Acting US attorney fires back at DC mayor, says protest arrests lacked ‘bare minimum’ of evidence

Protesters and police converge on Black Lives Matter Plaza, Sunday, Aug. 30, 2020. (Photo by Evelyn Hockstein/For The Washington Post via Getty Images)

A day after Mayor Muriel Bowser leveled claims against the U.S. Attorney’s Office for D.C. for not actively pursuing many cases against arrested protesters, the federal office fired back in a sharply worded letter Tuesday.

Acting U.S. Attorney for D.C. Michael R. Sherwin said in the letter that the District’s police have improperly arrested protesters en masse, and that many of the arrests of protesters over the past month lacked the “bare minimum” of evidence to charge someone with a crime.

“As I am sure you are aware, without some evidence to establish probable cause — e.g. a police officer’s observation or video footage of the alleged crime — we cannot bring federal charges,” Sherwin said in the letter addressed to Bowser. “Surely, by your comments, you are not suggesting that this office skirt constitutional protections and due process.”

The letter closes with: “I can assure you that we will continue to aggressively charge any and all cases presented to this office, but facts and evidence will dictate criminal charges, not political leveraging or personal agenda.”

The U.S. attorney’s office, which is part of the U.S. Justice Department, prosecutes felony crimes in the District.

Sherwin’s letter came in response to comments made by Bowser during a news conference Monday.

“When we make arrests for violent protests, we need those violent agitators to be prosecuted,” Bowser said Monday after speaking of “outside agitators” who had clashed with police and destroyed property over the weekend, resulting in some officers being hospitalized, according to authorities.

In a follow-up letter to Sherwin sent later Monday, Bowser also referred to an earlier protest in the early hours of Aug. 14 in the D.C. neighborhood of Adams Morgan in which 42 people were arrested for felony rioting after a few small fires were set and buildings were tagged with graffiti. Prosecutors declined to bring charges in all but one of those arrests.

“I was dismayed that your office declined to prosecute 41 of the 42 rioting arrests,” Bowser said in the letter.

In another part of the letter, she wrote: “When violent criminals are not held accountable for setting fires, and destroying and vandalizing property, they are emboldened to escalate their criminal activity.”

In his response Tuesday, Sherwin said the reason his office declined to bring charges in the Adams Morgan case was because the arresting documents provided by D.C. police “lacked sufficient probable cause to support any criminal charge.”

He added: “The ’42 rioters’ were arrested as a collective by MPD and presented to the office without any articulable facts linking criminal conduct to each individual arrested. Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”

Sherwin said he immediately met with D.C. police leadership the following day to request that they provide a “bare minimum of probable cause” for the Adams Morgan arrests.

“To date, no sufficient evidence has materialized,” Sherwin wrote.

The prosecutor said “the same situation repeated this weekend” when 19 people were arrested for rioting, and D.C. police officers again “failed to provide the bare minimum” of evidence required to charge them. Of the felony rioting arrests, only one person was charged, Sherwin said.

In the letter, Sherwin took issue with Bowser’s characterization that his office wasn’t holding people who commit violence accountable.

He said his office has brought charges in more than 125 cases related to violent disturbances since late May, including cases involving assaults on police officers, breaking and entering, arson and destruction of federal property.

Most recently, he said, his office has brought charges against three people suspected of assaulting police officers on Aug. 27-28.

Sherwin said his office is planning to meet with D.C. police leaders Wednesday, and he extended an invitation to Bowser.

“We recognize what a difficult job the police have and we want to work with your officers to ensure we can all do our jobs to protect the District and its citizens,” Sherwin wrote.

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