Judge Carney Defends the First Amendment

Written by: FEF Staff

There is an old adage that a judge is a combination of a lawyer and a politician. Hard experience by attorneys representing the Dissident Right in First Amendment cases has shown that this adage often – too often – carries much truth. But there are exceptions. There are judges who wear their robes with honor and interpret and enforce the law impartially and in accordance with basic First Amendment principles. Judge Carmac Carney, federal judge for the Central District of California, is one such judge.

FEF’s supporters may have taken note of Judge Carney’s recent bombshell ruling ordering the release from custody of former Rise Above Movement (RAM) members Robert Rundo and Robert Boman, who were in police custody after being charged under the federal Anti-Riot Act with engaging in violence with hard-left groups at a pro-Trump rally in 2017. Rundo, who had been living abroad since the 2017 Charlottesville Unite the Right rally and was extradited from Romania to face charges last year, has become a fixture in dissident right circles across North America, principally for founding a network of health and fitness societies, called Active Clubs.

Thus far, this highly rare ruling has been covered with unsurprising outrage in the New York Times and CNN, among others, but more interestingly by mainstream conservative sources as well, including the Daily Wire, Hot Air, and the Daily Caller.

From the Daily Wire:

Judge Carney objected to the fact that federal prosecutors charged only right-wing participants, even though left-wing agitators performed identical conduct or worse at the same event—which prosecutors’ own evidence acknowledged.
…
“Antifa and related far-left groups decided they needed to ‘shut this down.’ … They came prepared for violence, bringing weapons including pepper spray, fireworks, knives, and homemade bombs,” Judge Cormac J. Carney of the US District Court for the Central District of California wrote on February 21. “And they used those weapons, as well as their bodies, against Trump supporters and law enforcement.”

As part of Rundo’s and Boman’s defense, Judge Carney was presented with photographs from the pro-Trump event showing that Antifa engaged in violence more egregious than the alleged violence the RAM members were charged with. But no Antifa were ever charged. FEF’s Glen Allen witnessed similar photographs of Antifa violence from the Charlottesville UTR rally presented by prosecutors during the sentencing of an RAM member. The prosecution used these photographs to send the RAM members to prison for two years or more but here again Antifa’s violence was ignored.

More about Judge Carney from the Daily Wire:

“Defendants have established selective prosecution. 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,” he continued.

FEF’s supporters may value a background on the defense of “selective prosecution” and the Anti-Riot Act, the latter a law FEF has particular expertise in, as FEF has filed numerous amicus briefs in Rundo and other cases challenging the Act’s constitutionality.

Traditionally, our criminal justice system has been the purview of state and local governments. This changed in the 1960s as the federalization of crime began to take root. As critics of this growing trend contend, it is rare when federal charges are not duplicative and the criminal activity in question cannot be adequately handled by state authorities operating under state laws. More fundamentally, the Founders, particularly Alexander Hamilton in Federalist Number 17, sought state jurisdiction over public safety specifically to hinder the prospect of central government oppression. As the Founders correctly foresaw, such oppression might come from laws passed or enforced for reasons of politics, inflamed public opinion, and grandstanding Congressmen—and, one might add today, overly ambitious judges and prosecutors.

Thankfully, there are procedural defenses against this increased federalization of criminal prosecutions. Derived from the Equal Protection Clause of the Fourteenth Amendment, selective prosecution, or disparate enforcement of the law, is essentially an allegation of discrimination by prosecutorial authorities. Unlike federal and most state anti-discrimination laws, the defense of selective prosecution allows for claims on the ground of political-opinion discrimination (in addition to discrimination based on the more traditional grounds of race, religion, etc.). Due to the wide discretion prosecutorial authorities enjoy, however, the defense is rarely successful.

The Anti-Riot Act is a prime example of such needless federalization as well as dramatic overreach and over-criminalization in American society. This rarely applied law, enacted in the violent late 1960s, makes it a federal offense to plan or engage in what later becomes a riot, e.g., by travelling across state lines. Enacted, argue some, as a way to deal with then-burgeoning black nationalist and hard-left violence, the long dormant Act has recently been revived by prosecutors, perhaps ironically so, in the Trump-era and used against dissident right-wing individuals and groups. For instance, other members of RAM have previously been charged under this law for communicating about the Charlottesville rally by smart phone messaging apps and travelling in interstate commerce with the “intent to riot” in violation of the Act. In an early iteration of the Rundo indictment, parts of that law, thanks to FEF’s help, were struck down on First Amendment grounds as protected advocacy.

Despite the broad deference accorded prosecutorial discretion, defendants can successfully show selective prosecution by presenting clear evidence that the government’s prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. This is just what Judge Carney, a Bush II appointee, found in the Rundo case.

Unfortunately for Rundo and Boman, the Department of Justice and Ninth Circuit Court of Appeals appear to be doing their best to blunt Judge Carney’s ruling:

But after prosecutors filed an emergency motion to appeal, the Ninth Circuit had one of the right-wingers arrested the next day, February 22. Robert Rundo “is to remain in custody pending resolution of appellant’s motion to stay release pending appeal. No lower court may order his release absent further order of this Court,” the appeals court wrote.

On February 21, Carney again dismissed the charges based on their second argument, of selective prosecution.

Rundo was released from jail, but prosecutors immediately filed an emergency appeal to the Ninth Circuit, asking for Rundo to be arrested and held without bail, and saying they thought he might flee through the southern border if he was not.

On Feb. 23, appeals judges wrote that “Defendant-Appellee Robert Rundo has been arrested” and that lower courts were prohibited from releasing him as the government’s appeal proceeds.

Despite the Ninth Circuit’s rulings, Judge Carney’s decision is a welcome precedent from a law-abiding judge at a time when such rulings seem unfortunately rare. Watch this space to keep apprised of this case as well as FEF’s involvement in it and other similar cases.