RICHMOND, Va. (CN) – A Fourth Circuit panel seemed unlikely Thursday to overturn a ruling that found Charlottesville and Virginia State Police did not violate a counterprotester’s rights when they issued a stand-down order before violence erupted during the infamous “Unite the Right” rally that saw numerous injuries and one murder.
The incident began in August 2017 when a group of white supremacists gathered in Charlottesville to protest the removal of a Confederate monument in a local park.
While state and city police forces were there to keep the peace and had plans in place to support both protesters and counterprotesters in their expression of their First Amendment rights, they eventually ordered officers to stand down, which allowed the crowds to intermingle and led to injuries, including those allegedly suffered by Robert Turner.
Turner filed a federal complaint the next month against Charlottesville, its then-Police Chief Al Thomas Jr., and former State Police Superintendent Col. W. Steven Flaherty, claiming he was a counterprotester who was pepper-sprayed, doused with urine and beaten with canes during the deadly rally.
Alleging deliberate indifference and violation of his due-process rights, Turner says the stand-down order amounted to a “state-created danger” which allowed for the violence to unfold.
The case went before U.S. District Judge Norman K. Moon, who sided with police last May and granted them qualified immunity, a constitutional protection afforded to state actors which bars them from civil rights lawsuits except in cases of a gross violation.
But Dallas LePierre, an attorney with the Atlanta-based Nexus Derechos Humanos, argued on behalf of Turner before a Fourth Circuit panel Thursday and said the lower court failed to recognize the stand-down order as an action, and absent that action the violence that followed might not have occurred.
“[Police] did issue a stand-down order which interfered [with the event] and created more danger,” LePierre said. “The order to not act prevented protection. It is the element that increased danger.”
But U.S. Circuit Judge Julius Richardson, a recent Donald Trump appointee, expressed doubt over this position.
“Line officers operate due to the discretion or orders from supervisors,” he said. “If the line officer chose not to intervene that would not get you over the hump.”
U.S. Circuit Judge Pamela A. Harris, a Barack Obama appointee, also seemed perplexed by LePierre’s reasoning.
“How can a decision not to act count as an act?” she asked.
This issue of whether the stand-down was an action dominated the brief hearing.
The Ninth Circuit’s 2007 ruling in Johnson vs. City of Seattle involved a police stand-down order when a local Mardi Gras celebration began to get out of hand. Even in the face of an established security plan, city police issued a stand-down order when they realized their presence was leading to rocks and bottles being thrown at them. After the order was given, violence decreased.
U.S. Circuit Judge Henry Floyd, a George W. Bush appointee, pointed to the Johnson case as a strike against Turner’s argument. While Floyd noted the difference was the violence level dropped in Seattle while things got worse in Charlottesville, he stressed the precedent was the same. The judge suggested Charlottesville police could have been under the impression that their stand-down order would similarly reduce the chance of violence.
“They could have ordered the stand-down to avoid confrontation,” Floyd said.
But LePierre said the increase in violence was the crux of Johnson’s relevance: where the state-created danger decreased in the cited case, it increased in the case before the Fourth Circuit, which amounted to a violation of his client’s rights.
But the team of lawyers defending the police departments and city noted the end result of the Johnson case still freed the government from responsibility. While they pointed to the lower court’s qualified immunity decision and the same result in Johnson, they also countered LePierre’s action vs. inaction argument.
“All that’s been alleged is this stand-down order is a decision not to act,” said David P. Corrigan, an attorney with Harman, Claytor, Corrigan and Wellman, who represented former Police Chief Thomas. “It’s not an action.”
The Fourth Circuit panel did not indicate when it will issue a ruling in the case.
The violence at the 2017 Charlottesville rally culminated in the death of counterprotester Heather Heyer when a car plowed into the crowd. James Alex Fields Jr. was convicted of first-degree murder and faces life in prison.