On the night of August 14, a small group of around 20 Tucson, Arizona-based activists and community members stood outside the Pima County Adult Detention Complex, making noise. They sang, they chanted, they banged drums and pans loud enough to reach the ears of those caged behind the facility’s beige concrete walls. Standing on a sidewalk, some lit small, handheld fireworks; others held up a large banner bearing the famed prison abolitionist refrain, “Fire to the prisons.” The message to those inside, as with most every noise demonstration held outside a prison: “You are not alone.”
Noise demonstrations are a well-established practice, held all around the country, for showing solidarity with incarcerated people. They are a gesture of community, against the prison system’s brutal enforcement of isolation. In Tucson that August night, according to one attendee, the inmates could be seen dancing and waving in response.
The demonstration wound down on its own, without any police intervention; the participants rolled up their banner, packed up their instruments, and began to disperse. Yet the police were waiting in the wings: A mile away from the facility, along a river path, a dozen sheriffs in patrol cars surrounded and arrested a group they believed had taken part in the protest.
“Authorities in the borderland region are feeling emboldened and, as national anger around the border heats up, they will do whatever they can to make it seem impossible for resistance to exist.”
The Tucson 12 — so named by their supporters — now face the charge of felony riot, a statute that hasn’t been used by Arizona prosecutors in years and, until Donald Trump’s presidency, had been rarely invoked anywhere in the country. In the weeks and months following Trump’s 2017 inauguration, a wave of repressive anti-protest laws were pushed onto statehouse agendas nationwide. Republicans in Arizona attempted to pass some of the most heavy-handed legislation. The state’s Senate Bill 1142 — dubbed an “anti-rioting” bill by its supporters — aimed to dramatically expand the state’s existing rioting statutes; the law would have significantly lowered the bar for what counts as participation in a riot, and protesters who were deemed “rioters” would face hefty racketeering charges. The bill passed the state Senate but died in the House. Yet, as the Tucson 12 case demonstrates, the bill wasn’t necessary for prosecutors to come down hard on protesters.
The demonstrators’ prosecution is not the harshest contemporary instance of state repression against social justice struggle in the border region. Humanitarian Scott Warren, for example, was just found not guilty in his second trial on felony harboring charges for the crime of feeding two migrants and offering them beds after an arduous, death-defying journey through the desert. Yet the Tucson 12’s case sits at the intersection of some of the most troubling recent patterns toward the persecution of dissent: the repression of those who protest the integrated systems of mass incarceration and deportation; the targeting and demonization of left-wing organizing; and the government’s effort to reframe protests as “riots” to justify crackdowns.
“Authorities in the borderland region are feeling emboldened and, as national anger around the border heats up, they will do whatever they can to make it seem impossible for resistance to exist,” said Brittany Johnson, a social worker and one of the 12 defendants. “If the simple act of making noise outside a prison or detention facility — or giving food, water, and respite to a traveler in need — can get you charged with felonies and wrapped up in a legal battle, this narrows the ability to imagine, much less take risks, to bring about a world where people can move freely and with dignity.”
Pima County Jail has been the site of a number of protest actions in recent years. In August 2018, immigrants’ rights advocates gathered outside the complex to call for an end to its collaboration with U.S. Immigration and Customs Enforcement; in 2017, ICE officials were granted use of their own office space inside the jail. Pima County Sheriff Mark Napier removed the federal agents’ desk from the detention center a few months after the summer protests, but not in order to halt cooperation with ICE. Napier ejected the agents in an effort to encourage county supervisors to restore a $1.8 million federal grant to his department, specifically dedicated to supporting cooperation between local law enforcement and border agents. At the time, Tucson-based American Civil Liberties Union attorney Billy Peard told reporters that, while the physical removal of ICE from the jail was welcome, “it doesn’t reduce the cooperation, collaboration or communication between the agencies regarding the roughly 70 (undocumented) inmates in jail at any given time.” Pima County sheriffs continue to check the immigration status of all inmates and, as Arizona law dictates, inform ICE of all those without sufficient documents.
The noise demonstration this August was a protest against the carceral system, not just the aspects of it dedicated to harming immigrants. And while the case against the Tucson 12 should be seen in the context of brutal law enforcement of the border region, it should also be understood in relation to crackdowns on leftist resistance more broadly around the country. These are not necessarily coordinated or directly Trump-inspired responses — the Pima County district attorney, for example, is a Democrat — but a climate of overzealous protest policing and prosecution has nonetheless settled in.
“These charges are clearly part of a troubling pattern,” said Glen Frieden, spokesperson for the Tucson 12’s support committee. “Increasingly, police and prosecutors are levying accusations of ‘rioting’ against any political activity that challenges the existing state of affairs. It happened at Standing Rock, it happened at the protests against Donald Trump’s inauguration, and now we see it here in Tucson.”
In another instance, 10 protesters in Utah also currently face felony riot charges following a July protest against the development of an environmentally destructive inland port. Riot charges, even when they fail to stick, have consequences: When simple acts of First Amendment-protected protest are deemed riots by prosecutors, all types of protest participation appear as a legal risk. Lowering the bar for what gets considered a riot curtails the possibility of genuinely riotous protest — a warning that serves only as a boon for the powers that be.
The government’s most notable, and notably failed, recent attempt to charge a protest group with felony riot was the prosecution of more than 200 demonstrators who were arrested en masse on inauguration day in Washington, D.C. The protracted, bogus cases collapsed, with all charges against the “J20” defendants dropped.
“It puts part of my life on hold, costs myself and my communities resources, and instills anxiety into my life.”
By a stroke of grim luck, aided by widespread anti-protest crackdowns, two of the Tucson 12 were also J20 defendants, who had traveled to D.C. to march against Trump’s inauguration. “I was surprised by our charges in the Tucson 12 case because the nature of our protest was a fairly routine noise demo,” said Jayram Toraty, a member of the Tucson 12 and former J20 defendant who recently moved to Arizona. “But otherwise I wasn’t surprised to see the state leverage riot charges against protesters.” The riot charges are costly to Toraty: “It puts part of my life on hold, costs myself and my communities resources, and instills anxiety into my life.”
With or without riot convictions, the government disrupts movements, and lives, through heavy-handed prosecutions. “It makes people distrust each other and begin to think that the other people at the protest are the biggest threat to their own freedom, rather than placing blame on the police,” said Frieden, the spokesperson. “It takes away the autonomy of different people to make choices as to whether or not they want to engage in a certain action.”
There does not need to be an explicit top-down political strategy in place for policing and prosecutorial patterns to emerge. And there is little denying that the Trump presidency has seen an uptick in what Michael Loadenthal, a professor of sociology and social justice at Miami University in Oxford, Ohio, calls the “felonization and riotization” of protests. A scholar of social movements, Loadenthal was himself a J20 defendant and has noted a shift since 2016 in the way protest actions have been “re-coded” as riots by law enforcement. “The term ‘riot’ implies an opaque or semi-opaque, unidentifiable, fluid, temporary, spontaneous, and amorphous mass,” wrote Loadenthal in a 2019 paper, noting how the “riot” label invokes a nefarious subject — the riotous mob — above and beyond describing a specific event or even a specific illegal activity.
The designation of a protest as a “riot” by politicians or the media is not new and has historically been used to dismiss the vigorous and necessary political street action of black people as senseless, apolitical violence, from civil rights unrest to the uprisings in Ferguson and Baltimore. What is new, or at least renewed, is the police and prosecutors levying mass riot charges. Loadenthal makes particular note of the fact that, although there had been approximately 2,000 Black Lives Matter demonstrations prior to 2016 — a number of which were popularly described as “riots” — the hundreds of related arrests led to charges from “unlawful assembly” to assault and theft. Yet, as Loadenthal wrote, “In July 2016, during the blocking of a Minnesota highway following the murder of Philando Castile, 40 individuals were charged with ‘rioting.’ Only two months later, Glo Merriweather was arrested in Charlotte, NC, at a demonstration following an officer-involved shooting, and charged with felony ‘inciting a riot.’” He added, “While one may have expected such actions during the Ferguson, Missouri uprising ($4.6 million in damages) or those in Baltimore, Maryland ($13 million), it is shocking to see the use of such rioting charges when the actionable offense resembles nonviolent civil disobedience — the unarmed blocking of vehicular traffic.”
In a legal context allegedly committed to determining the guilt or innocence of an individual, the “riot” label invokes the juridically slippery notion of collective group liability. In this sense, riot charges sit at odds with the supposed tenets of U.S. jurisprudence and individualized responsibility. “If the assembly can be deemed a riot, then the individuals present are rioters and since rioters are understood to be apolitical, irrational, amoral, criminal, and sociopathic,” Loadenthal noted in an interview last year, “they can be repressed and attacked outside of the liberal rights-based debate on freedom of assembly, chilling of speech, and so on.”
The Pima County District Attorney’s Office declined to comment on the pending Tucson 12 cases. But Dan South, the office’s bureau chief for community protection, said that he “can’t recall” another felony riot case brought by the county. “Admittedly, I have not come across very many Riot charges,” South wrote to The Intercept by email.
Civil rights lawyer Paul Gattone, who is representing Toraty, told me that the government has “a weak case.” He noted, “It’s pretty outrageous. They were all on the sidewalk, no one told them to leave, and they were walking away.” According to Gattone, felony riot charges are “pretty unusual in Arizona. It’s hard to find one in the state for many years.”
Under Arizona law, a person can be said to commit a riot if, “with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which disturbs the public peace.” The idea that the noise demonstration rose to such a level of threat is, for Gattone, “ridiculous.” The Pima County Sheriff’s Office alleged at the time that the demonstrators were being “disruptive” and throwing fireworks at the jail, although no individualized evidence against any one defendant has been provided.
On November 18, the defendants attended a pretrial conference and were told that prosecutors were working on a new plea deal. A previous plea offer to admit to attempted rioting, a Class 6 felony carrying a possible two-year prison sentence, was roundly rejected by all members of the Tucson 12. “We’re pushing forward,” Gattone told me.
Unlike the J20 defendants, who were threatened with decades in prison, each of the Tucson 12 face a presumptive sentence of two years if found guilty. It’s nonetheless an intolerable potential cost for taking part in a small noise demonstration. As Frieden put it, “Anyone who thinks protests and political demonstrations are valuable and necessary tools should be concerned.”