It would be an understatement to say that recent times have been marked by a growing division between the political left and right. In the wake of the 2016 election in particular, things have escalated quickly in ways our country has not seen in quite some time. You’ve surely been inundated with the news coverage of extremist groups resorting to violent protests.
The federal government had brought a case against several of these groups in the aftermath of the last two elections. Two such defendants were Robert Rundo and Robert Bowman, members of the white supremacist group "Rise Above Movement," which describes itself as "the premier MMA club of the Alt-Right." As is typical with these cases, it was a long and slow process to get to the actual trial. But now, a federal trial judge in Santa Ana, California, has dismissed the case by granting them a rare legal defense: “selective prosecution.” Judge Cormac J. Carney, who wrote a long opinion explaining his reasoning, surprised many legal theorists with his opinion. Let’s take a look at how the judge justified his decision.
Judge Calls Out Antifa Antics
Judge Carney by no means denied the occurrence, or even the severity, of the violence escalated by far-right groups. But he pointed out what he saw as equal culpability by far-left groups. He pointed mainly to Antifa, the name former President Donald Trump and other prominent conservatives associated with the nationwide protests that occurred in the wake of George Floyd's death. Antifa is a term used for loosely affiliated groups of individuals who identify as anti-fascist. They oppose what they view as fascism, racism, and other forms of oppression. Antifa groups use a variety of tactics, including non-violent protests, civil disobedience, and violence to achieve their aims. However, because Antifa is not as centrally organized as other extremist groups, aims and methods can differ among members.
As Judge Carney’s opinion points out, a manual with instructions on how to form an Antifa group lays out directives including “[t]racking white nationalist, Far Right, and fascist activity,” “[o]pposing public Far Right organizing,” and “[b]uilding a culture of non-cooperation with law enforcement” because “[t]he cops will be Trump supporters.”
The judge pointed out that Antifa directives are not limited to political organizing. He notes that the manual also recommends “regular martial arts training” and “to practice with, and carry, everything that is legal, whether that is pepper spray, retractable clubs, or other devices.” The opinion points to examples of more violent Antifa directives at play. It brings up a KKK rally in Anaheim in 2016, where dozens of Antifa extremists initiated an altercation with Klansmen, leading to stabbings and other injuries.
Judge Bastes BAMN
Judge Carney also calls out another far-left group, By Any Means Necessary (BAMN). He points to the 2016 neo-Nazi rally in Sacramento, where BAMN instructed its members that “[o]nly an organized, mass militant, integrated youth-led movement that is politically independent can mobilize the social forces necessary to defeat the Nazis/KKK, stop the rise of ‘Trumpism,’ and finally put this nation on the road to progress once more.” Violence quickly broke out at the rally, and many people were stabbed.
The opinion points out that these kinds of violent acts continued past 2016, often at campaign events and other political events. They were not just directed at the KKK and neo-Nazis (which left-wing activists associated with Trump supporters), but other right-wing groups as well. One example it cites is when BAMN encouraged its members to shut down an event at UC Berkeley in 2017 where the university was hosting right-wing political commentator, Milo Yiannopoulos. It notes that over a hundred left-wingers “marched onto UC Berkeley’s Sproul Plaza like a paramilitary force armed with bats, steel rods, fireworks, and Molotov cocktails,” tackled and assaulted Yiannopoulos supporters, and “smashed a half a dozen windows with barricades, launched fireworks at police and toppled a diesel-powered klieg light, which caused it to burst into flames.” Though these events were in California, the court pointed out that BAMN members mobilized from all over the country.
Constitutional Concerns
Importantly, the First Amendment and freedom of speech is at the core of these issues. Judge Carney notes that a common thread in these organized movements was that they were “directed at Trump supporters and other conservatives to purposefully shut down speech-oriented events.” Regarding the Sacramento event, the judge points out that a BAMN leader had stated that “BAMN mobilized to get people out here to shut them down ... To us, there’s no free speech for fascists.” Importantly for the court, the tactics worked to “freeze” free speech. In the case of the UC Berkeley event, the upshot was the college canceling the speech and removing Yiannopoulos from the campus out of concern for public safety.
The problem was that the government was purportedly “selectively prosecuting” right-wing groups over left-wing groups. Twenty people were arrested in the 2017 Berkeley incident. They included not just BAMN members, but also people from a right-wing white nationalist organization that came to be known as the “Rise Above Movement” (RAM). As the judge noted, “RAM and Antifa, which both appear to use violence to silence protected speech, are identical in material respects—the only difference is their speech and beliefs.” But only the RAM members at the Berkeley event were criminally charged under the Anti-Riot Act. No members of Antifa, BAMN, or other far-left groups were charged under this statute for their use of violence to shut down the rally.
Judge Carney wrote that “[s]uch selective prosecution leaves the troubling impression that the government believes speech on the left more deserving of protection than speech on the right.” In theory, selective prosecution violates Equal Protection under the Constitution. While it’s not uncommon for defendants to raise the defense of selective prosecution, it is rare to win on that defense, given the difficulty of proving the necessary elements. Judge Carney’s decision to grant it is thus perhaps surprising.
"Reprehensible" but Not Prosecutable
It might be worth noting that the judge himself found the defendants’ and far-right groups’ ideologies “reprehensible.” Nonetheless, he wrote that “while the public backlash against white supremacist speech and ideology is exactly how our country should react to such hateful beliefs, the government cannot make charging decisions based solely on Defendants’ reprehensible speech and beliefs.”
In any event, for now, the upshot of this is that the case against the two defendants—the founder of RAM and one of his subordinates—was dismissed. The two men were set free, and Judge Carney even denied to stay their release pending appeal.
So does that mean they're getting off scot-free? Not if Uncle Sam has his way. The Department of Justice appealed the dismissal to the Ninth Circuit and had one of the two men re-arrested.
Related Resources:
- What Is Prosecutorial Discretion? (FindLaw's Learn About the Law)
- The January 6 Committee Referrals, Explained (FindLaw's Law and Daily Life)
- Rebellion or Insurrection (FindLaw's Learn About the Law)
