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. Read more