July 19 was a grim day for three young men from the Rise Above Movement (RAM) who were told their punishment by a federal district judge in Charlottesville, Va. The defendants had been arrested under the Anti-Riot Act, which a California federal court has found unconstitutional, and charged for their participation in the 2018 “riots” in Charlottesville and California.
Denied bail, the RAM defendants, after many months in difficult conditions in prison, had entered into plea agreements in May 2019. A few weeks prior to the sentencing hearing and long after the plea agreements were entered into, the government announced its intention to try to increase, by means of the federal Hate Crime Enhancement Statute (part of the Violent Crime Control and Law Enforcement Act of 1994, 28 U.S.C. Sec. 2800003), the sentences to which the RAM defendants agreed in their plea agreements. The hate crime enhancement statute allows a court to increase a defendant’s prison time if the court determines that the defendant, in committing a federal crime, e.g., rioting, singled out members of a protected group, such as racial minorities, women, or homosexual persons.
At the hearing, the government put forward a massive effort to make its proposed hate crime enhancements stick. It called two FBI agents as witnesses and introduced and discussed over 60 exhibits, mostly photographs and videos, and invoked comparisons to Nazi Germany.
The hearing, however, had an air of Kafkaesque, bizarre unreality. During the entire hearing the government and its FBI witnesses ignored or mitigated the provocative, aggressive, and often violent actions of the counterprotestors, which included antifa and other hard-left radicals, at the Charlottesville and California confrontations.
For example, one of the government’s photo exhibits showed a RAM defendant holding a bagel and making a hand gesture that the government described as a “white power sign.” Standing next to the RAM defendant was a man who was friends with the RAM defendant. The government presented this photo as evidence that the RAM defendants were anti-Semitic and were targeting Jews at the riots. What the government failed to mention and defense counsel failed to elicit on cross examination was that bagels had been thrown at the RAM defendants by the neo-Bolshevik antifa agitators and their allies, and the man standing next to the RAM defendant was later viciously assaulted with a bike lock, and injured, by a masked antifa member. This masked antifa member was Eric Clanton, then a professor at a college in Berkeley. Clanton was charged with a misdemeanor for his assault, received a suspended sentence of 30 days, was placed on probation, and thus served no jail time.
As another example, the government showed a video clip of one of the RAM defendants punching an antifa activist. What the government failed to mention, and defense cross examination only partly brought out, was that the antifa activist was masked and was charging provocatively up a set of steps toward the RAM defendant.
As another example, one of the FBI agents was asked on cross examination to identify the counterprotestors who appeared in many of the government’s photo exhibits wearing t-shirts urging violent communist revolution. The FBI agent’s response was essentially that he had not investigated and had no clear idea who the communist revolutionaries were, what types of violent revolutionary tactics they advocated and practiced, or what role they played in the riots for which the RAM defendants were charged under the Anti-Riot Act. Evidently, the FBI has neglected to fully investigate such things as neo-Bolshevik violence, a situation that will hopefully change as a result of proposed federal legislation declaring antifa a domestic terror organization.
As a final example, the government introduced a statement from a bartender in which he claimed he overheard one of the RAM defendants stating after the riots, “Next we’re going after the feminists.” The government argued this was evidence the RAM defendants were targeting women. Overlooked was 1) the statement was double hearsay, 2) it was allegedly made after the riots, 3) not all feminists are women, and 4) “going after the feminists” does not necessarily imply violence. (Obviously, mindreaders had been employed to determine the defendants’ intent.)
Unfortunately, the First Amendment rights of non-leftist protesters are of no real concern to activist judges today, most of whom are too scared to buck the narrative that white people who do not support neo-Bolshevism and anarchism are all dangerous terrorists.
On one level, the government’s attempt to add hate crime enhancements to the RAM defendants’ sentences failed, for the court rejected the attempt. But at another level—and probably the one the government really intended—the attempt was successful, for after seeing and hearing for nearly an hour the government’s hate-crime evidence, the court imposed on all three RAM defendants prison sentences at or near the maximums allowed under their plea agreements: One received 27 months, a second 33 months, and the third 37 months for their involvement in scuffles that, with the exception of a few counterprotestors whose faces were bloodied, significantly injured no one. The RAM defendants had no connection to James Fields, who drove his car into a crowd of counterprotestors, killing one woman, and the government did not even assert any such connection.
Contrast this with the one-month suspended sentence and three-year probation Clanton received for smashing a bike lock into a man’s face.
There’s your wondrous criminal justice system at work, folks. Not a bit political.
The Free Expression Foundation (FEF) plans to submit an amicus (friend of the court) brief in support of the Charlottesville RAM defendants’ appeal to the Fourth Circuit.
FEF also plans to submit an amicus brief in opposition to the appeal to the Ninth Circuit filed by the government in the parallel California RAM prosecution, in which the trial court found the Anti-Riot Act unconstitutional, dismissed the indictment, and freed the RAM defendants.
FEF, a 501(c)(3), welcomes and will prudently and effectively use financial support.
Reprinted with permission from American Free Press, 117 La Grange Avenue, La Plata, MD 20646.
Paul Angel is the chairman of the board of the Free Expression Foundation which is working hard on a shoestring budget to help people whose free speech rights have been restricted or assaulted. Currently we are looking for cases to evaluate for possible assistance. If you know someone who needs our help, write us at FEF, P.O. Box 1479, Upper Marlboro, MD 20773. You may also donate and find out more at www.FreeExpressionFoundation.org.