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Rally trial defendants unlikely to pay most of their punitive damages

Though plaintiffs from the Sines v. Kessler case are likely to be paid some damages, it won’t be the figure is anticipated to be far less than the $26 million figure awarded by the jury, according to a legal expert.

The Sines v. Kessler trial wrapped on Nov. 23, more than four weeks after the trial began and more than four years after the federal lawsuit was filed. The civil action sought to hold around two dozen white supremacist and neo-Nazi leaders and organizations responsible for their role in the deadly 2017 Unite the Right rally and preceding University of Virginia torch march.

In total, the jury awarded around $26 million in damages, with all but about $1 million of those damages being punitive rather than compensatory. Punitive damages are meant to punish defendants for wrongdoing whereas compensatory damages are meant to compensate a plaintiff for physical, emotional or psychological injury.

More than $13 million of the damages are to come from defendant James Alex Fields Jr., who currently is serving more than two dozen life sentences for hate crime and murder convictions for the Aug. 12, 2017 vehicular attack.

The lawsuit alleged that the defendants engaged in a conspiracy to come to Charlottesville and commit acts of racially-motivated violence. However, by the end of the trial an 11-person jury remained deadlocked on the two federal conspiracy claims, but did find that the defendants engaged in a more broad conspiracy outlined in state law.

But by and large, the defendants do not have any assets, and so getting that money would be a trial in itself. The amount for punitive damages may at this point be mainly symbolic, as damage awards are often reduced by the judge, or on appeal, according to UVa School of Law professor Douglas Laycock, who specializes in damages and other related areas of the law.

The $1 million in compensatory damages, which would be divided among the plaintiffs according to the amount of damages each plaintiff proved, is unlikely to be reduced, Laycock said.

Because the compensatory and punitive damages appear to have been awarded for intentional civil wrongdoing, Laycock said they cannot be discharged via bankruptcy. However, the chances of collecting a significant amount of money from any of the defendants are slim, he said, and what happens next will be up to the plaintiffs.

Searching for assetsThe plaintiffs will be able to search for any assets that the defendants own, be it land, bank accounts or even cars and furniture in some states, Laycock said. The plaintiffs can force each defendant to answer questions under oath about everything they own and where it can be found.

“The plaintiffs won’t find much, but they can ask the local sheriff to grab whatever they find. Some of what they find for the individual defendants will be exempt from the claims of creditors,” Laycock said. “Exemptions are stingy in some states, including Virginia; they are very generous in other states. Which exemption laws apply probably depend on what states they find assets in.”

The plaintiffs will also be able to garnish the wages of any of the defendants who have jobs, taking up to 25% of each paycheck. Organizations have no such exemptions and Laycock said the plaintiffs will be able to have a sheriff seize whatever they find.

They won’t collect much this way compared to a million dollar judgment, Laycock said, but they can make it very difficult for the defendant organizations to operate; any assets they accumulate can immediately be taken away from them as soon as the plaintiffs find them. They can probably put the organizations out of business, but Laycock said that won’t prevent new organizations from being created with the same mission

“They can make life miserable for the individual defendants for the rest of their lives, constantly garnishing wages or seizing whatever little bit of non-exempt assets the plaintiffs might acquire,” he said. “With simple periodic filings at the courthouse, they can keep the judgment alive until the defendants’ estates are settled.”

Even though the plaintiffs are within their rights to spend the rest of their lives seeking payments from the defendants, Laycock said he believes that’s unlikely to happen. Most successful plaintiffs abandon collection efforts after a reasonable search for assets. Instead, Laycock theorizes that an implicit, unwritten deal between the parties is more likely to be stuck.

“If the defendants withdraw from public life, quit giving speeches, quit spreading hate on the internet, the plaintiffs will leave them alone,” he said. “But every time the defendants come to public attention again for hateful or racist conduct, they get hit with a new subpoena about possible assets, or a new wage garnishment order, or whatever.”

Following the verdict on Nov. 23, attorneys for several of the defendants emphasized how little money their clients had. James Kolenich, attorney for Jason Kessler, Nathan Damigo and Identity Evropa, said he would “try to cut this down to size,” while Josh Smith, attorney for Matthew Heimbach, Matthew Parrott and Traditionalist Worker Party described his clients as “destitute.”

Amy Spitalnick, director of Integrity First for America, which brought the lawsuit on behalf of the plaintiffs, did not respond to requests for comment on the plaintiffs plans for collection. Spitalnick also did not respond to a question regarding efforts to re-try the case on the two deadlocked conspiracy charges, though plaintiff’s’ co-lead counsel Roberta Kaplan has previously indicated the plaintiffs plan to do so.

According to Gregory Mitchell, a UVa School of Law professor who specializes in complex civil litigation, when a jury cannot reach a verdict on a claim, then the court declares a mistrial on the claim and sets it for a new trial.

“The plaintiff does not have to pursue the new trial, but at least one of the attorneys for the plaintiffs has indicated that the plaintiffs presently intend to proceed with the new trial,” he said.

Though the trial may have wrapped for now, U.S. Magistrate Judge Joel C. Hoppe determined that defendants National Socialist Movement, Jeff Schoep, Elliott Kline and Robert “Azzmador” Ray owe about $53,000 collectively in attorney’s fees sanctions, according to a court order.

These sanctions are in addition to the damages awarded during the trial and related to various deposition and discovery issues caused by the uncooperative defendants. The amount is based on the hourly rate of the plaintiffs’ counsel and what Hoppe determined to be recoverable. The sanctions are in addition to the damages awarded during the trial. According to Laycock, the same collection methods apply to the sanctions as damages.


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