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A Department of Homeland Security officer stands watch as fellow officers extinguish a fire lit by protesters behind the Mark O. Hatfield United States Courthouse on Sun, Aug. 2, 2020, in Portland, Ore. Following an agreement between Democratic Gov. Kate Brown and the Trump administration to reduce federal officers in the city, nightly protests remained largely peaceful without major confrontations between protesters and officers. (AP Photo/Noah Berger)

 

The Oregonian reported yesterday on recently filed charges aginst rioters in Portland based on their having used “laser” pointers to damage the eyesight of federal agents and police who have been responding to the riots nearly every night for the past 3 months.

The defendants are being charged with a violation of 18 U.S.C. Section 231, which reads as follows:

(a)(1)Whoever teaches or demonstrates to any other person the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder which may in any way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function; or

(2)Whoever transports or manufactures for transportation in commerce any firearm, or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder; or

(3)Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function—

Shall be fined under this title or imprisoned not more than five years, or both.

Section 232 defines “civil disorder” as follows:

The term “civil disorder” means any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.

Use of this statute is another reason behind the cross-deputization of Oregon State Police as “Special” Deputy US Marshals.  They are now authorized to make arrests for violations of federal law.  This federal statute does not require that the offense be on or near any federal property or building.  The elements of the offense involve only any act to “obstruct, impede or interfere” with any law enforcement officer — federal, state or local — performing his official duties during a “civil disorder.”

Since that includes only an assemblage of 3 or more people where acts of violence resulting in injury or damage to property occurs, all the rioting on Portland — regardless of location — falls within the definition of the statute.

And rioter identified by an authorized “Special” Deputy Marshal –  or any federal law enforcement agent, who is engaged in acts obstructing local, state or federal agents, is subject to being charged under this statute.

The charge is a felony.

The  Federal Sentencing Guidelines do not identify a specific guideline provision that would apply to this statute, and at first glance I do not see another guideline provision that would be closely analogous.  As a result it is likely that the issue of what sentence between probation and 60 months in custody is appropriate would rest with the discretion of the federal judge assigned the case.  To the extend an specific law enforcement officer was injury by the conduct underlying the charge, the more likely it would be that the sentence imposed would push up towards the 60 month maximum.