This blog post offers analysis on how the prosecutions and convictions of the Spokane 3, charged with conspiracy to impede federal law enforcement, intersect with the free speech rights guaranteed in the Constitution. Before I begin the analysis, I want to make a few notes. 1. Jac Archer, one of the three defendants in this case who did not take a plea deal and thus went to trial, is a graduate of Gonzaga Law School, where I teach. I never had Jac as a student in any of my classes and never knew them, but I have tremendous fondness for all Gonzaga Law students. 2. This blog aspires to objective legal analysis about important issues regarding what is and is not protected under the First Amendment, in addition to how prosecutorial decisions affect First Amendment rights.  3. I never attended this trial, so I am relying on media sources that describe the trial, in particular The Spokesman Review and Range Media.  To get a deeper dive into the trial, I recommend these sources.

Honest analysis of this issue requires a systematic look at the contours of the First Amendment, the motivations of prosecutors, and the implications of this trial on speech and protest. Ultimately, the Spokane 3 may have engaged in some conduct that was not protected under the First Amendment, and all three could potentially be criminally prosecuted.  However, their potential over-prosecution for federal conspiracy to impede or injure an officer has serious implications for future speech or protest. A skeptical look at whether defendants’ conduct meets the definitions of conspiracy and of force or threats in the charging statute is necessary.  United States District Court Judge Rebecca Pennell is considering a motion for acquittal in July, where she could potentially rule that neither a conspiracy nor the requisite amount of force were used by defendants to be convicted for federal conspiracy to impede law enforcement. My analysis is below:

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This federal prosecution stems from a protest inspired by former Spokane City Council Member Ben Stuckart (whose guilty plea for felony to impede law enforcement may be converted into a misdemeanor if he complies with supervised release conditions).  Stuckart posted in June 2025 on Facebook about a transfer of two Venezuelan immigrants to an ICE detention facility (Joswar Rodriguez Torres was later ruled illegally detained, Cesar Alvarez Perez has since self-deported). The Facebook post read:

“If you care at all about these illegal detainers you meet me at 411 West Cataldo by 2 p.m. I am going to sit in front of the bus. Feel free to join me,” he wrote. “The Latino community needs the rest of our community. Not tonight, not Saturday but right now!!!!

Some protesters who responded to the Facebook post blocked the ICE bus, joined hands to prevent the bus from moving, slashed the tire of a law enforcement vehicle, and, according to some testimony at the trial, engaged in aggressive and intimidating behavior towards law enforcement, sometimes blocking their pathways. Law enforcement unleashed cannisters of smoke and made arrests, some of which were described as violent and may have involved excessive force.  

The federal government tried the Spokane 3, “military combat veteran Bajun Mavalwalla II, activist Justice Forral and activist and Gonzaga Law School alum Jac Archer” under 18 U.S.C.§ 372

 If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from  …  discharging any duties [ of the United States] thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both. 

There are two separate, but related, legal questions to analyze. The first legal question is whether the protesters were engaging in speech protected under the First Amendment; we cannot be prosecuted for protected speech. The second legal question is whether defendants in this case violated this particular federal conspiracy statute.

The behaviors described above are not protected speech. A protest may be deemed non-violent, but that does not make it “speech,” deserving of First Amendment protections. The First Amendment’s protections for speech distinguish speech from conduct.  Speech is communicative, not coercive.  Although speech may express dissenting, disagreeable, inflammatory, or even offensive views, speech does not prevent others from acting. Listeners are not coerced by speech, which is why speech is elevated above conduct. Blocking exits, preventing law enforcement from doing their jobs, and ignoring lawful dispersal orders when a crowd has become a danger are actions that can be legally punished. Protest often involves elements that are protected speech, including gathering legally, holding signs, even yelling expletives and phrases like “Fucking Nazis” at ICE Agents.  Protests can also involve elements that are not protected speech, including blocking roads, impeding law enforcement, blocking private property, vandalism, assaults, etc.

Of course, civil disobedience is an important part of the United States protest history and fights for justice. Civil disobedience, however, explicitly involves breaking the law and accepting punishment. Civil disobedience, by definition, does not involve protected speech – it involves unlawful conduct.  In a democracy, no individual or group can decide which laws are or are not just on issues like abortion, immigration, or environmental policy. Social and democratic dissolution – likely including erosion of our legally protected First Amendment rights – would ensue if everyone decided for themselves which laws we allow the government to enforce. If someone believes a law is unjust – and many of our laws have been unjust  — they cannot claim First Amendment protections for blocking enforcement of that law. Through the federal court process, Joswar Rodriguez Torres, one of the immigrants who inspired the protest, was later ruled to be detained illegally.

Despite the First Amendment not playing a direct role preventing the Spokane 3 from being charged under state law, federally overcharging protesters for conspiracy has great potential to chill protected speech. Specifically, the government should avoid creating definitions of “conspiracy” that would apply to any protest that later involves unlawful elements or parallel behavior.  Most protests involve some coordination; that does not make them conspiracies. The government should also avoid definitions of “force” that involve simply engaging in civil disobedience.  Prosecutors should use their discretion to ensure that our laws are respected while at the same time allowing robust breathing room for protest. Judges must be attuned to free speech implications. This case does not involve protesters blocking entrances to prevent others from exercising their speech rights, or protesters shouting down speakers, or any other clash of First Amendment values. Instead, this case involves protesters taking on the government, and the Spokane 3 may have been overcharged.

This charge, 18 U.S.C.§ 372, requires a conspiracy, or an agreement between two or more people, and “force, intimidation, or threat.”  A unanimous jury (some have reported the jury as all white, but this may not be accurate) convicted the Spokane 3 of different versions of this, although I believe Bajun Mavalwalla II was convicted only of aiding and abetting the conspiracy. For Judge Pennell to grant the motion for acquittal, she would have to find that, as a matter of law, the elements of this statute were not met. Specifically, she could find that there was no conspiracy or no force, intimidation, or threats. The judge is not permitted to re-weigh the evidence.  Jurors could go either way on many criminal cases. The judge can grant the motion for acquittal only if no reasonable juror could side with the prosecution, based on the evidence.

I did not watch the trial. Some evidence was presented of an agreement that technically could be a conspiracy, including using a bullhorn, linking arms, etc., although defense counsel presented this as parallel behavior. Parallel behavior is not conspiracy, but agreements and coordination can be. I am torn on this element.  Some evidence was also presented of force, including so-called aggressive stances by protesters. However, a jury would have to find force beyond a reasonable doubt.  Force, under this statute, cannot simply mean impeding law enforcement – otherwise the element of force in the criminal statute would be redundant. Criminal statutes are to be read in favor of defendants because of the risk of criminal punishment – this is termed the rule of lenity.

My hope is that Judge Pennell exhaustively reviews the evidence to ensure that there was enough evidence of conspiracy and of force to justify the extreme measure of a federal conspiracy charge, especially given the First Amendment implications. A judge cannot simply override the role of the jury, but there are important free speech and defendants’ rights reasons to not stretch the definitions of conspiracy and force beyond a formal interpretation.