Following the tragic climax of Charlottesville’s summer of hate on August 12, City Manager Maurice Jones ordered an independent review of the city’s handling of the July 8 KKK rally and the Unite the Right rally that left Heather Heyer dead and dozens injured when a neo-Nazi plowed into a crowd on Fourth Street.
He hired former federal prosecutor Tim Heaphy, now with legal powerhouse Hunton & Williams, to do an external, objective review with a “critical eye.”
Immediately the criticism began: that Heaphy solicited the job because he emailed Mayor Mike Signer about doing an investigation, that as a former prosecutor he’d be sympathetic toward police, that his $545-an-hour fee was too much, even capped at $100,000.
Attorney Jeff Fogel filed a suit on behalf of five citizens, including UVA Professor Walt Heinecke and longtime activist Joy Johnson, alleging Jones didn’t have the authority to hire Heaphy.
And when Heaphy presented his findings in a December 1 press conference and to City Council December 4 that city government failed to protect constitutional rights and public safety, predictably, complaints about the findings ensued, as well as about the photo on the cover of the report—a black officer with hooded Klansmen in the background—and Hunton & Williams’ $350,000 bill.
City police came under fire for its planning, communication and lack of unity of command on August 12, as did the Virginia State Police, which sent 600 officers here but used its own, unshared operational plan and its own radio channel, making it impossible for city police to directly communicate with their state police brethren.
The report alleges Chief Al Thomas said in the midst of street brawling, “Let them fight a little while” because it makes it easier to declare an unlawful assembly. It also claims Thomas inaccurately said he ordered the use of tear gas at the KKK rally—he denied a state police request and Deputy Chief Gary Pleasants ordered the tear gas without Thomas’ knowledge—because he had to work with them at the upcoming Unite the Right rally.
During the course of the review, the report says Thomas and his top command deleted texts and that he used a personal email account to sidestep Freedom of Information Act requests. Heaphy contends Thomas tried to limit the information his officers discussed and that he tried to find out what they told Heaphy, requiring Jones to step in and tell police officers to not discuss their statements.
Worse, reports Heaphy, “Chief Thomas’ attempts to influence our review illustrate a deeper issue within CPD—a fear of retribution for criticism.”
Thomas’ Virginia Beach attorney, former Virginia State Bar Association president Kevin Martingayle, denies that Thomas “did anything to mislead anyone or anything that made the [August 12] situation worse.”
Three of the city police’s top officers—Captain David Shifflett, Captain Victor Mitchell and Pleasants—wrote Jones about inaccuracies in the report.
Mitchell took issue with Heaphy’s interview, which he described as a “blitz attack.” He said because police officers were compelled to cooperate, it was an “investigation not a review,” and the city employees should have been given the equivalent of a Miranda warning of their rights not to incriminate themselves. Mitchell did not respond to a phone call from C-VILLE.
Most of the report’s critics say despite not agreeing with everything in it—particularly as it pertains to them—overall its findings are sound.
Now that we’ve had a little time to digest the 207-page independent review, C-VILLE checked in with city councilors, Thomas, Heaphy, a former police chief and activists to get their reactions to what it laid out. Unite the Right organizer Jason Kessler did not get back to us.
Chief Al Thomas
If anyone came off looking bad in the report, it was Thomas. His attorney, Kevin Martingayle, called on behalf of the chief, whom he says has a “mixed reaction” to the report. “There are a lot of erroneous statements,” says Martingayle.
However, Thomas agrees with the report’s goal, stated in its preface, of leading to a more unified Charlottesville, according to his attorney. “He’s 100 percent on board with that,” says Martingayle.
Thomas did not condone allowing the street combat August 12 to continue to declare an unlawful assembly, says Martingayle, despite those assertions by two of his staffers who were there: Captain Wendy Lewis and Thomas’ assistant, Emily Lantz.
“It didn’t happen,” says the attorney. What he believes occurred was that in the command center, there was a “very serious discussion” about whether there was enough fighting and illegal activity going on to declare an unlawful assembly. He points out that there was civil liability and a court order to consider before trying to shut down a free speech event.
“The chief has a completely different recollection of that,” he says of Lewis’ and Lantz’s accounts.
Nor was the declaration of an unlawful assembly the plan, says Martingayle, but there was an expectation there could be violence. “That doesn’t mean that’s the plan in advance,” he says. Thomas “was truly in an impossible situation.”
As for Heaphy’s conclusion that city police feared “retribution for criticism,” Martingayle says Thomas can’t say how people on his staff feel, and he did not threaten critics, but “there’s always a fear for anyone who criticizes the boss.”
Martingayle says Charlottesville’s hiring of an outside, independent attorney to do a “top to bottom review” of an unprecedented event with tragic consequences and then releasing the unedited report is in itself unprecedented, and could become a model for other localities to follow—”unless it’s a scapegoating.”
Under FOIA, both ongoing investigations and personnel matters are exemptions government often uses to withhold information. Maurice Jones did not do that in this case, and that’s why it’s so unusual, says Martingayle. But if it’s “used as a weapon of any kind,” he warns, people will refuse to cooperate in the future.
Vice-Mayor Wes Bellamy
Bellamy has become a target himself after leading the March 2016 charge to remove the statue of General Robert E. Lee, which many believe put Charlottesville in the crosshairs for white nationalists and neo-Nazis.
And City Council worsened the upcoming alt-right invasion with its last-minute interjection into operational affairs by pressuring Jones to move the rally to McIntire Park, despite legal advice that such a move would not pass constitutional muster, Heaphy reports.
At City Council December 4, Bellamy said, “I’m sorry. We let you all down. I think it’s important we acknowledge that.”
To C-VILLE, he says, “I’m not throwing anyone under the bus.”
Councilor Kristin Szakos
The outgoing councilor, who called for the removal of Confederate statues years before the idea gained traction, says she’s read Heaphy’s report twice, and believes it does the three things Jones asked for: fact finding of what happened when and where, make a valued assessment of what went right and what went wrong and make recommendations.
“What we asked [Heaphy] to do, he did,” she says.
She’s not perturbed by allegations of inaccuracies because the scope of the assignment was so huge. “I don’t know who could have done it better,” she says.
The allegations about Thomas are “concerning,” she says, but “Mr. Heaphy at the end of the report didn’t find any evidence police had done anything out of malice.”
As for complaints about the $350,000 legal bill, she says, “I think they earned their pay.”
She urges people who haven’t read the report to do so, although acknowledges doing so is “retraumatizing.”
Szakos says it’s important not to “rush to judgment,” and to be deliberate moving forward. “It was a community crisis.”
Councilor Bob Fenwick
Fenwick, who also leaves council at the end of the year, does not find Heaphy’s report an objective review of August 12. “I don’t agree with it at all,” he says. “The general thrust is not correct.” The report was “one-sided” and focused on what city police and City Council did wrong, he says.
Citing his background in the Vietnam War, along with his observation of events that day from the vantage point of the bus shelter on Market Street across from Emancipation Park, he says, before noon “I had a very clear perception Charlottesville had won,” and successfully fended off the white nationalist invasion.
Fenwick also disagrees with Heaphy’s assessment that poor planning was a factor in the tragic turn of events. “I wrote a big part of the invasion plan for Cambodia,” he says, which “disintegrated before we hit the ground.”
The plan was constantly changing, he says. “I was very satisfied with the planning.”
Nor does he find a problem with city police not intervening unless someone was going to be seriously injured. He compares the punches being thrown that he witnessed to what one sees at a hockey match. “To characterize what happened in front of me as violent clashes is inaccurate,” he says.
The ones who should be blamed for not intervening are the state police, says Fenwick. “They’re the people who stared right through people when they asked for help,” and who did nothing when Richard Preston fired a gun in the crowd, he says.
Fenwick wants to know who gave the order for state police to go “off plan” the day of the rally with an operational plan not shared with city police until a left-behind copy was found after the rally. “It changed everything,” he says. “In a situation as dangerous as we thought it was, we need to know who gave that order.”
Fenwick believes Heaphy used “every opportunity to slam” Thomas, and he offers another explanation for Thomas’ alleged let-’em-fight statement: to cut tension in a tense situation in the command center.
“We ought to be talking about recovery,” says Fenwick. “This report puts us right back into the soup. We’ve been traumatized.”
And for Fenwick, there’s no doubt where blame belongs for the violence of August 12. “Jason Kessler is the responsible party,” he says.
John DeKoven “Dek” Bowen
The Charlottesville Police Department chief for 23 years took office in 1971 when anti-Vietnam War protests were sweeping the country, and he recalls training he took at Fort Gordon in Georgia. “We did nothing but crowd control and demonstrations,” he says. The training was “invaluable” and he wonders if anyone with the current force now has that training.
“I thought it was a good report,” he says of the review. “It was a very comprehensive report and [Heaphy] addressed the areas I was concerned with.”
Among them, police training and experience. “I thought those two areas looked weak.”
Planning: “not good.”
Execution: “poor.”
Says Bowen, “I’m not in any way criticizing the police officer on the ground. If I was sitting in a chief’s position, I’d be very concerned about administration.”
Police always have to have more than one plan, he says, because “at the first shot, all plans go out the window.” Communications have to be clear and precise, he says. “That doesn’t seem to have been there on the 12th.”
The report’s allegations about Thomas are concerning, he says. “I don’t know whether it was true.”
Bowen says he hired Captain Mitchell, who complained about Heaphy’s “blitz attack.” Says the former chief, “My reading is he was anticipating a totally different kind of report,” with suggestions on what to do the next time such an event occurred.
Such public scrutiny “is a new thing for him,” observes Bowen. “Police should be used to criticism. Acknowledge it and move on.”
As for Fenwick’s contention the report is a whitewash, says Bowen, “I don’t know what he’s talking about. If it said everything was hunky-dory, that would be a whitewash.”
Bowen says if he had to contend with an influx of alt-righters primed for violence, “I would have asked for all the assistance I could get” from other departments around the nation that had experience with such encounters, including paying airfare to get an advisor here.
He questions the city’s decision to have officers in street uniforms for a softer appearance after criticism about riot-clad state troopers at the KKK rally. The report notes that cops had to leave the area around Emancipation Park at the height of fighting to put on special equipment that some of them had never tried on before.
“They should have been properly attired to begin with,” he says. “All you had to do was to look at those [demonstrators and counterprotesters] to know you’re going to have a fight.”
He debunks the notion that if officers are standing around in dress blues, everyone will be respectful. “That’s naiveté,” he says. “That’s lame.”
Bowen says he “couldn’t believe” the decision to clear the park, pushing alt-righters and anti-racists together. “If I saw something like that, I’d feel like I’d been a failure. The whole goal is to keep things from happening.”
The former chief doesn’t believe City Council should mete out any discipline “until it can get control of its own chamber.”
Bowen is clear about where his sympathies lie, “My heart goes out to the guy standing on the street.”
Emily Gorcenski
Local police are an “undisciplined, unconstrained organization that does not listen to the community,” opines the local activist, who live-streamed the August 11 torch-carrying neo-Nazis’ march through UVA Grounds and filed charges against Chris Cantwell for pepper spraying her.
Gorcenski has “mixed feelings” about the report, but says it confirms a lot of her recollections about the events. “To see that on the record is very comforting,” she says.
“It was good to have answers about why Fourth Street was open,” she says. “It was good to see answers on paper.”
Gorcenski would like to see more specific recommendations about police senior commanders Mitchell, Lewis and Pleasants for “those officers’ failures in leadership.” In particular, she calls out Pleasants, who “went outside the chain of command” and ordered the use of tear gas July 8 at the KKK rally “in a fit of machismo.”
Chief Thomas “needs to be held accountable,” she says, while acknowledging, “I have a lot of uneasiness that the failure was his and Maurice Jones’ alone, and am uneasy about putting a Nazi invasion on the backs of two African-Americans.”
Unlike most local activists who refused to talk to Heaphy, Gorcenski sat down with him for an hour and a half.
What she finds frustrating about the report is that it “minimizes the work and preparation of activists leading up to the event to warn the city. We presented many threats of violence.”
And Gorcenski does not agree with all of Heaphy’s conclusions, such as the one she describes as, “Let’s throw more police at the problem.”
The report on the whole, says Gorcenski, is accurate. “I don’t think it was a deliberate attempt to smear police. I don’t believe it was a deliberate attempt to exculpate the city.”
Gorcenski’s recommendation: “I think we need an investigation into the alt-right.”
Jeff Fogel
Civil rights attorney Fogel is suing the city for its hiring of Heaphy, and now that he’s read the report, Fogel contends it contains information the city knew all along. “The report is unnecessary and the city could have done its own,” he says.
“The reason it was interesting to us was because we didn’t know the facts,” he says. “The city did. It’s amazing the police department didn’t do its own analysis.”
Fogel thinks the report goes easy on Mayor Mike Signer and Jones, who is director of public safety for the city. “In [Heaphy’s] initial letter soliciting employment, he praised both Signer and Jones for their leadership,” he says. “Does he want to take that back? Since he went pretty lightly on Maurice Jones and Signer for his $350,000, it raises the question, why wasn’t he more sharply critical?”
Most bothersome about the report for Fogel is what he says is a lack of analysis of the city’s declaration of an unlawful assembly July 8 following the KKK rally. “Calling people names is not an unlawful assembly,” he says. “One officer was kicked in the groin. That’s assault, not unlawful assembly.”
He takes aim at “Gary Pleasants going around declaring an unlawful assembly,” while acknowledging he has a personal history with Pleasants, who okayed Fogel’s 12:30am arrest earlier this year.
And Fogel says the story of why tear gas was released outside the chain of command “is totally bizarre. [Pleasants] did it because he wanted to.”
Fogel says that while he’s not happy with either the city manager or the police chief, “I can’t not be sympathetic to Thomas and Jones. It’s clear Thomas is being undermined by his own staff. You cannot make two black men be the scapegoats.”
Mitchell’s complaint about Heaphy’s method of interrogation is “ironic,” says Fogel. “They do that to citizens. But they want to be treated with kid gloves.”
Robert Tracci
In November, Albemarle County’s commonwealth’s attorney and the Reverend Alvin Edwards published an editorial in the Daily Progress calling for an independent, bipartisan commission to investigate the August events.
Any attorney representing the city, “a central actor in—and named civil party to—what took place is not equipped to provide the credible and independent investigation to which our community and country are entitled,” Tracci wrote.
After reading the report, Tracci says in an email, “While Heaphy’s report contains important conclusions, including broadening the intent standard for the criminal prohibition on the use of open flames to threaten or intimidate, my view that an independent, bipartisan commission would inspire greater public confidence in its conclusions has not changed.”
Colonel Steven Flaherty
In the governor’s task force review released December 6, the Virginia State Police gets a big pat on the back for providing unlimited resources to Charlottesville, including more than 600 officers.
Heaphy’s report paints a different picture, and notes that on August 12, state police announced it was going “off plan,” and would not enter large unruly crowds to make arrests. And the radio systems between city and state police still could not communicate with each other, despite knowing that after the July 8 Klan rally.
“The fact that the agency with the largest commitment of personnel did not share its operational plan with the agency that maintained overall command at the event is a stunning failure to align mission and ensure mutual understanding,” says the report.
Flaherty, head of the VSP, would not allow Heaphy to interview anyone other than himself for the investigation.
In a statement, Flaherty expresses appreciation for Heaphy’s review and says the state police is finishing its own. “Thorough reviews and evaluations of public safety planning, response and management of significant incidents are invaluable in helping a law enforcement agency assess what has happened and successfully prepare for the future,” he says.
He notes the unprecedented nature of the August 12 event that drew people “from both the extreme right and the extreme left” intent on provoking violence.
“In that kind of volatile and rapidly evolving environment, it is difficult for any one police plan to account for every possible circumstance and resulting scenario,” he says. “For that reason, police plans must be adaptive in nature so as to empower the on-scene police agency(s) with the flexibility needed for immediate decision-making and sufficient deployment of resources.”
Flaherty, through VSP spokesperson Corinne Geller, refused to answer further questions.
Tim Heaphy
Heaphy says he’s not surprised by the reactions to the report. “A lot of people over the course of the review were distrusting the process, city government, the police department. Because I have a law enforcement background, people were resistant.”
Some people took coaxing to talk, and while he didn’t get everyone he wanted, he says he got a good crossview. “I heard a lot of anger at the system, a lot of hurt and pain,” he says. “We see that at City Council every Monday night. It’s not fair to tar me with that.”
The events of this year were the “latest manifestation of disconnect between those who govern and those who are governed,” he says.
And despite the complaints lobbed during City Council meetings, the response Heaphy has heard has been “overwhelmingly positive.”
He shrugs off being called an “ambulance chaser.”
“It doesn’t bother me because it’s from people who don’t know me,” and is not “credible,” he says. The ability to provide a review for the city “is what I do for a living. And I live in this community.”
Hunton & Williams billed more than $1.5 million for the review it charged Charlottesville $350,000 for, he says. “We took a huge loss. I’m not a very good ambulance chaser.”
He doesn’t back away from Captain Mitchell’s complaint about how he was interviewed.
“There’s no question I asked hard questions” of the police command staff, especially after being given different facts from people on the force.
“It wasn’t a witch hunt,” he says. “It was an effort to be fair.”
Another Mitchell complaint was that he didn’t hear Thomas in the command center say to let protesters fight to make it easier to declare an unlawful assembly. “The fact he didn’t hear it is irrelevant,” says Heaphy. “I had two separate witnesses. It felt like it was consistent with the plan—we’re going to declare an unlawful assembly.”
Says Heaphy, “Government has to do everything to protect free speech.”
The resistance he got from the police department he compares to the concept “consciousness of guilt.” For example, fleeing police could be seen as evidence of guilt, he explains.
Heaphy sees a “consciousness of fault among Chief Thomas and the command staff,” and that’s why Thomas “tried to put a positive gloss on it.”
And for all the complaints about his review, he says, “In general, they don’t touch the core findings. We may have gotten some things unintentionally wrong, but they’re not questioning the core findings. We got the big picture.
“It was accurate. I stand by it.”
How do we move on?
It’s perhaps the most weighted question that lingers after August 12, but if you ask City Manager Maurice Jones, he’ll tell you that Charlottesville isn’t wasting any time.
“We’ve already taken many steps to help move us forward,” he says, rattling off a list of directives, including the city’s involvement in a lawsuit to stop the militia and white supremacist groups from coming back, re-examining open-flame laws and pursuing a state code change to add “burning torches with the intent to intimidate” to the cross-burning code section. He’ll also present changes in the city’s policy for permitting events, such as prohibiting certain items from demonstrations, for City Council’s consideration on December 18.
The independent review conducted by former U.S. attorney Tim Heaphy and his arsenal of attorneys at the Hunton & Williams law firm was another important step in moving forward, Jones adds.
“Despite my objections to a few items in the report, I believe it was truly independent and, through its recommendations, gives us a roadmap for improving our preparedness for future events or rallies,” he says.
The city manager’s qualms with Heaphy’s $350,000 report? “I do believe some of the findings failed to acknowledge the unprecedented nature of the events of August 12,” he says, especially some of the legal and logistical issues related to banning flagpoles, sticks and other objects that can be used as weapons from demonstrations.
While Heaphy and Virginia Governor Terry McAuliffe have said non-firearm weaponry could have been banned at Unite the Right, Commonwealth’s Attorney Dave Chapman’s pre-rally advice to the city was reportedly that they cannot. Chapman did not return a call from C-VILLE Weekly. Jones says City Attorney Craig Brown is working with outside counsel to determine exactly what this conflict of opinion means for Charlottesville during future events.
And though Heaphy said in his review that the free speech rights of the neo-Nazi groups weren’t protected because their rally was declared an unlawful assembly before it was actually scheduled to begin, Jones says that declaration “was not the result of bad planning on the part of the city, but occurred because many of those very same people were intent on committing violence in our streets.”
As we’re sure you’ve heard time and time again, everyone has a right to free speech protected under the First Amendment, even if their words are vile and unfathomable, and previously only existed in the darkest corners of the internet.
For this reason, governments can’t really regulate speech at special events, like the Unite the Right rally where attendees openly wore swastikas, chanted that Jews would not replace them and that black lives don’t matter.
However, the Governor’s Task Force on Public Safety Preparedness and Response to Civil Unrest reports that localities may regulate activities at those events, so long as their regulations are content-neutral. These regulations “must advance a significant governmental interest,” such as maintaining public order and safety, which is his basis for allowing the restriction of weapons.
Unite the Right organizer Jason Kessler had applied for a permit for an anniversary rally next August 11 and 12—which he called “Back to Charlottesville”— but the city announced December 11 it had denied it.
UVA Curry School professor and community activist Walt Heinecke, who held counterdemonstrations in McGuffey and Justice parks last August 12, had applied for six permits for the same days as Kessler’s proposed 2018 rallies, with four in the aforementioned parks for counterprotest if the city had approved Kessler’s application, and two in Emancipation Park to give the city an opportunity to do the “right and moral thing,” and approve Heinecke’s permit for a “unity, justice and love festival” instead of the white nationalist’s second demonstration. The city announced Monday it had denied Heinecke’s permits as well.
“I just can’t believe this guy had the gall to apply for a permit after he brought a bunch of terrorists and murderers to town,” says Heinecke.
“We are carefully reviewing [Kessler’s] application and will respond to it accordingly,” Jones said during the interview and before the permit denial. “Previous actions taken by the applicant and people associated with him will be considered as part of our review process.”
Jones says the city is also offering additional training for law enforcement to make sure officers have the tools to effectively manage tense, large-scale events in the future.
If the community had its way, the homegrown white nationalist’s permit would have been denied faster than he applied for it. Charlottesville residents have a hard time keeping quiet about the things that matter to them, hence the frequent disruptions at City Council meetings since August 12.
At the December 4 meeting where Heaphy presented his independent review, and attendees lambasted him as he flipped through his PowerPoint, North Downtown resident Russ Linden used his two minutes of speaking time during the meeting’s public hearing portion to call for a series of community forums where people could discuss the report’s contents with civility.
Jones says a community group has been working to coordinate something similar for months, and will soon reach out to broader Charlottesville to launch the dialogue sessions, which will allow residents to address issues raised in Heaphy’s report and develop “action ideas” for solving them.
At the same council meeting, Jones said the city needs to rebuild the community’s confidence in its elected officials.
“But as Mr. Heaphy pointed out in the review, our community is fractured in some areas and we need to address those divisions,” he adds.
Issues such as racial equity and equal opportunity are critically important to Charlottesville, Jones says, and over the past few years, the city has invested a good amount of time and resources to address affordable housing, access to well-paying jobs and the criminal justice system.
“We will not develop and implement additional solutions to those problems if we continue to be fractured and are unwilling to listen to one another,” Jones says. “Progress has been made, but more work needs to be done.”—Samantha Baars
Proper permitting
Some of what happened on August 12 could have been avoided, according to a statewide report released December 6 from the Governor’s Task Force on Public Safety Preparedness and Response to Civil Unrest. It says Charlottesville officials didn’t take permitting advice from high-ranking state officials, and they placed no restrictions on Unite the Right participants.
For those calling the shots in Virginia cities where large-scale events are happening, here’s what Governor Terry McAuliffe and his safety squad recommend:
A threshold for requiring a permit
Localities that don’t have permitting procedures (and apparently there are some) should.
Determine capacity
Localities should set maximum capacity limits for public spaces, which allow governments to allocate sufficient resources to ensure public safety and order. The report recommends allowing one person per 11 square feet, so a 1,000-square-foot space could hold about 90 people.
Tiered application permits
Localities may create a system that requires a permit based on the size of the event (i.e. tier one is for events with 1-50 attendees, tier two is for 51-99, tier three is for 100-250, etc). This simplifies the process by requiring certain criteria, such as number of police or first responders, required for each tier, and is currently in use in Blacksburg and Henrico and Loudoun counties.
Enforce weapons restrictions
Though localities can’t legally ban guns in Virginia, they can and should prohibit other types of weapons at permitted events. Flamethrowers, anyone?
Public safety officers
Localities should consider requiring a permit holder to provide private security, though this could be a large expense and is seen as a free speech deterrent.
Time restrictions
Localities should determine when particular spaces will be open to the public, and enforce those rules for all events.
And another thing
Governor Terry McAuliffe also goes after the gun-loving General Assembly’s sacred rule that Virginians may open-carry firearms wherever they’d like in the Old Dominion.
In the task force report, McAuliffe proposes a change in code to allow localities to outlaw guns and ammunition in public spaces during permitted events, or events that should require a permit.