One of the objectives of government is to hold a monopoly on the violence within its jurisdiction, to protect its citizens and sovereign boundaries.
When overwhelmed by a wave of unsanctioned violence, whether brief or prolonged, a government may temporarily lose its legitimacy and ability to impose order within its own borders.
The latest example of such an occurrence was the violence in Charlottesville, Virginia surrounding the removal of a statue of Confederate General Robert E. Lee.
Last Saturday, Charlottesville was engulfed by a bloody clash between white nationalists and counter-protesters over the fate of the Lee statue, and several other Confederate monuments across the South.
Originally planned as a city-sanctioned protest against removal of the statues, the rally quickly escalated from taunting to brawling, leaving one woman dead, dozens injured, and a state of emergency declared by the governor.
Perhaps even more disconcerting was how easily the white nationalists, many armed and wearing body armor, were able to descend upon the college town and turn it into a battleground.
With emboldened white nationalist, neo-Nazi and KKK members forcing their way into our political discourse, and physically overwhelming local municipalities, the federal government must find a way to combat their violent conduct, and preserve order, before it reaches towns like Charlottesville.
One course of action would be to develop a federal gang injunction program that targets these groups before they threaten the sovereignty and people of American cities.
A gang injunction is a restraining order against a group. To obtain an injunction, a local prosecutor files a civil suit against members of the gang, alleging that their conduct constitutes a ‘public nuisance’ under state law.
If a judge rules in favor of the prosecution, a restraining order is issued by the court, which enjoins members from engaging in gang-related behavior, such as robberies, drug dealing and property crimes, that constitute a public nuisance.
To enforce the order, the court may prohibit members from associating with each other, require them to stay away from specified areas, abstain from criminal activity or suffer arrest and prosecution.
While state and local level gang injunctions have been controversial, the California Supreme Court held them to be constitutional, and they have been effective for preventing gang-related crime before it occurs.
But applying a state-law based gang injunction model to federal level enforcement presents an issue. Under the state and local programs, prosecutors file for an injunction based on public nuisance- a state-law cause of action not found within federal law.
For that reason, federal prosecutors would need to find a violation, specific to federal law, that may form the basis for injunctions against white nationalist groups.
One such statute is the federal Hate Crimes Prevention Act. Passed by Congress in 2009, the law removed jurisdictional obstacles to prosecutions of certain race- and religion-motivated violence- and added new federal protections against crimes based on gender, disability, gender identity, or sexual orientation.
Specifically, the statute makes it unlawful for two or more persons to conspire to injure, threaten, or intimidate a person in any state in the free exercise of any right or privilege guaranteed by the Constitution.
Under this provision, federal prosecutors could file for injunctions against white nationalist groups based on their intent to threaten the rights of citizens, such as freedom of expression and worship, of the towns they march on to spread their message.
The incident in Charlottesville is a good example of how using injunctions under federal law may have prevented the violent clashes that occurred there last week.
Before the protests began, federal law enforcement could have identified and cataloged members of the white nationalist groups, primarily through researching member identities, conducting personal interviews, and monitoring websites that serve as meeting points for the groups.
With the information collected by law enforcement, the white nationalist groups could be designated as ‘criminal street gangs’ under federal law, thus exposing them to civil gang injunctions and enhanced criminal penalties.
More importantly, an injunction would allow federal authorities to prevent white nationalists from marching on, and reigning violence upon, towns like Charlottesville by enforcing the court orders and arresting members before they act.
To be clear, gang injunctions have been met with opposition at the state and local level. Legal challenges to the injunctions are mostly constitutional, alleging that the program violates gang members’ right to assemble and associate with each other.
Civil gang injunctions, however, can be an effective tool in combating a re-emerging type of criminal enterprise- white nationalists. It is clear that the conduct of these groups violates federal hate crime statutes, making their actions inherently criminal. Also, the public at-large is better served if law enforcement stops the group’s violent behavior before it terrorizes American cities.
That said, the Justice Department should consider gang injunctions against white nationalist groups, based on federal hate crime law, that prevents national tragedies like Charlottesville before they occur.