Betts created and posted a flyer naming a time to meet at the Champaignmall, because "[t]hey didn't listen when we were peaceful so we gone [sic] hit them where it hurts." The flyer was illustrated with a stock image of a burning car, and reminded people to bring friends, bricks, bookbags, etc., and concluded, "Let's get busy. JFG [Justice for George]." Betts wasn't sure what he was thinking would happen, he wasn't really thinking at all in his anger. "So many shootings by the police," he recalled in a recent interview, "now I think it wasn't the best way, but I just wanted to do something to show that we shouldn't be going through this."
Betts was surprised when he saw people sharing the post, and more surprised when they began showing up at the mall. "I didn't really expect anything," he noted, but he had underestimated the amount of anger in the community. At first it was exhilarating--this was the first time he felt like he had done something to show the world Floyd's death was intolerable. He posted videos exulting in the crowd's energy, and even took some clothes himself as people began breaking windows and grabbing items. And then reality set in.
The cost of the anger that rocked the mall and the North Prospect shopping area that evening is estimated at $100,000, an inconceivable amount for a teenager making minimum wage. As the police and the looters continued to range across the area, Shamar headed home with a growing sense of worry. "I realized people were looking for me because of the FB post. My manager at the Park District was getting threatening calls about me. The police were painting me as some kind of terrorist." He worried that the parents of the children he worked with would turn against him. Betts decided to leave town and hope it would all blow over. He fled to his aunt's house in Tchula, and spent days looking up unfamiliar terms he saw associated with his name, terms like "incite."
Back in Champaign, the police combed through videos, identified suspects, and arrested more than two dozen people on charges of property damage and burglary carried out the night of May 31. But their cases would evolve very differently from Shamar's. The Champaign County Bail Coalition quickly helped those charged post bail and go home until trial. Most would not face jail time even if convicted. For first offenders in a property crime the norm would be to have the charges deferred, and if the conditions are met (good behavior for several years, maybe community service or restitution), the charges would be retroactively expunged from their record.
The federal charges filed against Betts eliminated that path for him. The Champaign police had filed a state arrest warrant for burglary June 1, but when he was arrested June 5 by the FBI in Tchula, the complaint invoked the Federal Anti-Riot Act. Shamar Betts, the complaint alleged, "[u]sed the peaceful demonstrations over the death of George Floyd as cover to plan and carry out criminal activity." He was jailed first in a federal prison in Mississippi, then moved to Oklahoma, then to Macon, IL. He wondered why he was all alone in a pod meant for 14, until guards told him he had been given a special label used for high-security prisoners to prevent their contact with others. The guards had expected a masterful extremist, and were surprised to find only a scared, unworldly teenager. "I was so confused. I didn't understand about federal charges. They flew me in a plane with convicted murderers and drug dealers, I had never been around people like that before." Fears of COVID (no testing was done) and the lack of contact with a lawyer or family left him feeling lost.
"What purpose does it serve?"
Betts was finally indicted on July 7 and transferred to the custody of the Champaign County Sheriff. The court also appointed a lawyer, Assistant Public Defender Elisabeth Pollock from the Central District of Illinois, who coincidentally knew Betts from his work with her child's summer-camp program. Pollock found a family to act as local custodians, and arranged for a bail bond that would have allowed Betts to await trial at home. In response, the State filed an emergency stay order and succeeded in revoking the release, leaving Betts to spend the next year in detention.
Urbana attorney Steve Beckett, who teaches at the University of Illinois College of Law, was unsurprised but still frustrated with the government's course of action. "What purpose does it serve to have this young man detained this lengthy time?" Beckett wonders. Betts is a young individual with no prior convictions and a local custodian, facing detention at a time when COVID threatens incarcerated populations nationwide. "They could put an ankle bracelet on him if they wanted to know where he is," Beckett concluded. Beckett also noted that the high rates of pretrial detention in Illinois have been of concern to public defenders for a long time. Detention before trial exposes those charged to illness, including depression; prevents earning a living or furthering education; and reduces opportunities for those charged to show they can be responsible members of society. Detention consistently worsens the outcomes for defendants.
Betts was not alone in his predicament. In the midst of the protests federal agents arrested more than 300 individuals across the country under Anti-Riot Act charges, and, in a desperate attempt to shut down the outcry over Floyd's death, used pretrial detention to contain the movement. Barr and Trump faced criticism for the abuse of federal power against political activists, but even the criticism of these tactics played positively among Trump's supporters. It took the focus off police abuse and kept it squarely on those it labeled radical extremists. It wasn't Betts or other demonstrators that were using the "cover of peaceful protest" to commit crimes, but Trump that used the wave of justified fury following events in Minneapolis to frame himself as America's warden.
The Path to the Supreme Court?
For those familiar with civil rights history the phrases Attorney General Barr used in May to lay the groundwork for the federal charges were familiar, although newly garnished with the language of the War on Terror. The 1968 Anti-Riot Act had established the legal means to shut down protests by making it illegal to travel across state lines or use interstate commerce, such as the telephone or US mail, to incite or aid a riot. The law was written to have a chilling effect on activism, and was most memorably used to charge the Chicago Seven (including Tom Hayden, Bobby Seale, and Abbie Hoffman) with responsibility for the unrest at the 1968 Democratic National Convention.
The Anti-Riot Act has rarely been applied over its fifty-year existence, and recent challenges in California and Virginia highlight the problematic language at its core. How do you draw the line between political opinions that fall within First Amendment protection and "incitement"? If you cross a state line to demonstrate, but the demonstration becomes violent, are you guilty of a federal crime? Beckett, who practices federal litigation and appeals, sees an additional need for clarity today. The federal courts, he observes, have upheld the interpretation that social media falls under interstate commerce, but this opens the door to unlimited federal involvement in communication. Where are the limits to federal involvement? Is "posting" really the equivalent of organizing?
On October 1 Betts's lawyer filed a 50-page motion to dismiss the indictment on the grounds that the Anti-Riot Act is unconstitutional, noting the history of conflicting legal rulings at the circuit-court level. Assistant US Attorney Eugene L. Miller filed a response on October 23, and District Judge Michael Mihm denied Pollock's motion to dismiss charges on December 28.
The legal battles, however, are far from over. Once the case is resolved Pollock will file a new appeal in the 7th Circuit Court. To that end Betts pled guilty to the charges February 2, freely acknowledging that he did make the post, yet retaining the ability to challenge the government's ability to criminalize it. Given the current conflicting rulings on the Act at the circuit-court level, the case could eventually end up under Supreme Court review, finally settling the legacy of a law specifically written to inhibit political activism.
The way the Anti-Riot Act has been employed in the Betts case treats the spontaneous social media post of a justifiably angry nineteen-year-old as if were equivalent to the plotting of a political insurrection. Betts himself admits there could have been better ways to address the problem of police abuse, but blaming the violence that swept Champaign on the night of May 31 on one Facebook post ignores the broader context of anger over government inaction in the face of persistent police violence. The Facebook post that actually sent Americans into the streets was not Betts's, but the video of Officer Derek Chauvin kneeling on the neck of George Floyd. Betts's angry response was ill advised, but not an attempt to exploit the tragedy for gain, as the government indictment alleges, nor did he engage in any violence against individuals. On the contrary, it is Betts that has been exploited as a convenient scapegoat for an administration intent on waving the specter of radical extremism before the American electorate.
For now, Betts waits. By the time he is sentenced in June he will have spent one year behind bars. He has a job in the laundry, reads books brought in by his lawyer, and as always, plays chess. "I've been playing chess my whole life," he told me. Shamar Betts is only twenty.
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