United States v. Rundo, Case No.: CR 18-00759-CJC
| Decision Date | 03 June 2019 |
| Docket Number | Case No.: CR 18-00759-CJC |
| Parties | UNITED STATES of America, Plaintiff, v. Robert RUNDO, Robert Boman, Aaron Eason, and Tyler Laube, Defendants. |
| Court | U.S. District Court — Central District of California |
David T. Ryan, George Emel Pence, IV, AUSA—Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.
ORDER GRANTING DEFENDANTS ROBERT RUNDO, ROBERT BOMAN, AND AARON EASON'S JOINT MOTION TO DISMISS THE INDICTMENT [Dkt. 134]
The First Amendment safeguards personal liberty, providing that Congress shall make no law abridging the freedom of speech or the right of the people to assemble peaceably. Without it, individuals could not criticize the government, assemble together for common causes, or petition the government for redress of grievances. The vitality of our democratic and public institutions depends on free and vigorous discussion.
It is easy to champion free speech when it advocates a viewpoint with which we agree. It is much harder when the speech promotes ideas that we find abhorrent. But an essential function of free speech is to invite dispute. Speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. City of Chicago , 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Frequently, the public arena is the stage for these disputes. In the Civil Rights Era, for instance, protestors took to the streets to contest segregation and Jim Crow. Today, people continue to take their message to the streets, advocating on hotly contested issues, whether it be abortion, Black Lives Matter, climate change, or healthcare. One person's protest might be another person's riot.
The motion before the Court implicates a statute that threatens these important freedoms: the Anti-Riot Act, 18 U.S.C. § 2101. Congress passed the Anti-Riot Act in 1968, at the height of public advocacy over civil rights and the Vietnam War. Since then, prosecutions under the Anti-Riot Act have been rare. Only a handful of courts have ever evaluated the constitutionality of the statute.
On November 1, 2018, the Grand Jury returned a two-count Indictment charging Defendants with conspiracy to commit rioting, in violation of 18 U.S.C. § 371, and travel or use of interstate commerce with intent to riot, in violation of 18 U.S.C. § 2101. (Dkt. 7 [Indictment].) Defendants Robert Rundo, Robert Boman, and Aaron Eason now move to dismiss the Indictment. Because the Anti-Riot Act regulates a substantial amount of protected speech and assembly, the Court finds the Anti-Riot Act is unconstitutionally overbroad. Accordingly, the Court GRANTS Defendants' motion to dismiss.
Defendants are allegedly members of a white supremacist organization known as the "Rise Above Movement," or "RAM." (Dkt. 47 [Indictment] ¶ 2.) RAM is a "combat-ready, militant group of a new nationalist white supremacy and identity movement." (Id. ¶ 2.) Defendants and other RAM members allegedly used the internet to post videos and pictures of themselves conducting training in hand-to-hand combat, accompanied by messages in support of their white supremacist ideology. (Id. ¶ 3.) Between December 2016 and October 2018, Defendants allegedly attended three political rallies in California. (Id. ¶¶ 5–6.)
Count One of the Indictment alleges that Defendants conspired and agreed with each other to riot in violation of 18 U.S.C. § 2101. Under the conspiracy, Defendants allegedly recruited members to join RAM and conducted hand-to-hand combat training sessions for RAM members. (Id. ¶ 6.) RAM's goal was apparently to provide "security" at right-wing political rallies, where there were often left-wing counterprotestors, known as the "Antifa." Defendants and other RAM members traveled to political rallies in Huntington Beach, Berkeley, and San Bernardino. (Id. ¶¶ 7(1)–7(29).) In Huntington Beach and Berkeley, Defendants allegedly assaulted persons at the rallies. (Id. ¶¶ 7(4)–7(6), 7(15)–7(17).) In San Bernardino, however, none of the Defendants apparently acted violently or committed property damage. After the rallies, Defendants and other RAM members boasted about their actions at these rallies in text messages and on social media. (Id. ¶¶ 7(18)–(21), 7(29), 7(38)–7(47).)
Count Two of the Indictment alleges that Defendants used a facility of interstate commerce with the intent to riot. (Id. ¶¶ 9–10.) Count Two incorporates the overt acts alleged in Count One. (Id. ¶ 9.) Eason allegedly used a credit card to rent a passenger van to travel from Southern California to the rally in Berkeley. (Id. ¶¶ 7(12), 9.) Defendants then committed one or more overt acts with the purpose to incite, organize, promote, encourage, participate in, and carry on a riot. (Id. ¶¶ 9–10.)
Defendants challenge the Anti-Riot Act on its face. Because of the "sensitive nature of protected expression," New York v. Ferber , 458 U.S. 747, 768, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), "[t]he Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere," Ashcroft v. Free Speech Coal. , 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). To implement this protection, the general rules governing facial attacks on statutes are relaxed. Typically, to succeed in a facial attack, a party must establish "that no set of circumstances exists under which [the statute] would be valid, or that the statute lacks any plainly legitimate sweep." United States v. Stevens , 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks and citations omitted). In the First Amendment context, however, a law may be invalidated as overbroad if "it prohibits a substantial amount of protected speech." United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). This exception is "based on the idea that speakers may be chilled from expressing themselves if overbroad criminal laws are on the books." United States v. Sineneng-Smith , 910 F.3d 461, 470 (2018). "To combat that chilling effect, even a person whose activity is clearly not protected may challenge a law as overbroad under the First Amendment." Id.
In determining whether a statute is overbroad, the Court must first construe the statute. See Williams , 553 U.S. at 293, 128 S.Ct. 1830. The Anti-Riot Act provides that:
18 U.S.C. § 2101(a). To summarize, the Anti-Riot Act has two elements: (1) travel or use of interstate commerce with a certain intent and (2) an overt act for a certain purpose. Notably, the Anti-Riot Act covers far more than acts of violence. It also criminalizes activities that precede any violence, so long as the individual acts with the required purpose or intent. And, importantly, as the government concedes, the Anti-Riot Act reaches speech and expressive conduct. See United States v. Dellinger , 472 F.2d 340, 359 (7th Cir. 1972) ().
The next question is what qualifies as a "riot." The Anti-Riot Act defines the term "riot" as:
a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.
18 U.S.C. § 2102(a). To simplify, the Anti-Riot Act defines "riot" in two ways. A riot is a public disturbance involving acts of violence, committed by at least one person in a group, which results in property damage or personal injury. This first definition coincides with the common understanding of a riot—for instance, a crowd taking to the streets and smashing windows of a business. A riot also includes a public disturbance involving the threat of violence, by persons in a group, so long as at least one person could immediately act upon the threat. This second definition, for example, would apply to a group threatening to break the windows of a business, while the group is outside the business and holding rocks in their hands.
The Anti-Riot Act, however, does not just criminalize the behavior of those in the heat of a riot. It also criminalizes acts taken long before any crowd gathers, or acts that have only an attenuated connection to any riot, so long as the individual acts with the required purpose. See 18 U.S.C. § 2101(a). No violence even need to occur. A defendant could be convicted for renting a car with a credit card, posting about a political rally on Facebook, or texting...
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