FILE – In this Aug. 12, 2017, file photo, people fly into the air as a vehicle drives into a group of protesters demonstrating against a white nationalist rally in Charlottesville, Va. (Ryan M. Kelly/The Daily Progress via AP, File)/The Daily Progress via AP)
A federal appeals court has ruled that the alleged leader of a white supremacist group — and potential flight risk — must remain behind bars until it is determined whether he will stay in detention as prosecutors appeal a controversial decision by a federal judge in California to dismiss conspiracy rioting charges involving the hate group and its members.
The defendant in question is Robert Rundo of California, the alleged founder of the Rise Above Movement, a white supremacist group involved in several violent riots in the wake of former President Donald Trump’s election. The group participated in riots throughout California including in Huntington Beach, Berkley and San Bernardino in 2017. Members of the network were also involved and charged for their roles in the deadly rioting in Charlottesville, Virginia, that same year.
As the Los Angeles Times reported earlier this week when U.S. District Judge Cormac Carney cleared Rundo’s charges, prosecutors urged the court to reconsider, noting Rundo’s role leading violent organized clashes against counter protesters and police, including viciously punching at least one police officer twice in the head.
But for Carney, an appointee of George W. Bush, the government had gotten Rundo’s case all wrong.
While the Rise Above Movement, or RAM, was undoubtedly a violent, white supremacist group, the judge found Rundo’s prosecution under the Anti-Riot Act to be selective.
Rundo and other RAM members like Robert Boman had been unfairly singled out for their ideology by federal prosecutors while the government meanwhile ignored “far-left extremist groups,” he wrote.
Specifically, Carney called out “Antifa,” the anti-fascist ideological movement. Its members, he claimed, had gone to the same riots as Rundo and Boman and “engaged in the same violent acts as alleged against the defendants in this case.”
“By many accounts, members of Antifa and related far-left groups engage in worse conduct and in fact instigated much of the violence that broke out at these otherwise constitutionally protected rallies to silence the protected speech of the supporters of President Trump. That is constitutionally impermissible,” Carney wrote. “The government cannot prosecute RAM members such as defendants while ignoring the violence of members of Antifa and related far-left groups because RAM engaged in what the government and many believe is more offensive speech.”
Though Carney said he finds the ideas Rundo and Boman presented in their case “reprehensible” and while he willingly acknowledged it was “likely” the defendants had “committed violence for which they deserve to be prosecuted,” the judge urged that the case was about something bigger than that.
Whether a person is a supporter of the Rise Above Movement or Black Lives Matter, or if they are a “Zionist professor or part of Students for Justice in Palestine,” all deserve the same protections under the First Amendment, he wrote.
According to the blog Legal Affairs and Trials, Carney was emphatic during a hearing Wednesday that Rundo be released from prison immediately.
“I don’t think its right that Mr. Rundo spends another minute in custody,” the judge said.
This wasn’t Rundo’s first rodeo.
The first time Rundo was indicted in 2018, he appeared alongside Boman and RAM member Tyler Laube, who ended up pleading guilty to a conspiracy charge, according to the Justice Department. He admitted to an assault charge too and admitted that he received combat training. Despite that plea, Rundo’s attorneys fought against the charges overall, saying they were flatly unconstitutional and overly broad.
Judge Carney agreed.
In a 2019 opinion, he wrote:
“Make no mistake that it is reprehensible to throw punches in the name of teaching Antifa some lesson. Nor does the Court condone RAM’s hateful and toxic ideology. But the government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment.”
Though the convictions were overturned by Carney, prosecutors appealed to the Ninth Circuit Court of Appeals and won reinstatement of the charges in March 2021.
The Anti-Riot Act provided room for speech, but not incitement, the appellate court found.
“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. 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 opinion states.
The opinion put Rundo back before Carney and a superseding indictment was filed last January. The alleged white supremacist leader, however, was already abroad in Romania and the FBI was on the lookout. He was finally extradited last August after authorities in Bucharest apprehended him.
He had been spotted at a Bucharest gym.
Carney’s decision to wipe away the charges and release Rundo, who had been in detention since his extradition, was met with strong opposition by the federal government.
In an emergency motion to the appeals court, prosecutors highlighted how Rundo had extensive international traveling experience, having spent time in Ukraine, Italy and Germany to meet with white supremacist groups.
He has also fled on multiple occasions before his initial arrest, prosecutors said. In 2018, after his co-conspirators were arrested, he hopped a flight to Ukraine. A few days later he was in London and then back in the U.S. Then he tried to fly to Moscow but wasn’t allowed to board his plane. So, prosecutors say, Rundo skipped over the U.S. border into Mexico and then took a place to Cuba and then Guatemala. His last stop in 2018 was El Salvador before he was extradited back to the U.S. from Romania.
Given his proclivity for running and his history, prosecutors said it was likely he would engage in further violence.
“This Court should stay the district court’s release order during the pendency of the government’s appeal of the order dismissing the indictment,” they wrote.
The appeals court order was issued by Ninth U.S. Circuit Judges Richard Clifton, Consuelo Callahan and Holly Thomas, early Thursday.
“The district court’s February 21, 2024 judgment of discharge authorizing appellee Robert Rundo’s immediate release is temporarily stayed pending resolution of appellant’s motion to stay release pending appeal,” it stated.
The schedule for the motion to stay will be set by separate order.
Attorneys for the parties did not immediately respond to request for comment Thursday.
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