On May 25, 2020, George Floyd, a black man, was killed by police officers during an arrest over an allegation that he used a counterfeit $20.00 bill at a convenience store. This triggered nationwide protests against police violence in nearly every town and city in the United States. These protests and demonstrations have targeted symbols of black oppression in American history for damage, destruction or removal (specifically, statues and monuments memorializing Confederate figures and slave-owners). In Washington D.C., protestors toppled a statue of Albert Pike, the only Confederate general honored in the city, and unsuccessfully tried to take down a statue of Andrew Jackson near the White House. A bust of Ulysses S. Grant was taken down by a crowd in San Francisco, despite having been a Union general, on the basis that he was a slave-owner. Here in Monroe, Michigan, there is an active debate whether the statue of General Armstrong Custer, a Union general best known for his demise against Native Americans at the Battle of Little Big Horn, should be removed.
President Donald J. Trump has been very vocal about the issue on social media and advocates for a hard stand against protestors engaging in property destruction. On June 26, 2020, the president issued an “Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence.” The executive order declares that “it is the policy of the United States to prosecute to the fullest extent permitted under federal law” any persons who damage monuments or statues, vandalize government property, and defacing or removing religious property or depictions of Jesus. The executive order alleges that state and local governments’ “recent abandonment of their law enforcement responsibilities with respect to public monuments, memorials, and statues casts doubt on their willingness to protect other public spaces and maintain the peace within them.” As a result, the president declared that any state or local government that fails to prosecute these crimes to the fullest extent of the law will have “federal support” withheld from its public spaces and law enforcement agencies.
It is unlikely that the threats to withhold funding from local governments who do not protect their own statues are enforceable. However, both federal and Michigan law prohibit the damage or destruction of statues or monuments and provide no exception for protestors exercising their First Amendment rights to speech, expression and assembly. Violating these statutes can lead to prosecution by federal and state officials and can result in fines, probation or incarceration.
Federal law provides as follows:
- “Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows: If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.” 18 U.S.C. §1361.
- “Whoever… willfully injures or destroys, or attempts to injure or destroy, any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States shall be fined under this title, imprisoned not more than 10 years, or both.” 18 U.S.C. §1369(a). This statute only applies if, while committing the offense, “ the defendant travels or causes another to travel in interstate or foreign commerce, or uses the mail or an instrumentality of interstate or foreign commerce”, or “the structure, plaque, statue, or other monument… is located on property owned by, or under the jurisdiction of, the Federal Government.” 18 U.S.C. §1369(b).
Michigan law criminalizes “the willful or malicious destruction, injury, disfigurement or defacement of any public or private property, real or personal, without consent of the owner or person having control” under the penal code, including statutes and monuments. An individual is guilty of malicious destruction of personal property, contrary to MCL 750.377a, or malicious destruction of a building or appurtenance, contrary to MCL 750.380, if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 32.2 and 32.3):
- First, that the real or personal property belonged to someone else.
- Second, that the defendant destroyed or damaged that personal property, building or anything permanently attached to it.
- Third, that the defendant did this knowing it was wrong, without just cause or excuse, and with the willful and malicious intent to damage or destroy the property.
The penalties for malicious destruction of personal property, or a building or appurtenance are as follows:
- A misdemeanor conviction punishable with a fine up to $500.00 (or 3x the amount of the destruction or injury, whichever is greater) and/or up to 93 days in jail, or both, contrary to MCL 750.380(5), IF the amount of the destruction or injury was less than $200.00.
- A misdemeanor conviction punishable with a fine up to $2,000.00 (or 3x the amount of the destruction or injury, whichever is greater) and/or up to 1 year in jail, or both, contrary to MCL 750.380(4), IF EITHER:
- The amount of the destruction or injury is $200.00 or more but less than $1,000.00; OR
- The individual commits the crime of malicious destruction of real property under $200.00 AND the individual has a prior conviction for committing or attempting to commit malicious destruction of real property under $200.00.
- A felony conviction punishable with a fine up to $10,000.00 (or 3x the amount of the destruction or injury, whichever is greater) and/or up to 5 years in prison, or both, contrary to MCL 750.380(3), IF EITHER:
- The amount of the destruction or injury is $1,000.00 or more but less than $20,000.00; OR
- The individual commits the crime of malicious destruction of real property between $200.00 and less than $1,000.00 AND has one or more prior convictions for committing or attempting to commit malicious destruction of real property between $200.00 and less than $1,000.00.
- A felony conviction punishable with a fine up to $15,000.00 (or 3x the amount of the destruction or injury, whichever is greater) and/or up to 10 years in prison, or both, contrary to MCL 750.380(2), IF EITHER:
- The amount of the destruction or injury is $20,000.00 or more; OR
- The individual commits the crime of malicious destruction of real property between $1,000.00 and less than $20,000.00 AND has two or more prior convictions for committing or attempting to commit malicious destruction of real property between $200.00 and less than $20,000.00.
Michigan law also specifically penalizes any damage or destruction to a “memorial of the dead”. According to MCL 750.387, “[a] person, other than the burial right owner or his or her representative, heir at law, or a person having care, custody, or control of a cemetery pursuant to law, a contract, or other legal right, shall not willfully destroy, mutilate, deface, injure, or remove a tomb, monument, gravestone, or other structure or thing placed or designed for a memorial of the dead, or a fence, railing, curb, or other thing intended for the protection or for the ornament of any tomb, monument, gravestone, or other structure described in this subsection or any other enclosure for the burial of the dead and shall not willfully destroy, mutilate, remove, cut, break, or injure any tree, shrub, or plant, placed or being within such an enclosure.” Offenders will be guilty of a crime in the same manner that malicious destruction of personal property is punished (depending on the fair market value).
Despite the proclamations in the executive order, any individual accused of defacing a statue, memorial or monument is entitled to all the rights of due process under the law. A person cannot be convicted merely because he or she attended a demonstration or protest where other individuals toppled a statue without permission. The prosecutor must prove beyond a reasonable doubt that the accused actually damaged or destroyed the property with malicious intent or aided and abetted others in doing so. If you are wrongfully accused of participating in malicious destruction of property, you need a skilled defense lawyer in your corner to assert all of the defenses available to you under the law.
The Black Lives Matter movement has caused many state and local governments to assess and reevaluate the appropriateness of certain monuments, memorials and statues in their jurisdictions. In lieu of criminally punishable destruction, protestors may be able to make a peaceful appeal to local officials to have to structure removed with government permission. Certainly, the defacement and destruction of these statues and monuments is the result of an oppressed group being ignored for decades and drawing attention to the fact that ongoing racial injustice in our society will no longer be tolerated. However, the push for social change through these measures is not without its consequences and you many need a lawyer to protect your rights.
If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.