Republican Lawmakers Are Using the Capitol Riot to Fuel Anti-BLM Backlash

In September, Florida governor and Trump ally Ron DeSantis proposed a bill dubbed the Combating Violence, Disorder and Looting and Law Enforcement Protection Act to create new criminal penalties for offenses commonly committed during protests. He said it was needed to stop the “professional agitators bent on sowing disorder and causing mayhem in our cities” following months of largely peaceful Black Lives Matter protests. 

Hours after a far-right mob stormed the Capitol at the behest of the president, Florida Republicans introduced a version of the bill. That night, DeSantis said the violence in Washington shows that lawmakers “have no time to waste to uphold public safety” and must “swiftly pass this bill.”

DeSantis isn’t alone. Within the past year, lawmakers in 24 states have introduced at least 45 bills to create new penalties or increase criminal penalties for offenses related to protesting, discourage cuts to police funding, and provide protections to people who drive their cars into protesters or shoot protesters in an alleged act of self defense. Six of those bills—one in Utah, one in Mississippi, one in West Virginia, one in Tennessee and two in South Dakota—have been signed into law. 

But the bills aren’t aimed at reining in the kind of violent insurrectionists who stormed the Capitol, and federal prosecutors already have a litany of charges at their disposal to hold the perpetrators accountable. The bills seek to criminalize conduct typically associated with Black Lives Matter protests, like blocking streets or highways and camping out at state capitols. Provisions of DeSantis’s bill seek to discourage local governments from cutting police budgets, but what happened on Jan. 6 can’t be pinned on a lack of police funding or intelligence—the FBI knew extremists were planning to commit violence in Washington days before, and Capitol Police rejected offers for additional manpower from the National Guard. While some police officers were brutally attacked or took action to protect the lives of others, others shook hands with a member of the mob. One police officer even took a selfie with the insurrectionists.

After the violence at the Capitol, some lawmakers have renewed calls to expand domestic terrorism laws. President-elect Joe Biden has proposed working for a domestic terrorism law “that respects free speech and civil liberties.” But many others have cautioned against harsher laws, noting that police and prosecutors already have all the tools they need to go after white supremacists and other domestic terrorists, and that expanding their powers would only harm communities that are already over-policed and over-prosecuted. Similarly, experts say laws creating new criminal penalties for protesting are sure to be used mainly against minority groups—not far right extremists.

“Laws like these have historically been used to penalize communities of color and communities with unpopular views,” said Elly Page, legal adviser at the International Center for Not-for-Profit Law, which tracks laws that restrict the right to peaceful assembly in the United States and abroad. “Rioting charges were used widely last summer to target Black Lives Matter protesters, and that’s the big fear—that that’s how those tools would be used if they’re enacted.”

Adding more crimes to police and prosecutors’ arsenal would only support “the kind of disparate treatment that was on display at the Capitol last week,” said Page. 

Over the summer, police in D.C. tear gassed Black Lives Matter protesters just to clear the way for a Trump photo op, but it wasn’t until the rioters had breached the barricades and were storming the Capitol that police tear gassed them. 

And while people across the country have faced serious charges after taking part in Black Lives Matter protests, many members of the pro-Trump mob that stormed the Capitol and killed a police officer are so far being charged mainly with low-level offenses like disorderly conduct and unlawful entry (and were allowed to simply return to their hotel). The man photographed with his feet on Speaker Nancy Pelosi’s desk faces three charges that carry a maximum penalty of one year in prison. 

Meanwhile, two lawyers who allegedly set fire to an empty NYPD cruiser during a Black Lives Matter protest are facing life in prison—and a mandatory minimum sentence of 45 years—because federal prosecutors chose to seek such a sentence. Prosecutors in Maricopa County, Arizona are charging 15 people who attended a peaceful Black Lives Matter protest where traffic cones were knocked down with rioting, aggravated assault, and assisting in a criminal street gang, all serious felonies that could land them in prison for decades. 

“With Black Lives Matter, particularly protests in streets and highways, we’ve definitely seen a pattern in bills that create or enhance penalties for blocking traffic,” said Page. “They’re draconian, because in many states it’s already a crime and they’re making them even harsher.”

At the same time, last week, an Iowa man who deliberately drove into a crowd of Black Lives Matter protesters and injured several people was given a deferred judgment, meaning he will serve no prison time and the arrest will be expunged from his record, so long as he does not commit any more crimes in the next three years. 

So far in 2021, lawmakers in six states have filed at least eight bills cracking down on protesting. In Washington, lawmakers want to make it a felony to deface public monuments. In Indiana, lawmakers are hoping to make it illegal to camp near the state capitol, increase the criminal penalties for rioting and disorderly conduct, and create mandatory minimum sentences for rioting. 

In Nebraska, a state senator introduced the First Responders and Public Protection Bill to “address some of the concerns that emerged surrounding officer and public safety during riots this past summer.” The bill would make it a felony to damage property belonging to a police officer, make it a misdemeanor to obstruct a public highway, street, or sidewalk, and increase the criminal penalties for assaulting a police officer and damaging government property. 

Meanwhile in Missouri, lawmaker Rick Brattin has filed a sweeping bill that would shield drivers who hit protesters with their cars from criminal and civil liability and add “Stand Your Ground” protections to people who shoot protesters, but enhance the criminal penalties for rioting, looting, and crimes against police officers. The bill would also withhold state funds from local governments that cut police budgets by more than 12 percent. State representatives in South Carolina pre-filed a similarly sweeping bill that seeks to prohibit camping on state-owned land, make it illegal to obstruct streets and sidewalks, and create criminal and civil liability for people who use deadly force “when confronted by a mob.” 

Republican lawmakers in Mississippi are looking to pass a bill that mirrors the legislation proposed by Ron DeSantis in Florida. The proposed legislation broadly defines “violent or disorderly assembly” as a gathering of seven or more people that creates a danger to property or people or obstructs government functions. It makes it a felony to obstruct traffic while participating in a violent assembly. It would let drivers off the hook for injuring or killing protesters with their cars if the protesters are obstructing traffic—and renders anyone who pleads guilty to the crimes outlined in the bill ineligible for unemployment benefits.

At least two states—Mississippi and Indiana—have introduced legislation to block municipalities from defunding police departments. And lawmakers in New York have introduced a slew of bills increasing the penalties for assaulting a police officer, despite the fact that police officers themselves were the ones responsible for committing much of the violence during the summer’s Black Lives Matter protests. In Mississippi, Republican state representative Becky Currie wants to create a registry of people accused of committing crimes against police officers. 

“In the past six months, there has been a very clear uptick” in laws criminalizing protesting, said Page from the ICNL. There has been “a new wave of legislation that targets demonstrators often by broadly criminalizing conduct that can occur during peaceful protest and creating draconian penalties for that conduct. We’ve seen at least 21 bills since last May. … We’re especially concerned that the attack on the Capitol will be used to supercharge that crack down.”