A federal judge in Santa Ana Wednesday tossed an indictment against members of a white supremacist group charged with rioting because prosecutors did not also go after left-wing counter-protesters.
U.S. District Judge Cormac Carney earlier tossed an indictment against Robert Rundo and Robert Boman based on free-speech arguments that challenged the constitutionality of the Anti-Riot Act, but he was overturned by the 9th U.S. Circuit Court of Appeals. So Carney this time decided the case should be dismissed based on an argument of selective prosecution.
Federal prosecutors immediately filed a notice of appeal of Carney’s ruling.
Carney said in his ruling that enforcing the First Amendment “is not always easy. People sometimes use their First Amendment rights to spread vitriolic and hateful ideas and beliefs. The struggle of preserving the First Amendment in the face of speech many find outright dangerous is pronounced during times of uncertainty, division, polarization, and fear — challenges we unfortunately face today. But the answer cannot be for the government to single out and punish the speech that it and many in the country understandably find repugnant.”
Carney noted that the case against Rundo and Boman “puts our nation’s fidelity to (free speech) to the test. In it, the government uses the Anti-Riot Act, a once-rarely-used criminal statute, to prosecute members of the Rise Above Movement, a group of far-right, white supremacist nationalists, who attended several rallies and protests during which they engaged in violent acts. At the same time, the government chose not to prosecute far-left extremist groups, such as Antifa, that went to the same protests and rallies and engaged in the same violent acts as alleged against defendants in this case …”
Carney contended that Antifa and other far-left activists “engaged in worse conduct and in fact instigated much of the violence that broke out at these otherwise constitutionally protected rallies to silence the protected speech of the supporters of President (Donald) Trump. That is constitutionally impermissible. The government cannot prosecute RAM members such as defendants while ignoring the violence of members of Antifa and related-far-left groups because RAM engaged in what the government and many believe is more offensive speech.”
The indictment of RAM focused in part on riots in Berkeley and Huntington Beach, and federal prosecutors in opposing the motion for selective prosecution argued that the far-right activists pursued leftist counter-protesters who were walking away from conflicts.
Federal prosecutors argue that the FBI did not present any of the far-left activists for criminal prosecution. They noted that one UC Berkeley professor who was involved in protests in Berkeley and Sacramento had no connection to the federal district in Southern California and was never referred for prosecution.
“For example, defendants specifically identify 10 individuals who were arrested at the Berkeley rally and complain that the USAO did not charge any of them with rioting,” prosecutors said in court papers. “But as their arrest reports make clear, none of those individuals lived within the Central District of California. Defendants do not assert that any of them attended any protests in the district or otherwise engaged in activity here, such that the USAO would have had venue to charge them. The government is not required to pursue meritless charges to circumvent claims of selective prosecution.”
As for three people arrested at a protest in Huntington Beach in March 2017, the prosecutors argued there’s no evidence they could have filed cases against them for violating interstate commerce with an intent to commit a riot.
Carney, however, pointed to video that “captured the violence that members of Antifa and related far-left groups inflicted upon the Trump supporters. A black-clad protestor, J.A., pepper sprayed a 48-year-old Trump supporter, the march organizer, who was trying to break up a fight, and then when another 56-year-old tried to grab J.A., she pepper sprayed him, too.”
Carney said the three left-wing protesters “continued to pepper spray Trump supporters, in addition to kicking and punching those around them.”
The three were arrested on suspicion of inciting a riot, battery and illegally using tear gas, but they did not face federal charges related to the Anti-Riot Act, Carney said.
Federal prosecutors said one of the three told police he went to the protest not to fight, but resorted to pepper-spraying the crowd “when he saw his friend get `punched in the face,’ and that he wore a mouth guard and pepper spray for his `personal protection.’ ”
According to the arrest report, the protestor did not pursue an altercation; rather, when one erupted, J.F. “ran away, being followed by a group from the event,” federal prosecutors said.
“Whatever J.F.’s true intention, his conduct distinguishes him facially from defendants, whom officers on the ground described as a `tactically trained’ group that was `antagonizing and challenging members of the left-side to fight,’ repeatedly the `first group to cross the barriers,’ and on multiple occasions, `pick(ed) a person and then (went) after the person as a group, pulling the person out, isolating them, and then attacking them.”
The federal prosecutors said those reports from police at the incidents “reflect that … defendants were more violent, persistent, and dangerous than others as a result of their coordination and planning.”