I previously wrote about my concern with the prosecution of rioters for arson under federal rather than state law. Now a new case about of Wisconsin further shows the federalization of these crimes with seemingly no interstate elements. Devonere Johnson, 28, has been charged with extortion after he went into Cooper’s Tavern near the state Capitol building with a megaphone and a bat to demand money and free food and booze in the name of Black Lives Matters. There is no question that his conduct was worthy of a criminal charge but the federal charges again raise concerns over federalism and state police powers.
Also arrested were Gregg A. James Jr., 23, (far left) and William T. Shanley, 25 (far right).
The owner of the bar told the FBI that Johnson told him that the police would not do anything and that the offenders would destroy his business unless he complied. The defendant is quoted in the complaint as allegedly saying “Just give us some free food and beer and we can end this now. You don’t want 600 people to come here and destroy your business and burn it down. The cops are on our side. You notice that when you call them, nothing happens to us.”
He returned repeatedly with other men, in one scene wielding a bat with “Black Lives Matter” written on it.
One of the incidents by Johnson (also known as Yeshua Musa) was caught on tape.
What is interesting is that their original charges appear to have been brought by the Madison Police Department, but later there was a handoff to the federal prosecutors. Why? One would think that local officials did not want the heat of a prosecution after the riots, but this is a pattern that we have seen in other cases.
The United States Attorney for the Western District of Wisconsin Scott C. Blader announced that Johnson faces a charge of attempting to obtain money and property by consent induced by the threatened use of force, violence and fear, including the destruction of multiple businesses. There was also an alleged threat to hurt an employee unless they received free food and booze as well as cash.
Madison police said Johnson, James and Shanley demanded free food and drinks in return for not having a business destroyed by protesters. According to the report, in one case, the demand for free items was also in exchange for not having an employee injured.
Police also released video showing the struggle to arrest Johnson, requiring five officers.
The grounds for the arrest of Johnson appear lawful and justified.
My question is the use of the federal charges.
Again, the concern from a civil liberties standpoint is that the federal government could circumvent state and local laws and mete out its own punishment for intrastate crimes. Thus, if a state did not support a president’s harsh view of a given activity, federal prosecutors would effectively federalize the crime. The dual jurisdictional problem has been raised repeatedly by defense lawyers, particularly in that civil rights prosecutions are virtually identical to state charges. The double jeopardy claims raised in such challenges have generally failed. This however is a straight up federalization of a local crime that occurred within a state. These defendants often face longer sentences in the federal system.
In looking at the video above, what is the interstate element? The federal government has been adopting the same attenuated arguments that were used in Wickard v. Filburn (1942). In that case, Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market. Certainly, the food and booze of the restaurant comes from out of state but the alleged crime is clearly local in terms of its impact, its victims etc.
The ease with which these cases are being transferred between jurisdictions highlights the extent to which state police powers guaranteed under federalism have been undermined.