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A dumpster fire burns on Sunday, May 31, 2020 in Denver during a protest in response to George Floyd’s death at the hands of police in Minnesota. (Joe Mahoney, Special to The Colorado Sun)

The FBI and federal prosecutors in Colorado are working to identify and potentially charge so-called “agitators” they believe joined Denver’s protests in the wake of George Floyd’s death and have incited and carried out most of the criminal activity over the past several days.

U.S. Attorney Jason Dunn said Monday that he believes getting that small number of criminal instigators off the street through the use of the federal legal system, and thus preventing them from joining in future demonstrations, will help bring calm and allow peaceful protesters to have their message heard. 

“Without some of these instigators, I think we can see an appreciable diminution in the level of violence and destruction,” said Dunn, who was appointed to his post by President Donald Trump. 

The U.S. Department of Justice, which manages the federal law enforcement system, has been taking a similar approach across the country. Destructive protests have happened in most large U.S. cities.

Dunn says the deployment of federal law enforcement resources came at the direction of U.S. Attorney General William Barr, whom he spoke with four or five times over the weekend.

“Because we were starting to see some intelligence reports that there were those who were intentionally trying to instigate and perpetuate the destructive behavior, and coming from outside some of the cities, the department felt like it was time for the federal government to lean in on this and quash some of the violence,” Dunn said.

Jason Dunn, Colorado’s U.S. attorney, photographed on Friday, April 12, 2019. (Jesse Paul, The Colorado Sun)

No federal charges or arrests have been made public. Federal authorities are coordinating with the Denver Police Department to determine which protesters may be eligible for federal prosecution. A prosecutor from Dunn’s office has been stationed at the city’s emergency operations center each night.

“I can’t go into where any of those decisions are right now, but we certainly are working closely with DPD,” Dunn said.

Some of the federal charges that may be applicable include:

  • Inciting a riot
  • Assaulting, resisting or impeding a federal officer
  • Use of a weapon of mass destruction
  • Bombing a place of public use or a government facility
  • Damaging federal government property

Many of the crimes that could be charged would need to include a federal element, such as the destruction of federal property or a multi-state aspect to the crime.

Denver’s protests that began Thursday in the wake of Floyd’s death at the hands of police officers in Minnesota have been peaceful during the day. But they have turned violent around dusk each night, with vandalism, looting and clashes with Denver police stretching late into the night and early into the morning. 

Protest organizers have asked those interested in destruction to stay home.

Demonstrators clash with police at the Colorado Capitol on Saturday, May 30, 2020, during a third day of protests in Denver in response to George Floyd’s death at the hands of police in Minnesota. (Joe Mahoney, Special to The Colorado Sun)

Dunn said law enforcement intelligence has revealed that the destruction is being perpetrated by a small number of people, though he said he couldn’t provide details. But he also said the public can see there are two different groups of people demonstrating just from watching the protests on TV.

“You look at the people who are there during the day and up until 8 p.m., and who is protesting and how they are doing it and what they are saying,” Dunn said, “then you look at what’s happening after 8 p.m. and who is there and how they’re behaving. It seems to be two different crowds.”

Denver police and Mayor Michael Hancock have blamed protesters for the clashes, saying demonstrators have lobbed water bottles and rocks at officers and launched fireworks in their direction. Some protesters have said officers are overreacting in their use of force, which has included firing tear gas and less-lethal projectiles, like pepper balls and foam bullets.  

So far, 284 people have been arrested as part of the protests, but on state and local charges. On Sunday alone 170 were taken into custody on suspicion of committing various offenses.

Denver enacted an 8 p.m. to 5 a.m. curfew over the weekend. On Monday, Hancock extended the curfew until Friday morning to try to stem the chaos and pushed back its start time to 9 p.m.. The curfew allows police to arrest those who refuse to go home in the event the protests become destructive.

Dozens of curfew arrests have been made in Denver, but the charge of violating a curfew is a relatively minor offense — it carries a penalty of $999 fine and up to 300 days in jail upon conviction, which can take months — that can’t prevent people from returning to repeat their activity. 

A federal charge, however, carries much more weight and far more serious consequences, including prison time and steep fines.

Federal prosecutors often aid local law enforcement in Colorado in helping to quickly identify, arrest and charge people they believe are responsible for crimes. Dunn’s office, for instance, is able to bring federal firearms charges against gang members in order to stem violence. The tactic has worked in Denver and Pueblo

Dunn said federal law enforcement’s response to the Denver demonstrations isn’t much different than its strategy with weapons charges. 

John Walsh, Colorado’s former U.S. attorney, who was appointed by former President Barack Obama, said it’s not unusual for federal law enforcement to partner with local authorities.

“That can take many forms, most commonly by providing federal officers to assist on the ground,” Walsh said. “Normally, federal charges are reserved for the most serious cases, or as part of a federal response to a state and local request for assistance.”

The Colorado National Guard has been called in to respond to the demonstrations in Denver.

Demonstrators peacefully gather at the Colorado Capitol for a third day on Saturday, May 30, 2020. (Moe Clark, The Colorado Sun)

Denver police did not immediately return a request for comment on the federal aid.

“We did not ask for federal intervention but have a good working relationship with the U.S. Attorney’s Office here in Colorado,” said Carolyn Tyler, spokeswoman for Denver District Attorney Beth McCann. “If a case arises that warrants federal involvement, we will work with our partners.”

Taking the lead with federal law enforcement’s response is the FBI’s Joint Terrorism Task Force, which is composed of FBI agents and local law enforcement. It has been aiding Denver police in responding to the demonstrations. But Dunn says people shouldn’t be confused about the “terrorism” title.

“It’s, by its nature, meant to be a nimble, quick response, multi-jurisdictional platform to stop criminal activity,” Dunn said. “It’s not that … we are saying it’s terrorism activity or equaiting it to terrorism activity.”

Dunn wants to be clear: He supports the right of peaceful protesters to gather and he thinks “they have a point to be made.” Dunn said he’s sympathetic to peaceful protesters whose voices and cause are being drowned out by “a small number of bad actors, who it does not appear that they’re interested in the cause but are just interested in confronting law enforcement and destroying our community.”

“I’ve watched the video and it seems both tragic and unnecessary,” Dunn said. “Whether it’s criminal conduct, I think it’s important we let the process play out. … I think George Floyd deserved due process and he did not get it. But certainly just from watching the video it seems horrible and hard to watch and it did not follow proper procedures and tragically, as a result, a life was lost.”

Asked if the federal government should be getting involved in local demonstrations, Dunn said that it depends.

“I agree that law enforcement and the federal government should stay out of it if (protesters) are doing it lawfully,” Dunn said. “For those that are committing crimes and harming people and harming law enforcement, I 100% disagree with them. We are going to protect our communities and our local law enforcement partners every time when they are engaging in that kind of conduct.”

Protesters who were assembling at the Capitol on Monday for a fifth day of marching through downtown said the vast majority of demonstrators are peaceful and that they were skeptical that law enforcement could sort out the bad actors without causing further violence.

Several interviewed by The Sun said they were in support of charging people with federal crimes, particularly if they bring weapons to the protest, but said that based on what they had seen in Denver during the last few nights, they don’t believe it’s possible. The violence has escalated at night in response to police firing pepper balls and spraying tear gas, they said.

“It’s hard to be able to justify punishing a whole group based on the actions of one or two people,” said Ellen Scherner, a recent graduate of the University of Colorado Boulder. She said she watched last weekend as police trapped a crowd by spraying tear gas at one end and pepper balls on the other.

A few questioned whether law enforcement had placed undercover officers among the protestors. Mostly, they were advocating for less police action. They rejected the narrative that a few bad actors are causing the trouble and instead blamed law enforcement for instigating the crowd with tear gas.

“Really what started the violence was when the curfew was enforced,” said Isabel Serafin, a student at the University of Northern Colorado. 

Into late Monday night, the fifth straight day of protests, Denver police weren’t enforcing the curfew. There were no reports of clashes between demonstrators and officers.

There also have been questions raised by journalists about Denver police officers’ use of force to stem the protests and its necessity. Dunn’s office investigates cases of police misconduct. 

“Nothing has occurred to date, in this past week, that has given us cause to investigate or have concern,” Dunn said.

Jennifer Brown writes about mental health, the child welfare system, the disability community and homelessness for The Colorado Sun. As a former Montana 4-H kid, she also loves writing about agriculture and ranching. Brown previously...

Jesse Paul is a Denver-based political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is the author of The Unaffiliated newsletter and also occasionally fills in on breaking news coverage....