Tag: Anne Coughlin

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Opinion

Burning questions: Why hasn’t the county prosecuted the torch marchers?

Tiki torch-carrying Unite the Righters marched through UVA Grounds August 11, 2017, and surrounded a small group of counterdemonstraters at the base of the Thomas Jefferson statue. (Photo: Zach D. Roberts/NurPhoto via ZUMA Press)

What kind of message does failing to prosecute white supremacists send?

By Anne Coughlin

To mark the anniversary of the Unite the Right rally, commentators took stock of the successful prosecutions of white supremacists who committed violence and spread hatred in Charlottesville. Such prosecutions are a measure of law enforcement’s commitment to punishing violent offenders, offering closure to the community, deterring copycat crimes, and uprooting racist ideology.

At the sentencing of James Fields for the murder of Heather Heyer and the maiming of numerous peaceful protesters, Thomas Cullen, the U.S. attorney for the Western District of Virginia, said that such prosecutions “send a message that our government condemns this type of activity and will do all within our power to hold folks accountable.”

Likewise, when three members of a militant white-supremacist group known as the Rise Above Movement were sentenced in Charlottesville federal court for violence they committed here and elsewhere, Colonel Gary Settle, the Virginia State Police superintendent, declared that the sentences “stand as evidence that Virginia has zero tolerance for such criminal activity.”

What message then does a prosecutor send by failing to prosecute crimes committed by white supremacists?

While federal and Charlottesville prosecutors have successfully brought multiple cases against the white supremacists who committed crimes in their jurisdictions during that hate-filled weekend two years ago, Albemarle County Commonwealth’s Attorney Robert Tracci has not.

As the world knows, on August 11, 2017, hundreds of white supremacists marched through the University of Virginia. They carried burning torches and shouted intimidating phrases such as “Blood and soil,” “You will not replace us,” and “Jews will not replace us.”

When they arrived in front of the Rotunda, the torch mob approached a small group of students and other community members who were standing near a statue of Thomas Jefferson. This small group linked arms and chanted, “Black lives matter.” The white supremacists surrounded the group and pinned them at the base of the statue, continuing to scream racist and anti-Semitic slurs. Some hurled their torches into the air. Others wielded their torches as weapons and attacked.

Under Virginia law, it is a felony to burn an object in a public place when that person has the intent to intimidate others and does so in a manner that places others in reasonable fear of bodily injury. UVA’s Lawn and Rotunda are public places, and they are located in Albemarle County.

This means that Albemarle Commonwealth’s Attorney Tracci has the authority and the responsibility to decide whether Virginia law was broken that night. His ongoing failure to prosecute these cases severely damages the community’s willingness to trust law enforcement generally, and his office specifically.

As a partial excuse for his inaction, Tracci has pointed out that then-Charlottesville commonwealth’s attorney Dave Chapman did not bring charges in connection with two torch-burning rallies that took place in the city that year. However, Chapman explained in a legal memo his decision not to prosecute the less-threatening incidents in the city, in part by contrasting them with the torch-bearing mob at the Rotunda.

Unlike the city cases, Chapman described the events of August 11 as a case where a prosecution might be “on firm ground” because they involve “specific circumstances that would cause people who are then and there present to have a legitimate and immediate fear of death or bodily harm.”

The events of August 11 were traumatic for many reasons, and the fears of those present were legitimate. As the media has reported, the anti-racist protesters were terrified by the mob, and some were physically injured in the melee.

That trauma was exacerbated by the fact that police did nothing that night to protect people from the torch-bearing mob. As a result, the community’s confidence in law enforcement has been badly shaken. When members of the Rise Above Movement were arrested, FBI Special Agent Adam Lee alluded to this loss of trust when he said that he hoped the arrests would remind “communities like Charlottesville to remember who the good guys are.” Tracci should take immediate steps to show that Albemarle County has zero tolerance for white supremacist violence and intimidation. He should file felony charges under the “burning objects” statute. If he does not, voters should keep Tracci’s record and its message in mind when they head to the polls in November.

Anne M. Coughlin is the Lewis F. Powell, Jr., professor of law at the University of Virginia School of Law.

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Amend Virginia’s burning object statute

By Robert Tracci

Enacted in 2002, Virginia’s burning object statute establishes a felony offense for “[a]ny person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

On May 13, 2017, white supremacists with tiki torches chanting “you will not replace us” and “blood and soil” conducted a rally at Charlottesville’s Market Street (formerly Lee) Park. On August 11, 2017, tiki torch-carrying white supremacists chanting similar racist slogans marched on UVA Grounds. And on October 7, 2017—two months after August 2017—white supremacists carrying tiki torches and chanting racist slogans yet again returned to Market Street Park.

In a memorandum to then-city manager Maurice Jones, Charlottesville’s prior commonwealth’s attorney declined prosecution under the burning objects statute, stating: “There is a threshold problem with the statute. The statute refers to ‘burn an object.’ The question could arise—and would in criminal law—as to whether carrying a burning torch falls within the definitional scope of burning an object. That alone could prevent a prosecution.”  While this memorandum distinguished the May and October torch-lit rallies from the August 11, 2017, rally on UVA Grounds, the “threshold problem” conforming a tiki torch to the burning objects statute presents in all three rallies. 

Recognizing these legal deficits in Virginia’s burning objects statute, pages 174-175 of the Heaphy Report urged the General Assembly to: “consider broadening the intent standard for the criminal prohibition on the use of open flames to threaten or intimidate. This [burning objects] statute should be altered to track the language of statutes that proscribe the use of swastikas and burning crosses and include the use of fire with the intent to intimidate.”

In October 2018—14 months after August 2017—UVA issued additional no-trespass orders for actions on August 11, 2017. Notably, UVA declined to issue no-trespass orders to all torch marchers. The standard for issuing a no-trespass order is considerably lower than that necessary to sustain a criminal conviction.

Earlier this year, Delegate David Toscano introduced HB2010 to codify the burning objects recommendation contained in the Heaphy Report, but it did not receive a hearing. I supported—and still support—its favorable consideration.

Working with law enforcement partners and available witnesses, this office has sought lawful accountability for violations of Virginia law occurring on UVA Grounds on August 11, 2017, by prosecuting malicious bodily injury, illegal use of tear gas, and assault and battery charges. The office has reviewed recordings, video evidence, livestreams capturing contemporaneous observations of those present, emergency communications traffic, and other available information. 

While the Heaphy Report deemed UVA’s preparation and response to August 11 “woefully inadequate,” the subsequent investigation by the UVA Police Department and others has been thorough and professional. And I continue to encourage all victims of August 2017 to cooperate with the ongoing investigation.

Following the events of August 2017, UVA’s Board of Visitors took prompt and commendable action to better protect the university community, including adopting prohibitions on open flames on UVA Grounds without a permit. It is time for the General Assembly to complement these efforts by amending Virginia’s burning objects statute.

In our system of justice, a prosecutor must faithfully apply the law and uphold ethical standards in all cases. These obligations inhere in a prosecutor’s oath and are spelled out in the Rules of Professional Responsibility. Compromising these principles would affront our values in a manner those who brought hate to our community in 2017 never could.

Robert Tracci is the Albemarle County commonwealth’s attorney.

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News

Anti-racists instruct

SURJ members serenade diners at Miller’s in 2017 with chants like “Nazi go home.” Eze Amos

During the week leading up to the August 11 and 12 anniversary, local anti-racist groups hosted a series of events, including panels on their use of in-your-face tactics and why they believe the First Amendment should not apply to white supremacists.

Protesters up the ante

UVA religious studies professor Jalane Schmidt opened the August 7 Black Lives Matter event with a terse request: “For everyone’s safety, we’ll ask all police to leave.”

The five-person “Why We Protest” panel discussion took a decidedly brasher tone than previous community events, showcasing the confrontational tactics some Charlottesville activists have embraced.

In the packed Jefferson School African American Heritage Center auditorium, Showing Up for Racial Justice activist Grace Aheron moderated the panel, which included Congregate Charlottesville organizer Brittany “Smash” Caine-Conley, SURJ activist Anna, UVA English professor Lisa Woolfork and UVA Students United activist Ibby Han. In keeping with the SURJ ethos, Aheron forbade audience members from livestreaming the event. “If you want the information, you have to come, or take notes and tell everyone,” she said.

Panelists prefaced the discussion by giving their preferred pronouns and tracing their paths to activism. Anna and Han got their start in campus organizations, while Woolfork was driven to protest out of a desire for “her children to inherit a world better than the one I have.” For Caine-Conley, experiencing police violence during a prayer circle at Standing Rock was the tipping point.

The first question addressed a common objection to protests against white supremacy: Why don’t you just ignore them? “Apathy is not a strategy,” said Woolfork, to a roaring applause. Other panelists argued that public disruption has been an indispensable tool for thwarting the alt-right.

Some on the panel adopted a more elastic definition of protest to accommodate mental and physical handicaps. Anna, a disabled activist, said, “Feeding the homeless is an act of protest to food injustice.”

Panelists endorsed controversial tactics for combating white supremacy, such as denying public figures they associate with fascism a platform and accosting them when they go out in public, an approach that has been used against several White House officials—and Jason Kessler.

Woolfork discouraged arguing with bigots, though other panelists adjusted this stance when someone asked what to do if the bigot is a family member. Struggling through tears, an audience member recalled contentious disputes with her parents, who voted for Donald Trump.

Caine-Conley said as a queer woman with family members who do not accept her, she has found it helpful to tell them stories about her activism. “It causes cognitive dissonance…because I am involved,” she said.

Panelists reiterated the need people to participate in demonstrations, citing the successful push to ban Unite the Right organizer Jason Kessler from UVA. “The arc of justice doesn’t bend naturally,” Han said, “it bends when people push on it.”

Many activists agreed that the biggest threat for the August 12 weekend didn’t come from neo-Nazis. At the #ResilientCville town hall a few weeks ago, several audience members expressed concerns about police overcompensating to make up for last year’s failures. Woolfork echoed these concerns, warning that, if this is the case, “black people will bear the brunt.”—Jonathan Haynes

Free speech victims

Showing Up for Racial Justice sponsored an August 8 lawyers’ panel on free speech and anti-racist work—and how “false notions” about the former “hinder” the latter.

UVA law professor Anne Coughlin called the idea that there’s such a thing as legally protected free speech a “myth.” She said, “We regulate speech all the time.” Free speech gets thrown around as an absolute right, while “the protections are much narrower that people believe,” she said.

Legal Aid Justice Center and National Lawyers Guild attorney Kim Rolla questioned the idea that in an unfettered marketplace of free speech, “truth will shake out.”

Said Rolla, “Right now, the First Amendment is used to punish anti-racists and protect white supremacists.”

SURJ organizer Ben Doherty, who works at the UVA Law Library, elaborated on that theme: July 8, 2017, when “police gave full protection” to the Loyal White Knights of the Ku Klux Klan and tear-gassed anti-racist activists; a federal judge allowing Unite the Right organizer Jason Kessler to hold his violent rally last year “under the guise of free speech;” August 11, 2017,  at UVA, when neo-Nazis and white supremacists carried torches through the Grounds of UVA and “formed a lynch mob” while “police were paralyzed.”

And he listed the UVA law school, which allowed Kessler to be there twice, while arresting an activist “for merely sitting in the office with him.”

Coughlin, who said she has colleagues who say student “snowflakes” are trying to silence free speech, called “completely false” the notion of a “presupposed golden age of free speech and the sharing of ideas freely” when women and African Americans were excluded from law schools.

“We have the power to change the meaning of what’s protected speech and what’s violence,” she said.

White supremacists are now characterizing themselves as victims and “a minority group that’s being silenced,” said Rolla. “To say white folks are victims is really dangerous.”

Trickier for the panelists was how to prevent hate speech from having First Amendment protections.

“I’m hesitant to give more tools to the government to restrict speech,” said Rolla.

“There’s no reason the KKK should be a legal organization in the United States,” said Doherty. “It’s a terrorist group.” He said the government outlawed the Black Panthers through FBI surveillance and infiltration.

Attorney Lloyd Snook was in the audience, and he says that infiltrating the Black Panthers was not the same as passing a law, “Two of the three panelists don’t know their First Amendment history very well.”

The decisions that came out of the Warren U.S. Supreme Court were to protect civil rights organizers, union organizers and Communists, he says. “Later on the KKK and Nazis latched on to that.”

Moderator Lisa Woolfork with free-speech panelists Ben Doherty, Anne Coughlin, and Kim Rolla. staff photo

How Kessler could get a permit for the Unite the Right rally last year was a question from the audience.

In federal court, the basis the city gave for moving the rally was the number of people anticipated for then-Emancipation Park, said Rolla.

Rolla pointed out that then-mayor Mike Signer told ProPublica on Frontline’s “Documenting Hate: Charlottesville” that the city had no knowledge there would be any violence. Rolla called that “astounding” and said, “People stood in front of City Council” with information of the violent intentions of rally-goers, and there should have been prior restraint based on the threat of violence.—Lisa Provence

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News

Kessler alert: UVA law library hits the books in search of ban

Jason Kessler's visits to the UVA law library have not been welcomed. Now non-students are not allowed until exams are over. Contributed photo

By Natalie Jacobsen

A tale of two incidents at the University of Virginia School of Law library has prompted the administration to restrict access to students-only for the exam period, which ends May 11.

On April 18, Charlottesville’s embattled whites-righter, Jason Kessler, entered the school’s library and plopped down in a central location to do what the other students had been trying to do: study.

But unlike for the students that roam the hallways daily, his legal research did not turn into an all-nighter among the books. His presence was quickly noticed, with students and professors taking personal action. A 3L—third-year law student—says Kessler was researching a way to petition his permit denial.

One librarian, Ben Doherty, who is an active member of Showing Up for Racial Justice, excused himself from the library when Kessler arrived. Doherty, who has been a target in Kessler’s tweets, declined to comment at this time.

Says a 2L, who asked not to be named, “A [group] of students and Professor [Anne] Coughlin were telling him to leave. Video was taken by him and by those who went to silently protest.” The silent protest came in the form of signs with messages such as “Blood on your hands” quickly printed off and held up “as he pretended to read,” says the 2L. Over the course of an hour and a half, the group fluctuated between five and 15 law school people.

Alicia Penn, who left the school when she heard Kessler was on grounds, says, “some allies really stepped up to the plate and put their bodies on the line.”

Two police arrived to observe. Eventually, Kessler responded to the presence of a handful of students and became loud, blasting racist and sexist statements as he stormed through the hallway and calling a friend to pick him up “because he didn’t trust the police, in his own words,” says the 2L. “He looked pissed off, even though the police and students were not forcing him out.”

No email alerts were sent to the student body while Kessler was on grounds.

Professor Coughlin has been leading the charge to dismiss Kessler entirely from the law school property. The university previously rejected the law school administration’s request for an outright ban, despite allowing homeless and drunk persons to be barred from accessing the school in the past. The library is open to the public during business hours.

Kessler is the organizer of the infamous Unite the Right rally and one of the alleged leaders who directed hundreds of white supremacists to carry tiki torches across UVA Grounds and Lawn last summer.

An impromptu forum to discuss the incident drew in students and faculty, who called for action. Dean Risa Goluboff seemed overwhelmed with emotion and said she “let down her students,” according to Penn. No immediate action was taken as far as students were concerned, and the issue went unresolved publicly for several days.

UVA law spokesperson Mary Wood, who initially did not return phone calls, now says the law school has been actively working with President Teresa Sullivan, the university counsel’s office and the police since April 18.

“I’m really disheartened by the university’s response,” says another 2L, who asked that he not be named because of threats from the alt-right. “The administration and police department should issue a no-trespass order against Kessler. There’s a record built that establishes he’s a danger to our community. They have all the information they need and they’ve done nothing while students at the law school have been dealing with this for two weeks right before finals. As a student of color, I expect more from UVA.”

Yesterday Kessler made a return to the law school, but this visit was cut much shorter. He was given a space in a staff office to continue his legal research, according to student sources, when a community activist entered the room. A law school administrator asked Eric Martin to leave and warned him he’d be arrested if he refused. When Martin did not go, two police officers on hand arrested him for trespassing, according video of the encounter.

Wood says Kessler was not given an office and he was being assisted by a law librarian in the librarian’s office.

In a video, Martin says, “If you want to arrest me and not Jason Kessler sitting right there, then go ahead.”

Martin came to grounds after Solidarity Cville tweeted about Kessler’s reappearance at the law school.

This time, Kessler approached Doherty near the circulation desk, and their voices escalated as Doherty stepped in to ask Kessler to leave, according to witnesses. A group of students gathered, brandishing their recording devices, and watched silently through their screens. Police soon escorted Kessler out peacefully.

The law school sent out an email alert and a follow-up once “the disturbance [had] been resolved.” Dean Goluboff wrote in the email, “Since last week, we have been working toward limiting access…and the plan was for the new policy to go into effect tomorrow morning. Given today’s events, I have decided to implement that policy immediately.”

Some students were not satisfied last week—nor this week—with the school’s response.

Says second-year Elizabeth Sines, who is currently one of a dozen plaintiffs suing Kessler for injury at the August 12 rally, “At this point, there are a group of us students trying to determine how best to respond if he comes here again, because we realize we can’t rely on the university to do so.”

Goluboff’s email reads, “These two trying events have caused much distress. I share in that distress, and I am devoting my full attention to these matters.”

Correction: The date of Kessler’s first visit was April 18, not April 20.

Updated 3:13pm with additional information from UVA law spokesperson Mary Wood.

Updated 4:38 to remove the name of a person incorrectly identified.