Sam Levin, Guardian, January 25, 2019
The testimony of a California police officer leading the inquiry into a series of stabbings at a neo-Nazi rally indicated that he targeted leftwing activists and victims rather than focusing his investigation on armed white supremacists.
The officer, Donovan Ayres, a 12-year-veteran of the California highway patrol, admitted he pursued information on the political affiliations and online activity of leftwing activists and victims. He testified Tuesday as a key witness in the state’s ongoing case against three anti-fascist activists charged with assault and “rioting” during a brawl between neo-Nazis and counter-protesters at the state capitol in June 2016.
Ayres was tasked with investigating the violence that erupted at the event, including the stabbing and beating of at least eight anti-fascist protesters. But his testimony in a packed courtroom earlier this week, along with hundreds of pages of reports he wrote, have revealed the officer’s acquiescence to the neo-Nazis and the way he repeatedly advocated they not face any criminal consequences.
Ayres told the court that he filed a search warrant to access the Facebook accounts of the leftist protesters and anti-fascists, but chose not to seek equivalent information about neo-Nazi suspects – an extraordinary move for a law enforcement leader investigating far-right violence. He also resisted describing the political affiliations of individual men on the neo-Nazi side.
“It’s extremely troubling that a police officer wouldn’t [seek] to get all the information available about all the actors involved in the violent episode,” said Mike German, a former FBI agent and expert on the far right who reviewed some of Ayres’ documents for the Guardian. “Law enforcement should always look at who has a history of violence … The victims of the most egregious violence were counter-protesters.”
The CHP and the prosecutors declined the Guardian’s request for a comment. Officer Ayres did not respond to multiple inquiries.
The 26 June 2016 rally in Sacramento was organized by two white supremacist groups: the Traditionalist Worker party (TWP) and an affiliated California entity, the Golden State Skinheads. The event attracted a mass of leftwing counter-protesters from around northern California.
Ayres was assigned to a “tactical team” positioned on the roof of the Capitol. From there, he witnessed the chaotic melee between the protesters and counter-protesters below, which resulted in at least eight stabbings and dozens of other injuries.
After the event, Ayres and other CHP officers began interviewing anti-fascists who were stabbed, meeting some of them at the hospital. Ayres also began his inquiry into their political backgrounds.
Three months after the stabbings, the CHP wrote search warrants for the Facebook accounts of anti-fascists. The agency was seeking information on “several hundred protestors” who “illegally assembled … with the stated messages to prevent Traditionalist Worker’s Party from exercising their rights to assemble and speak their message”, it said.
The protest groups include “AntiFa” and “Black Lives Matter”, CHP wrote in the warrant, adding that it was seeking “private messages”, “metadata”, “friend” lists, information about past and future events and other material about people linked to antifa and protest pages.
Ayres also conducted extensive surveillance of the political activities of the anti-fascists, digging up some protesters’ ties to Native American and Chicano groups.
Ayres wrote up more than 120 individual reports on everyone present at the capitol on 26 June. For anti-fascists and counter-protesters, the language was generally the same: the activists were “rioting” and threatening the free-speech rights of the TWP. “The message to commit violence against the ‘Nazis’ was clear,” he wrote in the reports, recommending they all be prosecuted.
Ayres, however, concluded he could not determine if the white supremacist men he identified were “solely responsible for any specific injuries”. That includes men who he determined, based on video evidence, were holding knives. For more than a dozen of them, there was not enough evidence of any crimes, he wrote.
Sean Wurzburg, a TWP affiliate, Ayres wrote, was “observed holding what appears to be a folding blade knife in his right hand when he initially engaged with” a counter-protester. He continued:
Moments later they are observed rolling in the bushes … and Wurzburg was seen making some downward thrusting motions. [The protester] sustained a stab wound to the … abdomen. There is insufficient evidence to determine if Wurzburg is solely responsible for the wound that [the protester] sustained. What is known, is that Wurzburg and [the protester] were in physical confrontation, Wurzburg had what appeared to be a folding knife in his hand [and] during the fight Wurzburg is seen making downward thrusting motions before they separate.
“I was unable to specifically place Wurzburg as solely responsible for any specific injuries on those protestors who were known to be injured,” Ayres concluded, saying it was “unknown if Wurzburg committed any crimes”.
Ayres’ separate report on this stabbing victim said the victim “aggressively tackled Wurzburg, taking an advantageous top position after taking Wurzburg to the ground near the bushes”, and that after the confrontation, the victim “collapsed due to a stab wound”.
Ayres recommended the victim be charged with 13 separate criminal offenses, including “assault with a deadly weapon (flag pole) and battery on Sean Wurzburg”; conspiracy; false imprisonment; brandishing a weapon; participating in a riot; inciting a riot; participating in an unlawful assembly; possessing a prohibited weapon; disturbing the peace; wearing a mask or disguise to evade police, unlawfully carrying a banner “exceeding thirty inches”; carrying a flag pole handle that was “greater than one-fourth inch in thickness”; and carrying “prohibited signs”.
Wurzburg declined to comment when reached by phone.
Similarly, Ayres wrote that the TWP affiliate Derik Punneo “possessed a lawful knife, came under attack from the protestors and defended himself from the attacks”. Ayres summarized:
Punneo had a knife in his right hand at some point during Event … [and] was in the immediate area of [a counter protester, who] did suffer from numerous stab wounds; Punneo was in the immediate area of [Yvette] Felarca and Felarca suffered cuts to one arm; Punneo had close physical interaction with [another counter protester] on two separate occasions (within a moment of each other) and [this counter protester] did suffer a large gash across his left upper chest; a knife, similar to the one Punneo was holding … was located in the bushes.
Ayres concluded: “I was unable to specifically place Punneo as solely responsible for any specific injuries on those protestors.”
Ayres recommended no charges for Punneo but did urge a litany of felony charges against the three stabbing victims. The CHP later interviewed Punneo in jail after his arrest for an unrelated allegation of domestic violence. One man on the white supremacist side is now facing charges, but not for the stabbings.
Punneo could not be reached for comment.
German, the former FBI agent and a Brennan Center fellow, said Ayres’ language was alarming: “That word ‘solely’ is carrying a lot of water to try to protect these people from responsibility.”
Ultimately, Ayres did not recommend charges for any of the far-right men for the stabbings. Ayres did recommend criminal charges against all 100 counter-protesters he identified, including eight stabbing and beating victims and those not accused of any violence.
Prosecutors ultimately chose to charge three anti-fascists: Yvette Felarca, a 48-year-old Berkeley teacher and well-known leftwing organizer, and two indigenous activists, Michael Williams, 58, and Porfirio Paz, 21.
Paz and Williams stand accused of committing assaults with “sticks”. Felarca is facing a charge of felony assault “by means of force likely to produce great bodily injury” for an encounter with Nigel Walker, a demonstrator who showed up at the rally carrying a flag with what Ayres described as a “white power, white nationalist type symbol”. Walker taunted and provoked anti-fascist activists, Ayres recalled, waving the flag and shouting, “Antifa, here I am!”
Shaky footage presented by prosecutors shows the five-foot-tall Felarca bumping into Walker, briefly shoving and prodding him, and grabbing his backpack as a crowd surrounded them. Other protesters begin confronting Walker, and a police officer threw Felarca to the ground.
Paris Coleman, the prosecutor on the case, argued the felony wasn’t about the “actual pulling” of the backpack, but the fact that Felarca knowingly “dragged” Walker to harm’s way: “She knew what was going to happen,” Coleman said.
Paz, Williams and Felarca were engaged in a free speech protest, their lawyers have said, and maintain that the neo-Nazis attacked them.
A judge ruled Friday that the cases against the three anti-fascists could move forward, but agreed to downgrade Paz’s assault charges from a felony to a misdemeanor.
‘Thanks for protecting white supremacists’
Ayres’ hours-long testimony during the hearing this week provided new insight into the officer’s thinking, with remarks that at times sparked laughs and jeers from the crowd of anti-fascists supporting the protesters facing potential prison time.
On the stand, Ayres declined to refer to TWP organizers and supporters as Nazis, and judge Stacy Boulware Eurie noted he seemed to be showing “hesitation” with the characterization.
“That language wasn’t used in my assessment,” Ayres said.
Instead, he called them the “permitted party”, since TWP had obtained a permit to hold the event.
Ayres also resisted describing the political affiliations of individual men on the neo-Nazi side, even though he extensively documented their white supremacist paraphernalia and TWP ties in his reports. He said “unknown” and “I don’t recall” when asked about the beliefs of numerous men, including Jonathan Jordan, a man who, according to Ayres’ own report, attended with the TWP and did the “Hitler salute”.
Ayres also admitted in court that he utilized a wide range of sources for footage of the event during his investigation, including neo-Nazi and white supremacist websites. Defense lawyers criticized the questionable sourcing, and eventually, the judge said she, too, was “concerned about the authentication of the video” of Felarca and Walker.
Ayres also detailed his observations on the day of the rally. He explained that he had become worried about Walker.
“He was by himself, and this was a concern for me,” Ayres testified. “I tried to call out to him to tell him not to enter, that it wouldn’t be safe.”
Ayres described the anti-fascists’ flags as weapons – a “club/stick” with a flag “attached” to it – “emblematic of anarchist beliefs” and direct evidence of their violent criminal offenses. But when asked if he considered Walker’s flag attached to a long stick to be a weapon, Ayres said no.
The defense lawyers questioned whether the officer, from his vantage point on the roof, was able to observe key conflict moments involving the protesters facing prosecution.
“I could not see what was directly beneath me,” he said.
When questioned about the Facebook warrants, Ayres admitted he did not send similar search warrants for TWP Facebook accounts, but he did not elaborate on his reasoning.
“This officer had real trouble being neutral,” the defense attorney Linda Parisi told the court at the end of Tuesday’s four-hour hearing. “The people he is seeking to protect are people who engage in hate … white supremacists, white nationalists, Nazis.”
The Sacramento case follows controversies across the US in the last two years over the way law enforcement has dealt with violence between white supremacist and anti-fascist groups. Civil rights activists have accused law enforcement departments in Portland, Berkeley and Washington DC of aggressively investigating and prosecuting anti-fascists who oppose the growing far-right movement. Authorities have disproportionately targeted the left, critics say, even though white supremacists have perpetuated mass shootings and other deadly attacks .
Coleman, the prosecutor, argued it didn’t matter whether Ayres was “believable or disbelievable”, and that he called the officer to court for the purpose of authenticating a video.
As Coleman exited the hearing, an attendee had a message for him: “Thanks for protecting white supremacists.”