Ninth Circuit Reverses Dismissal of Rioting Charges Against White Nationalists

The members of a California white nationalist group face federal charges of organizing and participating in riots across the state.

FILE – In this Aug. 11, 2017, file photo, multiple white nationalist groups march with torches through the University of Virginia campus in Charlottesville, Va. (Mykal McEldowney/The Indianapolis Star via AP, File)

PASADENA, Calif. (CN) — A Ninth Circuit panel on Thursday reversed a federal judge’s dismissal of an indictment charging four members of a white nationalist group with organizing and inciting violent riots across California.

Members of the white supremacist group Rise Above Movement (RAM) were arrested in 2018 on charges of plotting riots and inciting violence across the Golden State for more than a year prior.

The group — which has roots in the former conservative stronghold Orange County, California — described itself as “combat ready” and traveled to Germany, Ukraine and Italy to meet with European white supremacy extremist groups, according to prosecutors.

Members of RAM also participated in the 2017 Unite the Right rally in Charlottesville, Virginia, where a white nationalist drove his car into a crowd and killed protester Heather Heyer.

Federal prosecutors say Robert Boman, Tyler Laube, Aaron Eason and Robert Rundo, who co-founded the group, did not have a direct role in the Charlottesville rally but have sparked attacks against journalists and anti-conservative protesters at various events while posing as security for right-wing activists. 

The men — who prosecutors said also facilitated combat training and published videos online of their attacks on people — were charged with conspiracy to commit rioting and travel or use of interstate commerce with intent to riot.

Laube pleaded guilty to the charge while attorneys for the other three defendants moved to dismiss the indictment.

In a June 2019 ruling, U.S. District Judge Cormac Carney dismissed the indictment against the men and withdrew Laube’s guilty plea, finding that the federal prosecution brought under the Anti-Riot Act was “unconstitutionally overbroad” and threatened their First Amendment rights.

Carney urged prosecutors to use other means to prevent violent acts by white supremacist groups such as RAM but not at the expense of constitutionally protected rights to freedom of speech.

In a 27-page unsigned per curiam opinion issued Thursday, a three-judge Ninth Circuit panel reversed Carney’s decision, finding that most of the Anti-Riot Act’s provisions are constitutional and that Congress intended to prohibit speech that instigates a riot.

“We recognize that the freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society,” the panel wrote. “Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them.”

The panel found sections of the act that criminalize protected speech include statutes regarding speech that organizes, promotes, encourages or urges a riot. But the statutes violating First Amendment rights can be severed, the panel wrote.

“Here, [the statute’s] inclusion of “organize,” “promote” and “encourage” and [the] inclusion of “urging or” and “not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts” are severable from the remainder of the act,” the opinion said. “We agree with the Fourth Circuit and conclude that Congress would prefer severance over complete invalidation.”

Once severed, the act would instead focus on someone’s incitement and participation in a riot or their aiding and abetting of someone committing violence in furtherance of a riot, the opinion said.

As a foundation for its decision, the panel cited the “imminence requirement” in the Ninth Circuit’s 1969 per curiam opinion in Brandenburg v. Ohio, which held the First Amendment protects “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Assistant federal public defender Brianna F. Mircheff declined to comment on the ruling.

The panel included U.S. Circuit Judges Ferdinand F. Fernandez and Richard A. Paez and U.S. District Judge Jon S. Tigar, sitting by designation from the Northern District of California. Fernandez is a George H.W. Bush appointee, Paez was appointed by Bill Clinton and Tigar is a Barack Obama appointee.

Partially dissenting, Judge Fernandez wrote he disagrees with striking the concepts of “organizing” and “urging” from the Anti-Riot Act because they don’t tend toward protected speech when they lead to a riot.

“It is far from mere speech,” Fernandez wrote. “It is the very purposeful, physical, and concrete action of structuring people into an intentionally physically violent force, which is at least on the brink of carrying out its mission. Although it might be reasonable to organize some events into the far future, as I see it, organizing a riot does not reasonably lend itself to that interpretation.”

The U.S. Attorney’s Office declined to comment.

The panel remanded the matter to Carney for further proceedings.

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