After Derek Chauvin was convicted of murdering George Floyd in Minneapolis, America exhaled. It avoided another round of the last decade’s reciprocal ideological violence, including campus riots, armed protests against federal land use management, neo-Nazi violence, Black Lives Matter riots, and occupations of the U.S. and state capitols.
Many officials refuse to restore order because they sympathize with protests or are intimidated by them. Section 1986 of the Ku Klux Klan Act of 1871 can break the cycle by holding faithless executives liable for failing to stop discriminatory conspiracies based on race.
The post-Civil War amendments to the Constitution established equal rights without regard to race, yet Southern whites terrorized newly freed slaves during Reconstruction. In response, Section 1985 of the KKK Act created an individual right to bring lawsuits for damages against private conspiracies that violate civil rights. Because conspirators were emboldened when government officials stood aside, even if there was no coordination, Section 1986 of the KKK Act made liable for damages every “person who, having knowledge and power to aid in preventing” a Section 1985 conspiracy neglects to do so.
Sections 1985 and 1986 apply to conspiracies against classes protected under the KKK Act, such as race. The attack on Congress’s Electoral College certification was such a conspiracy: It was the culmination of then-President Donald Trump’s “stop the steal” campaign to suppress votes in disproportionately black jurisdictions such as Atlanta, Detroit, Milwaukee, and Philadelphia. The Capitol rioters conspired to interfere with officers of the United States under Section 1985(1) and to prevent the election of electors for president under Section 1985(3).
Regardless of whether Trump had advance knowledge of the conspiracy or whether his Jan. 6 speech incited the attack, he learned of the invasion immediately — he was reportedly glued to his television — and failed to act. Despite legislators’ pleas, Trump never ordered the National Guard to stop the Capitol riot, according to defense and administration officials. He finally asked his followers to leave two hours after the breach while continuing to denounce the “fraudulent” election. The Capitol was secured six hours after the breach. Several representatives have since filed Section 1985 and 1986 lawsuits.
Officials on the Left have been equally unwilling to enforce the law. In 2020, a series of police shootings of blacks were followed by national protests. While the overwhelming majority of the 15 million to 30 million protesters were peaceful, contemporaneous rioting resulted in shootings and the destruction of neighborhoods. After looters hit its headquarters, Target Corp., a downtown Minneapolis anchor for 119 years and the city’s largest employer, announced plans to relocate 3,500 workers.
Many officials, like woke Pontius Pilates, gave the mob what it wanted. After Daunte Wright’s recent killing in Brooklyn Center, Minnesota, Council Member Kris Lawrence-Anderson voted to dismiss the city manager because she feared for her property: “I didn’t want repercussions at a personal level.” George Mason professor David Bernstein identifies 11 major cities where officials told police to stand down or prosecutors refused to press serious charges. He tallies about 24 deaths and $1 billion to $2 billion in property damage directly resulting from the riots.
These riots were Section 1985 conspiracies, justified as opposition to white supremacy and employing what Columbia professor John McWhorter calls a neo-racist woke ideology. (Peaceful protesters did not necessarily share this ideology and were exercising First Amendment rights regardless.) The Reconstruction-era KKK similarly claimed that violence was necessary to prevent black supremacy.
A large proportion of the anti-white supremacy rioters were apparently white antifa supporters, particularly in overwhelmingly white cities such as Portland, Oregon, and Seattle, Washington, scenes of some of the worst violence. As Nancy Rommelmann has reported, in Portland’s historically black Kenton neighborhood, after local businesses trying to survive COVID restrictions had created an outdoor plaza, protesters wrecked it. Kenton Business Association head Terrance Moses observed that “these are young white kids destroying people’s property to try and get a message across that they think is what black people want to hear.” In Chavis v. Clayton County School District, the U.S. Court of Appeals held that if racial animus is the motivation, the race of the parties is irrelevant.
There are parallels to Park v. City of Atlanta, a case arising after Los Angeles police were acquitted in the beating of black motorist Rodney King in 1992. A black mob shouted racial epithets and broke windows at two Korean-owned stores. After police assured the owners they were safe, the mob chased them onto the roof and looted the stores while screaming, “Kill the Koreans!” These allegations supported a Section 1986 claim against the city, its mayor, and police chief.
Officials who failed to act during recent riots also face Section 1986 liability. In Minneapolis after Floyd’s death, Kris Wyrobek watched his business burn to the ground: “The fire engine was just sitting there.” Portland’s district attorney dropped more than 90% of charges, refusing to prosecute “breaking windows of businesses, lighting things on fire, stealing from those stores in the protest environment.” Portland officials acquiesced as rioters set the county Justice Center and a police station on fire and besieged the U.S. courthouse for over 60 consecutive nights. (Recently, Portland’s mayor, at last, called to “take the city back.”)
While even the Reconstruction-era KKK acknowledged the ultimate sovereignty of the U.S., contemporary officials ceded “autonomous zones” to protesters in cities including New York, Philadelphia, and Richmond, Virginia. Like pre-civil rights era “sundown towns” that barred blacks after dark, Minneapolis’s George Floyd Square, which has been barricaded since Floyd’s death, at times barred whites or subjected them to restrictions. There have been two murders there, two in Seattle’s now-cleared Capitol Hill Organized Protest zone, and a multitude of shootings and stabbings in other cities.
In Seattle, protesters blocked major artery Interstate Highway 5 for 19 consecutive nights, assisted by Washington State Patrol troopers, until a driver went around the barricades and struck two protesters, killing one. Washington Gov. Jay Inslee claimed to “support the constitutionally protected right to protest and for those who do it to be safe from harm.” But far from being constitutionally protected, the protesters had conspired “on the highway” under Section 1985(3) to interfere with the 13th Amendment right to travel. Inslee’s inaction recalled civil rights-era Section 1986 cases in which officials were liable for failing to stop conspiracies against the Freedom Riders. Without the right to travel, anarchy follows: In the three months after Floyd’s death, there were at least 104 incidents of people driving vehicles into protests.
Suits under Section 1986 must be brought within one year, so the statute of limitations for many events arising out of Black Lives Matter riots will expire soon. The cycle of political violence won’t end until faithless executives are held to account.
Jay Weiser is associate professor of law emeritus at Baruch College’s Zicklin School of Business.
