Mike Avery

Ferguson activist Michael Avery, 28, has been charged with allegedly inciting a riot based on the comments he made on Facebook, according to a criminal complaint filed by the FBI on May 31. 

The full complaint was unsealed after Avery’s federal detention hearing on Wednesday, June 3 at 12:30 p.m. It states that Avery attended and livestreamed protests in Minneapolis and alleges that he gave directions to “St. Louis activists” on how to loot businesses. In some posts, Avery called for a “red alert” or “red action” in St. Louis. 

“The FBI assesses level RED ACTION to be associated with a high level of violence,” according to the complaint. 

He also urged “shooters” to assemble with him in St. Louis, it states.

Kevin Gau, the federal public defender who represented Avery during his detention hearing, told the judge that the charges were all based on the FBI’s misinterpretations of Avery’s Facebook posts, and there was no mention of Avery actually committing a crime.

During the hearing, a representative of the U.S. Attorney’s Office Eastern District of Missouri told U.S. Magistrate Patricia Cohen that Avery “had no community ties of any kind to St. Louis.” She alleged that Avery doesn’t live in St. Louis and he “traveled from out of state for the sole purpose” of inciting riots. Avery is a danger to the community, poses a risk of flight because of his interstate travel and needs to remain in jail, she argued.

Gau, along with the representative for pretrial services, told the judge that this was false and Avery is a “lifelong resident” of the St. Louis area. Avery lives in St. Louis County with his daughter, and his parents also live in the area. Gau urged the judge to release him, or at most “muzzle” him from social media while he’s being investigated. 

Judge Cohen asked if Avery had a criminal history, and it was stated that he had two minor offenses but no jail time.

The judge said she will assess both sides and make a decision by the end of next week about whether or not Avery should remain detained.

Criminal defense attorney Marlene Suarez will be representing him going forward. 

“Michael Avery exercised his First Amendment rights to express his outrage and protest the tragic and senseless death of George Floyd,” Suarez said. “At no time did he incite riots or violence, and we intend to vigorously defend the charge.”

The St. Louis American asked Ferguson frontliner Cori Bush, who is now a congressional candidate, for her interpretation of how activists would read Avery’s posts flagged by the FBI.

Upon leaving Minneapolis, Avery wrote, “Anybody in STL interested in being a part of a level RED ACTION AND CAN BE AVAILABLE SATURDAY NIGHT PLEASE INBOX ME BEFORE I LEAVE MN.”

As an activist, Bush said she would read that to mean: be ready to go. 

“During Ferguson, you didn’t have to look for the protest, you just showed up,” said Bush, who is also a nurse. “Since then, we’ve started to plan the protests. To me that means we can’t take two weeks to plan an action.”

It’s not a code word for violence, she said. 

“Mike Avery has never been a violent person,” she said. “He’s a peacekeeper.”

In the same post, he stated, “CALLING OUT ALL THE SHOOTERS, ALL THE PEOPLE WHO DON’T GIVE AF.”

Again, the FBI interpreted this to mean violence. 

However, Bush said some black protestors would openly carry guns at protests — to make the point that white men can protest with guns and not be hassled, but black men can’t.    

“Mike Avery has never shot anybody at an event,” said Bush, noting that she has attended many protests with Avery.

The FBI also alleges that Avery “provided tutelage as how looting occurred in Minnesota.”

In one post, Avery stated, “So how they did this was they only allowed 3 to 4 ppl to gather things and they threw everything onto the parking lot that way ppl didn’t have to go into the stores.”

He also explained that the “looters” marked all the black-owned businesses or buildings that were not to be touched with a certain color of spray paint.

The public defender argued in the hearing that Avery was just writing about what he saw, not telling people to do it.

The FBI alleged that in that same post, Avery “encouraged large numbers of men to participate in the looting in St. Louis.”

The two paragraphs the FBI are referring to came after the looting description:

“When out, we have to protect each other and more than anything men we have to step the (expletive) up. Yes, our queens are strong and powerful, but (we) have too many so-called tuff guys in STL for women to be the ones on the front lines,” Avery posted.

“Men step the (expletive) up, fellows I need y'all to understand and share this with your friends and I'm not saying put your guns down, just stop using them on us and each other, love your brother because the system hate (the) both of you.”

Bush interpreted this post to mean that during Ferguson, women were always on the front line. This time, men need to step up and lock arms in front. It was not that men need to step up to loot, she said. 

There have been at least two other people in St. Louis — including one homeless black man and a 19-year-old black woman — arrested and charged with inciting a riot based on their Facebook posts.

“The truth of the matter is: we are not trained livestreamers,” Bush said. “We are not paid and trained protestors. We didn’t take a class on how to post on social media. We are just people who are angry, hurt, disappointed by all the fake promises. People are just expressing their anger and their thoughts. People are just speaking their voices. And if we can’t do that, then you better shut down social media. He is not the problem.” 

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