On The Case

‘This is the broken system’: Some civil rights lawyers say Capitol Hill riot response shows systemic bias

(Reuters) - Last summer, as racial justice protests broke out around the country, Houston lawyer Brenda DeRouen told me she couldn’t just stand by as hundreds of nonviolent marchers were arrested and detained in her city. DeRouen’s firm agreed to defend about 20 protesters pro bono, including protesters arrested for trespassing after police herded them onto private property, and helped organize a brigade of pro bono lawyers to represent other marchers. Within weeks, the Houston district attorney dropped charges against more than 600 demonstrators who, in DeRouen’s view, never should have been arrested in the first place.

Last week, most of the rioters who broke down police barricades and stormed the U.S. Capitol were permitted to leave the building without being arrested, based on photographs and videos of their exit from the building. At least seven of the rioters who appeared in viral photographs of the storming of the Capitol – including a shirtless “Qanon shaman” draped in furs, an Arkansas man who posted a photo of himself seated in House Speaker Nancy Pelosi’s office, and a Trump-hatted Florida man who mugged for cameras as he left the building carrying a Congressional lectern – have since been arrested and charged. In all, according to Reuters, about 20 alleged rioters are now facing federal charges. At least 40 more have been charged with lesser crimes in the District of Columbia.

Prosecutors and the FBI have said they are continuing to investigate the riot, which left five dead, including a member of the U.S. Capitol Police. The chief of the Capitol Police, who announced his resignation after last week’s events, said in a Jan. 7 statement that his department did not foresee the violence and that his officers were simply overwhelmed. “The USCP had a robust plan established to address anticipated First Amendment activities,” the statement said. “But make no mistake – these mass riots were not First Amendment activities; they were criminal riotous behavior.”

DeRoeun watched the Capitol Hill debacle last Wednesday night on television. And as she witnessed white rioters walk freely out of the Capitol – many raising their hands or waving their fists in celebration – she said she thought about the hundreds of peaceful Houston protesters who were handcuffed and locked up last summer.

What she saw, she told me, was exactly the systemic racial inequality that drove Black protesters and their supporters to the streets.

“I wasn’t surprised,” she said. “This is something we have been telling White America all year – there are two systems of justice in this country. This is the broken system we are so used to seeing.”

Scott Michelman is the legal director of the ACLU in the District of Columbia and is representing Black Lives Matter and several individual protesters from a June 1 protest outside of the White House that was dispersed with aggressive police tactics. He also said the contrast in the law enforcement preparation for and response to that march, in Washington’s Lafayette Square, and the Capitol Hill riot could not have been more stark, adding, “I cannot fathom what motivated (law enforcement’s) disparate treatment other than institutional, perhaps implicit bias and racism.”

At the same time, however, it’s important to remember that more than 60 police officers were injured, and one died, as they tried to beat back Trump supporters who stormed the Capitol. On the day after the attack, the chair of the Capitol police officers’ union said that the force’s leaders failed to provide adequate equipment and backup and that once the building was breached, officers were committed to protecting members of Congress and their staffs. Michelman and DeRouen don’t have any direct evidence that race shaped how law enforcement agencies prepared for and responded to the pro-Trump rally as it spun into a riot last week. I emailed Capitol and Metropolitan Police Departments to ask about the lawyers’ assertions but didn’t hear back, and the Capitol Police officers’ union did not answer a phone call for comment.

Some Democratic politicians and activists, including President-elect Joe Biden, are also asking systemic questions. “No one can tell me that if it had been a group of Black Lives Matter protesting yesterday, they wouldn’t have been treated very, very differently from the mob of thugs that stormed the Capitol,” Biden said last week.

We will eventually hear an official rationale for why police officers allowed rioters to leave the scene after they desecrated the seat of our government. Congress has promised an investigation, and the Capitol force is conducting an internal probe. Late Monday, Congressman Tim Ryan, an Ohio Democrat, said that two Capitol Police officers have been suspended for their conduct during the riot.

When the official justification comes, I urge you to think hard about what you saw on Wednesday, Jan. 6, as triumphant Trump supporters filed out of the Capitol and into the night. Then imagine the same scene with protesters whose skin was not white.