color photograph of an outdoor protest against police violence. a women in a dark grey fleece jacket holds up a black paper sign with white handwritten text that reads "american policing = state-sanctioned terrorism." other people in the mid-ground hold white signs with black printed text that reads "justice for tyre nichols jail killer cops" and "the people demand: end police terror"
Protesters march during a rally against the fatal police assault of Tyre Nichols, in Atlanta on Jan. 28, 2023. (Photo by CHENEY ORR/AFP via Getty Images)

The First Amendment’s fundamental principle is ensuring everyone’s right to be heard. However, the recent application of RICO against the Atlanta Cop City protesters could spell disastrous consequences for any U.S. citizen looking to exercise this unalienable right.

On Aug. 29, Georgia Attorney General Chris Carr filed a sweeping, 109-page indictment targeting 61 activists opposed to the construction of a multi-million dollar police training facility for the Atlanta Police Department (APD). The facility would come at the cost of approximately 85 acres of environmentally significant forestland, known as both the South River Forest and the Weelaunee Forest. It is also the historical location of the Old Atlanta City Prison Farm.

The filing went largely unannounced and inconspicuous until Sept. 5, when the Atlanta Community Press Collective broke the news of the indictment on X, formerly known as Twitter. Critics have since viewed the indictment as a massive escalation in an ongoing police retaliation campaign to criminalize public dissent and discourage protesters. 

In a public statement, Center for Popular Democracy Action Executive Directors Analilia Mejia and DaMareo Cooper said: “Make no mistake: these are political prosecutions in the name of getting more cops on the street to further persecute our communities. We see right through these attacks and refuse to be silenced or intimidated.”

The language of the law

The federal Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted in 1970, designed to prosecute the mafia and, in later cases, combat white-collar crime. The Georgia RICO laws, a broader anti-racketeering statute based on the federal model, were enacted a decade later.

RICO criminalizes participation in the affairs of an enterprise through a “pattern of racketeering activity.” The statute broadly defines “enterprise” as any individual, partnership, corporation, association, or legal entity; “pattern” as two acts of racketeering activity within four years of each other; and “racketeering activity” as any criminal act listed in the statute.

During the 1980s, critics began to question RICO’s potential use against labor unions, which gradually began to shift toward the use against protesters. A St. John’s Law Review article by John P. Barry examined the exact circumstances of such an application in 1990, stating that “RICO was purposefully designed broadly with severe penalties for use as an effective weapon against organized crime, its intended target.” 

Today, the alleged “criminal enterprise” is made up of protesters. 

The alleged activities

The indictment dates the beginning of the Defend the Forest movement as May 25, 2020—the date George Floyd was murdered by a Minnesotan police officer. This predates any actual Defend the Forest activities—which began on Aug. 12, 2021—leading activists to believe that prosecutors have connected rising dissent against the police to the Cop City protests. 

On Jan. 18, Georgia State Patrol swept through the forest to clear out an activist encampment. What followed was the fatal shooting of environmental activist Manuel “Tortuguita” Paez Teran by Georgia State Patrol and the arrest of 19 people for domestic terrorism. Despite arguments by APD that Paez Teran had shot at police first, the Dekalb County Medical Examiner released an autopsy report that found 57 gunshot wounds on Paez Teran’s body, with no evidence of gunshot residue on their hands. 

In RICO suits, a plaintiff does not need to prove that the defendant’s actions violated a criminal statute, only that they showed a pattern of wrongful or attempted wrongful conduct. Even minor deviations from lawful conduct can result in RICO liability.

Three named individuals were arrested in April while allegedly passing out flyers with the names of the Georgia State Patrol officers who killed Paez Teran. The RICO indictment frames the zines and pamphlets issued by activists to the general public as proof of conspiracy and distribution of “anarchist ideas” and “false narratives” to halt the construction of the facility. The organizers were charged with felony intimidation of an officer of the state and misdemeanor stalking.

Some of the activities alleged to be evidence of the protesters’ intent to break the law include: recording footage of police officers, posting links to news stories about the protests to social media, writing the Atlanta Solidarity Fund’s phone number on their body in case of arrest, using end-to-end encrypted messaging apps like Signal or Telegram to communicate, and graffitiing “ACAB” in the Atlanta area.

Conspicuous timing

Some of the activists named in the indictment were aware of the prospect that RICO could be used as a deterrent to the movement long before their arrests. On Feb. 27, the Atlanta Solidarity Fund issued a press release stating that they expected forthcoming indictments to be given during the following Week of Action in March, scheduled as such to disrupt the events being organized at that time. 

Open records obtained by the ACPC later confirmed that the Atlanta Police Foundation and its contractors had been awaiting indictments since early February.

On March 5, during the South River Music Festival, 35 people were detained and charged with domestic terrorism for their alleged involvement in the destruction of heavy construction equipment. That number has since risen to 42, all of whom were named as conspirators in the indictment.

Thomas Jurgens, an attorney for the Southern Poverty Law Center, was among those arrested at the festival despite wearing bright green identification marking him as a legal observer of the event. He has been named as one of the conspirators.

On May 31, Adele Maclean, Savannah Patterson, and Marlon Scott Kautz, all lead organizers of the Atlanta Solidarity Fund, were arrested in a police raid and charged with 15 counts of charity fraud and money laundering. They were also named in the indictment, with the Solidarity Fund itself—having a history of raising bail money and assisting in providing attorneys for the Cop City protesters—alleged to be the crux of the conspiracy.

The timing of these charges has fallen into a pattern. The SWAT-style raid of the solidarity fund took place days before a City Council vote on the facility’s budget. The filing of the RICO indictment broke to the public only a week before the Cop City Vote Coalition, an organization within the movement seeking to cancel the Cop City lease via a voting referendum, submitted more than 100,000 petition signatures to Atlanta City Hall. The City of Atlanta almost immediately issued a memo to refuse the signature verification process.

In a statement regarding the indictment, Vote to Stop Cop City said, the indictment sends “a chilling message that any dissent to Cop City will be punished with the full power and violence of the government.”

Free speech at a tipping point

On Aug. 14, Fulton County District Attorney Fani Willis used RICO to indict former President Donald Trump and 18 co-defendants for allegedly conspiring to illegally overturn the 2020 presidential election results in the state. The Atlanta Journal-Constitution reported that the same grand jury that indicted Trump was used to indict the Cop City activists.

Fulton County Superior Court Judge Kimberly Esmond Adams currently oversees the Cop City case after Judge Scott McAfee, the original assignee, recused himself on Sept. 5, saying he’d worked on the case with prosecutors before his judicial appointment. 

The threat of RICO liability could be used to erode support and discourage donors from contributing. Imposing damages, attorney fees, enterprise restrictions, injunctions, pretrial freezing of assets, or dissolution of the racketeering enterprises are all at the court’s discretion. If those charged are prosecuted, the penalties provided by RICO could span up to 20 years in prison per racketeering count.

In 1970, it may never have been the intention of Congress to extend RICO liability to concerned citizens protesting against what they perceived to be unjust. But when the law begins labeling anything organized crime, activists fear everyone is at risk of being labeled criminal.

Jocelyn James is an African-American writer based in Atlanta, GA. She covers beats in sustainability, politics, identity, and art.