Lawyer and activist Shanta Driver (far left) argued unsuccessfully Friday that a felony charge against Berkeley teacher Yvette Felarca (right, in purple) should be dropped. Photo: Natalie Orenstein

A felony case against a Berkeley middle school teacher will move forward after a Sacramento County judge last week declined to drop the charges against her and two other activists.

Yvette Felarca was charged with assault by means of force likely to produce great bodily injury, a felony, and inciting a riot, a misdemeanor, after a violent neo-Nazi rally and counter-protest in 2016. Members of the Traditionalist Workers Party and Golden State Skinheads, both white supremacist groups, held the permitted event at the State Capitol in June of that year and were met with anti-fascist counter-protesters. Many people were assaulted, stabbed and sent to the hospital.

The Sacramento County District Attorney’s office has charged four people in connection with the bloody rally, including the King Middle School teacher and her anti-fascist co-defendants Michael Williams and Porfirio Paz, who were charged with felony assault with a deadly weapon. William Planer, a suspected neo-Nazi, is also facing a felony assault charge.

Felarca is shown in a video repeatedly punching a man at the Sacramento rally and yelling at him to “get the fuck off our streets.” The man was holding a Neo-nazi flag and had called out for “antifa” to come over to him.

In a 33-page motion and at a hearing Friday, lawyers for the activists asked Judge Michael Savage to dismiss the case against them. They said the District Attorney and the California Highway Patrol, which oversaw the year-long investigation into the protest violence, have colluded in a politically-motivated “witch hunt” against Felarca and other anti-fascists.

Felarca is an active member of the radical group By Any Means Necessary. Some BAMN members, including high school students, were among the 40 or so supporters who picketed in front of the Sacramento County jailhouse before the hearing and crowded into the courtroom and hallway outside.

Savage did not accept the defense’s argument that the charges were discriminatory.

“Simply nothing in these exhibits supports the defendants’ claims…that they were unjustly or unfairly culled out,” he said in court.

Lawyers for the defendants have pointed out that the majority of the charges brought after the Sacramento rally were against anti-fascists, while photographs from that day show neo-Nazi demonstrators holding knives. The attorneys also questioned why much of the investigation took place long after the rally, and why there were no police reports from the June 2016 event.

Their court documents include transcripts of law enforcement interviewing people who were at the rally in hopes of identifying anti-fascists who were there. In one, an officer tells a Traditionalist Workers Party member, “We’re pretty much going after them.” In another, an officer asks a man described as a journalist who was stabbed, “What’s your impression of, uh, Yvette Felarca?” and reportedly asks about her political organizing.

YouTube video

The CHP narrative statement on Felarca also goes into her history of radical organizing.

“It is irrefutable that the government’s agents spent a disproportionate amount of time talking about the political views of these people,” said Williams’s attorney Linda Parisi, in court. The lawyers also alleged racial discrimination, as none of the anti-fascists charged after the white supremacist rally was white.

“I started doing criminal defense in 1991,” said Mark Reichel, representing Paz. “I never saw a report of a rape, robbery or stick-up where the officer said, ‘What did he look like? What’s his political background?’…It’s a clear case of biased investigation.”

The prosecution begged to differ.

“No one from my office really cares” about the defendants’ racial or political identities, said Paris Coleman, Sacramento County deputy district attorney. “That’s not why they were charged. They are captured on video committing crimes, unfortunately for them.”

After its lengthy investigation, the CHP submitted more than 100 arrest warrants from the rally, but the DA determined that most did not meet the office’s standards for filing charges, or were not backed by enough evidence, according to a statement by the DA. Coleman said the DA had the ethical obligation to go after the cases that could be proven, and nothing else.

Parisi offered her interpretation about why the politics and intentions of those charged are in fact relevant, morally and legally.

“The Nazis came with an agenda,” she said. “The First Amendment has limitations on hate speech. Their stated purposes were unlawful. They came with a hate-filled agenda with the idea of escalating it into violence. How do we know? They came with knives and with sticks fashioned as bayonets.”

As for the counter-demonstrators, “They did not come armed, did not come filled with hate,” Parisi said. “They came with what we as a country revere — to stand up for their constitutional rights.”

About 40 supporters, including Richmond teacher Bob Mandel (pictured), Oakland longshore union members, and members of a San Jose high school chapter of By Any Means Necessary, picketed before the court hearing and waited in the courtroom and outside in the hallway to hear the results. Photo: Natalie Orenstein

The defense attorney criticized the prosecution for writing, in its opposition brief, that there were “bad actors on all sides of the conflict.” That line was reminiscent, Parisi said, of a controversial comment made by President Donald Trump in the aftermath of the Charlottesville, Virginia white supremacist march, where a man rammed his car into counter-protesters, killing one.

The defense team has described this case as one of national significance, and one that could set a precedent for how political violence that has erupted after the Sacramento event in many cities, including Berkeley, will be treated in court.

A short while after Felarca was seen on video punching someone in Sacramento, the concept of “punching Nazis” became a meme online, particularly after Richard Spencer, a white supremacist who popularized the term “alt-right,” was punched during a filmed interview in January 2017.

Felarca’s attorneys have argued that the video showing her assault is inadmissible as evidence because it is “unauthenticated.”

Driver said her petite client is incapable of even causing “great bodily injury.”

“To be blunt, judge, she would have had to be shot out of a cannon with a helmet on at another human being” to cause serious harm, the lawyer said.

Michael Williams and Yvette Felarca, co-defendants in a Sacramento County felony case, demonstrate outside the courthouse at a rally early in 2018. Photo: Frances Dinkelspiel

The defense argued that, not only did police target anti-fascists in the investigation but that officers also stood back and failed to protect protesters at the Capitol. Both sides have criticized the police’s behavior that day.

“If anyone is guilty of inciting a riot that day, it is the police themselves,” Driver said.

The judge said the claims about law enforcement were not arguments against taking the case to trial, where they could be examined.

“The overwhelming thing I’m hearing is the investigation of this case — their conduct during and after the event — has been shoddy and unprofessional. I understand that. There may be some disagreement,” Savage said.

However, he said, “The issue in this hearing is whether the DA has unfairly selected one side versus another. It’s not my role to evaluate whether or not the police did their job.”

Ultimately, the fact that three anti-fascists were charged compared to only one white supremacist was hardly enough to show that one side was “singled out,” Savage said.

The judge said he would “take Mr. Coleman at his word” that the DA is charging every crime the office is aware of and believes it can prove.

After the hearing, an angry Driver told supporters gathered outside the courthouse that “the judge came in with his mind made up.”

“In a court of law you’re supposed to present evidence, that’s what the decision is supposed to be based on, not just the assertion of a prosecutor of his good intentions,” she said.

The preliminary hearing is set for July 20.

Natalie Orenstein reports on housing and homelessness for The Oaklandside. Natalie was a Berkeleyside staff reporter from early 2017 to May 2020. She had previously contributed to the site since 2012,...