CHARLOTESVILLE – A federal judge ruled Monday that a lawsuit filed by victims, counter protestors and residents against the organizers of a white supremacist rally that left one woman dead last summer can continue.
In a 62-page ruling, U.S. District Judge Norman Moon said the plaintiff’s “plausibly alleged the defendants formed a conspiracy to commit the racial violence that led to the plaintiff’s varied injuries.”
Defendants in the case include Jason Kessler, a white supremacist and Charlottesville resident, and other event organizers, including members of the Ku Klux Klan and neo-Nazi groups.
According to Moon, his decision to allow the case to continue is less about the merits of the plaintiffs’ claim at this point, and more about allowing more time to examinine the evidence and seeing if it contains “enough facts to state a claim to relief that is plausible on its face.”
Among the incidents that Moon focuses on in his ruling is the torch-lit march that occured the night before the rally at the University of Virginia campus.
While no one was physically injured during the march, a group of the young white men chanting Nazi and KKK slogans such as “Blood and soil” and “Jews will not replace us” during the march encircled several of the plaintiffs, threw liquid at them and shouted “The heat here is nothing compared to what you’re going to get in the ovens!”=
“Even if some of the torchlight march could be characterized as expressive conduct, the combination of the torches and this violence was not protected by the First Amendment, and these moving Defendants can be held liable under Virginia’s hate crime statute,” Moon wrote.
Plaintiffs include three different groups.
The first were a group of counter protestors who say they were surrounded during a pre- rally march which saw white supremacists march through University of Virginia campus carrying torches. That march ended with the group encircling a Thomas Jefferson statue and allegedly assaulting counter protestors including Taylor Magill, a John Doe plaintiff who identifies as African American, and Natalie Romero.
The second group consists of those who were injured when Jason Fields drove his car into a group of counter protestors walking away from the rally after police broke up the event. The incident ended with several injuries as well as the death of counter-protest Heather Heyer.
In addition to Romero, who says she was injured by Fields’ car, the other plaintiffs in this group include Marcus Martin whose ankle was broken in the incident, and Chelsea Alvarado, April Muñiz, and Elizabeth Sines who say they witnessed the incident and are pursuing emotional distress claims.
The third group involves local faith leaders Seth Wispelwey and Hannah Pearce who both claim they were injured by Unite the Right organizers and/or attendees over the course of the two-day event.
Defendants in the case include Unite the Right chief organizers Richard Spencer and Jason Kessler. Spencer is accused of organizing the night-before march and encouraging attendance to Saturday’s events while Kessler was the resident who applied for and received the permit for Saturday’s events.
Other defendants include Defendants Christopher Cantwell and Michael Peinovich, two white supremacists who participated in the events; the website The Daily Stormer which helped promote the event, and Vanguard America, a white nationalist group with twelve chapters across the country to which Fields allegedly claimed membership.
Other defendants include white supremacist groups like Identity Evropa, the Traditionalist Worker Party, League of the South, Fraternal Order of Alt-Knights, the National Socialist Movement and two different Klu Klux Klan groups.
Among incidents that swayed Moon’s thinking was a the pre-event organizing which took place on the online chat service Discord. Moon points to chat logs which paint grim and frequently racist exchanges between organizers, which among other offences, calls pepper spray “nig-away” which was described as a “a no-fuss, no muss ‘nigger killer,’” that promised to “kill on contact” in order to “rid the area of niggers.”
Lead organizer and face of the Unite the Right event Kessler’s own words on the chat log are found in the opinion:
“Defendant Kessler told users: ‘I recommend you bring picket sign post, shields and other self-defense implements which can be turned from a free speech tool to a self-defense weapon should things turn ugly,'” Moon wrote.
The opinion also sites Vanguard America’s instructions to members to wear khaki pants and white polo shirts because they make “a good fighting uniform.” While League of the South took to Facebook to encourage “no fewer than 150 League warriors, dressed and ready for action.”
“Similar comments from other Defendants abound,” Moon wrote.
Turning to the actual rally, Moon said many of the defendant attendees of the Unite the Right rally used of “military formations” as they marched into the park where the protest was being held.
“They assaulted and knocked over various counter-protestors, including Plaintiffs Wispelwey and Romero,” he wrote.
Once violence broke out, Moon said some defendant groups used more military tactics to create flanked walls against counter-protestors and “relay intelligence to Jason Kessler and other organizers.”
“Defendant Tubbs ordered Defendant League of the South members to ‘charge,’ and ‘after receiving this command, the group streamed past him to attack counter protesters,’” Moon wrote.
The most significant claim Moon allowed to continue is conspiracy to interfere with civil rights, a statute that was created as part of the Reconstruction-era legislation called the Civil Rights Act of 1871.
Plaintiff’s argue the defendant parties’ attacks were based on racial animus and defendant’s don’t dispute that claim, however they believe their animus was only against non-white people and therefore only claims from non-white victims should be allowed to continue.
Moon disagreed with this sentiment saying the Supreme Court has found the law was enacted to hinder “class-based animus” directed “against Negroes and those who championed their cause.”
“Here, Plaintiffs have plausibly alleged that they were attacked because of their support of non-white racial minorities, and so this element is satisfied as to all Defendants,” Moon wrote.
Other arguments from defendants include that their activity was wholly protected by the First Amendment, and Moon admits some of the activity could fall into that category. The event, Moon wrote, was intended to protest the re-naming of a local park by removing the name of civil war General Robert E. Lee.
However, Moon stressed the Constitution only protects “peaceful picketing and marching.”
“If Plaintiffs alleged Defendants only engaged in ‘abstract’ advocacy of violence, those statements would be protected,” Moon wrote. “The complaint, though, is replete with specific allegations that extend beyond mere ‘abstract’ advocacy. The allegations of physical assault are ‘not by any stretch of the imagination expressive conduct protected by the First Amendment.’”
Some of the complaints from the case where denied. Among them were claims by victims of the car attack as their claims did not involve contact with the defendants. And the claim by a local faith leader who said he and his congregation were harmed by the night before march also failed to sway the courts.
Another plaintiff, the leader of a local synagogue, had her claim that marcher’s chanting anti-Semitic threats thrown out because she failed to argue the conspiracy involved their group.
A full trial hearing will be the next step in this civil case which seeks unnamed damages and an injunction preventing defendants from holding similar events in the future.Kessler is currently suing the city of Charlottesville over it denying him a permit for another rally, this one to be held on August 12. He’s also applied and received a permit to hold a Unite the Right rally in Washington DC on the same day.