Federal Prosecutors Hold Protesters for Months Pretrial

Just after midnight on May 31 in downtown Las Vegas, Ricardo Densmore broke off from a larger group of demonstrators and used his phone to record two other protesters lighting a squad car on fire. Densmore, a 24-year-old former security guard, had felt called to action after watching the video of George Floyd being killed by Minneapolis police and joined thousands of others in the streets, part of a wave of protests across the nation. In Las Vegas that night, police used tear gas and rubber bullets against protesters, some of whom threw items at police.

That unoccupied police vehicle was the only one reported to have been set ablaze in Las Vegas, but images of burning squad cars would become national symbols of frustration over unaccountable police violence. Video later obtained by local police and reviewed by an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives shows two men using a butane lighter to spark a flame through the car’s passenger-side window, according to a complaint filed in the U.S. District Court of Nevada. Federal prosecutors have not claimed that Densmore actually set the fire. But a federal grand jury nevertheless indicted him on two counts each of conspiracy and arson, alongside his two co-defendants, Devarian Haynes and Tyree Walker, charges that could mean a minimum of five years in prison, according to prosecutors. He has pleaded not guilty.

The three young men had been swept up in a nationwide crackdown on the movement for Black lives led by Attorney General William Barr, who pushed U.S. attorneys to file charges against protesters. Federal prosecutors filed felony charges against at least 107 people for incidents related to protests in the week after Floyd’s death.

As of November, prosecutors have initiated cases against at least 340 people, charging protesters for acts such as arson, theft, property damage and making threats online. Many of the indictments stretch the limits of the federal government’s ability to prosecute crimes that affect “interstate commerce,” according to experts.

The aggressive push to prosecute protesters appears to be matched by an aggressive push to detain those defendants pretrial. According to a review by Reveal from The Center for Investigative Reporting and Type Investigations of prosecutions by U.S. attorney’s offices, more than 60 people arrested for acts of protest this past spring and summer were ordered detained pending trial, despite multiple coronavirus outbreaks inside the federal prison system and at county jails that detain federal defendants pretrial. In more than a dozen cases in which judges denied a prosecutor’s request for pretrial detention, prosecutors appealed the release order. Densmore’s case was one of them.

The U.S. attorney’s office in Nevada moved aggressively this summer to keep Densmore detained until trial. On June 5, after a magistrate judge ordered him released, prosecutors filed a successful emergency stay, further prolonging his detention at the Nevada Southern Detention Center, outside of Las Vegas.

That month, COVID-19 was spreading rapidly through the facility, according to a civil rights suit filed by a prisoner. The suit alleges that officials working for CoreCivic, the for-profit company that operates the prison, seeded an outbreak starting on June 1 by placing a newly arrived inmate who later tested positive in a dorm room where 96 people slept and shared showers and toilets. In an emailed statement, CoreCivic spokesperson Ryan Gustin said the company has “rigorously followed the guidance of local, state and federal health authorities” on COVID-19, adding that it has “responded to this unprecedented situation appropriately.”

Civil rights advocates say lengthy pretrial detention for crimes associated with protesting is unusual – and inappropriate.

“Prosecutors are seeking to keep people detained as if they were longstanding drug lord criminals,” says Vincent Warren, executive director of the Center for Constitutional Rights in New York. “These are not people that are transporting arms across state lines. These aren’t people that are hardened criminals with long records. These are average citizens motivated by a horrible policy, and they’re speaking out.”

Densmore’s childhood was marred by an abusive foster home, leaving him with no family ties in Las Vegas. As an adult, Densmore worked as a security guard for nearly three years until he was laid off in March due to the COVID-19 shutdown. He then spent two months quarantined in Michigan with his father, the first time he’d spent an extended period of time with him, until he returned to Las Vegas in late May.

Ivette Maningo, Densmore’s attorney, said the attempt to keep him detained, even during a pandemic, struck her as unusual. He wasn’t accused of any violent acts, and with a history of steady employment, he didn’t appear to be the kind of defendant prosecutors in her district typically try to detain. But Assistant U.S. Attorney Stephanie Ihler argued that Densmore’s lack of local community ties or stable residency, plus a conviction for misdemeanor domestic battery, warranted pretrial detention.

“They’re normally not this aggressive in detaining someone like that,” said Maningo. “It was clear they were making an example of him.” According to a motion she filed on June 26, Densmore had been held in solitary confinement for most of the month and had not received a cast for a broken hand. Gustin, theCoreCivic spokesperson, disputed Maningo’s characterization, explaining that Densmore had been held in a quarantine unit upon arrival. Gustin said claims that Densmore had not received medical treatment were “patently false.”

At a detention hearing on July 1, Ihler again moved to keep Densmore detained, arguing that he should not be released to his family in Michigan because the partner of Densmore’s father was a registered medical marijuana user. Densmore’s conditions of release included a prohibition on using cannabis.

The judge pushed back and ordered him released. U.S. Magistrate Judge Brenda Weksler said she considered the political circumstances of his alleged offense as a mitigating factor.

“The backdrop for this incident was the killing of Mr. Floyd,” Weksler said in the hearing. “This was the catalyst for what many believe is a series of racial injustices at the hands of police that have been suffered predominately by Black people in this country, so the court cannot overlook the symbolic nature of the acts at hand here.”

Defense attorneys say the Justice Department’s reliance on incarceration is reflective of a broader law-and-order crackdown by federal prosecutors under the Trump administration. Prosecutors with U.S. attorney’s offices began requesting detention more frequently in 2018 and are now more likely to request detention for federal defendants than at any time since at least 2006.

With an unprecedented wave of federal prosecutions of protesters across the country, some who felt compelled to speak out in the wake of Floyd’s death ended up in jail for weeks or months. And the consequences of pretrial detention have been greatly heightened by the pandemic. As of early November, at least 6,676 people in the custody of the U.S. Marshals, who are responsible for managing federal pretrial detainees, have tested positive for the virus. Twenty of them have died.

By requesting judges deny bail for protesters, federal prosecutors are exacerbating a crisis of excessive pretrial detention in the federal system, according to Alison Siegler, a clinical professor of law at the University of Chicago Law School and director of the school’s Federal Criminal Justice Clinic, which advocates for low-income defendants charged with federal felonies. She has mostly observed excessive pretrial detention for federal drug cases, but says protesters have faced similar consequences.

In her experience, Siegler says, “the impact of pretrial detention falls more heavily on people of color and people who live in poverty.” Though systemic analyses are limited, one 2009 study of drug cases in three U.S. District Courts found that being Black and male were significant predictors of pretrial detention.

Millions protested across the country for months after Floyd’s murder, and in protests in many cities – including, according to one analysis, Los Angeles, New York and Washington, D.C. – demonstrators were predominantly White. But racism in policing – the issue at the heart of the protests – meant that many Black protesters have paid a higher price. Black people are more likely than White people to have criminal histories due to racial bias in the justice system, meaning some took greater risks when they chose to protest. A person’s criminal history is a significant factor when judges consider whether to detain someone pretrial.

Between late May and early September, prosecutors sought to detain at least 104 defendants pretrial – nearly half of the federal cases brought against protesters during that time. Judges agreed to detain 62 defendants in all – nearly half of whom were Black.

It is notable that judges denied 47 requests for pretrial detention, at least 20 of which involved Black defendants.

In Lovejoy, Georgia, 21-year-old Delveccho Waller has been imprisoned since attending protests against racist police brutality the week after Floyd’s killing. He felt an obligation to speak out, he says, because he’s well known in his community in nearby Gainesville, through his social media presence and his church. Waller points out that last year, his church, Bethel African Methodist Episcopal Church, made national headlines after a White teenage girl plotted a racist attack on its Black parishioners. He has also felt targeted by police himself. Court records indicate police stopped him for driving violations multiple times.

“I’ve always had encounters with a lot of cops that don’t like me,” Waller said in a recent phone call. “So me growing up, I felt like my life was endangered with cops. So seeing that I had one son, and he’s a Black male, I feel like I should be here speaking up for my community.”

Georgia court records indicate two prior convictions for auto theft and misdemeanor battery, and four for driving offenses, including headlight and stop sign violations. He was also charged with criminal trespass twice as a teenager; such private property laws have a legacy of being used to control the movements of Black people in the Postbellum South.

Federal prosecutors charged Waller with being part of a group that burned a city police car. But, as with Densmore, the indictment does not claim that he was personally involved in setting the fire. He has pleaded not guilty and maintains his innocence; in fact, he says he attended peaceful protests with his family over several nights, including with his small children. If convicted of arson, he faces a minimum of five years in prison.

On the night in question, Waller says, he was getting a ride from a group of men, some of whom were friends, when prosecutors allege that some of them got out of the car and torched a squad car outside an apartment complex. Police stopped the car he was in five miles away from the scene.

Federal prosecutors filed a motion to detain Waller until his trial, though a judge has yet to rule on it. Waller’s arrest triggered a probation violation, stemming from a prior conviction. He would not be eligible for consideration for release, a federal judge said during his arraignment, until he was granted bond for his state probation charge. In a September court filing, Waller’s lawyer, Arturo Corso, noted that the state had refused to grant bond on the probation charge.

Corso says Waller’s incarceration has been unduly harsh. Instead of being detained at the local jail in Hall County, he has been held at the federal Robert A. Deyton Detention Facility in Lovejoy, about 80 miles from Gainesville. The facility, which is operated by the private prison company GEO Group, is beset with institutional problems, including chronic understaffing and insufficient training for staff, according to a July report from the Department of Justice’s Office of the Inspector General.

In early September, Waller contracted COVID-19 at the prison, part of an outbreak that has infected at least 26 U.S. Marshals prisoners thus far. In an email, Corso said that Waller’s treatment amounted to “pretrial punishment” and insisted that prosecuting authorities could make arrangements to send Waller to the local Hall County jail instead.

Meanwhile, Waller’s family has struggled during his incarceration, according to the mother of three of his children, potentially putting pressure on him to take a plea agreement rather than wait for a trial date that still hasn’t been set. In early November, Waller’s lawyer filed a motion for pretrial release, after his client was finally granted bond for his state probation charge. As of publication, court filings do not indicate whether the District Court has ruled on the motion.

Pretrial detention makes it harder for defendants to participate in their own defense, research has found, and can encourage people to take unfavorable plea agreements just to get out of jail.

At least three protesters whom federal prosecutors convinced a judge to detain pretrial have taken pleas, including one convicted of aiding and abetting arson after throwing Molotov cocktails into an empty county courthouse near Minneapolis, and another, in Fayetteville, North Carolina, accused of setting fire to a building where enslaved people were once sold. Both events unfolded in the days after Floyd’s murder.

Federal prosecutors have also sought pretrial detention for those facing lesser charges, such as activists charged with making digital threats. Mustafah Hawkins, 27, a video game and anime enthusiast from Cleveland, Ohio, was incarcerated in June for allegedly making threatening statements over Facebook in the wake of Floyd’s death; he has pleaded not guilty. The social media posts put him on the radar of the FBI’s local Joint Terrorism Task Force, which Barr charged with investigating civil unrest.

If convicted, Hawkins could face anything from a fine to five years in prison. But a review of Hawkins’s Facebook page makes it difficult to discern whether his language constituted actual threats.

In one post from June 2, cited in the indictment, Hawkins appears to express support for setting fires in Cleveland’s Little Italy – a place, he notes, where he had experienced racism – and claims he’d be able to form a flash mob to throw Molotov cocktails in that neighborhood. In earlier posts cited by the FBI, Hawkins makes vague references to police being shot. Yet these posts appear among many nonviolent anti-racism posts Hawkins made up until his arrest.

The facility where Hawkins was detained, the Northeast Ohio Correctional Center in Youngstown, has also experienced outbreaks of COVID-19; 59 staff members had tested positive by Oct. 28, as had 17 prisoners. At the end of September, Hawkins’ attorney filed a motion for his release, arguing that his pretrial detention was excessive in light of a criminal record that only included misdemeanor offenses for misconduct.

“Mr. Hawkins has already been in custody almost four months, and it will likely be some time before the defense can complete its investigation because of the pandemic,” reads the filing by his lawyer, Charles Fleming. “Keeping Mr. Hawkins in custody pending trial will eventually force him to choose between exercising his right to trial or pleading to secure his release.”

U.S. District Judge Solomon Oliver concurred with Fleming’s motion. On Nov. 3, after almost five months in jail, Oliver ordered Hawkins released on a $50,000 bond. A trial date has not been set.

For Hawkins, Densmore and Waller, the decision by a U.S. attorney’s office to prosecute them federally resulted in months of pretrial detention. According to the Vera Institute of Justice, studies have found that even spending a small number of days in jail after being arrested can lead to housing instability and job loss. It also increases the chances of being found guilty.

Such steep consequences for participating in a movement decrying state violence against Black people could have broader implications, according to Warren with the Center for Constitutional Rights.

“When people realize they can be prosecuted and held in jail on either high or no bail, prior to their case being adjudicated, and met with the full force of the federal government, they’ll think twice whether to even engage in protest,” Warren said. “It is our right to engage in ways that are forceful, clear and pinpoint the ire that people feel about these horrible policies.”

This story was edited by Esther Kaplan of Reveal and Cassi Feldman of Type Investigations; it was fact checked by Nina Zweig of Type Investigations.