After ruling that the federal government had participated in “selective prosecution” by arresting right-wing rioters but not the far-left agitators they battled and who had done the same thing, a California court dismissed charges against two far-right political agitators.

On April 15, 2017, Robert Rundo and Robert Boman, who belonged to Rise Against Movement (RAM), a “far-right, white nationalist” organization that used violence against left-wing organizations like Antifa, attended a pro-Donald Trump “free speech” protest in Berkeley. By Any Means Necessary (BAMN) was one of the organizations that would show up to right-wing rallies to put an end to them and cause fights.

“Far-left organizations like Antifa felt they had to’shut this down.’” They brought pepper spray, pyrotechnics, knives, and homemade explosives, and they came ready to fight,” US District Court for the Central District of California Judge Cormac J. Carney wrote on February 21. “And they used their bodies and those weapons on law enforcement and Trump supporters.”

However, the Ninth Circuit ordered the arrest of one of the right-wingers the following day, February 22, after prosecutors filed an emergency request to appeal. As long as the appellant’s request to postpone release while appealing is being considered, Robert Rundo “must stay in detention.” The appeals court penned, “No lower court may grant his release without additional judgment of this Court.”

Judge Carney took issue with the federal prosecutors’ decision to selectively arrest right-wing attendees, despite the fact that their own evidence revealed that left-wing agitators engaged in similar or worse behavior during the same event.

“No one connected to the left who participated in anti-far-right discourse and physically repressed Trump supporters’ free expression was prosecuted at the federal level for their role in inciting unrest at political gatherings. That is prejudice based on a textbook worldview, as the author stated. The government’s silence on why it never prosecuted an individual member of Antifa or other associated far-left groups for their violent behavior during pro-Trump gatherings is what is most striking about this case.

“Defendants have made selective prosecution their own. Undoubtedly, the government refrained from prosecuting those in comparable circumstances. The same far-left organizations as the defendants, including Antifa, attended Trump rallies with the explicit goal of stifling protected political expression, if necessary, through violence. He went on, “Members of Antifa and associated far-left groups engaged in organized violence to restrict protected expression at the same Trump rallies that serve as the foundation for the defendants’ indictment.

Out of the 20 individuals detained at the Berkeley protest in April 2017, the government filed charges against only defendants and additional RAM members in accordance with the Anti-Riot Act. The judge ruled that the government had not filed any Anti-Riot Act charges against members of Antifa, BAMN, or other far-left organizations for using violence to end the event.

“To put it plainly, the only substantial difference between RAM and Antifa is their speech and beliefs—both groups appear to employ violence to stifle free expression,” the court stated.