By Marco Soto
-Executive Summary-
The death of George Floyd at the hands of law enforcement triggered massive protests throughout the United States.[1] The death, which was perceived to be racially motivated by some civil rights activists such as the Black Lives Matter group, sparked a national focus on racial injustice.[2] Protests intended to highlight police reform typically start peacefully, yet they occasionally turn violent because of the involvement of such anarchists as Antifa.[3] Evidence supports the involvement of Antifa in the destruction caused by 2020’s protests.[4] The destruction caused nationally during these protests is estimated to total $1–$2 billion in insurance claims.[5]
The discussion among practitioners regarding Antifa revolves around the group’s make up—some argue Antifa is merely an ideology while others argue that Antifa is an organized and structured group, responsible for most of the destruction caused nationwide in 2020. Local and federal prosecution of Antifa groups has not deterred some of the group’s persistent criminal activities during protests. Based on the lack of criminal prosecutions of Antifa members, this thesis pursued a current legal mechanism that could be used against criminal factions within Antifa. One viable legal mechanism is the Racketeer Influenced and Corrupt Organizations (RICO) Act, which was created to combat organized crime. This thesis analyzed how the RICO statute has been applied to a variety of criminal enterprises and how might it be applied to prosecute Antifa.
The research conducted for this thesis about Antifa demonstrates how it has evolved from a punk-rock group opposing white supremacist groups at concerts to a structured enterprise with an ideology opposing far-right politics and social injustice. Some U.S.‑based Antifa groups have formed a national network named the Torch Network, which currently boasts 10 chapters. Some of the most prominent groups include Rose City Antifa based in Portland, Oregon, and Sacramento Antifa based in Sacramento, California. Research into Antifa reveals that some Antifa groups resemble organizations, dispelling claims that Antifa is merely an ideology. Some groups, for example, actively recruit members on their websites and ask for donations to support their local and national chapters.
Further, some Antifa members have committed criminal acts during protests in the name of anti-fascism. Despite the economic destruction caused nationally during the protests and Antifa’s continual involvement in criminal acts, not much has been done to hold the group accountable. As noted, local and federal prosecution has failed to deter the groups’ persistent criminal activities, leading some prominent politicians to label Antifa groups domestic terrorist organizations. Notably, however, there is no current process for designating a terrorist organization operating within the country as a domestic terrorist organization.[6] The potential violation of civil rights and liberties protected under the First Amendment prevents such a designation and explains why the federal government has not taken such a step.
The RICO Act offers one potential option to address Antifa, but doing so presents opportunities and challenges. The RICO Act was created to combat the Italian Mafia, considered a criminal organization, targeting both the leadership and members for crimes committed in furtherance of the organization.[7] Over the years, the act has been used for other forms of illegal enterprises. To violate the RICO Act, the prosecution must establish that a group of individuals who are part of an enterprise or association-in-fact enterprise has been involved in a pattern of racketeering, which involves committing two of 27 listed crimes within 10 years, and that the pattern of racketeering had an effect on interstate or foreign commerce.[8]
A review of the literature finds that opponents of the RICO Act consider it unconstitutional because prosecutions overstep the act’s intended use and interfere with state jurisdiction. Proponents of the RICO Act argue that its established framework has been instrumental in defeating organized crime. This same framework can be used to combat other criminal enterprises because its stricter penalties can also serve as a deterrent to associating with or contributing to the growth of an illegal enterprise. Opponents argue that the act should not be applied to groups who are not economically motivated. Although the act was challenged under that presumption, the First Circuit Court of Appeals in United States v. Nascimento ruled that an economic motive is not required and that there is no distinction in the RICO Act between economic and non-economic enterprises.[9] Another argument made by opponents is that the RICO Act may violate the First Amendment if applied to combat protest groups. The U.S. Supreme Court, though, has ruled that there is a distinction between First Amendment rights and criminal activity when advocating a group’s ideological beliefs.[10]
Through the years, the RICO Act has been used to address forms of illegal enterprises other than the Italian Mafia. The RICO Act carries strict penalties that have proven instrumental in combating many types of organized crime, including criminal street gangs, white supremacist groups, and other non-traditional groups—groups similar to criminal Antifa groups. While opponents contest the RICO Act’s validity, the U.S. Supreme Court has already determined its legality, reaffirming that the act is a viable option for combating a variety of criminal enterprises. The RICO Act is superior to pursuing local criminal prosecutions because it was created to target leadership and members for crimes committed in furtherance of an organization with the goal of dismantling illegal enterprises as opposed to merely punishing them.
In this context, this thesis concludes that the RICO Act can be applied to Antifa because its groups have existed for a prolonged period. Antifa has loosely affiliated groups that work together through chapters as part of a national network, and the groups persist after committing crimes during protests. All these factors contribute to Antifa’s being classified as an “enterprise association-in-fact,” one element that allows it to be prosecuted under the RICO statute. In addition, the pattern of crimes, arson, and murder, for example, committed by Antifa members comprises predicate acts under RICO akin to criminal activities committed by gangs and white supremacy groups. The combination of these factors, the de minimis effect on interstate commerce required, and no need to consider economic gains by the criminal enterprise support the validity of applying the RICO Act to Antifa groups.
[1] Elliot McLaughlin, “George Floyd’s Death Ignited a Racial Reckoning That Shows No Signs of Slowing Down,” CNN, August 9, 2020, https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html.
[2] “Rest in Power, Beautiful,” Black Lives Matter, accessed October 18, 2020, https://blacklivesmatter.com/rest-in-power-beautiful/.
[3] Neil MacFarquhar, “Many Claim Extremists Are Sparking Protest Violence. But Which Extremists?,” New York Times, June 22, 2020, https://www.nytimes.com/2020/05/31/us/george-floyd-protests-white-supremacists-antifa.html; Kyle Shideler, “The Real History of Antifa,” American Mind, June 3, 2020, https://americanmind.org/essays/the-real-history-of-antifa/. Antifa is the anti-fascist group that formed in the United States in the 1980s in opposition to neo-Nazi and white supremacist groups.
[4] Andy Ngo and Mia Cathell, “11 Arrested at Violent Antifa Protest outside Portland Ice Facility,” Post Millennial, September 21, 2020, https://thepostmillennial.com/11-arrested-at-violent-antifa-protest-outside-portland-ice-facility; Rachel Sandler, “Four Indicted for Allegedly Burning down Minneapolis Police Station during George Floyd Unrest,” Forbes, August 25, 2020, https://www.forbes.com/sites/rachelsandler/2020/08/25/four-indicted-for-allegedly-burning-down-minneapolis-police-station-during-george-floyd-unrest/; Hannah Allam and Jim Urquhart, “Antifa Activist Killed at ICE Jail Becomes Symbol for the Right and Left,” NPR, June 23, 2020, https://www.npr.org/2020/07/23/893533916/i-am-antifa-one-activist-s-violent-death-became-a-symbol-for-the-right-and-left.
[5] Jennifer A. Kingson, “Exclusive: $1 Billion-Plus Riot Damage Is Most Expensive in Insurance History,” Axios, September 16, 2020, https://www.axios.com/riots-cost-property-damage-276c9bcc-a455-4067-b06a-66f9db4cea9c.html.
[6] Francesca Laguardia, “Considering a Domestic Terrorism Statute and Its Alternatives,” Northwestern University Law Review 114, no. 4 (2020): 1061–99.
[7] Nathan Koppel, “They Call It RICO, and It Is Sweeping,” Wall Street Journal, January 20, 2011, https://www.wsj.com/articles/SB10001424052748704881304576094110829882704.
[8] Racketeer Influenced and Corrupt Organizations, 18 U.S.C. § 1961 (1970).
[9] United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007).
[10] United States v. Dickens, 695 F.2d 765 (3d Cir. 1982).
