WASHINGTON (AP) — Emily Paterson spent the night in jail after being arrested for protesting abortion law changes during a Supreme Court hearing in November, and she now has a criminal conviction on her record.
When she did something similar in the Senate chamber three years ago, Jack Murphy received a different outcome: she paid a $50 fine and was released a few hours later.
The Supreme Court, which has its own police department, is regarded as tougher than the Capitol Police, which has jurisdiction over the Capitol and its surrounding campus, which borders the Supreme Court building.
It’s a sore spot for Mark Goldstone, a lawyer who frequently represents protesters in Washington.
Supreme Court protesters are treated “more harshly” in a couple of ways, he said, referring only to nonviolent protests and not violent attacks like the one on the Capitol on Jan. 6. The police “process you and release you” on Capitol grounds, Goldstone said, whereas at the Supreme Court, “you are going to spend the night in jail” and face prosecution.
The court is frequently at the centre of the nation’s most contentious political debates, never more so than now, as the current 6-3 conservative majority has repeatedly demonstrated its willingness to shift the law dramatically to the right. When the Supreme Court ruled in June to overturn the landmark Roe v. Wade decision, which had made abortion a constitutional right, there were widespread protests.
Because of security concerns, the court building was fenced off for months after a draught of the abortion ruling was leaked in May, and some justices faced protesters outside their homes.
Protests are not uncommon in the plaza and sidewalk in front of the grand courthouse building, with its famous inscription above the main entrance reading “Equal Justice Under Law.” Participants have long complained that the right to protest outside the court is restricted, pointing out the irony of the Supreme Court limiting the right to free speech. In recent years, there has been an increase in disruptions within the courtroom, which the court has also attempted to curb.
‘They dragged it out,’ says the author.
Paterson, 45, of Virginia, runs a writing and graphic design business and described herself as a “suburban soccer mom” with two school-aged children in an interview. Her sole intention was to speak up during the hearing in the hope that those listening to the live audio feed would hear her call to vote for abortion rights.
“I rise respectfully to condemn Dobbs. “Women of America, remember to vote!” she exclaimed in court.
Then she turned and crossed her arms in front of her, signalling to the Supreme Court police officers that she was nonviolent and ready to comply. She was handcuffed and led to a basement processing room. Rolande Baker and Nicole Enfield, two other protesters, were also arrested after making similar statements. The oral argument on federal law’s requirement to report foreign bank accounts continued as usual.
That was around 10:15 a.m., shortly after the oral argument started. The women were not released until after an initial hearing in federal court the next day, around 6 p.m., she said.
They were detained at the court for several hours while their cases were being processed. Officers took the women’s mugshots, read them their rights, and informed them of the charges. Paterson believes they should have been processed faster. An earlier court appearance could have saved them from having to spend the night in jail before being released.
The Supreme Court police “dragged it out for more than five hours,” Paterson said.
The women spent an uncomfortable night in a District of Columbia jail, sleeping on a metal bunk with no mattress in a hot, noisy cell with what appeared to be bloodstains on the floor.
According to court documents, the criminal complaint was not filed until mid-morning on November 3. Paterson stated that the women eventually appeared in court that afternoon.
“We were extremely cautious in what we said and did. We had no intention of being violent or disruptive. “We were clearly there to give our opinion,” she explained. “We weren’t even speaking to the justices. We were speaking to American women.”
That approach could have saved the women from more severe punishment than just a night in jail. On January 13, U.S. District Judge Amit Mehta accepted their guilty pleas and sentenced them to unsupervised probation until the Supreme Court term ends in June. He also told them to stay away from the courthouse.
Prosecutors had requested a year of probation, prompting one defence lawyer to note in a sentencing memo that such a sentence would be longer than what some of the defendants received for illegally entering the Capitol on Jan. 6.
Mehta stated that the women’s conditions in jail were “not unusual,” but that they should have appeared in court sooner. He stated that even brief detention is a powerful deterrent.
‘Enabling experience’
The three women still fared worse than Murphy, who was a 19-year-old student at George Washington University in the fall of 2018 when the Senate held the contentious confirmation hearings for then-Supreme Court nominee Brett Kavanaugh.
She was one of many protesters who flocked to the Capitol grounds ahead of the Senate vote to confirm Kavanaugh, who has denied sexually assaulting Christine Blasey Ford when they were both in high school.
Murphy was among those who had gathered in the Senate public gallery around the time of the final confirmation vote, which was presided over by then-Vice President Mike Pence. Murphy and other protesters stood up and began shouting as the vote began, as part of a coordinated effort.
“I’m not sure what I said exactly. I recall Mike Pence speaking. “I don’t think I said much before someone grabbed my arm and snatched me,” Murphy said.
Capitol police took her and others to an outdoor processing area, where they were restrained by zip-tie handcuffs. There was a long line because there were so many protesters, but Murphy described the atmosphere as “pretty social,” with a toilet and water available.
Murphy, now 23 and living in Chicago, said she was arrested around midday and released six or seven hours later after paying a $50 fine as part of the “post and forfeit” procedure, which meant the misdemeanour charge was resolved without the need for a court appearance. She has no recollection of being asked to leave the Capitol grounds.
Murphy described the post-arrest procedure as “relatively relaxed,” though she thought officers were overly aggressive in warning protesters not to disrupt the proceedings. “It was definitely an empowering experience,” she said of her overall experience.
Overnight detention on Capitol grounds is “virtually unheard of,” according to a Capitol Police official. Protesters face varying consequences depending on where the offence occurs and whether they are repeat offenders. Many cases are quickly resolved using the “post and forfeit” procedure. Repeat offenders, such as actor and activist Jane Fonda, may be sentenced to a night in jail.
People arrested at the Supreme Court are processed by the Supreme Court Police and then transferred to the detention facility housed beneath the local District of Columbia courthouse. They are there awaiting their first court appearance. Prosecutions are handled by the U.S. Attorney’s Office for the District of Columbia.
Protesters in the courtroom are typically charged, as were the three women, with violating a federal law that prohibits “loud, threatening, or abusive language” in the Supreme Court building. The maximum prison sentence is 60 days. Protesters face charges at the Capitol for violating a local District of Columbia law that prohibits obstructions and disruptions in public places. In theory, defendants could face up to 90 days in jail.
When asked about how the court handles arrests, Supreme Court spokeswoman Patricia McCabe declined to comment on behalf of the court, including its police department.
The US Attorney’s Office, according to Patty Hartman, “takes all disruptions of official proceedings seriously and makes charging decisions consistent with the facts and the law.” According to her, this can include considering the defendant’s criminal history.
Neither McCabe, Hartman, nor a federal court spokeswoman would comment on why the Supreme Court protesters were detained for 30 hours before their first court appearance. Requests for comment were not returned by a spokeswoman for the District of Columbia jail.
‘Straight, stiff sentences.’
Following a surge of protests beginning in 2014, the Supreme Court appeared to take a tougher stance toward protesters. In the first case, serial protester Kai Newkirk stood up during an oral argument to protest the Supreme Court’s Citizens United v. FEC decision in 2010, which allowed for unlimited independent spending in federal elections.
The court’s patience seemed to wear thin when five people stood during an April 2015 oral argument to oppose the Citizens United decision, the third protest in less than a year.
During the disruption, Chief Justice John Roberts issued a warning from the bench, threatening protesters with punishment. “Give them stiff, stiff sentences,” fellow conservative Justice Antonin Scalia said in remarks captured on an audio recording that was introduced as evidence.
In that case, the five defendants, like the previous protesters, were held in jail overnight. However, unlike in previous cases, U.S. District Judge Christopher Cooper sentenced them to an additional weekend in jail. One defendant was sentenced to two weekends. Federal prosecutors had requested 10-day sentences.
According to court records, the defendants were also prosecuted in federal court, rather than the local Superior Court in Washington, as the three abortion rights protesters were, and faced a separate additional charge of disrupting a judicial proceeding, which could have resulted in up to a year in prison.
When considering all of the differences between the earlier cases, Newkirk concluded that “the chief justice and others on the court were frustrated and perhaps angry about what was happening and wanted to crack down and try to stop it.”
A defence attorney who has handled Supreme Court protest cases said that at the time, a prosecutor told him that the U.S. attorney’s office was “getting directions” from the court’s lawyers.
This was an example of the court “exerting its control” within an institution where the building itself is considered a holy temple, according to the lawyer.
‘Extreme disrespect’
Those familiar with Washington protests suggest a few possible explanations for why protesters are treated differently. The Capitol Police have a lot more protesters to deal with, and they sometimes have to process hundreds of people quickly. In contrast, while protests outside the Supreme Court building are common, people disrupting court proceedings inside the courtroom are uncommon.
There are also differences between the two organisations. Congress is a meeting place for democratically elected representatives and a forum for members of the public to express their opinions. Meanwhile, the Supreme Court is not directly accountable to the people and prefers to portray itself as apolitical. As a result, there may be a desire to crack down on protesters in order to preserve that image. The respective police departments also have different legal powers, which may influence how they handle cases.
The legal community’s respect for the court was on display this month during the sentencing of three protesters. Assistant United States Attorney Meredith Mayer-Dempsey said the women’s behaviour “demonstrates egregious disrespect for the highest court in the land,” adding that they showed no remorse even after pleading guilty. She claimed that a disruption in the courtroom was “significantly more significant” than similar behaviour outside the building.
Standing together at the lectern, Paterson, Enfield, and Baker delivered an emotional joint statement in which they said their protest against the loss of abortion rights was in the grand tradition of nonviolent civil disobedience in the United States.
“We did this in solidarity with women across the country who are now facing criminal prosecution and incarceration for making basic health care decisions about their bodies,” Baker said as she addressed the impact of the abortion ruling, her voice breaking.
Mehta appeared hesitant to sentence the women to more than 30 hours in detention, but indicated that his hands were tied.
“You can’t have people disrupting Supreme Court proceedings… without repercussions,” he said. “I understand your passion,” he added.
