For one hour and 28 minutes, a packed courtroom listened as lawyers for both federal prosecutors and three of the nine Spokanites arrested for the June 11 protests made their arguments.
Federal Judge Rebecca Pennell’s ruling was disappointing for many in the audience supporting the defendants: both motions to dismiss the charges were denied and the case is going to trial.
The federal government charged the three defendants — Jac Archer, Justice Forral and Bajun Mavalwalla II — with federal conspiracy after they protested the arrests of two immigrants in Spokane. The charge carries a six year maximum sentence, and/or a large fine. If the government wants to win, it must prove that at least two people knowingly planned to use force, intimidation or threats to prevent federal officers from doing their job. In this case, the government has to prove that a Facebook post calling for a protest counts.
While the Tuesday hearing was short, there were a few relatively complex legal issues at play, so if you want a short summary of what happened, click here. But if you’re interested in a more in the weeds explanation of the proceedings, read on.
The basics
On June 11, 2025, protesters tried to stop Immigration and Customs Enforcement (ICE) from taking two detained young men who were in the US legally to the ICE detention facility in Tacoma.The protest was sparked by a Facebook post from former city council member Ben Stuckart, who was the official guardian for one of the young men detained earlier that day.
Hundreds of people showed up to the protest, leading to a tense standoff with local law enforcement. Some protesters blocked the driveways to the facility with benches and scooters to prevent ICE from taking the two young men, and other immigrants detained that day, to Tacoma. Other protesters sat in front of a white bus and red van intended to take the detainees. Early in the day, someone on a bike rode up, spray-painted the windshield of the white transport bus, and left. Later, someone let out the air in the tires of that bus and someone slashed the tires of the red transport van.
There were over 30 local arrests from the police and the sheriff, but most of those charges were dropped. Then, about a month later, the federal government arrested nine people now known as the ‘Spokane 9’ on suspicion of “conspiracy to impede or injure officers.” Two of the nine were also charged with “assault on a federal officer.” All nine initially pled not guilty and were awaiting trial. In December, six of the nine took plea deals. Since then, attorneys on both sides have been preparing for the May 18 trial. (All our coverage can be found here.)
The First Amendment Question
Central to the hearing was a motion filed by Carl Oreskovich — Archer’s lawyer — that asked the judge to dismiss the case, based on two key arguments:
- Responding to a Facebook post does not constitute a conspiracy
- While some of the original nine defendants may have individually committed crimes — and in two cases, what Oreskovich saw as potentially violent crimes — none of those crimes met the bar necessary to convict on conspiracy.
Oreskovich argued that while some of the allegations levelled against the defendants were crimes — vandalism, maybe, or trespassing — they did not rise to the level of a federal conspiracy. The majority of the acts outlined in the indictment against all nine people originally charged were nonviolent acts.
Blocking a pathway, letting air out of tires, sitting in front of a bus even when asked to move; all non-violent and not physically threatening though perhaps intentionally disobedient, he said.
“We’re not saying that the statute is unconstitutional on its face,” Oreskovich said. ”We’re saying it’s unconstitutional as it applies to this case … An act of civil disobedience is constitutionally protected.”
Oreskovich said two allegations — throwing a smoke canister back at local police officers and striking a federal officer from behind — could potentially be considered acts of force. But, he said, neither were committed by defendants still on trial.
And, he added, most of the evidence of violence submitted by the US attorneys showed federal officers striking protesters in the back at the lower gate.
“If there’s a use of force in any fashion… it’s not the people protesting or engaging in acts,” he said. “It’s the officers.”
Oreskovich also said the charges violate Constitutional protections for the right to freedom of speech and assembly.
“Concluding that a conspiracy exists simply because of posts is a stretch,” he said.
Still, while it’s the court’s purview to rule on constitutional issues, Pennell wasn’t convinced.
She denied the motion, stating that it was the federal government’s job to prove that the protesters’ choices rose to the level of conspiracy, and that they would have to convince a jury Archer wasn’t just “sitting in front of a bus, but sitting in front of a bus with intent to obstruct.”
There are restrictions on freedom of speech, including ones that ban people from inciting violence. In this case, the federal government is specifically arguing that protesters conspired with the intent to use force, threaten or intimidate federal officers. That intent, the government said, made their conduct illegal.
Archer’s lawyer countered that the protesters’ intent was not force, intimidation or threat, but rather constitutionally protected civil disobedience. But Pennell seemed willing to hear the government out, because the central issue at hand is the protesters’ state of mind, known as mens rea.
“That’s an issue for trial,” she said, but also noted the federal government will have a high burden of proof to clear. She added that she was willing to consider acquittal during and after the trial if the federal government did not present enough evidence.
What’s an officer, really?
In Justice Forral’s motion to dismiss, attorney Andrea George argued on two fronts:
- The various law enforcement officials the defendants are accused of conspiring against are technically not “officers of the United States” as described in federal law.
- If they are considered officers, the indictment isn’t specific enough to defend against because it “has not named the injured party nor alleged any injury specific to their person or property.”
Essentially, George asked, where is the victim?
In the officer argument, George teased apart the law the defendants are charged under and what it means by “officers of the United States.” She argued the term “officers” refers only to people subject to the Appointments Clause of the Constitution, like judges and the attorney general, because of the way the statute is structured. And while about 172 federal and state officers from different agencies were involved in the case, she argued none would qualify under the conspiracy charge — and if they do, they should be named in the indictment. The indictment does not name specific victims.
Lisa Cartier-Giroux, one of the prosecutors, said she had given the defense the names of the 14 officers the government alleges the defendants conspired to impede or injure.
“I have identified them. There is no hiding the ball,” she said, noting that she often doesn’t name victims in indictments.
But court documents for a separate Spokane County Sheriff's case against Forall for alleged unlawful imprisonment for the same incident list only seven victims: John La Forte, Greg McSullivan, Jeremy Burlingame, Kevin Wilkes, Jeff Evers, Jason McIntosh and Jared Tomaso. That case is still awaiting trial.
Someone can be charged with conspiracy for injuring an officer’s property or equipment, too, and the federal government included examples of property damage in the indictment.
Forral’s lawyers argued about what constitutes an officers’ property and whether the law meant personal property or government property.
“The United States doesn’t own the white bus. The United States doesn’t own the red van,” George said of the two vehicles the defendants are alleged to have injured. Both vehicles are owned by the private prison company GEO Group.
Cartier-Giroux argued “it wouldn’t make any sense” if the law didn’t include law enforcement officers and the property they use to do their duties.
“It’s not about who owns it, it’s what that item is being used for,” she said.
Pennell ultimately agreed with her interpretation of the statute and denied the motion.
Who’s in charge of the local US Attorneys?
In a last-minute motion one of Archer’s attorneys submitted Monday night, Andrew Wagley argued that the case should also be dismissed because the Eastern District of Washington has not had a “lawfully appointed” attorney since before the office issued the indictment.
This stems from the resignation of previous Acting US Attorney Rich Barker, who later stated that he did so because he didn’t want to sign the indictment against the protesters.
Instead, the lead name on the indictment was Stephanie Van Marter, who had been appointed acting US Attorney for the region after Barker’s departure. A few months later, Pete Serrano took her place as interim US Attorney for the district. He is listed at the top of several case documents filed in October. He was never confirmed by the Senate and ran out of his constitutionally-allowed 120 days of service, but stayed in the role through two new titles given to him by now-ousted US Attorney General Pam Bondi.
Serrano is now listed as the “Special Attorney to the Attorney General of The United States” and the “First Assistant United States Attorney for the Eastern District of Washington.” But his name isn’t forever tied to this case: in mid-March, then-Deputy Attorney General of the US Todd Blanche started showing up atop the government’s filings in the Spokane 9’s cases in place of Serrano’s.
On April 2, President Donald Trump appointed Blanche — who once was his personal attorney — to Acting Attorney General. It’s unclear why Blanche would be listed at all since Serrano is technically still in charge of the eastern district region.
These aren’t perfunctory changes, Archer’s lawyers argued. The US Constitution lays out safeguards to protect Americans from politically-motivated prosecutions. Federal courts in Virginia, New York and other states have ruled that acting US attorneys placed by Trump are serving unlawfully. At least two high-profile cases against Trump critics have been dismissed as a result of such rulings.
“The prejudice to Defendant Archer by virtue of this unlawful prosecution is clear,” Wagley wrote in his motion. “This is a highly political prosecution, resulting in the resignation of a former Acting U.S. Attorney. The crux of the allegations relate to protesting actions of the current Presidential Administration. A lawfully appointed U.S. Attorney, with confirmation pursuant to the requisite Constitutional checks and balances, would likely not have brought this case in the first place or argued against the Motion to Dismiss on First Amendment grounds.”
At Tuesday’s hearing, Cartier-Giroux visibly bristled at the notion that the prosecution was political: “I say this as an officer of the court. I wrote this indictment. I was never instructed by anyone to do this.”
Either way, Pennell did not grant the motion, saying, “If I grant it, then every single case in front of me would have to be dismissed … You can take that issue to the 9th circuit but I’m not going to do that.”
The lawyers for each defendant insisted it be entered into the record, preserving their right to appeal on this basis later.
The feds and the 1st Amendment
On the Monday before the hearing, Acting Attorney General Todd Blanche, supported by Cartier-Giroux and Perez, filed what’s called a motion in limine – a motion to keep the jury from seeing certain information or hearing certain arguments during the trial.
Blanche’s motion asked the court to “exclude any argument or statements that Defendants’ conduct was a proper First Amendment protest,” mentions of former US Attorney Richard Barker, any reference to policy directives given to the Department of Justice to go after protesters, any references to Minnesota protests, or any arguments that the two Venezuelan men — whose detainment initially sparked the protests — were in the country legally.
While Pennell did not rule on that motion on Tuesday, it was briefly discussed during debate around Archer’s attempt to see the case dismissed.
Pennell told the federal prosecutors that First Amendment rights issues are hard to keep from the jury.
“I don’t want the jury worried that something is being hidden from them,” Pennell said.
What’s next
A pre-trial conference is scheduled for May 5, where Pennell will rule on the government’s motion (described above) and additional motions filed by both the government and the defense attorneys.
The federal government’s second motion to exclude testimony or evidence is perhaps even more expansive than the first, seeking to ban the defense from a slate of things, like mentioning Malvalwalla II’s military service in Afghanistan, referencing the government’s “failure to charge other members of the conspiracy,” or describing the potential consequences of conviction — up to six years in federal prison.
The US attorneys also announced their intent to use video evidence of “other bad acts,” allegedly committed by the defendants on June 11 that were not described in the original indictment.
For the defense, Archer’s attorneys are asking the court to exclude any reference to the guilty pleas entered by the six other protesters, while Forral’s attorneys filed a motion to redact the names of all the people who have already pleaded guilty. Forral’s motion also seeks to remove references to the descriptions of a protester throwing a smoke canister back at local police officers and striking a federal officer from behind, as those actions were allegedly committed by two people no longer on the trial.
Forral has also asked the court to require the government to present any impeachable information about federal officers who testify in the case, like if they’ve previously lied in court or been accused of using excessive force.
Pennell will also likely make final decisions on the wording of questions on a survey that will be sent out to potential jurors to narrow the pool before official selection begins, and any other pre-trial motions that are filed before then.
