Virginia Lawyers Weekly VA Lawyers Weekly
Where two attendees of the Unite the Right rally alleged city and state officials, the police and others conspired to violate the attendees’ rights, but each of their claims failed as a matter of law, the suit was dismissed.
Background
Gregory Conte and Warren Balogh, attendees of the 2017 Unite the Right, or UTR, rally, have sued 16 defendants, including the Commonwealth of Virginia, state officials, city officials and alleged Antifa leaders. They claim that defendants violated their First Amendment speech rights and Fourteenth Amendment rights to due process and equal protection, and violated the Racketeer Influenced and Corrupt Organizations Act, or RICO. Defendants have filed motions to dismiss.
Commonwealth and VSP
Plaintiffs bring First Amendment, Fourteenth Amendment, gross negligence, failure to train, RICO and RICO conspiracy claims against the Commonwealth and the Virginia State Police, or VSP. Neither the Commonwealth nor the VSP is a person who can be sued under § 1983, and these defendants have not otherwise consented to be sued, so plaintiffs have no basis to overcome sovereign immunity. Section 1983 claims against the Commonwealth and the VSP will accordingly be dismissed.
Sovereign immunity also forecloses plaintiffs’ RICO claims. Plaintiffs bring their RICO claims under 18 U.S.C. § 1962. Section 1962 does not explicitly and by clear language or by statutory history evince an intention to waive state sovereign immunity, and thus the § 1962 claims against the Commonwealth and VSP will also be dismissed.
Charlottesville police department
Plaintiffs improperly name the Charlottesville police department, or CPD, as a defendant. Because CPD is “merely an arm of [the city] … without capacity to be sued separately,” the court will dismiss the claims brought against CPD.
Immunity
Plaintiffs argue that Thomas, Crannis-Curl, Flaherty and Moran are liable for the actions of police who failed to stop hecklers from interrupting the UTR rally. But the Fourth Circuit has held that there was no clearly established right to police intervention at the time of the UTR rally. The Fourth Circuit also affirmed Kessler v. City of Charlottesville, 441 F. Supp. 3d 277 (W.D. Va. 2020), which held there was no clearly established right “to state protection of one’s First Amendment rights from third parties.”
Similarly, no clearly established law governed the alleged RICO violations. Indeed, these violations fail on the merits, as will be discussed later. Thus, the individually named state actor defendants have qualified immunity from suit for the § 1983 speech and due process claims and the RICO claims.
‘Monell’ claim
Plaintiffs attempt to bring a claim against the city based on the police chief’s alleged orders. However liability only attaches to the municipality directly, as opposed to its officials in their official capacity, in cases where the municipality causes the deprivation “through an official policy or custom.”
Plaintiffs have alleged no facts indicating the city acted through an express policy, through decisions of persons with final policymaking authority, through any omission manifesting deliberate indifference to the rights of citizens, or through a practice so persistent and widespread as to constitute a custom or usage with the force of law. Therefore, plaintiffs’ claims that the city violated their First and Fourteenth Amendment rights will be dismissed.
Heckler’s veto
The Fourth Circuit affirmed the dismissal of similar First Amendment claims, i.e., claims of a heckler’s veto and failure to protect brought by UTR attendees, in Kessler. The Fourth Circuit recognized that the First Amendment did not impose an affirmative obligation on the city and its officials to prevent public hostility to the events of the UTR rally.
As in Kessler, plaintiffs’ complaint lacks any plausible allegation that the unlawful assembly declaration and dispersal order discriminated based on content or viewpoint. Nor did defendants impose an effective “heckler’s veto.” Plaintiffs thus failed to state a claim for relief based on the First Amendment.
Equal protection
“[T]o survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus.”
The Fourth Circuit held in Kessler, a case with analogous facts, that the complaint “lack[ed] any plausible allegation that the unlawful-assembly declaration and dispersal order discriminated based on content or viewpoint.” So too here. Plaintiffs’ complaint fails to state a claim that the unlawful-assembly declaration and dispersal order discriminated against plaintiffs in a manner violating their Fourteenth Amendment rights.
RICO
As previously addressed, defendants have immunity from plaintiffs’ RICO claims. And even without such immunity, plaintiffs’ have failed to allege injury in their business or property and thus lack standing to assert their RICO claims. Plaintiffs also fail to state a RICO claim because they have not alleged a pattern of racketeering activity.
Defendants’ motions to dismiss granted.
Conte v. Commonwealth of Virginia, Case No. 3:20-cv-00038, April 27, 2023. WDVA at Charlottesville (Moon). VLW 023-3-229. 15 pp.
