Three people charged with wearing a mask at the July 8 KKK rally in Justice Park were in Charlottesville General District Court today, where the prosecution dismissed their felony charges because tear gas used by police could have been a factor in why they covered their faces.
Diego Trujillo, from Charlottesville, Sarah Barner from Waynesboro and Naomi Bendersky from Montgomery Village, Maryland, each were charged with the Class 6 felony that can carry up to five years in jail.
Assistant Commonwealth’s Attorney Nina Antony told the judge Virginia code prohibits masks worn with the intent to conceal the identity of the wearer. She said police officers saw the three walking toward them. “Fearing an escalation, they arrested these individuals,” she said, adding that the officers had “ample probable cause.”
After the 40 or so Klan members left the July rally, police declared an unlawful assembly, ordered everyone to leave and then fired tear gas into the crowd of those still on High Street, which was closed.
“The use of tear gas beforehand” could have been a reason they covered their faces, acknowledged Antony. “The commonwealth does not have proof beyond a reasonable doubt these individuals were trying to conceal their identities.”
Judge Bob Downer, who has had all the KKK and the August 12 Unite the Right arrests go through his court, commended the prosecution for dropping the charges. “I think it’s well-founded and appropriate” to use discretion in such cases.
The defendants declined to comment after the hearing.
Attorney Jeff Fogel, who represented Bendersky, complimented new Commonwealth’s Attorney Joe Platania, whom Fogel challenged last year in the June Democratic primary, for deciding to nolle prosequi the charges.
However, “I don’t think they should have been arrested,” he said. “They were arrested because they didn’t follow orders. The tear gas should never have been used.”
Bendersky “took out a T-shirt and put it over her face” when the tear gas was fired, he said. “To be arrested for trying to protect yourself?”
Bendersky’s family is from the Soviet Union, and Fogel says they fled because her father was a dissident. She’s 18 and just started at VCU. “This was her first demonstration,” he said.
The law originally was written to prevent KKK members from marching masked in public, but Fogel said the people who tend to get arrested under the statute usually aren’t Klansmen.
“I think it’s written wrong,” said Fogel of the mask-wearing law. Rather than citing intent to conceal one’s identity, he said it should target “intent to intimidate.”
Another case from the KKK rally was continued to January 19. Jordan Romeo from Roanoke is charged with assaulting an officer, a felony, disorderly conduct and misdemeanor assault, the latter complaint brought by frequent City Council critic John Heyden.