This month the Superior Court of San Diego County convicted two activists, Brian Lightfoot and Jeremy White, each on a felony count of “conspiracy to riot” as a result of their participation in a 2021 counterprotest against Trump-supporting white supremacists.

Anti-fascist demonstration, San Diego, December 12, 2020.

Lightfoot and White were the only two individuals to go to trial among the group known as the San Diego 11. In the months leading up to the trial, nine of the other protesters against the “Patriot March” in Pacific Beach all pled guilty to a variety of charges, including felony assault and unlawful use of tear gas.

Two of the San Diego 11 are trans women. One — Nikki Hubbard — has already been sentenced to five years in prison. Despite having a valid California driver’s license that listed her gender as female and informing the arresting officers that she was trans, Hubbard was locked up with men.

On the day of Hubbard’s sentencing, her spouse petitioned the judge directly to honor her gender identity. Nevertheless, Nikki Hubbard is currently being held in a men’s health facility in Stockton, California, in a clear violation of The Transgender Respect, Agency and Dignity Act (SB-132) which was signed into law by California Governor Gavin Newsome on Jan. 1, 2021.

The unprecedented “conspiracy to riot” charges were based on a series of messages exchanged between some of the activists. Evidence brought by prosecutors highlights the ability of cops and courts to seize all digital communications an individual may have on their phones — and to twist even the most innocuous comments into proof of violent intent.

Brian Lightfoot, who is Black, was questioned on the stand about his use of expressions originating from African American Vernacular English (AAVE) that have become common idioms.

“At 10 p.m., you talked about how it was going to be ‘lit.’ What did you mean by that?” asked Deputy District Attorney Mackenzie Harvey, implying that the slang phrase literally meant setting something on fire.

Likewise, prosecutors had a field day with a text message from Lightfoot where he said he planned on “holding space” for his fellow activists. This phrase, again popularized by Black activists, refers to creating an empathetic, nonjudgmental environment for oppressed people.

The prosecution suggested this meant Lightfoot “wanted to fight” and planned to physically occupy areas to violently prevent right-wing marchers from assembling on the boardwalk that day. “They were looking to commit violence,” the deputy district attorney said.

A DA on a crusade against “Antifa”

San Diego District Attorney Summer Stephan was appointed in 2017 by the outgoing DA Bonnie Dumanis upon her sudden resignation over corruption allegations. Stephan was elected the following year after campaigning against Black Lives Matter activists, promising to uncover “the truthful nature of the protestors.”

On a campaign website called ThreatToSanDiego.com, Stephan accused her opponent of being a puppet of Jewish billionaire and Holocaust survivor George Soros who “has brought his war against law enforcement to San Diego.” (Archived: threattosandiego.com)

Stephan, speaking to reporters and fellow law enforcement officials in 2020, spoke of shadowy forces supporting the protests “behind the scenes.” “There are movements that are not what you would think of.” When pressed about the comment later, a spokesperson for the district attorney said, “There’s nothing more we can share on this.” (Times of San Diego, Sept. 16, 2020)

No charges were filed against any of the right-wing demonstrators who took part in the fighting at the 2021 “Patriot March.” The pro-Trump march took place in the immediate aftermath of the Jan. 6 Capitol riot in Washington, D.C. Among the marchers were numerous members of the Proud Boys and the American Guard, a white supremacist organization that advocates for “racial holy war.” (Court filing) At least five individuals present at the Patriot March are confirmed to have participated in the Capitol insurrection just three days prior.

Some of the right-wing participants were called as key witnesses for the prosecution.

An emerging double standard

After a week of deliberation, the jury was hung on the vast majority of felony charges leveled against Lightfoot and White. Indeed, jurors cleared the two of committing the alleged assaults. However, the conspiracy charges on which they were convicted represent a dangerous escalation of the court’s attacks on the right to free assembly.

“I think the door is wide open to now hold lawful protesters in violation of conspiracy law,” said White’s attorney, Curtis Briggs.

But a month earlier, in April, U.S. District Judge for the Central District of California Cormac J. Carney dismissed assault charges against Tyler Laube, a white supremacist who confessed to punching a reporter at a “Make America Great Again Rally” in 2017. Carney blasted prosecutors for ignoring similar crimes committed by left-wing activists, specifically citing a refusal to go after “Antifa.”

Carney had previously dismissed charges against white supremacists Robert Rundo and Robert Boman on similar grounds, arguing specifically that Rundo’s arrest was unlawful. The pair had been charged with, among other things, conspiracy to riot. He wrote this month, “It was Antifa, a far-left extremist group, that posed the insidious threat to democracy.” (Legal Affairs and Trials, May 4)

Carney said:  “The government just does not seem to care about the Constitution. Well I do.” He resigned from his position as chief district judge in June of 2020 after admitting to making racist comments to a Black woman serving as a court clerk. He remains a federal circuit judge.

Rundo, Boman and Laube are all members of the same white supremacist organization, Rise Above Movement, which bills itself as “the premiere mixed martial arts club of the alt-right” that operates as a “combat-ready street-fighting club.” So unusual was Carney’s decision to summarily drop the charges against these avowed white nationalist militants that a Ninth Circuit judge put the ruling on hold and ordered the re-arrest of Rundo. (CNN, Feb, 22)

Meanwhile, the rest of the San Diego 11 are expected to be sentenced this June. Many of them face years in prison.

Former California federal prosecutor Patrick Cotter called the ruling “an insult to public intelligence” and said the decision to only prosecute left-wing activists constitutes “selective prosecution.” (USA Today, May 3, 2021)

Teddie Kelly

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Teddie Kelly

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