Defendants argued against Unite the Right organizer Jason Kessler’s latest federal lawsuit against the city of Charlottesville and various officials during a Thursday hearing in Charlottesville’s federal court.
Since the deadly rally on Aug. 12, 2017, Kessler has filed several suits alleging that officials failed to protect his constitutional rights. The most recent iteration of the lawsuit, filed on the two-year anniversary of the rally, alleges the defendants violated Kessler’s First Amendment rights and drops the claim, made in previous suits, that his 14th Amendment rights were violated.
It also adds new defendants and a new plaintiff, David Matthew Parrott, who was formerly the spokesman of the now-largely defunct Traditionalist Worker Party. Parrott, along with Kessler, is a defendant in a separate lawsuit filed by area residents against key organizers of the rally.
Kessler voluntarily dismissed an earlier lawsuit that similarly claimed his First and 14th Amendment rights were violated.
In addition to the city, Kessler’s lawsuit names then-Charlottesville Police Department Chief Al Thomas, then-Virginia State Police Lt. Becky Crannis-Curl, former City Manager Maurice Jones and current City Manager Tarron Richardson.
On Thursday, counsel representing the defendants argued motions to dismiss Kessler’s lawsuit, citing a variety of legal precedents and their clients’ qualified immunity statuses.
A large portion of Kessler’s suit hinges on the argument that officials allowed a “heckler’s veto” by not preventing fights leading up to the declaration of an unlawful assembly on the day of the rally.
“There are simply no facts to support this argument; that is not what occurred,” said Melissa York, an attorney representing Thomas. “When an unlawful assembly was declared, everyone was forced out of the park. It was a content-neutral enforcement,” she said.
Many of the arguments focused on an earlier suit filed in September 2017 by Robert Sanchez Turner, who attended the rally. It was one of the first lawsuits to be filed in the wake of the rally and is among the few to reach some degree of resolution.
The lawsuit accused the former Charlottesville and state police chiefs of ordering officers not to intervene in the violence at the white supremacist rally, thus violating Kessler’s constitutional rights.
In May 2018, U.S. District Judge Norman K. Moon — the same judge who oversaw Thursday’s hearing — agreed to dismiss Turner’s lawsuit, writing in part that the defendants had qualified immunity.
Turner later appealed the decision and in July 2019, the 4th Circuit Court of Appeals denied his appeal.
Defense counsel argued that even if a heckler’s veto argument could be applied, most of the defendants would be covered by qualified immunity, just like in the Turner case.
Just as in the Turner case, Kessler’s lawsuit cites a report prepared by Tim Heaphy — a former U.S. attorney for the Western District of Virginia whose law firm, Hunton & Williams, was hired by the city to review its preparations for and response to the rally.
The 207-page report alleged that Thomas intentionally allowed the fighting in and around Market Street Park on the morning of the rally so that an unlawful assembly could be declared, a portion of the response the plaintiffs have attempted to use to bolster their argument.
“When violence was most prevalent, CPD commanders pulled officers back to a protected area of the park, where they remained for over an hour as people in the large crowd fought on Market Street,” the report states.
Though, according to defense counsel, there are not many cases involving a heckler’s veto in the 4th Circuit, several of the defense attorneys cited the recent Bible Believers v. Wayne County case. In that case, the 6th Circuit Court of Appeals ruled that officials in Wayne County, Michigan, violated the First Amendment rights of a Christian evangelical group when they removed them from the Arab International Festival in Dearborn to protect them from a hostile audience.
The defense counsel argued that though this decision did not have precedent value because it happened in a different judicial district, it still could serve as a guide.
During counter argument, James Kolenich, the plaintiffs’ attorney, cited an older case — Berger v. Battaglia.
In that 1985 case, the superiors of Baltimore City Police Officer Robert Berger found out that Berger performed in blackface as part of an Al Jolson impersonation, according to court documents.
Berger attracted negative attention from black activist groups for his performance, and the Baltimore Police Department, according to court documents, was concerned the reaction by the city’s black citizens could seriously harm relationships.
Berger was ordered to stop performing, a decision that initially was upheld by the district court but later overturned by the 4th Circuit Court of Appeals, which ruled First Amendment protection of content-neutral artistic expression deserves only slightly less weight in a balancing test than political or social commentary, according to court documents.
Kolenich likened the attempts to “stifle” Berger’s free speech to what he argued was a heckler’s veto against his clients.
“There were no intermittent steps taken by police and city officials; as the permit holder, Kessler should have been allowed past the barrier,” Kolenich said. “Not everyone should have been removed from the park. The police should have left Kessler and some other folks who were not causing problems.”
Defense counsel later countered that though the plaintiffs may not like the intermediate steps taken by police, steps were taken prior to the declaration of an unlawful assembly.
Following argument, Moon told counsel he expects to issue an order on the motions to dismiss “reasonably soon.”