- Melquan Barnett was indicted on federal charge that he set fire to Ember + Forge coffee shop during riot in downtown Erie on May 30
- Barnett, 28. is claiming federal prosecution is politically motivated
- In newly filed response, U.S. Attorney’s Office says charge is justified, calls Barnett’s claims “frivolous”
The legal rift has intensified in the federal arson case that grew out of the rioting in downtown Erie on the night of May 30.
The U.S. Attorney’s Office is sharply criticizing the claims of the defendant, Melquan Barnett, 28, who says he is the victim of “selective prosecution” on a charge that he set fire to the Ember + Forge coffee shop during the civil unrest.
The government said that Barnett, who is Black, is making “frivolous” claims that he was engaged in free speech and that his race unfairly contributed to the decision to try him in U.S. District Court in Erie rather than Erie County Court, where the potential penalties would be less severe.
“Violent rioting, as opposed to peaceful protest, is not a First Amendment activity,” the U.S. Attorney’s Office said in a filing docketed in U.S. District Court in Erie on Thursday.
The U.S. Attorney’s Office said it and the Department of Justice are justified in prosecuting Barnett, who in his filings so far has not challenged evidence that he set the fire. Investigators used video to identify him.
“Without ever disputing that probable cause existed to charge him” under federal law, “Barnett essentially characterizes the specific people who decided to prosecute him federally, as well as the DOJ itself, as partisan racists,” according to the filing.
“But Barnett has zero evidence — let alone clear evidence — that either his race or his unspecified ‘First Amendment activities’ had anything to do with this Office’s decision to charge him in federal court.”
‘Cover of darkness’
An assistant U.S. attorney in Pittsburgh, Donavan Cocas, filed the 25-page document in response to the motion to dismiss that Barnett’s lawyer, Charles Sunwabe, filed in February. U.S. District Judge Susan Paradise Baxter, based in Erie, will use the filings as she decides whether to end the federal prosecution or let it proceed.
Much of Barnett’s motion to dismiss centered on his argument that he was exercising his First Amendment rights while protesting downtown on May 30 over the death of George Floyd, the Black resident of Minneapolis who died after police there held him down and pinned him to the ground on May 25.
The U.S. Attorney’s Office in its new filing expanded on the position it has taken since the start of the case — that Barnett was charged not in connection to a three-hour peaceful protest in downtown Erie on May 30, but in connection to the rioting that broke out afterward. The rioters surged outside the Erie police station, breaking a window and lighting off fireworks before scattering downtown as police in riot gear tried to disperse them using tear gas.
“By the time Barnett arrived at around 9 p.m., the protest was over,” the U.S. Attorney’s Office said in its filing. “He, like others who would commit crimes and clash with police, waited for cover of darkness to join a crowd of 100 to 200 people gathered outside the police station.”
The unrest lasted about three hours. Members of the crowd broke windows and tore parking meters from the ground and attempted to injure police officers with bricks, frozen water bottles, large fireworks and at least one Molotov cocktail, police said. Police said 16 downtown businesses were vandalized, fires were set at three buildings and one person was shot.
Three hours of chaos:How Erie turned into a tinderbox
Barnett was indicted in June on a federal felony charge of malicious destruction of property by fire, a conviction for which carries a mandatory minimum of five years in federal prison and a maximum of 20 years.
Barnett has pleaded not guilty. He is out of prison under house arrest while he awaits prosecution.
The fire at Ember + Forge was extinguished quickly and the coffee shop reopened days after the rioting. The shop’s owner, Hannah Kirby, has said she would like to see the federal charge against Barnett dismissed and the case handled in Erie County Court.
The coffee shop is below 10 apartments, and the owner of the building, Erie architect Jeff Kidder, told the Erie Times-News after the rioting that he was upset that someone would light a fire in a business so close to the apartments. He said nine of the apartments were occupied.
Ember + Forge:Owner of damaged Erie shop: Federal charge too harsh
Barnett was one of about two dozen people charged in the rioting. All the defendants faced prosecution in Erie County Court except two defendants charged in federal court.
The other defendant in federal court is Tyvarh Nicholson, 29, indicted in September on charges of obstruction of law enforcement during civil disorder and possession of an unregistered firearm or destructive device during the May 30 disturbance.
Nicholson has pleaded not guilty and is awaiting prosecution in prison after he waived a detention, hearing, according to court records. Nicholson, who is also Black, has so far not raised an argument of selective prosecution or free speech in his case.
Second federal case:Erie man indicted in downtown rioting
Erie police initially charged Barnett with arson, alleging that he was seen on video pouring a flammable substance through the broken window of Ember + Forge, and igniting it after a woman is seen on the video breaking out the window.
The U.S. Attorney’s Office then took over the case, leading the FBI to charge Barnett, who was then indicted in federal court. The federal arson charge was based in part on the fact that Ember + Forge engages in interstate commerce through its use of Facebook and Instagram, sale of gift cards over the internet and purchase of coffee cups from New York, according to federal charging documents.
Aiming to send ‘clear message’
Barnett is arguing that his federal indictment had more to do with politics than with the circumstances of his case. He is contending the charge against him grew out of a campaign that then-President Donald Trump and Attorney General William Barr waged against Black Lives Matter protesters nationwide. The result, according to Barnett’s motion, have been “political prosecutions” related to the protests.
In its response to Barnett’s motion to dismiss, the U.S. Attorney’s Office said the federal charge against Barnett fits the circumstances of the case. Cocas, the assistant U.S. attorney, highlighted Barnett’s criminal record, saying in the response that Barnett had “ten prior involvements with law enforcement as an adult, including a conviction for giving false identification to police officers.
Deterrence, Cocas said, is one reason that the U.S. Attorney’s Office is prosecuting the case.
“Barnett has a criminal history,” according to the response. “The sentence that Barnett will receive if convicted should send the clear message that those who interfere with the legitimate First Amendment activity of peaceful protesters with violent, destructive behavior will be punished accordingly.”
Cocas also said in the response: “In the end, Barnett purposefully engaged in destructive, life-threatening conduct that splashed him all over network and internet news sites. He deliberately inserted himself into, and contributed to, the very mayhem that caused billions of dollars in damages and prompted world leaders to express a range of sentiments, from alarm to schadenfreude.
“In the face of all of this, Barnett cannot seriously deny that prosecuting him in this Court serves the federal interest in deterring would-be rioters from mistaking violence and destruction with legitimate speech: particularly at a time of civil unrest so widespread and intransigent that the international community stops in its tracks to take notice.”