Tag: Judge Rick Moore

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Statue hearing: Councilors immunity still being argued

Statue plaintiff Buddy Weber says city councilors have a duty to know what the law is. Staff photo

 

So far, Judge Rick Moore has accumulated six files pertaining to the lawsuit filed a year ago against Charlottesville and its city councilors for voting to remove the statue of General Robert E. Lee—and that doesn’t include the transcripts, he told lawyers in Charlottesville Circuit Court April 11.

At the latest hearing, the city again attempted to get the suit thrown out. Before arguing its plea in bar, which maintains the individual city councilors should not be defendants in the case, Moore reversed himself on an earlier decision and said the plaintiffs could seek attorneys fees.

He previously ruled the plaintiffs could not seek damages because no damages to the statues had occurred—and he said that ruling still stands.

But upon a closer reading of the statute, which says damages may be awarded for the “rebuilding, repairing, preserving and restoring” memorials, he reconsidered. “What was planned by City Council encroached” upon the monuments, he said. “The statute allows [the plaintiffs] to recover the cost of preservation.”

The tarps that covered the Lee and Stonewall Jackson statues, which Moore order removed February 27, were “in fact in my view an encroachment,” he said. “My original ruling on damages was premature.”

Acting City Attorney Lisa Robertson again argued that those on council last year—Wes Bellamy, Bob Fenwick, Kathy Galvin, Mike Signer and Kristin Szakos—were immune from litigation because of sovereign and legislative immunity.

None of the councilors individually can enact legislation, said Robertson. “Not until it’s an aggregation of votes” as a body are resolutions made.

Plaintiffs attorney Braxton Puryear said immunity does not apply in cases of willful misconduct. The councilors had rulings from both Attorney General Mark Herring and then city attorney Craig Brown that the state statute prohibited removal of war memorials, he said. “City Council was intentional and willful in its misconduct.”

Moore pondered the issue of immunity. “The question for me is, does that apply when they’re engaged in unauthorized activity?” he asked. “If they decide to do something unlawful, does it still apply?” He called the issue a “gray area.”

Ralph Main, another plaintiffs attorney, said councilors made an “unauthorized appropriation of funds” when council passed a resolution authorizing up to $1 million to reconfigure the parks, including the removal of the Lee statue.

“The act itself is unlawful,” he said. “They had a duty to follow the law.” Councilors were aware of the criminal penalties in the state’s war memorials statute, he said.

And they were aware they were facing litigation when they voted to remove the Lee statue, asserted Main. Despite Moore issuing a temporary injunction prohibiting the removal of Lee, “they still voted to remove Jackson,” said the attorney.

City Council made that vote after the violent Unite the Right rally protesting the city’s decision to take down Lee.

Individual councilors did not receive any money from their appropriation to reconfigure the park, said Robertson.

And Moore seemed to agree with her that elected officials have immunity so they can make decisions that may be unpopular without fear of getting sued every time they anger a constituent.

The judge said there are a lot of moving parts in the case and that he wanted to read more cases on immunity. He also asked the attorneys to send him a letter outlining the issues they want him to decide in the plea in bar, the body of facts and what court cases he should consider in making his decision.

“This is not an easy case from a legal point of view,” said Moore. “I’ve never dealt with individual liability.”

A further hearing will be scheduled April 16 because the city’s attorney, Richard Milnor, said an order prepared by the plaintiffs attorneys “does not accurately reflect the ruling” on the court’s decision that the shrouds on the statues had to go.

Outside the courthouse, Main had an issue with a story this reporter wrote about the “tarps covering Lee and his Confederate general buddy, Thomas ‘Stonewall’ Jackson.”

“I don’t like it that you referred to Jackson as Lee’s buddy,” said Main. “I think you should retract that.”

The case is scheduled for an October 26 trial.

 

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He said, she said: Ex-cop acquitted of sexual assault

Ronna Gary, the alleged victim of two counts of forcible sodomy, says she's devastated that she lost her case on March 6. She says she understands why victims don't come forward. Photo by Eze Amos

 

It was his word versus hers, and in a two-day trial, a jury believed him.

In the case where ex-Charlottesville Police Department officer Christopher Seymore was charged with forcibly sodomizing Ronna Gary—twice—in her Shamrock Road home, a jury deliberated four-and-a-half hours and found him not guilty on both counts.

Gary claimed that two November 18, 2016, sexual encounters with Seymore were against her will—that he was a cop, with a badge and a gun, and when he unzipped his pants, she felt pressured to her knees in her living room, where she says she had no choice but to perform oral sex on him.

“What was I supposed to do,” Gary said during her lengthy testimony. “He’s a cop.”

Christopher Seymore. Courtesy of the CPD

Seymore was responding to a hit-and-run incident on her street early that morning when Gary came outside, told the officer what she saw and invited him into her home while he waited for a truck to tow the impaired vehicle. And although they both agree that after the truck came Seymore removed his body camera and went back inside Gary’s house, the two accounts diverge from there.

Before the trial, Gary had spoken to multiple media outlets—including C-VILLE—about her version of what happened. But it was in Charlottesville Circuit Court on March 5 that the public heard Seymore’s side of the story for the first time.

When he took the witness stand, the former cop said Gary had been flirting with him throughout the night.

Internal affairs investigator Brian O’Donnell, who viewed Seymore’s body cam footage, also testified he thought Gary seemed flirtatious. (Because of a miscommunication, it was not preserved.)

She said he could come to her house any time without a warrant, Seymore said. When she showed him around her abode, she allegedly took him to the bedroom and said, “This is where the magic happens.” Seymore said she called him “the hottest cop [she’d] ever seen.”

“She made me feel good,” Seymore testified. “And I hadn’t felt good in a long time.”

The former cop said he’d been married since February of that year. His wife had just given birth to their son, who is now 18 months old. Seymore also has full custody of his 7-year-old daughter from a previous marriage, and he testified that in the same year of the offense, his wife’s dog had attacked his daughter, his daughter was hospitalized with severe asthma, he suffered from post traumatic stress disorder from his time serving as a sergeant the U.S. Army, and his wife was coping with postpartum depression.

“My life was in shambles,” he said. “[Ronna] made me feel liked.”

After she performed fellatio on him, Seymore said he went to the police department to finish writing his report for the hit-and-run.

Gary testified that she took a sleeping aid and was awakened by a loud banging on her bedroom window a few hours later, around 7:45am. It was Seymore. He was back, dressed in plainclothes and asking to come inside.

Seymore testified that about five minutes after he asked to come inside, she appeared in a “very sexy piece of lingerie.” He said she led him to her bedroom where she asked to have intercourse, but after she couldn’t find a condom, she performed oral sex for the second time. The two discussed that Seymore would come back next time he was on duty. He’d go buy a “big box” of condoms and leave it at her house, he said.

Gary testified she performed oral sex both times because she was intimidated and she feared what would happen if she didn’t. She denied inviting him back.

Defense attorney Elizabeth Murtagh showed the jury texts that Gary sent her ex-boyfriend shortly thereafter. One message said Seymore was only 34, noted the size of his penis, that he had a “body from hell” and that he “likes handcuffs.”

The officer never came back. Gary made contact with Seymore about 10 days later when the two exchanged several phone calls. In one of them, they both testified they chatted casually about Thanksgiving and their families. Seymore said Gary asked him to loan her money to buy Christmas presents for her kids—a claim that she denies.

Call logs show that after she hung up the phone, she dialed Officer Declan Hickey, an acquaintance who had helped her initially get in touch with Seymore. Hickey testified that this is when Gary told him Seymore forcibly sodomized her. He reported it, and the whirlwind began.

Murtagh painted Gary as a money hungry woman with financial issues. She called the case a “cash cow” for Gary, who told friends that she could make a million dollars off of it, an allegation Gary didn’t dispute. The attorney showed the judge an issue of C-VILLE Weekly in which it was reported a friend had created a crowdfunding site for Gary to raise enough money to move out of Charlottesville.

Murtagh called Martin Kumer, the superintendent of the Albemarle-Charlottesville Regional Jail, to testify about another instance in which Gary allegedly asked for money. Kumer said Gary filed an undisclosed complaint against the jail, so he went to her house to investigate it.

“She slid a piece of paper across her coffee table,” Kumer said, and told him she wouldn’t go to the media if he paid the amount she had written on the paper. It was $5,000.

Murtagh also questioned the alleged victim’s credibility. She told the jury about a 2005 case in Howard County, Maryland, in which Gary “fabricated” a “pretty outrageous” story that involved a carjacking and an abduction and was found guilty of filing a false police report.

In her closing argument, she asked the jury why people lie—and said it’s often to self promote.

“I know [lie] is a strong word, but it’s the word I’m using,” Murtagh said.

Commonwealth’s Attorney Joe Platania said the jury must decide if Garly truly made a voluntary decision about what she wanted to do with her body. He said the whole case boils down to two words: “submission and consent.”

“The jury worked hard on this case,” said Judge Rick Moore before the verdict was announced. He noted the attentiveness of the group of six men and six women who had to decide the fate of Seymore, who faced life in prison.

Gary, who was visibly emotional throughout the two-day trial, didn’t shed a single tear as the clerk read the verdict at 11:30pm on March 6. A red-nosed jury member could be seen wiping her eyes, however.

“It’s been a long journey for her and I think she’s also going to take some time to digest it,” Platania said outside the courtroom. “It’s an emotional evening for her.”

Seymore’s wife, who reached out to this reporter, declined to comment on the record.

Murtagh did not respond to an interview request.

In a March 8 phone call with Gary, she said she was packing up her things and planning to move out of Charlottesville by the afternoon. She says she leaves behind the “love of her life,” and a community she’s made safer by working undercover as a confidential informant for the Jefferson Area Drug Enforcement task force, which was revealed during the trial.

“It’s International Women’s Day and I don’t feel like women are celebrated today,” she says. “This has been devastating. My life will never be the same.”

She calls the past year and a half “painful and exhausting.”

“I did not do this for money,” she says. “There is nothing glamorous about a rape trial.”

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Tarps off: Statue lawsuit looks headed to trial

Protesters gather outside Charlottesville Circuit Court before the latest hearing in the lawsuit to keep the city from removing Confederate monuments. Photo Eze Amos

In the latest court hearing on the lawsuit stemming from City Council’s vote a year ago to remove the statue of General Robert E. Lee, the tarps covering Lee and his Confederate general buddy, Thomas “Stonewall” Jackson, weren’t the main reason for the court date.

But the judge’s ruling that the shrouds must come down have set off a new round of outrage from anti-statue protesters and bolstered the plaintiffs assertion that council violated state law.

Outside Charlottesville Circuit Court February 27, dozens of protesters chanted, “If we don’t get it, shut it down.” Inside, Acting City Attorney Lisa Robertson argued the city’s demurrer, which is a motion to dismiss, and in legal circles, informally is defined as the defendant saying, even if the claims alleged in the suit are true, so what?

The big issue is whether the individual city councilors who voted to remove the Lee statue February 6, 2017, and the Jackson statue August 21—Wes Bellamy, Bob Fenwick, Kathy Galvin, Mike Signer and Kristin Szakos—are liable under Virginia’s war memorial protection statute that prohibits localities from removing or interfering with such monuments.

Robertson argued individual councilors have legislative immunity on issues that are matters of public concern on which they engaged in public deliberations and voted, and the plaintiffs can only sue the City of Charlottesville. Their vote did not constitute “willful misconduct,” she said. “Legislative immunity applies to individual members and City Council itself.”

Judge Richard Moore said he agreed with most of what Robertson said, but pointed to the statute that says a locality can’t move or damage a monument. “Clearly the General Assembly is waiving immunity for the locality,” he said.

The statute also allows for punitive damages from those who remove, damage or deface war memorials. Robertson pointed out the the judge had previously ruled there were no damages. An injunction has prevented the city from removing the statues until the court decides the lawsuit.

Plaintiffs attorney Ralph Main noted several times the statute allowed for an award of litigation costs and attorney fees, and said councilors were not protected by legislative immunity because they used city money for unauthorized purposes and “intentionally voted to remove the monuments.”

“Whether you agree or not,” said Moore, “all of them thought this was the right thing to do. This is clearly the city’s business.”

Moore issued rulings that will allow the lawsuit to go forward, and the lawyers agreed it could be handled in a one-day trial in October.

Two-and-a-half hours into the hearing, Moore took up an issue not on the docket and read a letter about his decision on the tarps City Council ordered August 21 to cover the statues in mourning for the deaths of Heather Heyer and two Virginia State Police pilots on August 12.

Last October, he denied an injunction to remove the tarps because the coverings were temporary. The deciding factor for Moore was that six months later, City Council has set no date for when the black plastic would be removed.

“I can only surmise that they have not set an end time because they never meant for the coverings to be temporary, but always wanted and intended them to be permanent or at least indefinite,” he said. “I do not believe that the statute allows that.”

At a February 5 hearing, Robertson suggested that the one-year anniversary of the August 12 Unite the Right rally is the appropriate time to end the mourning period.

“This seems to be an after-the-fact attempt to portray this as something other than originally intended,” said Moore. “The question is whether it is in fact a temporary covering. I find it is not.”

He also found that the “irreparable harm” from covering the statues is not physical damage, but the “obstructed right of the public, under the statute, to be able to view the statues,” including tourists and historians who’ve been unable to see them. The continued indefinite cover is “tantamount to ‘removal’ or building a fence around it, and has the same effect,” Moore wrote.

Outside the courthouse, Main said, “I think he made the right decision. It’s in accordance with the law.”

Protest organizer Ben Doherty with Showing Up for Social Justice said Take Them All Down is a national movement. While the judge said the tarps cause irreparable harm for people who can’t see the statues, “we would say the exact opposite,” said Doherty. “These statues being here on a daily basis causes irreparable harm.”

In a statement, new city spokesperson Brian Wheeler said, “From the beginning, the City Council’s intention for the shrouds was to mourn the loss of life and the severe injuries that members of our community suffered on August 12. In part, the judge’s ruling is based upon his opinion that the shrouds were not temporary in nature.”

While “disappointed by the ruling,” the city said it would respect the court’s decision. The tarps were removed the next morning.

Statue rulings so far

Plaintiffs favor

  • They have standing.
  • An injunction that prevents the city from removing the statues until the case is decided.
  • An injunction to remove the tarps.
  • A ruling that Virginia Code applies to statues in existence when the law passed in 1997 and could prevent removal of Lee and Jackson if they’re proved to be war memorials.
  • Enough facts that the judge will consider whether the Lee statue is a war memorial.

Defendants favor

  • The city can rename Lee and Jackson parks.
  • The city is not subject to punitive damages.

TBD

  • Whether the city is liable for compensatory damages.
  • Whether councilors have immunity.

 

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Bond denied: Third time is not the charm

This poster was released August 24.

Judge Rick Moore slightly shook his head as he watched a video that showed Alex Michael Ramos assaulting Deandre Harris in the Market Street Garage August 12—and then he denied an appeal to release Ramos on bond, despite an associate of Unite the Right organizer Jason Kessler offering to house the Georgia man.

It was Ramos’ third unsuccessful attempt at securing bond since he turned himself in August 28 in Forsyth, Georgia, on a felonious assault charge, and the Charlottesville Circuit Court judge cited the violence of the attack and Ramos’ lack of ties to the area.

“I’ve been in this job a long time,” said Moore. The video “is one of the most disturbing things I’ve seen.”

Attorney John Joyce sought to assuage the court’s concerns about lack of local ties with a plan to house Ramos with a new friend in Fluvanna he met through Kessler. Ramos testified that he’d known the woman a few weeks and had spoken to her a number of times on the phone.

The woman testified that she’d called people in Georgia who knew Ramos before considering letting a total stranger live in her house with her husband and kids, and was reassured that “he has no criminal record,” she said.

She also told the judge she’d seen the video from multiple directions and was not concerned about the alleged assault.

Assistant Commonwealth’s Attorney Nina Antony described the August 12 scene in which Harris was on the ground “in the fetal position” being beaten by four men when Ramos, who was not part of that group, sprinted into the garage, jumped over people who were watching the attack to possibly kick and then hit Harris.

She also showed Moore a Facebook post Ramos made after August 12. “He’s bragging about it,” she said.

Joyce acknowledged that his client struck one punch “in an insanely heated situation,” but stressed that Ramos had no criminal history and now has a place to live with a “sympathetic family.”

“He didn’t have a record and it didn’t keep him from doing what he did on the video,” said Moore. “It’s quite alarming.”

Calling the assault “gruesome,” Moore said, “You can’t manufacture local ties to the community by saying, ‘Stay at my house.’”

Moore said Ramos was an unreasonable risk to others and there was an unreasonable risk that he’d appear in court.

“I’ve not seen any remorse at all,” said the judge, who quoted Ramos’ post August 12 Facebook post: “We stomped ass. It was fucking fun. VICTORY!!!”

“He’s really not regretful,” observed Moore in denying the appeal. Ramos’ next court appearance is December 14.

 

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Statute retroactive? Judge mulls city’s motion to throw out statue lawsuit

The battle over where the statues of generals Robert E. Lee and Stonewall Jackson will reside continued in court September 1. File photos

The battle over Charlottesville City Council’s vote to remove the statue of General Robert E. Lee continued in a packed courtroom September 1, with the lines pretty clearly drawn between statue supporters and those who want Lee to make a final retreat.

The hearing was to argue the city’s demurrer, which alleges that even if all the facts are correct in the lawsuit filed by the Monument Fund, the Sons of Confederate Veterans and other plaintiffs, the 1997 Virginia law that prohibits municipalities from removing war memorials is not retroactive, and would not apply to the Lee statue that Paul McIntire gave the city in 1924.

Plaintiffs attorney Ralph Main maintained that a common sense reading of the law was in order.

At the end of the hearing that stretched four hours, Judge Rick Moore decided to take a few more weeks before ruling, although he did sustain the city’s right to rename Lee Park to Emancipation Park.

The issue has roiled Charlottesville since Vice-Mayor Wes Bellamy called for the statue’s removal in March 2016. City Council voted to remove the statue of Lee in February, while keeping the monument of General Stonewall Jackson. It also renamed the eponymous parks Emancipation and Justice in June.

Since then, Charlottesville has become a magnet for white supremacists, drawing tiki-torch-carrying marchers in May, the KKK in July and the deadly Unite the Right rally August 12. The latter has spurred cities in other states to remove their own Confederate monuments, but such action in Virginia has been stymied by state law.

In Charlottesville Circuit Court, the Lee supporters were older, whiter, more tie- and seersucker-wearing, with more Colonel Sanders’ beards. And at least one of those there, who has been alleged to be a Sons of Confederate Veterans member, was an attendee at the August 12 Unite the Right Rally, where he wore an emblem of the secessionist-favoring hate group League of the South and was photographed with longtime white supremacist David Duke.

Statue opponents were younger, more racially diverse and more likely to be wearing a Black Lives Matter T-shirt. Many of them gathered outside the courthouse with signs before the hearing began, and many of them attended the chaotic August 21 City Council meeting, a fact of which Judge Moore was aware.

“We’re not going to allow that,” he said at the beginning of the hearing. “If you’re not able to control yourself, you should leave.”

Moore also noted that the clerk’s office had been inundated with thousands of calls, letters and emails, “overwhelmingly from out of state,” and he asked the senders to knock it off. “Our courts are not a majoritarian institution,” he said. “Judges do not wait to see what public opinion is. It’s improper for a person to contact a court to influence a case.”

Deputy City Attorney Lisa Robertson hammered at the fact that when the General Assembly passed the monument law in 1997, it also passed a statute that requires specific language stating if a new law applies limits to a city’s previously held authority. “The words the General Assembly had to use for retroaction are not present in this legislation,” she said.

She also questioned the standing of the plaintiffs, maintaining that being a taxpayer is not enough, because it would “give standing to challenge any decision of city government.”

On that issue, in a 2009 case in the same Charlottesville Circuit Court, Judge Jay Swett said a group of citizens trying to block the building of the Meadow Creek Parkway through McIntire Park did have standing, although he ultimately denied their injunction to stop the already underway construction of the road.

Main argued the legislators intended for the monument law to be retroactive, because the statute listed wars going back to before the nation’s founding, and he asked, “How many people are erecting monuments these days for the Algonquin War?”

Judge Moore pointed out the law doesn’t say “has been erected,” and that while he wanted to apply a common sense ruling, “I’ve got to consider what the law says.”

Main also said proof of the General Assembly’s intent was a law it passed last year clarifying the 1997 law, legislation that was not signed by Governor Terry McAuliffe.

“That particular bit of evidence is ambivalent,” said Moore, and could mean the law is not retroactive but “that’s the way we want it now.”

Main argued that anyone with an interest in the matter had standing, and he described the plaintiffs, some of whom had contributed money for the litigation. That was an argument Moore didn’t seem to buy. “The fact someone funds litigation doesn’t create standing,” he said.

Nor did he go for the fact that one of the plaintiffs, Edward Bergen Fry, is the great-nephew of the sculptor Henry Shrady. “That’s a question for me, just because he’s related to the person who created the statue, how does he have something legally at stake?” asked the judge.

After a 30-minute recess, Moore said he needed more time. He also held off okaying the renaming of Jackson Park because the deed made that name a condition.

In addition, he sustained the city’s argument that the plaintiffs could not claim damages, because there were no actual damages.

In May Moore granted a temporary injunction to prohibit the city from removing Lee while the issue was under litigation. With the city likely to vote to remove the statue of Jackson September 5, and with both statues now covered with black tarps, he’ll be hearing motions on those matters September 6.

He also promised those left at the end of the hearing that someone would be disappointed. “I don’t know how I’m going to rule,” he said. “There’s strong merits on both sides.”