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WDVA: “Unite the Right” conspiracy claims survive dismissal

In 1871, Congress passed a law “directed at the organized terrorism in the Reconstruction South,” now codified at 42 U.S.C. § 1985. Over 140 years later, the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists rallied in Charlottesville. Violence erupted. The Plaintiffs – Charlottesville residents injured at the rallies – allege that this violence was no accident. They assert that the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. While ultimate resolution of what happened at the rallies awaits another day, the Plaintiffs have plausibly alleged that the Defendants formed a conspiracy to commit the racial violence that led to their injuries.

Background

As required on a motion to dismiss, the facts discussed herein recount the Plaintiffs’ allegations. The Plaintiffs are 10 Charlottesville residents who suffered some injury related to the rallies on August 11 and 12, 2017. Some Plaintiffs were assaulted on the night of August 11 by torch-wielding marchers at the Thomas Jefferson statue. Another group of Plaintiffs was injured when Defendant James Fields drove his car into a crowd on August 12. A third group of Plaintiffs were religiously affiliated counter-protesters subject to assault and/or harassment.

Two of the primary organizers of the events were Defendants Richard Spencer and Jason Kessler. Two other promoters were Defendants Christopher Cantwell and Michael Peinovich. Many of the individual Defendants who helped plan the events are part of organizations that are themselves Defendants.

Charlottesville drew the Defendants’ attention when it decided to change the name of Lee Park, which contains a statute of General Robert E. Lee, to Emancipation Park. Certain Defendants met to organize a rally to oppose the renaming, eventually planned for August 12, 2017. Although some Defendants met in person, a majority of the planning occurred online. Defendants Kessler and Eli Mosley used an online program called Discord for organizing. It is an invite-only platform, which allowed the Defendants to have private conversations leading up to the events. Conversation on Discord included mundane planning details, racist “jokes,” and concrete threats of violence.

Some Defendants organized a torchlight march to take place at UVA on August 11. The torches were supposed to invoke the KKK and Nazis. The marchers approached the Jefferson statue, chanting racist slogans and performing Nazi salutes.

Approximately 30 counter-protesters reached the statue first and linked arms around it. The marchers charged toward the statue and surrounded the counter-protesters. Fighting broke out, and the marchers kicked, punched, and otherwise assaulted the counter-protesters. The night ended with Defendants Kessler and Spencer celebrating the evening’s events and encouraging their followers to come to the following day’s rally.

Almost all of the Defendants attended the “Unite the Right” rally on August 12. They entered Emancipation Park “in military formations” with matching uniforms, coordinated shields, and regimental flags. While marching, they assaulted and knocked over various counter-protesters. Once they were inside the park, violence escalated. At 11:22 a.m., Charlottesville declared the gathering an unlawful assembly, but some Defendants did not disperse. Violence continued in the city’s McIntire Park and downtown mall.

At 1:40 p.m., the Plaintiffs allege that Defendant Fields deliberately drove his car into a crowd of peaceful protesters congregated at an intersection. Multiple Plaintiffs struck by the car incurred serious injuries, and their friend, Heather Heyer, was killed. Afterward, some Defendants posted messages approving Fields’s actions.

Ku Klux Klan Act

To state a claim under § 1985(3), the Plaintiffs must plausibly allege: (1) a conspiracy of two or more persons (2) motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the Plaintiffs of the equal enjoyment of rights secured to all, (4) resulting in injury to the Plaintiffs (5) as a consequence of an overt act committed by the Defendants in connection with the conspiracy. Unlike 42 U.S.C. § 1983, § 1985 reaches private conspiracies.

Racial animus

No Defendant seriously disputes that the Plaintiffs have adequately alleged that they possessed racial animus against black and Jewish individuals; the complaint is replete with racist statements made and affirmed by the Defendants.

Some Defendants argue that white Plaintiffs cannot hold them liable because they possessed racial animus only against non-white individuals. But § 1983 was enacted to combat the prevalent animus against “Negroes and their supporters.” Here, the Plaintiffs have plausibly alleged that they were attacked because they supported non-white racial minorities.

Enjoyment of rights

The Thirteenth Amendment provides the Plaintiffs an underlying right to be free from racial violence analogous to that present in Griffin v. Breckenridge, 403 U.S. 88 (1971). Accordingly, the Plaintiffs’ claims can proceed on this theory.

However, § 1982 is not a viable source of Plaintiffs’ rights in this analysis. They claim that rally attendees interfered with the property rights of Congregation Beth Israel by marching past it while making anti0Semitic remarks. But there are no allegations that anyone touched or harmed the synagogue. The worst allegations concern individuals who marched past the synagogue and shouted anti-Semitic slogans. Such conduct is very different from the shots fired into synagogues or even the repeated harassment found in other cases. Furthermore, the only allegation concerning an identified Defendant states that he carried an anti-Semitic banner, but not that he carried it past the synagogue or otherwise interacted with it.

Conspiracy

To survive dismissal, the Plaintiffs must allege that each Defendant entered into an agreement with a specific co-conspirator to engage in racially motivated violence on August 11 and 12. Because the First Amendment does not prevent liability for the acts of violence they allege, the Plaintiffs have largely done so.

Defendant Kessler. Kessler was perhaps the overarching organizer for the event. He applied for the rally permit and worked with Defendant Spencer to invite a plethora of white supremacist groups. He hoped the rally would move white Americans beyond the “heritage not hate” message. He directed and managed Discord, allowing statements like “I’m ready to crack skulls” to proliferate across the platform and encouraged attendees to bring items that could be used as weapons. In the days leading up to the event, he met with Defendant Cantwell to plan “unlawful acts of violence [and] intimidation.”

On August 11, Kessler allegedly directed physical assaults, the use of open flames, and the intimidation of “minority residents and those who advocate for equal rights for minority citizens” at the rally. The complaint describes him leading the attack on some Plaintiffs at the Jefferson statue. Throughout these events, the marchers performed Nazi salutes and chanted: “Blood and soil” and “Jews will not replace us.”

On August 12, Defendant Identity Evropa allegedly dispatched assistance and intelligence to “Kessler and other organizers.” After hearing of Heyer’s death, Kessler called her a “communist” who deserved “payback.” This statement plausibly alleges ratification of the actions by Defendant Fields that caused her death.

Defendant Spencer. Spencer allegedly invited white supremacist groups to visit and hold events around the statue “with the intent of intimidating non-white and Jewish individuals and their allies.” Leading up to the rally, an article on Spencer’s website told his followers that “it’s time to dominate the streets,” and a Discord user relayed Spencer’s desire that rally attendees bring “as much gear and weaponry as you can.”

The complaint alleges that Spencer planned the August 11 march and directed physical assaults and intimidation of minorities and their allies. He is said to have led the charge toward some of the Plaintiffs at the Jefferson statue. Marchers who climbed to the top of the statue waved their torches and yelled, “Hail Spencer!” In the aftermath of the rally, his website announced: “The Alt-Right is finished debating, negotiating, surrendering. We’re ready to close ranks and fight for what is ours…. We stand poised to conquer the continent. Allegations of this degree of planning, followed by these coordinated actions plausibly allege that Spencer joined a conspiracy to engage in racially motivated violence no August 11 and 12.

Defendant Cantwell. Cantwell was an active participant on Discord in the months leading up to the event. He used his various platforms to advise “rallygoers on bringing weapons.” In the days before the rally, he met with Kessler and other Defendants “to plan and direct the unlawful acts of violence.” On the morning of August 11, he told a reporter that he was “trying to make [himself] more capable of violence.”

On the night of August 11, Cantwell allegedly directed physical assaults and intimidation of minorities and their allies, issuing orders for the white supremacists and neo-Nazis to get in specific formations. Cantwell personally sprayed counter-protestors with mace, and other Defendants later congratulated Cantwell for this violence.

Cantwell came to the August 12 rally heavily armed, bringing three pistols, two semi-automatic machine guns, and a knife. As events spiraled out of control, the Daily Stormer instructed its followers to assemble behind Cantwell and another Defendant. In the aftermath, Cantwell told a reporter that he thought “a lot more people are going to die before we’re done here, frankly.” Regarding Defendant Fields’s attack, he said: “None of our people killed anybody unjustly…. [O]ur rivals are just a bunch of stupid animals who don’t pay attention that couldn’t just get out of the way of the car.” He continued, “These people want violence and the right is just meeting market demand.”

In light of Cantwell’s statements, the picture of him assaulting counter-protesters with pepper spray, and his joint leadership of various portions of the events with other Defendants, the Plaintiffs have plausibly alleged that Defendant Cantwell joined the conspiracy to engage in the racially motivated violence at the Unite the Right events.

Other Defendants. Based on specific allegations of statements made before, during, and after the rally by the respective Defendants, the Plaintiffs have plausibly alleged that the following other Defendants joined the conspiracy: individuals Ray, Damigo, Mosley, Parrott, Heimbach, Hill, Tubbs, Schoep; and organizations Vanguard America, Identity Evropa, the Traditionalist Worker Party, the League of the South, the National Socialist Movement, and Nationalist Front.

Defendant Peinovich. Peinovich is the only moving Defendant who the Plaintiffs have failed to plausibly allege was part of the conspiracy. Other than two conclusory paragraphs, there are no allegations that he participated in any violent acts, agreed to commit such violence, or even used Discord. While Peinovich appeared at the rallies and allegedly set up a legal fund for Cantwell, these actions are too far removed from the other Defendants’ violence to plausibly connect him to a conspiracy.

The Plaintiffs also allege that Peinovich, in reference to signs supporting equality and diversity in Charlottesville, tweeted: “Do these white business owners and s***libs in CVille think that their virtue signaling mean they will be spared somehow? Lol.” Even if some of these businesses later received threatening mail, as the Plaintiffs allege, the tweet does not plausibly allege an agreement to engage in racial violence on August 11 or 12.

Causation

The Plaintiffs may hold each Defendant liable for the reasonably foreseeable acts of their co-conspirators.

On the night of August 11, three Plaintiffs were pepper-sprayed and otherwise assaulted at the Jefferson statue. Injuries associated with these assaults were reasonably foreseeable consequences of the Defendants’ conspiracy.

Six Plaintiffs were injured by Defendant Fields’s car attack. For three reasons, the Plaintiffs have adequately pled that the attack was reasonably foreseeable. First, the exact possibility of running over counter-protesters was explicitly discussed on Discord’s invite-only platform before the events. A “run them over” catchphrase was popularized on the Fox Nation website, the Daily Caller website, and by the Defendants. Second, the Defendants planned to bring deadly weapons to the event, demonstrating that it was eminently foreseeable to the Defendants that the rally could turn deadly. Third, multiple Defendants ratified the attack after the fact, demonstrating that Fields’s conduct was consistent with the conspiracy’s avowed goals.

On the other hand, Plaintiff Pearce has not sufficiently alleged that her injuries were caused by overt acts committed in connection with the Defendants’ conspiracy. The paragraphs of the complaint that mention Pearce do not invoke a specific overt act of any Defendant but merely injuries and insults made by anonymous “co-conspirators.” Pearce may seek leave to amend with more specific allegations.

Virginia hate-crime statute

Some, but not all, Plaintiffs have also stated a claim under Virginia’s hate-crime statute, Code § 8.01-42.1.

Some Plaintiffs do not allege they ever interacted with the moving Defendants; they allegedly incurred injuries from Defendant Fields’s attack. They do not identify any allegations that the moving Defendants violated this statute, so their claims under § 8.01-42.1 must be dismissed.

Plaintiff Sines alleges that she “heard the marchers chanting slogans chosen for their intimidating and racially harassing effect.” But this description alleges neither that the chants were directed against her person nor that any specific Defendant was chanting. The same problems apply to her allegations that she “witnessed co-conspirators throwing fuel and tiki torches at the peaceful protestors.” Likewise, Plaintiff Wispelwey describes the church service where he and others could see the mob and their torches. These paragraphs fail to plausibly allege that this conduct was directed against Wispelwey or that the moving Defendants were specifically involved. These Plaintiffs’ claims cannot survive.

By contrast, Plaintiffs Magill, Doe, and Romero, who were surrounded by the marchers at the Jefferson statue, have plausibly alleged violations of the hate -crime statute by Mosley, Spencer, Kessler, Ray, and Cantwell. They claim the torchlight march was designed to intimidate racial minorities by replicating the Ku Klux Klan’s and Nazis’ use of torches. And they allege that the torch-wielding mob, including the Defendants, charged toward them and “began to kick and punch the protesters around the statue, using their torches as weapons, and to beat the individuals onto the ground.” They also threw fluid, which the Plaintiffs feared was fuel, onto them and then threw their torches at them. Defendant Ray said, “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. Just as the U.S. Supreme Court has recognized cross burnings as intimidating, the torchlight march and the violence directed at the Plaintiffs at the Jefferson statue, was likewise intimidating in the constitutionally proscribable sense of the word.

First Amendment defense

Some of the Defendants’ behavior certainly was protected by the First Amendment. Picketing and marching in protest of the decision to rename the park, even if motivated by racist ideology, would be protected speech.

But the First Amendment does not protect violence. If the Defendants have formed a conspiracy against peace and order and thereby transcend the bounds of the constitutional freedom of speech, any law holding them liable for such conspiracy does not violate the First Amendment.

The Plaintiffs have plausibly alleged that the Defendants formed just such a conspiracy. The complaint is replete with specific allegations that extend beyond mere “abstract” advocacy that would be protected. Even many of the allegations that do concern expressive conduct fall into three main categories of speech that extend beyond the First Amendment’s protections for advocacy.

First, the First Amendment does not protect Defendants in authorizing, directing, or ratifying specific tortious activity, and they can be held responsible for the consequences of that activity. Second, they can be held liable for unlawful conduct that followed, within a reasonable period, their public statements that were likely to incite such conduct. This category includes encouraging the throwing of torches and the ordering of marchers to “charge” counter-protesters. Third, otherwise-protected speech can be taken as evidence that a Defendant gave other specific instructions to carry out violent acts or threats. Many of the Defendants’ alleged statements fall into this category.

Second Amendment defense

The Plaintiffs’ theory is not that the Defendants incurred liability by bringing weapons to the events on August 11 and 12, but by using them. Second Amendment rights no more insulate the Defendants from civil liability for the use of their weapons in an assault than it insulates a criminal defendant from liability because he committed his crime with a weapon.

The Defendants point to no authority preventing the court from considering their decisions to bring substantial amounts of weapons to the rally as evidence of a plan to engage in violence. And some of the allegations do in fact support an inference that the Defendants planned to engage in racially motivated violence at the rally.

Motions to dismiss denied in part and granted in part.

Sines v. Kessler, Case No. 3:17cv72, July 9, 2018. WDVA at Charlottesville (Moon). VLW No. 018-3-277, 62 pp.

VLW 018-3-277

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