A federal judge in Tennessee on Friday rejected a federal prosecutor’s attempt to keep a bassist locked up in jail for months over a photo shoot for his anarcho-punk band, telling an assistant U.S. attorney that the federal government can’t keep someone incarcerated before trial simply because that person exercised his First Amendment rights on Facebook.
It was a deeply embarrassing rebuke for Justice Department prosecutors who decided to charge 29-year-old Justin Coffman under a rarely used federal statute amid President Donald Trump’s campaign against the loosely organized anti-fascism protest movement known as “antifa.”
Coffman, a member of the Jackson-based band The Gunpowder Plot, is facing charges under a federal gun law that makes it illegal for drug users to possess weapons. Coffman was a legal gun owner, but a small baggie of marijuana that law enforcement reportedly found in his home would make gun possession illegal. Federal prosecutors have previously used the charge as a way to lock up alleged white supremacists accused of discussing violent racist plots but whose conduct didn’t offer any clear violation of federal law.
Coffman isn’t anything remotely like those suspects. And Jackson isn’t a hotbed of political unrest, just a few wholly peaceful protests. But law enforcement officials, on edge as rioting and unrest broke out cities across the nation after police officers killed George Floyd on May 25 in Minneapolis, raided Coffman’s home because he had posted three images to his band’s Facebook page that showed him posing in front of a Jackson police transport vehicle with what looked like a Molotov cocktail.
Nobody set fire to a police vehicle in Jackson. The antique liquor bottle that Coffman was holding in the photo, he says, was filled with apple cider vinegar and water, and he later used it as a centerpiece when he made dinner for his girlfriend. The professionally shot images weren’t even taken in reaction to the protests; they were snapped before Floyd’s murder by a “concept-based portrait photographer” working under the name December Rain Conceptual Portraiture.
Federal officials knew this before charging Coffman, who had begun selling T-shirts, magnets and stickers featuring one of the photos before his arrest Oct. 13. But federal officers didn’t reveal any of that critical information when they rolled out the case, obscuring the fact that the photos were snapped for a band’s publicity.
Instead, U.S. Attorney Michael Dunavant ― a Republican Trump appointee who has posted images of himself alongside the president and at a Trump campaign rally during his time as the top federal prosecutor for the Western District of Tennessee ― held a press conference and put out a misleading press release to tout the “outstanding investigative work” that led to Coffman’s arrest.
It’s been a rough month for Coffman, who has been locked up in Madison County Jail in the weeks since his arrest. But Friday was a bright spot, with about two dozen supporters coming to Jackson’s federal courthouse to show they had Coffman’s back while a representative of the federal government, Assistant U.S. Attorney Hillary Lawler Parham, argued that images from a photo shoot posted on a rock band’s Facebook page made him a danger to the community.
U.S. Magistrate Judge Jon A. York, several people in the court said, appeared deeply skeptical of the government’s argument. York ended up setting what’s considered a very low unsecured bond of $10,000 for Coffman, meaning he can be released from federal custody without posting cash or collateral.
“You couldn’t ask for a better result in federal,” Alex Camp, Coffman’s court-appointed attorney, told HuffPost. “That’s probably one of the best bond awards you can get in that forum, so I was definitely happy with it.”
The government called just one witness: Special Agent Josh Lunn of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). (Coffman had been in touch with an FBI special agent in the months between the raid on his home in early June and his Oct. 13 arrest, and its unclear why an agent from the FBI was no longer involved in the case. Coffman has said the FBI special agent didn’t seem to care about the bag of pot.)
Camp said Lunn tried to make Coffman’s Facebook activity appear “as flagrant and incendiary” as possible. But when Camp asked Lunn whether he thought Coffman was a danger to the community, Camp said Lunn indicated he didn’t have any basis to believe that.
A number of character witnesses were prepared to testify on Coffman’s behalf. But because the federal government’s case for detention was so weak, their statements weren’t necessary.
“I didn’t have to use any character witnesses at all,” Coffman told HuffPost. “He basically said to the [federal prosecutor], ‘Your own witness doesn’t think he’s a threat, and the only proof you have is Facebook posts, and here in America, we don’t lock people up for their First Amendment rights.’”
Once it was clear that the judge didn’t believe that the government had met its burden of proof, Camp said, he rested his case without calling witnesses.
“The judge ruled that he’s not going to lock somebody up over utilizing or invoking his First Amendment rights,” Camp said. “And that’s basically what has happened.”
Coffman told HuffPost that the federal government’s argument was “destroyed” in court. On a GoFundMe page set up by his girlfriend, Leah Harris, Coffman called the charges “bullshit” and said they were a product of “obvious political targeting.” A spokesperson for Dunavant said the U.S. attorney’s office had no comment at this time.
The affidavit in the federal case against Coffman was signed the same week that U.S. Attorney General William Barr urged all of the nation’s top federal prosecutors to charge defendants in protest-related cases whenever possible, as reported by The Wall Street Journal.
Josh Spickler is the executive director of Just City, a Memphis-based criminal justice reform organization that seeks to “create a smaller, fairer, and more humane criminal justice system.” He said he was not surprised that Dunavant apparently was willing to go along with what he called “a charade and an abuse of power in support of Donald Trump’s reelection bid.”
“This man is being targeted because he has views that the president doesn’t like, full stop,” Spickler said. “Michael Dunavant is willing to use the full force and power of the federal government to drag a man into a local jail, and local authorities are going right along with it.”
“It’s just a direct line to the election and Donald Trump, and it’s just appalling that people who are sworn to uphold the law and sworn to protect us believe that this is where our resources should go,” Spickler said.
Had the federal government succeeded in persuading a federal judge to keep Coffman locked up because of his band’s Facebook posts, the consequences could have been enormous. Federal cases can stretch out for months, and trials in the district remain paused because of the COVID-19 pandemic.
“He would have waited a while, I’ll be honest,” said Camp. “Probably a calendar year. That’s a long time. For Justin, getting his freedom back, that’s humongous.”
“This man is being targeted because he has views that the president doesn’t like, full stop.”
As of Friday night, Coffman remained in Madison County Jail, where he’s being held on $50,000 bond connected to the state’s rare use of the “possession of a hoax device” felony charge, an amount that Camp called “unreasonable.” Coffman would need to pay a bail bondsman $5,000 to secure his release, and he wouldn’t get that money back even if the state case were to fall apart.
That’s not out of the question. Jody Pickens, the elected prosecutor in Tennessee’s 26th judicial district, pursued the “hoax device” charge even though a plain reading of the statute ― which includes both an intent component and an exemption when the device is “reasonably related to a lawful dramatic performance” ― doesn’t appear to apply to a photo shoot for an anarcho-punk band.
Pickens’ office appears to have hidden basic facts of the case from grand jurors: The state indictment of Coffman says that “a more particular description” of the device was “unknown” to the grand jurors.
Tracy Boyd, a prominent activist in Jackson, said law-and-order politics plays a huge role in Jackson. About half of Jackson’s residents are Black, but the city remains highly segregated. Boyd says Pickens has a backward-facing view on criminal justice issues and seems to encourage his prosecutors to “go for the max” regardless of the circumstances.
Boyd met Coffman at protests in support of the Black Lives Matter movement. At first, Boyd said, he was a “little skeptical” of Coffman, who showed up to protests in outfits covered in patches and carrying a giant “Cat Lovers Against White Supremacy” flag, but they built a relationship.
“He is an awesome individual. He stands for what he believes in, and he does believe in his rights,” Boyd said. “Justin is a good cat, and I stand with him in support.”
Coffman’s next court date in his state case is scheduled for Nov. 9. Camp said there’s a long road ahead on the federal case.
“We won the battle, but we are still fighting a war,” Camp said.
That war might get a bit easier, depending on the outcome of the presidential election next week. Former Vice President Joe Biden, who previously pursued a “tough-on-crime” agenda in the 1990s, has since taken a more progressive stance on criminal justice issues. Pursuing a federal case against a musician because of a bag of marijuana found in his home probably wouldn’t line up with the prosecution priorities of a Biden administration.