Nine days after the incident, former President Donald Trump and former Attorney General Bill Barr called for federal government action against violence and looting. Attorney Richard Moore filed a federal lawsuit against Pugh, accusing her of violating a 1968 law prohibiting police or firefighters interference during a civil disorder.
The law has been rarely used in the decades after it was passed, but has been used in dozens of cases stemming from violence-related protests against racial justice over the past year, and is now used in many of the hundreds of cases that have occurred attributed to the Capitol Rebellion January 6th.
Prosecutors and criminal defense attorneys argued Thursday over allegations by Pugh’s defense that the Civil Nuisance Act emerged from a racist backlash against the civil rights movement, giving prosecutors too much discretion to indict almost anyone who engages in heated confrontation with during a public demonstration the police is involved.
A Pugh attorney, Gordon Armstrong, said the racist motivation for the law was evident from what its supporters said half a century ago.
“You can see what was on your mind by looking at the debate on the floor,” said Armstrong.
Defense lawyers say a hint of the law’s racist history is that it was referred to as the “Civil Obedience Act” by self-confessed segregationist and former Senator Russell Long (D-La.) When he cracked down on civil rights activists involved in a session were -ins and similar acts of civil disobedience.
However, US District Court judge Terry Moorer said he saw nothing explicitly racist in the face of the law and was not sure whether the motivations of individual lawmakers were relevant to the constitutionality of the law.
“Let’s just assume Sen. Long was a fiery racist who got this statute through Congress for very shameful reasons. Let’s just assume that … Sen. Long was one of so many senators who would have voted on it asked Moorer.
Justice Department trial attorney Michael Dittoe, who is attached to the National Security Division in Washington, told the judge that the situation was indeed bleak. The Civil Unrest Act was wrapped in a massive ten-headed bill that included landmark civil rights laws such as the Voting Act and the Racial Discrimination Act in Housing.
In the end, Dittoe said, Long voted against the package, while former Sens. Robert Kennedy (D-N.Y.) And Edward Brooke (R-Mass.) Backed it.
“The deed is indeed plain to see. It’s race neutral, ”said Dittoe, who usually prosecutes people accused of registering to fight terrorist groups like ISIS or planning to use a weapon of mass destruction. “Everything Sen. Long said has nothing to do with the act of saying goodbye.”
Pugh’s defense also argued that the law violated the first amendment because it would trigger potential interference with the police that might be considered protected language, such as: B. yelling at officials or mocking them with obscene gestures.
Moorer seemed skeptical of these arguments and even questioned Pugh’s position in order to bring them up. On this point, the defense received assistance from one of the local federal prosecutors, Christopher Bodnar. While saying the law is constitutional, he said the precedent allows Pugh to make claims that it is overseas.
Prosecutors have stated that they view Pugh’s challenge as part of a coordinated effort by defense lawyers across the country to undermine the civil disturbance law. Indeed, Pugh’s attorneys have recognized that their assignment was largely based on a letter prepared by an attorney in the federal defense attorney’s office in Portland, Ore.
While allegations about the racist roots of the statute have received the most attention, a separate argument about the legal basis of the 1968 law could find more resonance in court, especially from conservative judges. Pugh’s attorney and others contesting the law claim it wrongly allows federal attorneys to step in to prosecute typically local crimes like breaking a window. While the law contains language that requires a link to a civil disorder that disrupts trade, defense lawyers claim the link is too weak to meet constitutional drafting.
Armstrong, citing rulings from a number of Conservative Supreme Court justices, said the 10th Amendment of the Civil Disruption Act encroaches on state power. “If there is no federal purpose that corresponds to a legitimate federal purpose, it is up to the states,” said the defense attorney.
However, Dittoe noted that the law contains a clause that says it will not exclude a prosecutor for the same acts. “The states retain their full powers,” said the prosecutor.
Moorer said he thinks the link with interstate trade is clearly sufficient in Pugh’s case. “What could be more interstate trade than trying to prevent protesters from getting on the interstate?” asked the judge.