Remaining ‘Broadview Six’ defendants want conspiracy charge tossed, argue protesting isn’t a crime

Arguing that federal prosecutors have made a “crime out of what under the Constitution cannot be a crime,” the group of protesters originally known as the "Broadview Six" asked a judge Monday to toss the conspiracy charge filed against them because it runs afoul of the First Amendment’s freedom of assembly.

It’s the latest attempt to challenge the indictment brought against the group — and one that a defendant in the case had an active role in drafting. The prosecution is one of several to result from the Trump administration's Operation Midway Blitz deportation campaign.

The group is now down to four, after prosecutors dropped the charges against two of the defendants last week. Those who remain say the government’s allegations of conspiracy — a felony that could lead to a prison sentence of up to six years — enhances a misdemeanor charge based on the defendants’ “exercise of their First Amendment rights of assembly and association.”

“That a misdemeanor … can be escalated to a felony conspiracy charge simply because it occurred in the midst of an otherwise peaceable assembly creates a substantial risk of chilling the public’s willingness to exercise their First Amendment rights of freedom of assembly and freedom of speech,” defense attorneys wrote in an 18-page motion filed Monday.

The motion was filed on behalf of all the remaining defendants. But one of them, Oak Park village trustee and lawyer Brian Straw, played an active role in drafting it. That's according to Straw attorney Christopher Parente, who said Straw invested "a lot of his blood, sweat and tears."

"I think the bigger issue for Brian is the right for people to peacefully assemble and to protest their government, regardless of what the issue is," Parente told the Chicago Sun-Times.

Charged along with Straw are 45th Ward Democratic committeeperson Michael Rabbitt, congressional candidate Kat Abughazaleh, and a senior member of Abughazaleh's campaign staff, Andre Martin. Abughazaleh is seeking the Democratic nomination in Tuesday’s primary for Illinois’ 9th District congressional seat.

Prosecutors last week dropped charges against Joselyn Walsh, a musician, and Catherine “Cat” Sharp, a Democrat who dropped her bid for Cook County Board to focus on her legal defense. The feds also recently narrowed their theory of the case.

Challenges have followed in recent days from the four defendants who still face trial May 26. They sought records Friday that might show an improper influence on the case by the Trump administration.

Now they’ve asked U.S. District Judge April Perry to toss the conspiracy charge on First Amendment grounds, arguing that the feds' theory "puts any protester at risk of being charged with a felony on account of being in the wrong place at the wrong time with others." The lawyers are due back in Perry’s courtroom March 31. Each of the four also face a misdemeanor charge alleging they impeded an officer.

The conspiracy charge revolves around events on the morning of Sept. 26 outside the U.S. Immigration and Customs Enforcement facility in Broadview. It became a hotbed for protests during Midway Blitz.

The indictment alleges that, while a federal agent drove a vehicle toward the ICE facility, the defendants and others surrounded it. Members of the larger crowd allegedly banged on the vehicle, pushed against it, scratched it and even etched the word “PIG” into it.

The crowd allegedly broke a side mirror and a rear windshield wiper and forced the agent “to drive at an extremely slow rate of speed.”

But defense attorneys say none of the damage was caused by the defendants themselves — a point they expect prosecutors to concede. Rather, the indictment generally accuses the four of bracing themselves with their hands and bodies against the vehicle, hindering its progress.

They did so after exercising their First Amendment rights “in a location specified for such protests by the Village of Broadview,” and after the agent decided to slowly drive into the crowd, according to the defense attorneys.

The agent did not wait for police to clear a path, did not identify himself and did not order the crowd to move aside, the attorneys argued.

“Their only actions — aside from bracing themselves against a vehicle that drove into a crowd of protesters — was being in that crowd of protesters,” the defense attorneys wrote. “Their actions are inseparable from the exercise of their constitutional right to assemble — in the exact location where Broadview police had allowed them to do so all morning."

Evan Bernick, an associate professor at Northern Illinois University College of Law, said he spoke with Straw and his attorneys about the motion filed Monday. He said the allegations in the case could have a chilling effect on protests beyond those against Midway Blitz. That's because of the concern that lawful protesters could be on the hook for the illegal actions of others through a conspiracy charge.

"This prosecution is not just about this prosecution," Bernick said. "It's about the prosecution of anybody who might go into public and engage in an assembly with peaceful purposes, with lawful purposes, and then decide not to on the belief that they might get targeted and successfully indicted, even though they have done nothing wrong."