White supremacist militia injunction provides encouraging blueprint

(Reuters) – A recent order by a Recent Mexico judge sets a very important precedent against the open lawlessness of armed racist and extremist paramilitary groups which have intimidated peaceful protesters and are actually charged with leading the deadly Jan. 6 revolt.

Judge Elaine Lujan granted Bernalillo County District Attorney Raúl Torrez’s request for an injunction on Oct. 17, banning a now-defunct militia and its potential successors from publicly acting like a military unit or assuming law enforcement functions.

Lujan granted the motion by default judgment, largely due to the Recent Mexico Civil Guard’s non-participation within the case — including a bizarre and defiant deposition of founder Bryce Provance. The founder brought an obscene drawing along to point out prosecutors, and admitted destroying much of the evidence they were looking for by pouring bleach on his hard disk drive after which burning it.

Provance told me he didn’t understand that he was purported to retain the knowledge. “I’m not a lawyer, so I don’t know what you’re purported to do in terms of lawsuits,” he said. (Paul Kennedy of Kennedy, Hernandez & Associates, withdrew from representing Provance about two months after the combative deposition. He didn’t reply to a request for comment.)

Still, the case clarifies that the activities of many armed paramilitary groups are removed from constitutionally protected, and are literally plainly illegal, as legal research for the reason that violent “Unite the Right” white nationalist rally in 2017 has shown. The judgment demonstrates that prosecutors have tools against groups that use their right to bear arms to suppress other people’s right to free speech and protest.

The underlying litigation strategy has been promoted during the last several years by Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP), which won consent decrees in an analogous case on behalf of Charlottesville after the deadly “Unite the Right” rally. That lawsuit also was based on state constitutional provisions that restrict private armies and militias, and it resulted in a everlasting injunction against plenty of individuals and groups from acting as militias or bringing weapons to any demonstrations in Charlottesville again.

The cases are based on precedent from the Eighties – private residents that sued successfully to stop the Ku Klux Klan from using paramilitary tactics to harass and intimidate minorities.

Importantly, the Recent Mexico case marks the primary time in several a long time that a neighborhood DA has used their office’s enforcement power to hunt a constitutional injunction against a paramilitary organization (The State of Texas successfully intervened in a 1982 case against the Klan and other white supremacist groups terrorizing Vietnamese fishermen with a view to eliminate or reduce competition for white Americans.)

Furthermore, it’s a replicable victory: All 50 states have constitutional or statutory provisions that apply to the form of increasingly common militia activity that has stoked deadly violence across the country and fueled a persistent democratic crisis, in accordance with research by ICAP.

In Virginia, for instance, the Lawyers’ Committee for Civil Rights sued white nationalist group Patriot Front on Oct. 18 alleging it engaged in race-based intimidation and a conspiracy to violate civil rights under the Ku Klux Klan Act of 1871 – a different litigation strategy aimed toward the identical harms.

Members of that group “looked like a little bit army” shortly before they were arrested and charged with planning to riot near an LGBTQ pride event in Coeur d’Alene, Idaho, in June, in accordance with a resident who called police.

On Monday, Pennsylvania State University canceled an event that might have been co-hosted by the founding father of the Proud Boys, the Recent York Times reported. Members of that white supremacist far-right group recently pleaded guilty to sedition in relation to the Jan. 6 coup attempt and have been designated as international terrorists by Recent Zealand and Canada. Penn State officials said they feared more violence after a peaceful protest against the event turned confrontational, adding that a right-wing co-host had apparently raised tensions in the gang.

And, last Thursday, officials in Arizona asked federal prosecutors to research a case of possible voter intimidation. It was not reported that guns were involved in that incident, but Reuters has documented a nationwide campaign of scare tactics against Democrats and election officials by unarmed, so-called election observers, many recruited by distinguished Republicans and “stop-the-steal” activists.

The strategy Torrez used can potentially expose the criminality of comparable groups before they attain the air of legitimacy that results in campus speaking invitations.

The lawsuit “creates a transparent blueprint for other prosecutors within the country who’re eager about putting a stop to organized militia extremists before they grow into more dangerous political” entities, Torrez told me.

“What I intended to point out is that we’ve got actual legal remedies,” Torrez said. The order applies to the Recent Mexico Civil Guard, but “it must be a transparent warning to any others groups, especially on this state, that engage in the identical form of behavior.”

Mary McCord, executive director of ICAP, told me the ruling is “really significant” since it establishes that other district attorneys and attorneys general can sue under their state’s constitutional provisions, which eliminates a standing hurdle ICAP needed to take care of within the Charlottesville case (Standing concerns whether a selected party has a right to sue one other.)

The entities which have worked with ICAP have also proceeded under theories of public nuisance and laws prohibiting residents from essentially impersonating regulated military units and peace officers.

I’ve written at length in past columns about U.S. law enforcement’s historic reluctance to arrest and prosecute white supremacist criminals – partly due to their very own affinity for similar ideologies.

Indeed, the revival of militia groups through the mid-Nineties saw officials “gingerly assessing how aggressively they’ll implement existing laws” in 41 states that already barred or regulated armed paramilitary groups at the moment — the exact same laws ICAP again dusted off for officials across the country in 2017 — in accordance with a May 1995 Recent York Times report

Enforcement for the reason that mind-Eighties was rare, the Recent York Times wrote then. And it’s been rare since.

The lawsuit in Recent Mexico, though, demonstrates that there’s a technique to protect the peaceful protesters and the general public from these menacing groups — if there’s a will.

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