Police and protesters scuffle on Inauguration Day in D.C. (Photo by Scott Heins)

D.C. Police arrested more than 230 people on Inauguration Day, following a number of scuffles with law enforcement amid window smashing and fires near Franklin Square. All of those arrested, including six journalists and legal observers, were charged by the U.S. Attorney’s Office with felony rioting, which carries a maximum sentence of 10 years.

“It’s obviously a major concern and threat to the First Amendment when police don’t differentiate between individuals who may have engaged in misconduct, individuals who are peacefully protesting, and individuals doing their job to report on their news,” says Jeffrey Light, a defense lawyer for several of the people arrested.

Lawyers familiar with the District say this is a break in policy from law enforcement and prosecutors since Pershing Park in 2002, when hundreds of protesters were rounded up and arrested. The action was deemed unconstitutional by the courts, and led to a policy change for D.C. Police.

D.C. defense lawyer Heather Pinckney told the Washington Post that, in her 15 years of work, she doesn’t recall seeing demonstrators charged en masse with felonies.

Light agrees. “What typically happened, at least over last decade or so since Pershing Park, when there have been felony charges, they’ve been targeted at specific individuals for things like injuring a police officer,” says Light. “I don’t remember any felony riot charges being brought against protesters—it is unprecedented in that sense.”

But the U.S. Attorney’s Office, under the direction of United States Attorney Channing Phillips “determined that it was the appropriate charge in this situation given the circumstances. The felony is charged if any person suffers serious bodily injury or property damage exceeds $5,000,” according to spokesperson William Miller.

On Inauguration Day, D.C. Interim Police Chief Peter Newsham said that some protesters were responsible for “significant damage in a number of blocks in our city,” including broken windows at a Starbucks, Au Bon Pain, and the Crown Plaza hotel and fires, including a torched limo. In addition, six officers suffered minor injuries.

A sampling of arrest reports say that “the crowd was observed enticing a riot by organizing, promoting, encouraging, and participating in acts of violence in furtherance of the riot.”

It’s unclear whether any or all of the people arrested actually contributed to the property damage or acts of violence, though. The Guardian first reported that six journalists covering the protests were charged with felony rioting, which has a maximum sentence of 10 years and a $25,000 fine if convicted.

To Light, the mass charges seem “consistent with what Trump envisions,” though he doesn’t have reason to believe that the White House was involved in the charges. “I do think this is something we can expect more of in Trump’s America.”

One connection he does see? “I think it’s no coincidence that one of the individuals who is the decision maker on the Pershing Park arrests was Peter Newsham, who is now the acting chief of police,” Light says.

As alleged in a class action lawsuit filed on behalf of protesters by Light, police “kettled” all of the people arrested at 12th and L Street NW, meaning they surrounded them, without warning or an order to disperse, including media, medics, legal observers, and lawyers.

Longtime National Lawyers Guild observer Nia Thompson-Washington, who was in attendance, supported this claim. “The police here always give three warnings to protesters before they give any action. In this case, there was nothing,” she told Think Progress. “There was no order of dispersal, no warnings. They just immediately brought out their batons and pepper spray without any warning.” She also called the felony charges “ridiculous.”

The suit goes on to allege that police “indiscriminately and repeatedly” used chemical irritants, batons, and flash-bang grenades against the people inside the kettle, none of whom “destroyed or attempted to destroy property, assaulted or attempted to assault any individuals, rioted, or in any way would have appeared to the police to have been breaking the law.”

D.C. Police does not comment on ongoing litigation.

While they admit to deploying pepper spray and sting balls, D.C. Police have continually denied using flash-bang grenades during their interactions with protesters on Inauguration Day. Multiple eyewitness accounts and media reports say otherwise.

“I filed a lawsuit saying [D.C. Police] did use those things,” says Light. “Like the Trump administration, I don’t think they get to use alternative facts.”

Light says that the police still have the cell phones of arrestees. CityLab first reported that police appear to be searching the phones, and has screenshots of Google accounts that indicate activity occurring after the arrest, when devices were in police possession.

MPD spokesperson Margarita A. Mikhaylova said the department could not comment on evidence. It’s unclear whether D.C. Police have a warrant to search the phones.

“It’s very troubling if they take the position they can access cell phones simply because they arrest someone,” says Light. He also worries that, even if the evidence is inadmissible in court, the police’s “objective is not to gain evidence they can use in court, but to gather information on individuals’ activities more generally. It’s very concerning because lawyers and journalists may have protected information on their digital devices.”

Those charged with felony rioting have preliminary hearings scheduled at D.C. Superior Court on different dates throughout February and March.

[Update 1/27/17]: The U.S. Attorney’s Office dropped the felony riot charge against one of the journalists—Vocativ’s Evan Engel.

“After consultation with the counsel for Mr. Engel, who is a journalist with Vocativ, as well as a review of evidence presented to us by law enforcement, we have concluded that we will not proceed with the charge against this individual,” said U.S. Attorney’s Office for D.C. spokesperson William Miller.