In a 10-page order, Story disagreed and said it is not the role of a judge to overrule federal law.
“Congress had ample opportunity to amend the statute to make its definition of ‘select agent’ comport to the Government’s interpretation. It has been 14 years, and Congress has yet to do so. And there are plausible explanations why,” the judge wrote. “For instance, Congress may have decided that the unregistered possession of ricin, alone, is not conduct sufficiently culpable to justify the commission of a federal crime.”
Prosecutors in the office of U.S. Attorney BJay Pak did not respond to a list of written questions about the case Tuesday. The federal public defender’s office, which represents Gibbs, had no comment.
Gibbs was arrested Feb. 2, 2017, when he showed up in a Fannin County emergency room fearful he had been exposed to ricin. Authorities cordoned off his car and a hazardous materials team was called in to retrieve a bottle that tested positive for the poison.
Ricin has long been favored by domestic terrorists, especially those with white supremacist ties, in part because it is inexpensive and relatively easy to make. In Washington, the Pentagon was on alert Tuesday after news broke that two pieces of mail delivered to an off-site mail sorting facility tested positive for ricin.
In 2014, a jury convicted two north Georgia men of plotting to use ricin to kill federal agents and judges in Atlanta.
Those men were sentenced to 10 years in prison, but they faced charges different than those leveled against Gibbs, in part because of the conspiracy into which the men had entered. Gibbs allegedly worked alone and prosecutors have never said what they believed he planned to do with the ricin.
Prior to his arrest, Gibbs associated himself online with a white supremacist "religion" known as the Church of Creativity, which preaches racial warfare and holds violent racist and anti-Semitic beliefs. Heidi Beirich, director of the Southern Poverty Law Center's Intelligence Project, found the dismissal of the ricin charge against Gibbs hard to believe.
“So we’ve got a serious white supremacist with a deadly toxin who is going to get away with it?” she said. “Because ricin is so easy to produce and so deadly, you’d like to make sure that feds were on top of that.”
Beirich described the Creativity Movement as “one of the weirder parts of the white supremacy movement” because of its pseudo-religious elements.
“They worship their own race,” she said. “They literally believe that non-whites are subhuman.”
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She said Creativity is a diffuse group with little central organization, but it's got a relatively strong presence on the internet for its size. That allows isolated people, like Gibbs, to find it and latch on to its violent ideology. Beirich said something similar happened with Dylann Roof, the white supremacist who gunned down nine people in a black church in Charleston in 2015.
Although he no longer faces federal charges, Gibbs isn’t free. As of Tuesday he was in the Fannin County jail on a misdemeanor reckless conduct charge stemming to his 2017 arrest and a probation violation relating to a 2010 burglary conviction.
“It sounds like on the state and federal side we have some legislative work to do,” Fannin County Sheriff Dane Kirby said.
The Georgia Legislature added ricin to a list of prohibited toxins a few months after Gibbs’ arrest, but he cannot be charged under that new law.