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Suit hopes to bring accountability and deterrence

They should not be able to get away with this.

That’s what lawyer Roberta Kaplan thought as she watched the news in August 2017 from her New York City home. A Charlottesville rally of neo-Nazis and white supremacists turned violent, then deadly, as racists and anti-Semites, some of them members of armed militias, paraded through the University of Virginia campus and occupied downtown Charlottesville streets.

Heather Heyer, 32, died during the Aug. 12, 2017 Unite the Right rally planned by some of the major players in American extremism. Neo-Nazi James Fields Jr. ran his car into a crowd of counter-protesters, killing Heyer and injuring more than a dozen of others, some seriously. In a separate incident, three white men beat a Black man, DeAndre Harris, to the ground with clubs at the entrance to a parking garage in downtown Charlottesville.

The night before, Aug. 11, 2017, hundreds of torch-bearing neo-Nazis and white supremacists tried to intimidate college students, Jewish people and others throughout the community, marching on UVa’s iconic Lawn and chanting “the Jews will not replace us.”

After all of it, the president of the United States said there were “very good people on both sides.” The remark turned into a national scandal.

As people were charged with crimes, Kaplan, who has been called a “modern-day legal giant,” waited for someone in authority to take action against the organizers of Unite the Right and the torch march. It didn’t happen.

“Jeff Sessions was the Attorney General,” Kaplan recalled in an interview. “He certainly didn’t have what one would call a strong record on civil rights. So I was very worried. And it turns out, justifiably so. The Civil Rights Division of the Department of Justice that was created to deal with issues like this wasn’t going to do anything. And so I thought to myself, somewhat naively I guess, ‘Okay, if the federal government, the DOJ, isn’t going to do something here, I guess I will.’”

In October 2017, Kaplan filed a civil suit against organizers of the Aug. 11-12 events on behalf of several people injured or affected by the rally.

It took four years for the case to get to trial, but in November 2021, a jury found that Unite the Right organizers conspired to provoke violence, not peaceful protest, and said they should pay a civil judgment of more than $25 million.

As the fifth anniversary of the hate-filled marches and racist riot in Charlottesville approaches, the civil case known as Sines v. Kessler remains mired in appeals that have so far kept defendants from paying any of what the jury believed they owed. Millions of dollars in legal fees also remain uncollected.

The lack of resolution shines a light on the inadequacies of the U.S. civil justice system to produce accountability, many believe. Others feel a measure of satisfaction that a message was sent to the bigots that their names are anathema.

While the neo-Nazi white supremacists who planned events in Charlottesville said they did so to protest the city’s removal of statues of Confederate heroes Robert E. Lee and Thomas “Stonewall” Jackson from a public park, evidence in the trial showed they hoped to kick off a race war.

The verdict itself was a victory for the plaintiffs, even though the city and the country continue to reel from the mayhem. How that win in the civil trial plays out depends on whom you ask — and what may happen in the future.

Chain reactions

The example set in Charlottesville in 2017 so far has played out in other white supremacist and neo-Nazi violence across the country and even the world. But many of them happened before the 2021 verdict.

“If you had told me [in 2017] that after Charlottesville there were going to be a long series of racist shootings and murders, committed by people on the same websites and message groups as the defendants in our case and who were connected to and believed in the same White supremacist ideologies, I honestly don’t know if I would have believed you,” Kaplan said. “But that is absolutely what happened, whether it’s Buffalo or Pittsburgh or New Zealand.

“And by the same token, if you had told me that they would then use very similar tactics and strategies to conspire to overturn the 2020 presidential election, I would have fallen out of my chair. In a lot of ways, what happened in Charlottesville in August 2017 was remarkably prescient in a very depressing way.”

In important ways, Sines v. Kessler’s success stemmed from a lucky break. Someone obtained dark web messages and posts on a website called Discord that proved the intention of Unite the Right organizers to provoke violence at what was called the “battle of Charlottesville.” Publication of that correspondence on a site called Unicorn Riot provided evidence of a conspiracy. Then, Discord complied with the plaintiffs’ request for records.

“The Unicorn Riot materials gave us the kind of detail that we needed and used to draft our complaint,” Kaplan said. “The defendants were not able to succeed on their motions to dismiss as a result. And by the time we got to trial, we had a lot more because Discord complied with our subpoenas.”

The effectiveness of the civil lawsuit in healing Charlottesville specifically or deterring similar hate-motivated demonstrations in the future remains unclear.

“How you feel depends on how you were affected,” said Wes Bellamy, who as a Charlottesville city councilor in 2016 asked about removing the Lee and Jackson statues because they honored defenders of slavery. “I started getting phone calls at my home on Thanksgiving Day 2016 where people called me the N-word.”

The racist calls started just weeks after Donald Trump‘s election. Saving the statues of the Rebel generals became a rallying cry for people with ulterior motives.

Since the violence of 2017, and the subsequent removal of the Lee and Jackson statues, Bellamy said he has tried “to move on.” He felt good that the people who planned Unite the Right faced civil judgments.

“For me, them going to court brought some shame,” he said. “But they will never be accountable until there are criminal charges.”

Senior Rabbi Tom Gutherz of Charlottesville’s Congregation Beth Israel welcomed the lawsuit and its outcome.

“Many of us were vindicated because we believed that [Unite the Right] organizers came to town with the clear intent to create mayhem,” he said. “I feel a sense of validation and relief that the jury saw what we saw and understood it.”

Yet Gutherz would not say that the suit brought “closure” to the community.

State Del. Sally Hudson, who represents Charlottesville in the General Assembly agreed. The trial, she said, was most important to the plaintiffs. For the broader Charlottesville community, she said, the need is to “repair the long legacy of harm [that existed] before Unite the Right.”

“I’m glad the lawsuit happened,” she said. “But only so much healing comes from punishing people.”

Limitations of a lawsuit

In that sense, the Sines v. Kessler suit never had the capacity to reunite the community or the country.

Kevin Gaines, the Julian Bond Professor of Civil Rights and Social Justice at the University of Virginia, believes a significant legal judgment for “trying to legitimize hate, racism, white supremacy and anti-Semitism” matters. But Gaines pointed to laws proposed in Republican-run states since 2017 that “weaponize vigilantes” against citizens protesting relics of the country’s racist past and its racist present.

As for Charlottesville, the city donated the Jackson statue to an art museum in Los Angeles that places the Civil War in context rather than placing Southern heroes on pedestals. The Lee statue remains in limbo after a judge allowed a lawsuit that hopes to block melting the statue and recasting it into community art meant to bring people together.

Despite making their case, the plaintiffs’ victory will be stymied by a Virginia law that limits punitive damages, but at the same time forbids judges from telling jurors about those limits. Given the size of the judgment, jurors in Sines v. Kessler clearly wanted to punish the neo-Nazis and White supremacists. But because no one told them the law restricted them from awarding punitive damages in excess of $350,000, the jury set punitive damages for many defendants above the legal limit.

“Had we been able to instruct the jury, I suspect that the jury would have moved more money into pain and suffering, or compensatory damages, rather than punitive damages,” Kaplan said.

Ongoing uncertainty about when and how much Unite the Right organizers will actually pay reflects the difficulty Kaplan faces. In addition to judgments, she hopes to collect several million dollars of legal fees that came in putting the four-year-case together, carrying it through discovery, and succeeding in winning at trial.

Right now, the court record in Sines v. Kessler is a document dump of post-trial delaying tactics by the defendants. Multiple plaintiffs have complained that they cannot afford to pay their judgments. Since the jury announced its verdict, one defendant, Christopher Cantwell, who represented himself at trial, has filed more than two dozen requests for extensions, along with multiple explanations of why the verdict against him and others was incorrect. Cantwell hand writes his requests from a federal prison in Marion, Ill., where he is serving time for unrelated crimes.

One of Cantwell’s most recent letters to U.S. District Judge Norman Moon demonstrated his strategy. Cantwell claimed the jury denied damages to any plaintiff who was not Jewish or homosexual. Therefore, he claimed, the jurors were racially biased against non-Jewish, white heterosexuals.

Like a ‘Nazi torch rally’

As the case grinds on, long-time Charlottesville residents remain stunned at what happened in 2017. From his apartment overlooking the University of Virginia’s famous Lawn, nationally renowned UVa political scientist Larry Sabato witnessed firsthand the march of torch-bearing, neo-Nazi white supremacists through the campus. It was like nothing he had seen in a half-century associated with the school. The march, said Sabato, “looked like a Nazi torch rally from the 1930’s when people paraded through the streets before Hitler came to power. I got a sinking feeling in my stomach. ”

Sabato hopes the civil jury verdict showed the defendants and those of their ilk “how detested they are around here.”

Kaplan thinks most people across the country find the beliefs of the people she sued to be “odious.” But she never harbored illusions that the lawsuit could reconcile Charlottesville’s history of strained race relations.

“I would never presume to think that our case could create or even promote racial reconciliation in Charlottesville,” she said. “ What I hoped that it would do—and I think it has—is provide a sense of peace for the plaintiffs, who I think are not only very proud of what they did, but really formed strong and deep bonds with each other during the case, which they still have. And I think we created a historical record in the documentary evidence and testimony that will continue to exist going forward. Hopefully, in less crazy times, people can look at that record, and there shouldn’t be too much dispute about what actually happened and who did what.”

On the other hand, Kaplan and Gutherz agree that locals must not fear talking now about what happened Aug. 11 and 12, 2017. Some people are reluctant to do so because they worry such talk may once again cause racists and anti-Semites to target Charlottesville.

“I think that not talking about it out of fear of provoking them is definitely not a solution,” Kaplan said. “I think one solution is talking about it even more. We need to be more vigilant against any and all groups who want to use violence to obtain authoritarian, racist and fascist ends. I’d like to be able to say that our trial prevented that from ever happening ever again, at least in Charlottesville. But I don’t have a crystal ball that would allow me to predict the future. I do know that the best way to prevent it from happening again is continuing to organize and to shine a light on what the white supremacist movement is, what it does, and what they are willing to do to create what they call a ‘white ethnostate’ in this country that belongs to all of us.”

To this detailed analysis Gutherz added an exclamation point.

“Nothing is gained,” he said, “by avoiding the truth.”

Source: www.dailyprogress.com

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