On June 5, 2020, we reported that Appeals Court Orders Molotov Cocktail Lawyers Back to Jail:

Two Brooklyn-based lawyers facing federal charges for allegedly throwing Molotov cocktails into a NYPD cruiser during the riots are back in federal custody after an appeals court reversed the bail decision.

That initial and temporary appeals court decision now has been reversed, with a panel of the Second Circuit Court of Appeals, in a 2-1 decision, ordering the defendants released on bail and home confinement pending trial.

The majority Opinion (pdf.) ruled:

In sum, Pretrial Services, Magistrate Judge Gold, and Judge Brodie all concluded, notwithstanding the acknowledged seriousness of the charged offense, that bail is appropriate for both Rahman and Mattis based on the absence of any criminal records and on their family obligations, their ties to the community and the number of suretors who support them.

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There is no question that the evidence before the district court demonstrated that the crimes charged are serious and the defendants’ conduct on the night of their arrests could well have resulted in significantly more harm than it did. By affirming the district court’s order to release the defendants on the conditions imposed, we do not seek to minimize the severity of the offense. Rather, we recognize the constraints on our appellate review and the fact that the gravity of an offense is not the only factor to be considered by the district court in deciding whether the conditions of release are adequate to ensure the defendants will not flee and do not constitute a continuing threat to the community.

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In addition, the burden on the defendants is one of production, not persuasion, and it is clear from the record that the defendants produced evidence from which the district court could infer that they do not pose a danger to the community….

The government’s second argument—that the district court clearly erred in granting the defendants bail—presents a closer question, but it is an argument we ultimately reject. In order to reverse on these grounds, we must not only conclude that the government showed, by clear and convincing evidence, that Mattis and Rahman present a danger to the community that could not be mitigated by the conditions of release, but also we must be left with a “definite and firm conviction” that it was a mistake for the district court to hold otherwise. See Sabhnani, 493 F.3d at 75 (citation omitted). We cannot do so on this record.

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The government’s position that the district court committed clear error in granting bail essentially boils down to an argument that the charged criminal conduct is so extreme and aberrant that it represents the new normal for the defendants, such that no set of conditions could reasonably assure the safety of the community. The acts alleged were indisputably dangerous and may have posed a serious risk to individuals in the surrounding areas. As a threshold matter, however, we must observe that the entire system for determining bail is premised on the belief that, at least to some extent, all criminal acts are aberrant. The very reason that Congress directed district courts to consider factors beyond just the severity of the offense is the recognition that an individual is more than the crime of which that individual has been accused.

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In light of the above, while we would not necessarily have reached the same conclusion as the judges below, we cannot say that the district court committed clear error. The conditions of release contain provisions that impede defendants’ ability to engage in criminal activity, and the evidence to which the government points us and which we have otherwise gleaned from the record is inadequate to leave us with a firm conviction that the district court erred in finding those conditions sufficient to assure public safety.

Judge Jon Newman wrote in Dissent:

On the night of May 29 in Brooklyn, Appellee Urooj Rahman got out of a car driven by Appellee Colinford Mattis, lit an explosive device known as a Molotov cocktail, and tossed it through the broken window of an unoccupied police car, setting the console on fire. Parked where people were nearby, she attempted to distribute bombs to a bystander and others for their use. She then left the scene in Mattis’s car, which contained one completed bomb and components for making more bombs. Their thinking was expressed by Rahman on a videotape, about an hour before the crime: “The only way they hear us is through violence.” The majority’s decision to affirm the release of these Appellees from pretrial detention subjects the community to an unacceptable risk of danger. I respectfully dissent.

 

 
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