RIOT SQUAD: Micah Avery charged with defacing Lincoln Memorial during DC rioting
WASHINGTON – Micah Avery, 26, of Washington, D.C., was arraigned in federal court on charges of destruction of federal property, resisting a federal officer, and obstructing a law enforcement officer during a civil disorder, announced Acting U.S. Attorney Michael R. Sherwin and Acting Chief of the United States Park Police (USPP) Gregory T. Monahan.
U.S. Park Police witnessed Avery graffiti the words “Yall not tired yet?” with black spray paint on the Lincoln Memorial.
A crowd converged on the officers and began pushing and striking the officers. During this melee, Avery broke free and ran away.
The complaint alleges that on the afternoon of May 30, 2020, officers with the U.S. Park Police witnessed Avery graffiti the words “Yall not tired yet?” with black spray paint on the Lincoln Memorial. Avery fled as the officers approached him. After a chase, officers apprehended and handcuffed Avery. Officers attempted to put the defendant into a patrol car, but he resisted their attempts. A crowd converged on the officers and began pushing and striking the officers. During this melee, Avery broke free and ran away. One of the officers sustained an injury to his hand.
A look-out was broadcast, and Avery was located shortly thereafter by other officers back at the Lincoln Memorial, still wearing the handcuffs.
STATEMENT OF FACTS
On May 30, 2020, Officer Fatokon and Detective Sergeant Holmberg of the United States
Park Police were assigned to the area of the Lincoln Memorial in downtown Washington, D.C. in
plainclothes capacity. At approximately 7:40 p.m., Officer Fatokon observed a black male, with
short bushy black hair wearing a black shirt, black shorts and a black and white bandanna over his
face, graffiti the words “Yall not tired yet?” with black spray paint from a paint can onto a stone
surface at the bottom of the steps to the Lincoln Memorial on the north side of the plaza level. The
man was later verbally identified as Micah Eugene Avery, Jr. (hereinafter “Defendant Avery”).
Defendant Avery then walked with a group of individuals eastbound from the Lincoln
Memorial toward the Vietnam Veterans Memorial. Officer Fatokon and Detective Sergeant
Holmberg alerted two U.S. Park Police motormen who attempted to stop Defendant Avery at the
entrance to the Vietnam Veterans Memorial. Defendant Avery fled on foot onto the grassy area on the north side of the Vietnam Veterans Memorial. He then jumped from the top of the Vietnam Veterans Memorial to the gravel and stone path below and continued to flee on foot south into the grassy area.
Defendant Avery was apprehended at that location by Officer Fatokon and Detective
Sergeant Holmberg. Detective Sergeant Holmberg placed Defendant Avery in handcuffs and
removed a spray paint can of Rustoleum Flat Protective Enamel from his right front pants pocket.
A black Apple iPhone was also removed from Defendant Avery at the time of arrest. A visual
examination of the locked phone at that time revealed a text from a contact named “Russell” which read, “I think they saw you tag.” The term “tag” is synonymous with “graffiti.”
Officers attempted to put Defendant Avery into a patrol car once he had been handcuffed.
Officers observed a large crowd proceeding toward them and wanted to secure the defendant
before the crowd arrived. Upon seeing the crowd, Defendant Avery, who had previously been
walking with no assistance, went limp in the officers’ hands. Defendant Avery refused commands
to cooperate and remained limp, forcing officers to drag him to a squad car.
The crowd that had been approaching converged on the officers and began pushing and
striking the officers, forcing them to the ground. While being pushed and struck, the officers were
able to maintain control over their service weapons and Defendant Avery. Each officer was
holding Defendant Avery by an arm when the crowd began to pull Defendant Avery out of their
grasp. At this point, Defendant Avery began to attempt to wriggle free from the officers’ grasp.
Eventually, the crowd was able to pull Defendant Avery free from the officers’ grasp, and
Defendant Avery escaped on foot. During the fight, Officer Fatokon sustained an injury to his
A lookout for Defendant Avery was broadcast to surrounding units. With the help of
members of the Metropolitan Police Department (MPD), the crowd was able to be cleared from
the area. At approximately 8:23 p.m., Detective Sergeant Holmberg monitored a radio
transmission from Sergeant Kadiev who advised that a black male was located at the Lincoln
Memorial who fit the description of Defendant Avery and was wearing handcuffs. Sergeant
Case 1:20-cr-00109-ABJ Document 1-1 Filed 06/04/20 Page 1 of 2
Holmberg responded to that area and observed Defendant Avery seated in the grass near the
Lincoln Memorial wearing the same handcuffs that were applied to him at the time of the
The damage to the Lincoln Memorial was in excess of $1,000. The Lincoln Memorial is
property of the United States Government.
On May 30, 2020, in Washington, D.C., a civil disorder, as defined in 18 U.S.C. §232(1),
was occurring that interfered with a federally protected function as evidenced by the Mayor’s
Orders 2020-067, and 2020-068, and 2020-070, which state, in pertinent part:
In the downtown area of the District of Columbia, numerous businesses and government buildings were vandalized, burned, or looted. Over the past nights, there has been a
glorification of violence, particularly during later hours of the night. This violence is not representative of peaceful protest or individuals exercising their lawful First Amendment rights. The health, safety, and well-being of persons within the District of Columbia are threatened and endangered by the existence of these violent actions.
DETECTIVE SERGEANT CARL R. HOLMBERG
UNITED STATES PARK POLICE
Judge cautions defense on baseless assertions
So at no point has there ever been an understanding on the part of the defendant, or anyone else in this courtroom, that the government is proceeding under a depredation theory.
And so perhaps the defense is not in the best position to be casting aspersion on the government’s candor with the Court in this instance.
JUDGE OFFERS ADVICE TO SNARKY YOUNG DEFENSE ATTORNEYS IN THIS CASE
I want to caution the young associates who have offered their services to the federal public defender that the sort of personal, accusatory, snarky pleadings that some civil litigators you’re going to run into in your career may think are what is called for in litigation, are actually less
persuasive and less effective than just being straightforward.
And it would serve you well to learn that lesson early in your career.
The second contention in the motion is that, like depredation, injury to property also requires proof of the use or threatened use of force and that since applying spray paint doesn’t qualify as a use of force, the indictment does not allege that the defendant took actions that would violate the statute. But the statute does not indicate the use of force as an element, and the defendant cites no binding authority saying that force must be alleged.
Instead, the defense looks at cases that arose in a different context. Whether 1361 is a crime of violence — which is a defined term of art — that would trigger a rebuttable presumption in favor of pretrial detention, or for purposes of 18 U.S. Code § 924(c), which would prohibit the possession of a firearm during the course of a crime of violence. But whether the destruction of property is a crime of violence for those purposes is not an inquiry here, and it isn’t what I have to decide. The issue is whether the indictment is so defective on its face the case can’t proceed. And the law plainly supports a finding that the indictment sets out facts
that support the allegation that property was injured (United States versus Cassidy, 616 F.2d 101,) from the Fourth Circuit in 1979, affirmed a conviction under § 1361 when defendants threw or poured blood and ashes on the walls and ceiling of the Pentagon. United States versus Grady, 18 F.4th 1275, the Eleventh Circuit in 2021, confirmed a 1361 conviction and noted that the defendant’s actions were more than just symbolic. In fact, they were incredibly destructive — that was the Court’s word — spray-painting numerous anti-nuclear and religious messages on the sidewalk and on monuments. United States versus Urfer, U-R-F-E-R, 287 F.3d 663, the
Seventh Circuit affirms the conviction of defendants who spray painted “Nuremberg” on government property.
In the United States versus Brown, 517 Fed. App’x 657, the Eleventh Circuit said that the district court did not err when it defined “damage” under 18 U.S. Code 1361 as the reasonable cost of repairing the damaged property.
The defendant tells me to put those aside. And he cites the United States versus Abu Khatallah, 316 F.Supp.3d 207, from this District in 2018. That case addressed the question raised in a post-trial motion of whether a conviction under a different destruction of property statute, 18 U.S. Code § 1343, was a crime of violence that could properly serve as a predicate for purposes of 18 U.S. Code § 924(c), the possession of a firearm during the commission of a crime of violence.
The Court was, as we all know from Johnson and the cases that followed it, required to apply what’s called a categorical approach, and that means that the trial judge has to look at the elements of the offense and not the facts underlying it. And it concluded that, quote, Injuring federal property categorically requires a use of force against property of another, close quote. That is, quote, force capable of causing injury, close quote.
That standard, that definition was required because the question was whether a crime of violence had been committed, not what was needed to prove injury to property.
And I note that the Court didn’t purport to add an element that the government would have to prove in a § 1343 or 1341 case.
Its point was that the notion that the defendant had used sufficient force was inherent in the element the government already had to prove, that property was injured or destroyed.
The Court looked at prior convictions under §§ 1343, and it observed that what had happened in those cases, tarring a courthouse or breaking a sprinkler, quote, while not particularly brutal, each required that requisite level of force against the property. But he explained what he meant by that, and he said: Applying a substance to the exterior of a building constitutes more than, quote, de minimis intrusion, like a trespassory but otherwise harmless touch. That’s the
Khatallah opinion at page 215. And that’s why the Court concluded that a crime like 1343, which has an element — has as an element the intentional injury of property, categorically
required that the defendant use force capable of causing injury
to that property.
Here, the indictment alleges that the property was, in fact, injured or damaged and that it sustained damage it took at least $1,000 to repair. Since the indictment here alleges an
intentional injury to property, it was sufficient to state and to place the defendant on notice of the charges against him.
Whether the government can prove it will be a question for the jury. In any event, the discussion in Khattala is consistent with the notion that spray painting is something more than a de
minimis intrusion or otherwise harmless touch.
For all these reasons then, the motion to dismiss will be denied.
Mr. Avery, that is the only thing that we’ve done in your absence was to begin my ruling on a legal motion, which your counsel agreed I could do, even in your absence. And for the record, you’re now present for everything else that’s going to happen, and you walked in the courtroom about one-third of the way into that recitation.
Court denies motion to dismiss
Judge Meriweather released Avery pending trial but ordered that he stay away from the
The defendant was arraigned today before United States Magistrate Robin M. Meriweather in the United States District Court for the District of Columbia. Judge Meriweather released Avery pending trial but ordered that he stay away from the Lincoln Memorial. A Criminal Complaint is a formal accusation of criminal conduct for purposes of establishing probable cause, not evidence of guilt. The defendant is presumed innocent unless proven guilty.
Moreover, as the prosecution of Avery illustrates, the United States Attorney’s Office will not tolerate those who under the guise of the First Amendment exploit peaceful demonstrations to break the law, deface our national monuments, and threaten the safety and security of our nation’s capital.Acting U. S. Attorney Michael R. Sherwin
“The United States Attorney’s Office for the District of Columbia is dedicated to protecting the vital First Amendment right of individuals who choose to peacefully protest the horrific killing of George Floyd in Minneapolis last month. Moreover, as the prosecution of Avery illustrates, the United States Attorney’s Office will not tolerate those who under the guise of the First Amendment exploit peaceful demonstrations to break the law, deface our national monuments, and threaten the safety and security of our nation’s capital. In its commitment to protecting the rule of law, this Office will not leave unchecked any criminal activity, whether committed by civilians or law enforcement, that infringes on the fundamental civil rights and ability of any person to be free of violence or fear,” said Acting U.S. Attorney Michael R. Sherwin.
“This crime shows how the actions of one individual can distort and tarnish a message through vandalism and other crimes of opportunity.”
“The defacing of the Lincoln Memorial, one of our national icons, could not be tolerated. We are committed to safeguarding the First Amendment rights of those who come to the District of Columbia to peacefully demonstrate. This crime shows how the actions of one individual can distort and tarnish a message through vandalism and other crimes of opportunity. This case is an example of excellent police work, under challenging conditions, and meets one of the core missions of the United States Park Police,” said Gregory T. Monahan, Acting Chief of the United States Park Police.
In announcing the charges, Acting U.S. Attorney Sherwin and Acting Chief Monahan commended the work of the USPP officers who apprehended Avery and are investigating the incident. The case is being prosecuted by Assistant U.S. Attorney James B. Nelson of the U.S. Attorney’s Office for the District of Columbia.
Drug Distribution Arrest in the District of Columbia for Micah Avery:
Avery was charged with possession with the intent to distribute marijuana in the District of Columbia on April 19, 2019. Avery was acquitted but it didn’t work as neatly for his friends.
The United States Attorney charged in two criminal counts, that Micah E. Avery, (DOB 04/18/1994), of 417 Q. Street NW, Washington, D. C., on March 21, 2019, possessed with the intent to sell marijuana. Co-defendants Kenneth V. Brown, Jennifer Haynes, and Odarte Mills.
Things didn’t work out as well for Avery’s co-defendant Odarte Kojo Mills, (DOB 07/26/1971) of 906 Quincy Street NW Washington, D.C., who was found guilty on Jan. 3, 2020. Mills is appealing his sentence of two days in jail and a fine of $50 payable to the Violent Crimes Payment Fund. Jennifer Ilean Haynes, (DOB 10/14/1981) of 3460 14th Street NW #246, Washington, D.C., and also of the same address as Mills, was also found guilty, sentenced to two days in jail, and has filed an appeal. The jail sentence was suspended at the time of the guilty finding and Haynes was also ordered to pay $50 to the fund for Victims of Violent Crime.
On Oct. 7, 2019, with Assistant United States Attorney Cameron Tepfer present on behalf of the Government. Judge John Ramsey Johnson granted the Defense’s Motion for Judgment of Acquittal. Representing Avery was attorney Theresa Y. Jenkins.