A federal judge on Wednesday dismissed riot charges against two members of a neo-Nazi street gang who had attacked counterprotesters at several pro-Trump rallies in California in 2017, saying that the government had behaved improperly by neglecting to bring charges against left-wing activists who had also acted violently at the same events.
The ruling by the judge, Cormac J. Carney, found that prosecutors had unfairly engaged in “a selective prosecution” against the two men — members of the Rise Above Movement, or R.A.M. — and targeted them chiefly because of their vitriolic speech and white supremacist ideology.
While Judge Carney acknowledged that he found the ideas that the movement promoted “reprehensible,” he also said it was “constitutionally impermissible” to bring charges against one group, but not the other, based on politics alone.
“The government cannot prosecute R.A.M. members such as defendants while ignoring the violence of members of antifa and related far-left groups because R.A.M. engaged in what the government and many believe is more offensive speech,” he wrote.
The decision by Judge Carney, who sits in Federal District Court in Santa Ana, Calif., immediately wiped out the case against the two men, Robert Rundo, the founder of R.A.M. and an infamous figure in neo-Nazi circles, and Robert Boman, one of his subordinates. It was also a rare successful use of the selective prosecution tactic and leaned heavily on an appeal to the First Amendment.
“It does not matter who you are or what you say,” Judge Carney wrote. “It does not matter whether you are a supporter of All Lives Matter or a supporter of Black Lives Matter. It does not matter whether you are a Zionist professor or part of Students for Justice in Palestine. It does not matter whether you are a member of R.A.M. or antifa. All are the same under the Constitution, and all receive its protections.”
Mr. Rundo and Mr. Boman were initially arrested in 2018 and charged under a civil rights-era law called the Anti-Riot Act, accused of engaging in violence at three pro-Trump rallies in California — in Huntington Beach, Berkeley and San Bernardino — in the spring of 2017. Judge Carney dismissed the charges in 2019, but a federal appeals court reinstated them two years later.
After a superseding indictment was filed against the men and a third member of the group in January 2023, Mr. Rundo fled to Europe. He was extradited to the United States from Romania in August.
In his 35-page order, Judge Carney noted that all of the rallies that Mr. Rundo and Mr. Boman had attended took place within three months of one another in what was President Donald J. Trump’s first year in the White House.
The judge described that time as one in which far-right and far-left groups “marked by growing division” over Mr. Trump’s election “frequently opposed each other in public demonstrations, rallies and protests.” The events, he added, “often ended in violence.”
As Judge Carney pointed out, R.A.M. styled itself “as a combat-ready, militant group of a new nationalist white supremacy” and trained in hand-to-hand fighting. Members of the group, often wearing skeleton masks, showed up at pro-Trump rallies, where, as the judge described it, “they would assault individuals they believed were associated with antifa and related far-left groups.”
But in his ruling, Judge Carney noted that members of antifa showed up at the same events, also “using violence to silence their opposition,” but never faced criminal charges.
He pointed out that at the Huntington Beach rally — on March 25, 2017 — a black-clad protester, known only as J.A., used pepper spray against at least two Trump supporters. As further skirmishes broke out, J.A. and other leftist activists “continued to pepper-spray Trump supporters, in addition to kicking and punching those around them,” Judge Carney wrote.
Selective prosecution motions are notoriously difficult to win, requiring defendants to prove, in effect, that prosecutors discriminated against them by failing to bring charges against “similarly situated individuals.”
Many people charged in connection with the attack on the Capitol on Jan. 6, 2021, claimed that they were the victims of selective prosecution, arguing that the government was more aggressive in going after them than the left-wing activists who spent weeks attacking the federal courthouse in Portland, Ore. But all of those motions were rejected, some by judges appointed by Mr. Trump.
In his ruling, Judge Carney found that the far-right members of R.A.M. and their leftist counterparts in antifa were similarly situated.
“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,” he wrote.
The judge also found that the government had effectively discriminated against Mr. Rundo and Mr. Boman by launching its case against them largely because of their political beliefs, and during an especially heated moment: in the weeks after the bloody far-right rally in Charlottesville, Va., where a white nationalist activist had rammed a counterprotester with his car, killing her.
“Rightfully, after Charlottesville, there was a backlash against white supremacist groups in the United States,” Judge Carney wrote. “And 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.”
