Legal Experts Question Use Of Federal Law To Prosecute Torching Of Empty NYPD Patrol Car During Protests
Federal prosecutors argue that damaging a police vehicle is a violation of federal statutes in part because the police department receives federal funding. Former prosecutors and law professors say it’s an absurd rationale driven by politics of the Justice Department.
During a Black Lives Matter protest in the early hours of May 30, someone set ablaze an NYPD vehicle parked near the 88th Precinct in the Fort Greene section of Brooklyn. Soon afterward, the police arrested a pair of attorneys, Colinford Mattis and Urooj Rahman, who were then indicted in federal court on seven charges each, including use of explosives, arson, arson conspiracy, possessing or making a destructive device, and civil disorder. Prosecutors said that Mattis and Rahman rode in a tan Chrysler minivan and that just before 1 a.m., Rahman stepped out of the vehicle and threw a Molotov cocktail through the broken window of a patrol unit that had already been set on fire by someone else. The alleged incendiary device burned only part of the empty cruiser’s dashboard.
But, if convicted on all counts, Mattis and Rahman face sentences of up to life imprisonment—and mandatory-minimum sentences of 45 years. The U.S. government, which is using a federal “counterterror” division to prosecute the case, has also taken near-unprecedented steps to revoke both lawyers’ bail.
Multiple legal experts who spoke to The Appeal say they are aghast at the fact that the federal government is prosecuting the case. Typically, they say, an offense like damaging a police cruiser is treated as a local crime and prosecuted by local or state authorities.
“I think this is a really crazy prosecution,” said Rachel Barkow, a New York University law professor who sat on the U.S. Sentencing Commission from 2013 to 2018. Barkow noted that in their May 30 indictment, prosecutors argued that damaging a local police car is federal crime because NYPD is “an institution and organization receiving federal financial assistance” and that “the NYPD and New York City government conduct business in interstate commerce,” including “purchasing vehicles and other equipment and supplies” from other states. “Why is this federal?” Barkow asked rhetorically. “The theory that the car is an ‘instrument in interstate commerce’ seems like an enormous overreach.”
She added: “I’m horrified that any federal prosecutor would sign their names to this—it’s really disgraceful.”
Similarly, Lara Bazelon, a University of San Francisco law professor and former federal public defender, told The Appeal: “I know what a federal case is, why some cases are federal, and why some cases are left to the states to prosecute. This one really seems like an overreach by the federal government. I don’t know why they didn’t just let the local DA handle it.” Both Barkow and Bazelon said they believe the federal government is using this case to drum up support for President Trump’s erroneous claims that antifa was behind violence at recent Black Lives Matter protests.
David Rudovsky, a prominent Philadelphia civil rights attorney, told The Appeal via email that the federal government’s argument in the case was “a very thin reed.”
A spokesperson for the office of the U.S. Attorney for the Eastern District of New York declined to explain to The Appeal why the federal government had chosen to prosecute the case.
Legal experts are also questioning prosecutors’ bail decisions in the Mattis and Rahman case. After their arrests, Judge Margo Brodie ruled that Mattis and Rahman could be released to home confinement with electronic monitoring and $250,000 bonds. In an extremely rare move, prosecutors appealed, arguing that the two “were caught on camera firebombing an NYPD vehicle” and that they “sought to incite others to launch similar attacks and attempted to distribute other Molotov cocktails to other protestors in furtherance of this objective.” Prosecutors also argued that as lawyers Mattis and Rahman “were well aware of the severity of their criminal conduct.”
When the U.S. Court of Appeals for the Second Circuit granted prosecutors’ request for an emergency stay, Rahman and Mattis were returned to jail. The pair was held at the Metropolitan Detention Center in Brooklyn, a federal facility that was recently sued in a class action alleging dangerous and unconstitutional conditions of confinement as COVID-19 spreads. On June 16, 56 former prosecutors filed an amicus brief arguing that prosecutors’ appeal of a judge’s decision to grant Mattis and Rahman’s bail flouts existing bail guidelines.
Brian Jacobs, a New York attorney and former federal prosecutor who helped write the brief, told The Appeal he was concerned about the precedent the decision could set for similar cases. “The concern is that, if that argument were adopted by the Second Circuit, there would no longer be a role for a district court to consider a defendant’s history and characteristics in these cases going forward,” he told The Appeal. “That is not how courts have typically approached these questions and it could affect a significant number of future cases.”
The highly politicized nature of the case also has the legal community concerned. “It would be a travesty for these people to get away with throwing a Molotov Cocktail at police, but given the politics of NYC I imagine many are working hard to give them a pass,” Donald Trump Jr. tweeted on June 3. Some right-wing news outlets have focused on Rahman in particular: Fox News has published articles spuriously linking Rahman to the Palestinian militant organization Hamas. An image of her holding what looks to be a Molotov cocktail made from a Bud Light beer bottle while she covers her face with a keffiyeh has been widely shared in right-wing circles online.
In an open letter, New York City’s Legal Services Staff Association, a union for law professionals, said that Rahman has been targeted with smears and threats due to her Muslim faith. Rahman, born in Pakistan, is a staff lawyer with Bronx Legal Services who helps poor people stave off evictions.
“Since her arrest, certain media coverage about Urooj has unfairly focused on her Muslim faith and Pakistani origin with shameful anti-Muslim and xenophobic connotations,” the union wrote. “The implications of this narrative are irrelevant, unacceptable, and inconsistent with her faith, compassion for others, and exemplary moral character.”
In an interview with The Appeal, union president Sonja Shield said it believes the Department of Justice is using the case to delegitimize the uprisings around the death of George Floyd and other Black people at the hands of the police.
“We object to the ways in which the charges against her are being used to stifle and delegitimize dissent,” she said. (Mattis, who attended Princeton University as an undergraduate and has been referred to as an “Ivy League-trained” attorney in the right-wing press, was suspended from his job at a corporate law firm after the arrest.)
The Second Circuit will hear arguments today as to whether the pair should again be released on bond.
“This seems totally irrational to me,” Bazelon, the law professor, told The Appeal. “This is not how judges should weigh risk.” She added: “They seem like really convenient fall-guys here — it’s just sad.”