Robert Rundo and Robert Boman were charged with conspiracy to violate and substantive violations of the Anti-Riot Act. The indictment alleged that Rundo is a founding member of the Rise Above Movement, a white supremacist group, and that he and Boman attended various political rallies where they chased down and violently attacked counter-protesters. In a prior appeal, the Ninth Circuit had reversed a district court ruling that found the Anti-Riot Act facially overbroad under the First Amendment. On remand, the district court dismissed the indictment again, this time accepting a selective prosecution claim. The district court concluded that the government had targeted the defendants for their offensive speech and beliefs while ignoring similar or worse violence committed by members of far-left groups like Antifa. The government appealed, arguing that the defendants could not meet the heavy burden required to prove selective prosecution.
The Ninth Circuit panel, writing for the court, reversed the dismissal, holding that the defendants failed to meet the burden for a selective prosecution claim under any standard of review. The court explained that to succeed, a defendant must show both discriminatory effect and discriminatory intent. First, regarding discriminatory effect, the court found the district court erred by comparing the defendants to collective groups rather than specific individuals. The court noted that isolating the factor of impermissible discrimination is impossible when comparing individual conduct to group conduct. Furthermore, the court held that the specific individuals the district court did identify were not similarly situated. The defendants engaged in repeated, organized violence, coordinated combat training, and recruited others, whereas the alleged comparators did not show similar patterns of organized conduct. Additionally, the defendants had prior violent criminal convictions and leadership roles, factors that provide a facially neutral basis for federal prosecution. Second, regarding discriminatory intent, the court rejected the argument that the timing of the prosecution or changes in enforcement priorities after the Charlottesville rally proved an impermissible motive. The court stated that timing can reflect a change in enforcement priorities, which is a permissible reason for selective prosecution. The court also dismissed the argument that a U.S. Attorney's press release or the government's invocation of the defendants' speech in court papers proved bias, noting that prosecutors may describe the facts of a case, including ideology, without it constituting discrimination. The court emphasized that the presumption of regularity supports prosecutorial decisions and that defendants must provide clear evidence to displace it.
The indictment against Robert Rundo and Robert Boman is reinstated, and the case is remanded to the district court for trial. The decision clarifies that selective prosecution claims require a precise comparison of similarly situated individuals, not broad comparisons of groups, and that changes in federal enforcement priorities following high-profile events like the Charlottesville rally are permissible grounds for prosecution. The ruling leaves open the question of how federal prosecutors will handle future cases involving political violence but affirms the government's broad discretion in deciding whom to prosecute.
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