First Amendment rights.

Under the statute, MPD officers may, without authorization, open a preliminary inquiry into a First Amendment assembly for public safety purposes. However, such inquiries are limited to reviewing public information and overt communications with the assemblies organizers about such things as expected number of participates or information regarding the time, place, and manner of the assembly.

Given that the agent in question was undercover this would not be an overt communication with organizers, nor could they be said to be merely gathering public information.

An investigation or preliminary investigation that goes further than that would require prior written authorization from “from the Commander, Office of Superintendent of Detectives, or such other MPD commander of similar rank designated by MPD regulations.” For a criminal investigation, the MPD would need reasonable suspicion “to believe that the persons, groups, or organizations are planning or engaged in criminal activity, and the First Amendment activities are relevant to the criminal investigation.”

However, a preliminary investigation requires a much lower burden of proof. Such an inquiry is meant to “to obtain sufficient information to determine whether or not an investigation is warranted” and requires “allegations” that require “further scrutiny” that does not meet the standard of reasonable suspicion. Such an inquiry must be reauthorized every 60 days and can only continue beyond 120 days with the authorization of the Chief of Police.

Based on the information revealed by the Washington Post it is unclear what authorities the MPD cited to justify their infiltration of Disrupt J20, if they were conducting a criminal investigation or a preliminary inquiry, and if so what supporting evidence was purported to exist to justify either. Regardless, Defending Rights & Dissent  has long documented the shocking regularity with which law enforcement at all levels government infiltrate and have promoted legislation and model ordinances at both the local and federal level to attempt to check these abuses of authority. We are deeply disturbed by revelations about the use of police infiltrators to gather information on the planning of anti-Trump protests. We equally concerned by the MPD’s decision to return to tactic of mass arrests during demonstrators, their use of felony rioting charges, and their searching of electronic devices, including those belonging to a party not charged with a crime, as they attempt to find individualized suspicion against the victims of a mass arrest.

We had hoped that the MPD had learned some lessons from the early 2000s, when MPD lawlessness resulted in deprivations of Constitutional rights, and significant monetary penalties against the city.