Gang Assault Law Statement

As this legal quagmire has dragged on and on and slowly calcified into a felony plea deal with jail time, the people who know me best, those closest to me—family, friends, partners, coworkers, roommates—who know I have no prior convictions, who know I am an engaged member of my community, who know I am not a danger to anyone, have asked me one question, time and time again:

How could it possibly come to this?

More than anything else, the gang assault charge was the deciding factor in my case.

The gang assault charge was passed in 1996 when NYC was undergoing a series of crackdowns and “clean-ups” by Giuliani. Although it is a statewide law, enacted by the legislature, it reflects perfectly the iron-fisted tone of the Giuliani era. It has an extraordinarily low standard of evidence—any time three or more people are engaged in a fight with one or more people, those three people are legally a gang—and a very stiff mandatory minimum (3.5 years). What’s more, the previous applications of the gang assault law have established a legal precedent that heavily favors the state. The prosecution, as established by jurisprudence, has no obligation to prove that the “gang members” are affiliated in any way, know each other, or even share the same intention, only that they were acting “in concert”. This means that basically, any time three or more people are engaged in a fight on the same side, they are legally a gang, legally responsible for each other’s actions, and liable to spend 3.5 years or more in prison.

I was not originally charged with gang assault. When officer Adam Keegan of the 1st precinct, shield #3588, assaulted me and broke my leg on January 20, 2018, he proceeded to allege, to the media and in his own police report, that I had stalked and strangled the alleged victim (or placed him in a chokehold, or punched him once, or punched him repeatedly, depending on the version) and then tried to place him in a chokehold, refusing several orders to leave the poor man alone and put my hands behind my back. I was so resistant, he claimed, this this feat ultimately required the efforts of both himself and his partner. I weight 165lbs, officer Keegan is well over 200 at a glance. He probably fabricated the story in large part to protect himself—he had not identified himself as an officer, but rather charged at me from behind without a word—as he could suffer disciplinary action for attacking me this way and breaking my leg. Keegan repeated his claim to the right-wing media, which seized upon it as proof that antifa terrorists were trying to kill every red-blooded white male who’d had the audacity to vote for Trump.

The surveillance camera footage showed nothing of the sort. When it became available to the prosecution, and then the defense, about 6 months after my arrest, it showed no stalking, choking, chokeholding, assaulting an officer, or resisting arrest. It showed 6-8 people in black with their faces covered slowly trickling around a corner, past a man in a suit who they pay no attention to. Then 5-6 men in suits come up the street in the opposite direction. Some people start shoving—it’s impossible to tell who shoves first—and then throwing punches. The man in the suit comes back around the corner and charges into the brawl. It spills across the sidewalk, into the street, and then calms down for a minute, with a few men in suits circling around the center. The violence then erupts again into punches and shoves. A man in a suit falls off the curb onto the concrete, and hits his head, hard. It’s impossible to tell if he trips or is pushed. What happens next is more clear: four people in black swarm the man and begin stomping and kicking him. I pass through this mêlée at some point and move backwards up the hill. It’s impossible to tell that it’s me, but what happens next allows anyone to identify me by playing the footage backwards and tracing my movements through it. As I back up the hill, away from the fight, a man in a suit attacks me. I kick him once. A police officer slowly strolls around the corner, unconcerned and clearly unaware of the fight on the other side. The man attacking me tries to punch someone next to me. I take advantage of this and kick him again. The cop does a double take, seeing the brawl, and charges right at the closest black-clad person to him: me. He throws an arm around my shoulders and neck from behind, lifts me clear off the ground, and slams me to the pavement. I do not move. His partner walks onto the scene a moment later. The gentleman who was injured is knocked out cold, face-down on the pavement. Partisans from both sides gaggle around the scene for the next 20 minutes. Despite the “gang” nature of my charges, the cops do not arrest a single person from either side besides myself.

When the DA received the footage, my initial charges of strangulation and obstruction of oxygen (strangely, two different crimes in New York) were dropped, and replaced with gang assault and assault. Keegan’s lies, while criminal and deplorable, did not directly impact the final sentence. The gang assault law is so vague, and has been determined by previous cases to so heavily favor the prosecution, that I could have been convicted of it just by being present during the brawl. But his lies set up an important precedent for the handling of my case: I was a dangerous radical, and had to be physically restrained from assaulting others purely because of political differences. First impressions, unfortunately, matter. The narrative stuck. The judge, when I accepted the plea, even asked me, “and you assaulted this man because of differences in political opinion?” I had not, in fact, assaulted anyone purely because of a difference in political opinion. I found a discreet way to reply truthfully without derailing the plea deal. The New York Post, gleefully reporting on my copping to felony assault and an 18-month sentence, wrote that I had pleaded guilty to choking the man. Having little inside experience with either the New York judges or New York Post reporters, I was a bit surprised to find that laziness in research is a common feature of both. In retrospect, I must have been a bit naive to expect any better. People believe what they want to believe, and the more complicated, the more upsetting the truth is, the more they shrink from it, settling into their fantasies.

Lastly, the power of the prosecution as structured in the US legal system is grossly undemocratic, with little room for any input by those affected, or oversight on their behalf. The prosecutor decides what charges and how many to bring, and how actively to pursue them. They decide whether to charge the defendant with a misdemeanor or a felony, and whether it’s one felony or two, and whether they want to scare you with a felony charge into taking a misdemeanor plea, or whether they want to actually pursue a felony charge, and force you to plea to that. The prosecution could easily have charged me with disorderly conduct—a violation, less than a misdemeanor—and sentenced me to a week of community service, like they did for the Proud Boys arrested in similar circumstances on the Upper East Side ten months later. But, my lawyers explained, I was the only one arrested in my case. I was all the DA had, and they watched the news. They read the papers. They’d heard about Charlottesville and Berkeley and Portland, and they wanted none of that here.

This was the first time there had been a similar arrest in New York, and they needed to get a lid on politicized street violence, now. Make an example of both the far-right and far-left, subpoena Trump’s taxes, smile for the cameras, and call it a day. The Proud Boys shot themselves in the foot—the ones that weren’t given sweetheart plea deals, anyway. Two of them, Jon Kinsman and Maxwell Hare, turned down better offers than I was ever made—they were offered 12 months, serving 8, despite much clearer video evidence of them actually viciously assaulting people on the ground, a discrepancy the Manhattan DA has still not explained because they simply don’t have to. They went to trial, and lost on gang assault charges. They’ll spend four years upstate, and then five on parole. The far-right goons brawling in the street have been made an example of. Now, to make an example of a far-left goon. I look around. There’s no one here but me.

It is sheer damage mitigation for me to do this time. It’s not my time, and it’s not justice. The bastards have got me. But the bastards won’t have the last laugh. As a matter of fact, I’m looking forward to it in many respects. It isn’t often you get to live rent-free and eliminate all distractions, all complications in your life. I love to read, I love to write. Reflection, meditation, exercise—sounds like the kind of stuff people pay good money for. I’m far from an optimist, but it’s funny sometimes how life forces you to see the good in things.

So how could it come to this? Without sounding like I’m trying to pass the blame onto others (after all, I made a choice to go out to that protest, and not to leave the violence once it broke out), it’s a bit of a perfect shitstorm. A vague law with a stiff mandatory minimum, a cop covering for his illegal assault, a bad first impression complete with media coverage, and a hungry prosecutor with too much institutional power in a time of great political instability. It’s complicated, but it’s certainly not justice. Somehow, despite all my efforts and those of my very-competent lawyers, it has, in fact, come to this.