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PaperclipPerfector  1yr ago (text post)   32024 thread views

Culture War Roundup for the week of July 24, 2023

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Patriot Front's Conspiracy to Riot in Coeur d'Alene Idaho

This is another post in what has become a series covering widespread lawfare against dissident-right activists, previously I have covered:

The arrest of the Patriot Front men on their way to protest in Idaho (seen here from their perspective) became a big news story, with the dox and mugshots widely published and applauded, even as anti-hate NGOs admitted that rioting was not the M.O of the group. At the time, even I didn't think the charges stood a chance of going anywhere, even if police wanted to argue for probable cause there was no way a prosecutor would dig a little into the group, see quite clearly they intended to protest in the exact way that have been documented to protest over a dozen times, and then claim that these men came to riot. But I was wrong, and charges were pursued on a single count of "conspiracy to riot."

30 out of 31 members pled Not Guilty and opted for jury trials, 1 member pled guilty to a lesser charge of disturbing the peace and was sentenced to 180 days in jail with 179 days suspended. The first jury trial of 5 members who pled not-guilty to conspiracy charges was concluded last week, where a jury of 6 unanimously found them guilty of conspiracy to riot. They were sentenced to 5 days in jail with 2 days served and banned from downtown for a year.

Having followed the trial in various news stories, the evidence provided by the prosecution seemed to solely entail potentiality, as in "these shields could be used to bash people, and the flagpoles could have been used to hit people from behind the shields." It was noted that the shields the men were carrying had scratches on them and the flagpoles were longer than normal as suspicious, even while the testifying officers admitted that other protestors were open carrying, and it is not illegal to have a shield.

It's notable here that the members were arrested on their way to protest, they did not even have the opportunity to leave the vehicle. All indications are that they planned to march in the exact manner they have done many times before. My confusion, even after following the coverage, is whether or not the prosecution is alleging that this behavior would have constituted a riot, or if they solely relied on speculation for how the shield and flag poles and such could have been used to riot. If the Patriot Front had made it to the park and marched, would they have been arrested for rioting? I don't think so, somehow stopping them before they even had the opportunity gave the prosecution more leeway to plant in the minds of the jury all the things they could have done when they got to the park. It's not clear how this conviction will impact the other trials.

Needless to say, civil rights organizations are not lining up to defend these men (in contrast, the "civil rights conspiracy" Charlottesville lawsuit was concocted in a Manhattan office with a multimillion, NGO-funded war chest, with a lead attorney who compared the lawsuit to the Warsaw ghetto resistance). The PF men have relied on public defenders and faith in the jury process.

FBI Whistleblower Reveals Malfeasance In Patriot Front Trial (?)

The one form of institutional opposition to this prosecution has come from an article published last week by the Idaho Tribune. This trial is only the tip of the iceberg. Not only were PF men arrested, doxed, and charged with conspiracy to riot, but their phones were handed over to the FBI by the State for data extraction. The prosecution claims it cannot present the phones to the defendants in their conspiracy cases, as the State no longer as possession of the evidence. It turns out, nobody from the State ever saw a warrant for those phones before, or since, handing them over to the FBI. Not only that, but according to a whistleblower an FBI SSRA in Idaho was removed from his position because he refused to a sign a warrant for the phones due to lack of probable cause:

“I have friends who are in Couer D'alene who refused to write a Search Warrant for PF [Patriot Front] phones because the PC [probable cause] didn't exist. FBI HQ removed the supervisor from his position.” ...

A second source that will remain anonymous confirmed to the Tribune that Shoffstall was asked to write a warrant to procure data in the phones of the detained Patriot Front members.

After Shoffstall refused, he was punished. Sources tell the Tribune that he was sent on a “special assignment” to work at the FBI’s National Threat Operation Center, which is essentially a call center, where Schoffstall would ride a desk, instead of continuing his work in the field.

The Idaho Tribune was able to speak with Special Agent Schoffstall, who confirmed that he is no longer assigned to the Coeur d’Alene office because he is on a “temporary assignment,” and that he cannot disclose any further information...

In a court proceeding held on Tuesday July 18th, Thomas Rousseau’s public defender Kinzo Mihara vigorously argued that his client should be able to get data from his phone that depicts “the dress rehearsal from the day before” the events of June 11th.

However, the prosecution in all of these cases has not made these phones, nor the warrant that allowed the FBI to perform data extractions on the phones, available to the defense.

Mihara argued saying:

"We want media files from that phone… We have no evidence from the state of what was done, who did it when they did it, why they did it…

“Where is this search warrant? What search warrant? Which judge signed the search warrant? What was the material to be seized, the information to be looked for? Why don't we have it back? In a recent case I have search warrant from here signed by your Honor. It's to seize a black box out of a truck. They seized the black box, they left the copy of the warrant. If you're gonna grab physical items, our constitution demands it being pursuant to a warrant. And the criminal rules, both federal and state, cited to the court demand as copy of the warrant be turned over. We had no warrant from the state and we have no, we have no communications from law enforcement, which another judge in this court, judge Randalls expressly ruled to that. That's fair game. We asked for it. We want it, your Honor. We asked for it way back in February and it hasn’t been turned over.”

IANAL, so I cannot tell how serious this issue is, but reading through this brief it seems Rousseau's attorney is claiming the phones contain potentially-exculpatory evidence and that the State has "parked" the evidence with an FBI based on a warrant that nobody has ever seen and has not been provided to the defense.

The State's argument in this case is dangerous. Any time it wishes to shield exculpatory evidence from a criminal defendant, the State merely needs to have a law enforcement officer "park" the evidence with a federal law enforcement colleague and claim that it cannot produce such evidence ... taking it out of reach of a criminally-accused defendant. This is antithetical to due process and embodies the very tyranny our forefathers saw in their British masters.

In these cases, from what I can tell the public defenders have done a good job and they are receiving a good defense, though maybe not the best money could buy. But I'm not sure what exculpatory evidence could be on the phone: it seems the prosecution wasn't even denying that they planned to march in the way they've done every other time, they were just arguing that their actual plans constituted a plan to riot.

Lessons Learned

So you're right wing, but anonymously shit-posting online isn't enough for you, you want to organize IRL. Maybe you want to march with your friends against a Pride event. Well you better be prepared to be arrested, doxed with your face plastered in national news, charged with a conspiracy, and have your phone be handed to the FBI. Some people on the DR argue that it's an "overly online" movement, but this case shows that IRL activism is at the moment not worth the risk.

Patriot Front has some cringe optics, Rousseau's speeches are really cringe, but if their activism is accomplishing anything, it's exploring the boundaries of legal right-wing expression, which is not where you would expect it to be based on 1A protections.

I'm curious what the jury instructions were. Here's the bit of criminal code that covers riots: https://legislature.idaho.gov/statutesrules/idstat/title18/t18ch64/

And here's the statutory definition of riot: https://legislature.idaho.gov/statutesrules/idstat/title18/t18ch64/sect18-6401/

RIOT, ROUT, UNLAWFUL ASSEMBLY, PRIZE FIGHTING, DISTURBING PEACE 18-6401. RIOT DEFINED. Any action, use of force or violence, or threat thereof, disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution, by two (2) or more persons acting together, and without authority of law, which results in: (a) physical injury to any person; or (b) damage or destruction to public or private property; or (c) a disturbance of the public peace; is a riot.

This quote in the OP's article makes it sound like they were being accused of conspiring to disturb the peace, not to injure someone or damage property:

Ryan Hunter, deputy city attorney, told the court Thursday the masked men, carrying shields and flag poles, planned to storm out of the U-Haul outside the park, potentially deploying smoke and using a bullhorn. They intended to engage in a “tumultuous manner” with Pride attendees trying to enjoy the park, he said.

Here's the statutory definition for disturbing the peace: https://legislature.idaho.gov/statutesrules/idstat/Title18/T18CH64/SECT18-6409/

18-6409. DISTURBING THE PEACE. (1) Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner, is guilty of a misdemeanor.

I'm no lawyer, but that sounds like the kind of overbroad definition ruled against in Cox v Louisiana: https://www.law.cornell.edu/supremecourt/text/379/536

The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned," and (2) a refusal to move on after having been ordered to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term "breach of the peace" as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet." 244 La., at 1105, 156 So.2d, at 455. In Edwards, defendants had been convicted of a common-law crime similarly defined by the South Carolina Supreme Court. Both definitions would allow persons to be punished merely for peacefully expressing unpopular views. Yet, a "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech * * * is * * * protected against censorship or punishment * *. There is no room under our Constitution for a more restrictive view.

The key in Cox was "as authoritatively interpreted by the Louisiana Supreme Court." In a post-Cox case, the CA Supreme Court interpreted a statute very similar to the Idaho one ("Section 415 of the Penal Code provides in pertinent part: "Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct ... is guilty of a misdemeanor,") to apply to loud shouting "only in two situations: 1) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors." in re Brown, 9 Cal.3d 612 (1973).

Overall, I would be very surprised if, in the almost 60 years since Cox, any state has not interpreted their disturbing the peace statute to comply therewith.

I'm no lawyer, but that sounds like the kind of overbroad definition ruled against in Cox v Louisiana:

Doesn't matter, because these cases aren't going to be reviewed by a higher court.

Are none of the defendants going to file an appeal?

I doubt they could afford it, and no NGO will touch them

You know, plenty of right wing NGOs exist. And there is such a thing as a defense fund. If everyone here who upvoted OP's post threw in $100, the attorney's fees would probably be covered.

People lost their jobs for donating to Kyle Rittenhouse's legal defense fund, so donating to the defense of actual white supremacists who are borderline neo-Nazis seems like a very risky proposition. Can't imagine a "right wing" NGO wanting to be associated with them either.

It takes a neutral civil rights intermediary like the ACLU of yore to handle stuff like this.

People lost their jobs for donating to Kyle Rittenhouse's legal defense fund

  1. Is that actually true?
  2. I don't know why such donations cannot be made anonymously.

At least one case was publicized: https://www.dailymail.co.uk/news/article-10222207/Virginia-cop-fired-anonymously-donating-25-Kyle-Rittenhouse-fund-demands-job-back.html

The donation actually was supposed to be anonymous but the donor list was exposed by hackers and The Guardian ran an article about the donors.

More comments

Is that actually true?

Yes.

I don't know why such donations cannot be made anonymously.

Hacktivism. The donation was made anonymously and then exposed by a hack.

More comments

I expect any right-wing NGO attempting to fund a legal defense would find themselves de-banked, and any hotshot right-wing lawyer attempting to provide pro-bono services would find themselves investigated very throughly (in the Cardinal Richelieu sense) for professional ethics violations.

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