A federal judge in California dismissed cases against two far-right protesters charged with rioting because the prosecution did not charge left-wing agitators committing similar acts, but prosecutors had one of the men rearrested pending appeal.
California District Court Judge Cormac J. Carney set free two defendants on the basis that Justice Department prosecutors engaged in “selective prosecution” of these individuals because of their “protected speech and beliefs,” per the order of the court. However, one of the men was later rearrested when prosecutors appealed to the Ninth Circuit Court of Appeals.
Robert Rundo and Robert Boman, two members of what the order described as a “far-right, white nationalist” group called Rise Against Movement (RAM), attended a “free speech” pro-Donald Trump rally in Berkeley on April 15, 2017. In a practice that had become commonplace, left-wing “Antifa” groups that found out about the rally attended the event to shut it down.
As a result, the two sides engaged in violent clashes, with the court even finding and citing evidence in the form of pictures and video footage that the far-left groups “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 Trump.”
Police made 20 arrests that day. However, the DOJ only charged the defendants and other members of RAM under a seldom-used and constitutionally challenged law called the Anti-Riot Act, which was originally designed to target communists and black militants during the 1960s.
The court dismissed the charges against the men once before in 2019, ruling that the Anti-Riot Act violated the First Amendment. However, the DOJ appealed to a higher court, which overturned the ruling in 2021. In 2023, Rundo was extradited from Romania, where he had relocated, to once again face charges, as reported by Daily Wire. On February 21, Carney dismissed the latest charges on the grounds that the DOJ had engaged in selective prosecution.
Carney’s order explained his determination that defendants were subjected to prohibited “selective prosecution,” which requires that defendants show both discrimination and an impermissible motive.
The judge stated, “There is no doubt that the government did not prosecute similarly situated individuals. Antifa and related far-left groups attended the same Trump rallies as Defendants with the expressly stated intent of shutting down, through violence if necessary, protected political speech. At the same Trump rallies that form the basis for Defendants’ prosecution, members of Antifa and related far-left groups engaged in organized violence to stifle protected speech.”
On the subject of motive, Carney wrote, “Because the government has only prosecuted RAM members and not prosecuted any members of Antifa or related far-left groups in connection with violence at pro-Trump and far-right political rallies, the Court must conclude that the government prosecuted RAM members because of the sole distinguishing feature between them and members of Antifa and related far-left groups — their far-right and white supremacist speech and ideology.”
DOJ prosecutors scrambled to prevent Rundo’s release by asking Carney for a stay pending appeal, which he denied. However, the DOJ appealed to the Ninth Circuit Court, and Rundo was rearrested a day after being released, per Daily Wire.
The Department of Justice has a history of aggressively prosecuting defendants aligned with the political right, with more than 1,100 people facing charges for their participation in the January 6 Capitol protests in Washington, D.C., as reported by The Dallas Express. Many have contrasted that stance with the way authorities dealt with left-wing antifa and Black Lives Matter riots that caused billions in property damage, but ultimately, few participants were charged with violent crimes.
Josh Gerstein, a senior legal affairs reporter with Politico, pointed out on the day Carney’s order was issued that the DOJ has used the Anti-Riot Act to prosecute some left-wing individuals, though none of them were the individuals engaged in violence at the Berkeley rally.
