Attorneys representing an activist arrested while protesting against the building of “Cop City” in Georgia have launched a legal challenge to the use of a state domestic terrorism statute against protests, claiming an “act of free speech” is being unconstitutionally targeted, the Guardian can reveal.
The move comes amid the unprecedented arrests of organizers at a bail and legal defense fund that has helped some of the people arrested while protesting against the multimillion-dollar police and fire department training center planned for a forest south-east of Atlanta.
Cop City came to global attention after police shot dead an environmental protester in a raid on the forest and its defenders on 18 January – the first incident of its kind in US history.
Police staged a Swat-style raid on Wednesday on the Atlanta Solidarity Fund (ASF), arresting three of its members. The fund, operating in Atlanta since 2017, has helped some of the 42 protesters so far facing charges linked to protests against Cop City, nearly all of whom have been bailed out.
The legal challenge was filed by Stanley L Cohen, a New York lawyer, together with local co-counsel. Exclusively obtained by the Guardian, the writ of habeas corpus filed in DeKalb county superior court on behalf of Ariel Ebaugh, arrested on 13 December, challenges the constitutionality of the 2017 domestic terrorism statute that has been used against activists and their supporters.
The petition argues that “attempting by word or expressive action to alter, change, or coerce government policy is a quintessential act of free speech”, and that Ebaugh’s protest against Cop City was constitutionally protected. It calls the statute “unconstitutionally vague” and “overbroad”.
The veteran attorney, who has represented clients ranging from members of Hamas to Native American activists, told the Guardian: “I have not come across a more fundamentally unconstitutional statute limiting speech and assembly in 40 years of legal practice, at the state, federal or international level.”
If successful, the petition could “ultimately mean that charges for [Ebaugh and] the other defendants would be dismissed”, said Alex Joseph, an Atlanta-area former federal prosecutor who has been involved in efforts to stop the training center.
Meanwhile, at least a dozen officers with Atlanta police and the Georgia bureau of investigation arrived to a leafy Atlanta neighborhood in a Swat-style vehicle, long guns raised, arresting Marlon Kautz, Savannah Patterson and Adele Maclean and charging them with financial crimes, including money laundering and “charity fraud”.
Georgia’s attorney general, Chris Carr, and governor, Brian Kemp, both trumpeted the arrests on social media, with Kemp calling the three “criminals who facilitated and encouraged domestic terrorism”.
Arrest warrants accuse the three of being connected to Defend the Atlanta Forest (DTAF) – a group the state has said exists because the phrase is used on social media and elsewhere – and goes on to allege that DTAF is classified by the US homeland security department (DHS) as “domestic violent extremists”.
The same allegation was used in earlier arrest warrants, but the DHS itself debunked the claim in January, telling the Guardian that it “does not classify or designate any groups”.
The fund, one of nearly 100 similar organizations across the US, raises money to help arrested protesters with bail, legal defense and related needs. The arrests are “unprecedented” in the history of such funds in the US, which are “central to the notion of the rule of law” and have existed at least a century, said Jocelyn Simonson, a Brooklyn Law School professor.
The state’s move drew rebuke from free speech and criminal justice experts, including the civil rights attorney Alec Karakatsanis, who called the arrests “bone-chilling”.
In Georgia, Democratic voices stepped forward in opposition to the state’s actions, including the state senator Josh McLaurin, who told the Guardian it was “scary to think the state is trying to use the criminal legal system to crack down on lawful protests, at the direction of the attorney general”.
The Georgia state representative Ruwa Romman said the arrests raise the question of whether authorities will also “criminalize other mutual-aid funds, like abortion funds, or funds to help immigrants navigate the legal system?”
Fair Fight Action, a voting rights group founded by the former Georgia gubernatorial candidate Stacey Abrams, called attention to the raid’s timing – days before Atlanta city council must vote on approving more than $60m in funding for the center.
The raid’s timing was also only days before the 90-day window by which Victor Puertas and Luke Harper – who were arrested on 5 March and are the only protesters among the 42 charged with domestic terrorism still in jail – must be indicted or released on bail, according to Georgia law.
If either defendant needs help with paying bail, the National Bail Fund Network, a partner of the Atlanta fund, will be available, said Pilar Weiss, one of the network’s founders. The national organization has also assumed fundraising abilities on behalf of the Atlanta fund, Weiss added.
As this week’s events occurred, a growing number of individual attorneys and state and national organizations were also staging meetings and training sessions in preparation for defending the dozens of protesters who are out of jail, but remain unindicted, said Tiffany Williams Roberts, public policy director at the Atlanta-based Southern Center for Human Rights.
After Wednesday’s police raid, Devin Franklin, movement policy counsel at the center, has also been hearing from defense attorneys who are concerned about becoming targets of the state themselves. “We’re figuring out ways to quell those concerns,” he said.
Joseph, the former federal prosecutor, said the state’s actions display “typical tools prosecutors use”, including “casting as wide a net as possible” in order to affect the ability of people being arrested to serve as witnesses in defense of other defendants, or to pressure them to accept a plea deal.
“They don’t care about appearing legitimate or if the charges are thrown out in two years – they only care about the swift repression of speech,” she said.
