Hate speech cases are hard to win. So police, prosecutors use workarounds to jail white extremists
Douglas Story’s white supremacist street cred was easy to find. He had a white pride tattoo and a neo-Nazi license plate. In extremist online forums he made ominous, N-word-filled posts about President Barack Obama, implying that the president should be shot. The Aryan Nations even booted Story from its website when he sought help for converting his AK-47 rifle into a fully automatic machine gun – a federal crime.
But none of that factored into his 2012 sentencing after the FBI arrested him in Virginia for possession of that modified gun. A federal judge blocked prosecutors from discussing Story’s white supremacist views, because the First Amendment protects speech, no matter how offensive. Prosecutors could only focus on Story’s illegal weapon.
Story’s path to a prison cell reveals a common workaround that police and prosecutors use when investigating those who spew white supremacy, far-right or violent anti-government rhetoric. It’s easier to send someone to prison for traditional crimes, often involving guns or drugs, than to convince a judge that repulsive hate speech breaks the law.
In the wake of the Jan. 6 attack on the Capitol, federal law enforcement is fending off complaints that it goes easy on white supremacists while monitoring Black and Muslim activists. These frustrations escalated after last month’s mass shooting in Atlanta that killed six Asian women. Many Democrats, advocates and even some within the ranks of law enforcement have long criticized the FBI and federal prosecutors for not doing more to crack down on white extremists. Some are now pushing again for a law that labels such crimes as domestic terrorism, but civil rights proponents worry that would also increase policing of communities of color.
On Tuesday, Attorney General Merrick Garland acknowledged the increasing problem with hate crimes and ordered a 30-day review of how the Justice Department combats it.
To understand how white supremacists are policed and punished, The Marshall Project analyzed nearly 700 federal prosecutions from 2012 to 2020 that involved what the FBI calls “racially and ethnically motivated violent extremism” and hate crimes. Academics at the University of North Carolina mined Justice Department news releases for cases involving extremism. Almost all the cases involved white men.
The research did not include Black extremist groups because few exist, said Ashley Mattheis, a communications expert at the University of North Carolina who studies violent extremism and propaganda. “It’s an incredibly small percentage,” she said.
Two-thirds of the 671 cases The Marshall Project analyzed involved gun and drug charges against white supremacist gangs that formed in prison and spread to the outside world. Convictions and lengthy prison sentences were common.
But when we dug into the remaining 194 cases, we found that:
• A third of the non-prison gang cases involved guns, silencers and bombs. Given the First Amendment complications, prosecutors say they prefer to bring these easier-to-win criminal charges as a workaround. Often these investigations featured lone wolves flagged for advocating ethnic hatred. If they had a criminal past, federal prosecutors slapped them with charges such as a felon in possession of a firearm. "Federal firearm laws are the Achilles heel of white supremacists," said Tom Brandon, recently retired acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
• A quarter of the cases involved threats made online, in person or on the phone – but not carried out. The victims were diverse: Tulsa’s district attorney and his daughter, who are white, received death threats; a Black city council candidate in Charlottesville, Virginia, was pressured to quit the race after a torrent of racist vitriol; a pair of halal grocers in Florida complained that law enforcement ignored threats to blow up their stores.
• In a handful of threat cases, prosecutors resorted to other workarounds, such as accusing people of lying on federal job applications or failing to disclose mental health histories to the military.
Our analysis reflects only a portion of the FBI’s work: investigations that ended with charges filed. It doesn’t include the untold hours agents spend watching people they think could end up breaking the law.
FBI guidelines prohibit launching any investigative activity solely on the basis of someone's race, religion or identity. The guidelines allow agents to explore publicly available information such as social media posts and to do “knock and talks” – unannounced visits where agents ask people to talk voluntarily.
The FBI doesn’t release data on “knock and talks” and other surveillance activity. Nor does the agency share information about its investigations unless charges are filed in court.
“We are not seeing that full picture,” said Hugh Handeyside, an attorney for the American Civil Liberties Union, which is suing the FBI for surveillance files on Black demonstrators.
Activists in the Muslim community and the Black Lives Matter movement say these “knock and talks” are terrifying and all too common. The Council on American Islamic Relations said the FBI visited more than 100 Pakistani families across the country in 2016 on the grounds agents were “investigating threats to the election,” said Zahra Billoo, who heads the organization’s office in the San Francisco Bay Area.
The bar for prosecutions is much higher. While Black Lives Matter activists and Muslim communities have sued the government over what they say is unfair surveillance, we found that criminal charges for racially motivated extremism – which require probable cause, a much higher standard of proof – involved almost exclusively white men.
The Justice Department shared an annual tally of people charged with either a federal hate crime or with threatening someone over state lines – whether in person, online or by phone. But that tally also includes incidents that don’t involve political or racist motives. A spokesperson said the agency didn’t have a nationwide breakdown detailing whether a suspect had ties to any racist extremists or anti-government groups.
More: Rep. Pressley says hiding from 'white supremacist mob' on Jan. 6 was familiar in 'ancestral way'
In a recent letter to Congress, the FBI said half of its 120 domestic terrorism arrests for the year ending Sept. 30 were linked to racism, with a vast majority involving people who “advocate for the superiority of the white race.” And 45% were listed as anti-government or anti-authority.
A hate speech dilemma
Tom O’Connor, a retired FBI agent who specialized in domestic terrorism for 23 years, said the 2012 case he led against Douglas Story in Virginia was a textbook example of the challenges of investigating white supremacists.
Story’s vanity license plate, 14CV88, alluded to a white supremacist slogan and a Hitler salute. He hung out on white extremism forums where he vowed to kill police if martial law was ever declared or if a neo-Nazi race war erupted. Story posted that a 30.06 rifle bullet was his preferred way to remove then-Attorney General Eric Holder, the first Black person to hold the office.
Citing such language, the FBI opened a preliminary investigation, but the threats against Obama and Holder were not specific enough to file criminal charges.
“He’s not saying he’s going to do something, he’s not telling someone else to do something,” said O’Connor. “He’s saying that if someone is shot in the head they’re going to die.”
The FBI managed to work around the free speech obstacles after Story posted a message on a neo-Nazi website, wanting to convert his AK-47 to a fully automatic machine gun, a felony that could bring up to 10 years in prison.
An FBI agent posing as an underground gunsmith got the job done, leading to Story’s arrest.
But when prosecutors detailed Story’s hate speech in court documents, his defense lawyer acknowledged it was inflammatory language, but said it had nothing to do with his client owning a machine gun.
The judge ordered prosecutors not to talk about Story’s white supremacist posts or his vitriol toward Obama at sentencing. The judge gave him one year in prison, a sentence O’Connor described as “a heartbeat.”
Story did not respond to requests for an interview, but in an email denied being an extremist. “I wasn't some wild-eyed white supremacist,” he wrote. “My arrest, in my head, anyway, I consider a combination of FBI entrapment plus stupidity and naivete on my part.”
Former federal officials say workarounds are inevitable because threat cases are hard to win. “They are certainly more legally complicated than a gun case or a drugs case,” said David J. Freed, the former U.S. Attorney in central Pennsylvania who left the post in January.
His office generally chose to forgo threat charges if there were more typical crimes involving violence or vandalism, Freed said. Prosecutors want to avoid courtroom debates over whether threats were a crime or protected speech. “Any responsible prosecutor will know, you are buying yourself a fight,” he said.
A gamble gone wrong
The Marshall Project’s analysis showed that prosecutors generally pursued the most severe winnable charge, usually those involving guns and drugs. At least in one case, however, the opposite happened.
In 2016, Omar Rabbo, a halal grocer in Fort Myers, Florida, was angry that local police wouldn’t arrest James Benjamin Jones, a 35-year-old White man who threatened to blow up Rabbo’s store, according to court records.
Frustrated, the Palestinian immigrant called the FBI; an agent was at his shop within an hour.
When the FBI went to Jones’ home, a psychedelic mushroom farm and illegal moonshine distillery were in plain sight. State prosecutors slapped Jones with felony drug and alcohol manufacturing charges. He faced up to 20 years in a Florida prison.
Prosecutors had a sure win with the drug and alcohol charges, according to Jones’ defense attorney, Christopher H. Brown, who described what happened next as “the strangest swaps in history.” Instead of pursuing the state felonies, the U.S. attorney’s office told county prosecutors to drop the case, as part of a deal that let Jones plead guilty to two federal hate crimes instead – which Brown saw as a way for the feds to win a hate crime prosecution.
“In my personal opinion, the U.S. attorney saw it as a statistical thing, to say in this district ‘we have a threat conviction involving Muslims,’” Brown said. “I did the best interest for my client.”
A spokesman for the U.S. Attorney’s Office in the Middle District of Florida said the Justice Department “is still reviewing facts of the case.” The crimes Jones admitted to carried a maximum of 10 years in prison for someone with a long criminal history. But Jones got probation in the deal.
The plea agreement didn’t bother Rabbo, the store owner, who believes Jones was mentally ill and brainwashed by people on the internet. “I asked the judge for mercy,” he told The Marshall Project.
That was an unusual sentence. Out of the nearly three dozen suspects convicted of federal threat crimes in the eight-year period analyzed, only five were placed on probation. The average prison sentence was 2.5 years, the longest being 10 years.
Will a domestic terrorism law help?
The Jan. 6 attack on the U.S. Capitol reignited a debate over how the country should handle domestic terrorism. There is no official tally of domestic terrorism crimes because there is no law that expressly bans Americans from using or threatening violence for political motives.
After the Charlottesville “Unite the Right” rally in 2017, Mary McCord, a Georgetown law professor and former federal prosecutor, began urging Congress to create a new criminal charge without increasing police powers. The new law would plainly label racist or extremist plots and attacks as terrorism, which could help thwart future violence, she argued.
McCord pointed to The Base, a violent neo-Nazi group that was building machine guns to trigger a civil war to create a white ethno-state. Prosecutors charged them with firearm violations and harboring an undocumented resident.
"Having crimes that fit the threat you are trying to thwart drives more resources and provides a more appropriate match between the resources and the crime," McCord said. "A statute would say this is a priority."
Proponents also argue a new law would address the lack of consistent punishment when a white extremist threatens to harm someone – even high-profile politicians. In recent years a New York man was sentenced to 46 months for threatening to kill Obama and U.S. Rep. Maxine Waters. Yet another New York man got a year in prison for threatening to kill U.S. Rep. Ilhan Omar, who requested mercy in the case.
More: Domestic extremism has become 'mainstream,' could threaten American life for 20 years
Civil rights advocates who oppose a new domestic terrorism law argue that it would only increase police surveillance in communities of color.
"The real solution here is certainly not to expand their budgets or their legal authorities,” said Ramzi Kassem, a law professor at the City University of New York, referring to law enforcement. Kassem directs the CLEAR project, which provides legal counseling to people targeted by national security investigations.
When asked why she requested mercy for the man who threatened her, Omar said white nationalism poses a serious criminal threat. “But we must also understand that no matter how odious these acts are, taking a punitive approach will not rehabilitate white supremacists,” she wrote in a statement. “Instead of treating this as a purely criminal matter, we must stay rooted in respect for justice and of human rights and of civil liberties as we respond.”
Steve Kunzweiler, the district attorney in Tulsa whose family received threats, still feels cheated. As his office prepared to charge a Tulsa police officer who fatally shot an unarmed Black man, a Connecticut resident began to post the online threats. The poster vowed to kill the families of Kunzweiler, the police chief and other investigators.
Kunzweiler hoped that the judge would rule in favor of “iron bar therapy,” referring to a lengthy prison sentence. Instead, the suspect received probation for using the internet to send threats across state lines.
“We are in this world of criminal justice reform, and I guess courts can look at that and say ‘well, it was just words,’” Kunzweiler said. “Yes, it was just words, but those words were directed at me and directed at my daughter.
Contributing: Beth Schwartzapfel, The Marshall Project
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for The Marshall Project’s newsletter, or follow them on Facebook or Twitter.
Correction: An earlier version of this story incorrectly reported the academic specialty of Ashley Mattheis. She has a doctorate in communications.
This article originally appeared on USA TODAY: Police work around hate crime laws to send white extremists to prison
