By A.C. Thompson, ProPublica
A federal judge on Monday dismissed charges against three members of a white supremacist gang indicted for their roles in violent rallies across California in 2017, saying the federal statute used to prosecute them was unconstitutional.
The three men, members of the Rise Above Movement, a violent, racist organization based in Southern California, had been charged under a federal anti-riot statute with planning and then carrying out assaults at 2017 rallies in Huntington Beach, San Bernardino and Berkeley in the volatile months after President Donald Trump's election.
"The defendants used the Internet to coordinate combat training in preparation for the events," federal prosecutors alleged in a criminal complaint filed late last year, "to arrange travel to the events, to coordinate attendance at the events, and to celebrate their acts of violence in order to recruit members for future events."
In dismissing the charges, the judge, Cormac Carney, did not say that assaults didn't happen or that the men could not be potentially charged with criminal acts. Instead, he ruled that the anti-riot statute of 1968 was overly broad and criminalized not only incitement of acts of violence, but also the planning and organization a person might do months in advance of a potential riot, even if the riot never happened. In that, Carney held, the statute could be seen to infringe on First Amendment rights governing free speech, since the calls to action did not constitute an imminent threat.
"It is easy to champion free speech when it advocates a viewpoint with which we agree," Carney wrote. "It is much harder when the speech promotes ideas that we find abhorrent. But an essential function of free speech is to invite dispute. Speech 'may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.'"
The judge, near the end of his ruling, listed other charges a prosecutor could use to deal with violent public demonstrations.
"Make no mistake that it is reprehensible to throw punches in the name of teaching Antifa some lesson," Carney wrote, referring to the far-left counterprotesters who have fought with white supremacists at various rallies in the last several years. "Nor does the Court condone RAM's hateful and toxic ideology. But the government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment."
Prosecutors said they were considering their next steps. "We are disappointed with the court's ruling, and we are reviewing possible grounds for appeal," said Ciaran McEvoy, a spokesperson for the U.S. Attorney's Office in Los Angeles.
Carney ordered the release of two of the men, Robert Rundo and Robert Boman; the third, Aaron Eason, was already free on bond. A fourth RAM member, Tyler Laube, pleaded guilty earlier, but his case will now most likely be revisited.
In a separate case brought in federal court in Virginia, three other RAM members and a RAM associate have pleaded guilty to similar riot charges for their actions during the "Unite the Right" rally in Charlottesville in the summer of 2017. The California judge's ruling is unlikely to have an immediate effect on those cases.
On its YouTube channel, RAM celebrated with a brief video featuring a photo of Rundo in a tank top and the words "all charges dropped." In a post on Gab, a far-right social media platform, RAM added, "Just goes to show, never take a plea deal, always fight for the truth."
The group's supporters reacted to the news with enthusiasm. "Thank God," wrote one commenter in response to the Gab post. Other commenters chimed in with "Sieg Heil!" and its English translation, "Hail victory," an infamous slogan used by the Nazis.
RAM's first public appearance was at a chaotic pro-Trump rally in Huntington Beach in March 2017. During the event, Laube assaulted a journalist with the OC Weekly, Frank Tristan, who was covering the scene for the newspaper. Two OC Weekly photojournalists were also roughed up during the melee.
Former OC Weekly editor Nick Schou helped to oversee the publication at the time, as well as its subsequent reporting on RAM, whose members reside primarily in Orange County and to the north in Los Angeles County's beach cities. "It's extremely disappointing to me," Schou said of the judge's ruling.
"What happened there with our employees was a warm-up for Charlottesville," he said, adding that local and state police did little to investigate the violence at the rally, and noting that the federal charges came down more than 18 months after the Orange County event. "The lack of any official law enforcement response in the immediate aftermath of the Huntington Beach attack arguably enabled the much more extreme and fatal attack that happened in Charlottesville."