Local activists have long called for hate symbols including Confederate imagery to be banned in Albemarle County schools. Photo by Eze Amos
Anti-racist activists have spent more than a year advocating for a ban of hate symbols in Albemarle county schools, and after months of the school board deferring an official vote, the superintendent took matters into his own hands last week to prohibit such imagery in the dress code. Now, a constitutional attorney says he better watch out for a lawsuit.
Some school board members had previously voiced their concerns about the legality of such a prohibition—especially in light of the $150,000 First Amendment lawsuit they were smacked with in 2002 for denying a Jack Jouett middle schooler the right to wear his NRA camp shirt to school.
“Images of white supremacy, including Confederate and Nazi imagery, should not be permitted in our schools because they cause substantial disruption,” Superintendent Matt Haas read from a statement at the February 28 school board meeting, where he announced that he will ban explicit symbols, lettering, or any insignia associated with violence or white supremacy.
John Whitehead. Photo by Stephen Canty
John Whitehead, a constitutional attorney and president of the Rutherford Institute, says when policies are as vague and subjective as he says the Albemarle County Public Schools’ policy is, it lays the groundwork for a host of civil liberties violations.
The move is “consistent with a trend being played out in schools across the country—and in the courts—to censor First Amendment activities under the guise of school safety,” says Whitehead. “As a result, even American flag apparel was banned as dangerous in one major case.”
While this and other hate speech policies may make some students feel safer in the short term, he says it’s the Rutherford Institute’s position that they won’t actually make the schools any safer.
“Ultimately, what we must decide is whether the schools are here to censor or are they here to educate?” says Whitehead. “While this ACPS policy is inevitably going to result in a legal challenge, it’s not going to resolve the underlying problem of racism in our community and in our country, which is something that needs to be addressed and discussed openly and worked out in an open, supportive environment by the students and mediated by school officials.”
Benjamin Burruss sits in the same truck he was in in 2013 when Albemarle police held him for two hours until a SWAT team exploded a flash grenade and broke his window. staff photo
Benjamin Burruss sat in his car in the Comfort Inn parking lot surrounded by Albemarle police. His employer had asked police to check on him when he didn’t show up for work. Burruss told the officers he did not intend to harm himself or anyone else, and the 12-gauge shotgun in his backseat was for a hunting trip.
For two hours, police refused to let him leave, then deployed a stinger—a strip that shreds tires—under his rear wheels, threw a flash bomb, smashed his car windows, dragged him out, and took him to the hospital for a 72-hour mental health hold.
Five years after the November 21, 2013, standoff that Burruss, 61, said left him with PTSD, the county and five police officers settled his lawsuit against them for an undisclosed amount.
“Hopefully this case results in the police not using emergency custody orders to detain people who are not mentally ill, have not committed any crime, and just want to be left alone,” says Burruss in a release.
Burruss says he’d missed a few days of work at Northrop Grumman, where he held a security clearance, because he was adjusting to a new medication for depression, and he was staying at the motel on Pantops because of some marital issues.
When surrounded by what he estimated to be a dozen cops, he refused to get out of his car and said he didn’t want to talk to them and wanted to leave. Officer Garnett “Chip” Riley at one point said, “We got nothin’,” and, “I got no reason to hold him,” according to the complaint.
But rather than release him, Officer Jatana Rigsby called Burruss’ wife and asked her to obtain an emergency custody order, alleging he was “acting irrationally,” according to court documents.
County cops Riley, Rigsby, Kanie Richardson, Robert Warfel, and Captain Pete Mainzer were defendants in Burruss’ lawsuit, along with Albemarle County. The suit was filed in federal court for unlawful seizure, false imprisonment, and battery.
Burruss was represented by the Rutherford Institute and Michael Winget-Hernandez. Rutherford founder John Whitehead describes the settlement as “favorable to us but we can’t give details.”
He blames the incident on police militarization and overuse of SWAT tactics in a situation that could have been handled non-confrontationally. “Obviously the police went too far,” he says. “They smashed his window and put him in a mental health facility.”
Whitehead says he hopes the settlement says to police in future similar situations, “slow down.”
When asked about the settlement and whether it would affect future police actions in similar situations, Albemarle County spokesperson Emily Kilroy says, “The orders that were entered by the court are a dismissal as to the county and as to the individual defendants. There is no further comment.”—
John Miska was arrested for possessing the razor blades he'd just purchased at CVS.
Photo Janis Jaquith
A judge today said the city’s lengthy list of prohibited items on the Downtown Mall over the August 12 anniversary weekend swept “far too broadly,” and he dismissed a charge against a disabled veterans activist for possession of razor blades that were purchased August 11 at CVS.
John Miska, 64, bought two cases of Arizona iced tea, a can of bug spray, lightbulbs, and a pack of razor blades, and was arrested outside CVS for possessing prohibited items in the downtown area, where access was limited to two entry points on Water Street. Citizens attempting to enter the mall had to have bags and wallets searched before they were allowed to enter—although Miska was able to open carry a firearm. Metal beverage cans, aerosols and razor blades were prohibited, although Miska was only charged for the blades.
Miska entered a not guilty plea and was represented by the Rutherford Institute, a local civil rights organization.
Virginia State Police Sergeant S.W. Johnson, one of the 700 state police in town for the weekend, testified that he’d been alerted to Miska’s plans to purchase the forbidden items because the vet “made certain statements about his intentions to go to CVS” to the checkpoint staff. Johnson stopped Miska when he came out of the store with his walker, which carried the cases of iced tea, and he said he could see the other alleged contraband in the plastic CVS bag.
“He said he had common items for household use,” said Johnson. “He said he likes tea.” Miska declined Johnson’s offer to help him take the items to his car, and the officer took him into custody, Johnson testified.
Other people on the mall were drinking out of cans in restaurant patio areas, but Johnson did not arrest them because they appeared to be “part of private establishments,” he said.
Judge Bob Downer ruled in favor of Miska’s motion to dismiss and seemed to take a dim view of the city’s ban of certain items while allowing businesses on the mall to sell those items, commenting, “If the city really wanted to prohibit these items, they should have shut down all the stores that sold them.” He also said the restrictions were “too much” and that the ban was too broad.
“This case—in which a dozen police swarmed a disabled veteran with a walker buying cans of iced tea and bug spray from a CVS—is far from the only example of a dysfunctional, excessive government that overreaches, overspends, and is completely out of sync with the spirit of the Constitution,” said constitutional attorney and Rutherford president John W. Whitehead.
Also heard in Charlottesville General District Court were five other cases of those arrested over the anniversary weekend.
Former C-VILLE Weekly contributor Toby Beard, who was charged with “obstruction of free passage” August 12 during a march from Washington Park to downtown, pleaded guilty to a lesser infraction of walking in the street when a sidewalk was available. He was given a $15 fine, which was suspended.
His attorney, Janice Redinger, said after the hearing that the commonwealth dropping the charge from a Class 1 misdemeanor to a traffic infraction “was an acknowledgement that no crime took place.”
Chloe Lubin was charged with assault and disorderly conduct, and was ordered to do 50 hours of community service by January 31 for each charge. An obstruction of justice charge was dropped, with the condition it could not be expunged, and a misdemeanor charge of carrying a concealed weapon also was dismissed.
North Carolina resident Algenon Cain, who was charged with two counts of trespassing, did not appear in court. He was found guilty and fined $250 on the first count, with $200 suspended, and $250 on the second charge.
Veronica Fitzhugh was charged with misdemeanor assault and entered an Alford plea, which is a guilty plea that acknowledges the prosecution has enough evidence to convict but the defendant maintains her innocence. She was sentenced to complete 20 hours of community service by January 31.
Spotsylvania resident Martin Clevenger was charged with disorderly conduct following an encounter with Fitzhugh at Market Street Park. According to state trooper J.M. Hylton, who was standing behind a barricade in front of the Lee statue, Clevenger walked up to the statue and saluted.
“A female approached him and begin to scream and curse,” said Hylton. Clevenger “snapped and leaned over and shouted” at Fitzhugh.
Video showed Fitzhugh screaming “go home” and “get the fuck out of my town” at Clevenger.
He replied multiple times, “If history is forgotten, you are bound to repeat it.” He also said that Fitzhugh was touching him and asked officers to arrest her. In the video, he stands saluting the statue while Fitzhugh continues to shout at him, until he suddenly turns to confront her, which, he testified, was because she insulted his father’s military service.
“I was there peacefully protesting,” said Clevenger. “You can see her spitting at me. That’s assault.” He said he acted in self-defense when she disparaged the “honor of my father.”
Downer said the case is one of the most difficult to decide because of the latitude required by the First Amendment. But he said “the conduct of Ms. Fitzhugh certainly provoked” Clevenger’s reaction, and found Clevenger not guilty.
Outside the courthouse, anti-racist activists followed Clevenger into the Market Street Parking Garage and shouted at him and the police officers there. Clevenger sped out of the garage on a motorcycle.
Miska was screamed at with shouts of “fuck you racist” as he left the courthouse with his attorney, Elliot Harding.
Said Miska, “Perhaps we’ve shown the screaming meemies there is a way to protest government overreach within the system.”
Veteran John Miska was called a Nazi as he left the courthouse. Staff photo
Updated October 1 with comments from Whitehead, Redinger and Miska.
The Supreme Court says evidence from police peeking under a tarp within a home’s curtilage without a warrant is inadmissible in Collins v. Virginia.
Submitted photo
Ryan Collins already was on the radar of Albemarle police in 2013 after he eluded officers on two separate occasions on a flashy orange and black motorcycle. Five years later on May 29, the U.S. Supreme Court upheld his argument 8-1 that police needed a warrant to search for the bike outside his girlfriend’s house in what legal experts are calling a big win for the Fourth Amendment.
The county cops suspected the bike that got away from them was stolen, and when Officer David Rhodes saw a photo of a similar motorcycle on Collins’ Facebook page, he tracked it down to a house where Collins’ girlfriend lived, according to court documents.
Rhodes could see a tarp covering what appeared to be a motorcycle next to the house, walked up the driveway “to investigate further,” says the court opinion, and removed the tarp. The license plate number showed the bike was stolen, and when Collins returned to the house, he told Rhodes the bike was his and he’d bought it without a title. Rhodes arrested him and Collins was convicted of receiving stolen property in May 2014.
Collins argued that Rhodes needed a warrant to enter the house’s curtilage—the area immediately around a house that’s also protected by the Fourth Amendment—but the state Court of Appeals and Supreme Court of Virginia upheld the warrantless search under the “automobile exception,” which gives police greater leeway to search vehicles on public streets.
Supreme Court Justice Sonia Sotomayor—and seven other justices—did not agree. “The question before the court is whether the automobile exception justifies the invasion of the curtilage. The answer is no,” she writes in the court’s decision.
Allowing police to use the automobile exception to conduct warrantless searches “would render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage,” she says. “Indeed, its name alone should make all this clear enough: It is, after all, an exception for automobiles.”
Collins’ attorney, McGuireWoods’ Matthew Fitzgerald, UVA law class of ’08, has been described as a rising star in the rare air of Supreme Court litigation. He calls the court’s favorable ruling “excellent,” but says Collins’ legal battle isn’t over.
“The state has the opportunity to argue another exemption applies—the exigent exemption,” he says. The Supreme Court corrected the Supreme Court of Virginia in that the automobile exemption does not apply, he says, but the state is “entitled to argue” that it was an emergency that Rhodes conduct a warrantless search.
Police were looking for the bike because Collins had eluded them, not because the bike was stolen, says Fitzgerald, and it was easier to pursue the receipt of stolen goods charge because “it’s difficult to prove who was driving it months earlier.” Collins, who is in his early 30s, served several months in jail, says his attorney.
“If police had been doing things right, they would have gotten a warrant,” says Fitzgerald.
Albemarle County Police Chief Ron Lantz declined to comment on the SCOTUS ruling.
The Rutherford Institute filed an amicus brief in the case focusing on the sanctity of curtilage, and its founder, John Whitehead, applauds the ruling. He says it makes clear that police should stay off driveways and lawns unless they have a warrant. “If not, nothing in your yard is safe,” he says.
Six militia groups and their leaders named in a lawsuit aimed at preventing white supremacist and paramilitary organizations from showing their mugs around Charlottesville again have settled, agreeing they won’t engage in coordinated armed activity in any of the city’s future rallies or protests.
The latest round of defendants to bow out includes the Pennsylvania Light Foot Militia, New York Light Foot Militia, III% People’s Militia of Maryland, and their commanding officers: Christian Yingling, George Curbelo and Gary Sigler.
Militia groups were confused with the National Guard on August 12 when both groups showed up strapped with assault rifles and wearing camouflage tactical gear, but the former have maintained that they independently attended the rally to serve as a buffer between the increasingly violent alt-right and counterprotest groups.
“It became so overwhelming that the only thing we could do was pick people up off the floor,” Curbelo told C-VILLE after the suit was filed last October.
The lawsuit, which names 25 groups and individuals, was filed by Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection last October on behalf of the city and several local businesses and neighborhood associations.
At this point, Jason Kessler, Elliott Kline—aka Eli Mosley—Matthew Heimbach, the Traditionalist Worker Party, Vanguard America and Redneck Revolt are the only defendants actively litigating the case, according to the law group. Others are in default or haven’t been served yet.
The League of the South, its leaders, Michael Tubbs and Spencer Borum, and the swastika-loving National Socialist Movement and its leader, Jeff Schoep, have also settled.
So with the literal neo-Nazis officially agreeing to stay away, it begs the question: Who will come to Kessler’s anniversary rally (for which the city has denied a permit) this summer?
Rotunda Bible reader silenced
UVA alum Bruce Kothmann decided to challenge the university’s new speech policies when he read from the Bible on the steps of the Rotunda in early May. University police told Kothmann that was not allowed because he needed permission a week in advance and, in any case, the Rotunda is not one of UVA’s designated free speech zones for unaffiliated people—including alums.
Sex reassignment pioneer
Dr. Milton Edgerton, a plastic surgeon who performed some of the first genital reconfigurations in the country in the 1960s at Johns Hopkins University and then in 1970 at the University of Virginia, died May 17 at age 96.
Tweet of the week
Big bucks
The city’s FY 2019 budget provides $225,000 for City Council’s own staff, including a researcher and spokesperson. A recent job listing on Indeed.com for the latter, officially called the “council outreach coordinator,” offers a starting pay between $21.36 and $31.25 per hour to “develop, implement and champion council community engagement initiatives,” among other tasks.
’Hoo at Windsor
UVA alum and Reddit founder Alexis Ohanian attended the nuptials of Prince Harry and Meghan Markle with his bride, Serena Williams, who’s a pal of the new Duchess of Sussex.
Ryan Kelly
Ryan’s redo
Pulitzer Prize-winning former Daily Progress photographer Ryan Kelly, who last captured Marcus Martin flying in the air August 12 after being struck by a car that plowed into a crowd on Fourth Street, took photos of Martin and Marissa Blair’s wedding for the New York Times. Pop soul musician Major sang at the event, and the purple theme was in honor of the couple’s friend, Heather Heyer.
Pole-sitter lawsuit
The Rutherford Institute has filed suit on behalf of Dr. Greg Gelburd to demand that one Mountain Valley Pipeline protester named Nutty, who’s perched on a 45-foot pole in the Jefferson National Forest, be allowed food, water and examination by the doctor, whose conscience and religious beliefs have led him to offer services to poor and disadvantaged people across the world.
A big nope
A federal appeals court has ruled that Sharon Love, the mother of Yeardley Love, will not have access to George Huguely’s family’s $6 million insurance policy in her wrongful death lawsuit against her daughter’s convicted killer. The Chartis Property Casualty Company policy has an exclusion for criminal activity.
Ew, gross
The exotic East Asian tick, aka longhorned tick, was found on an orphaned calf in Albemarle last week, after initially being spotted on a sheep farm in New Jersey in 2017. The U.S. Department of Agriculture is still determining the significance. And in other gross news, the invasive emerald ash borer is on its way to Charlottesville and expected to kill all untreated ash trees within three years.
Quote of the Week
Nikuyah Walker. Photo by Eze Amos
“Most of the stuff I’ve been dealing with is complete nonsense.” —Mayor Nikuyah Walker on Facebook Live May 16
Two business days before Unite the Right organizer Jason Kessler was scheduled to stand trial on a felony perjury charge March 20 in Albemarle Circuit Court, C-VILLE Weekly reporter Samantha Baars was in Charlottesville General District Court, where a deputy handed her a subpoena to appear as a witness for Kessler.
Aside from First Amendment freedom-of-the-press issues, the subpoena posed another problem for the paper’s two-person news team: If Baars were sequestered as a witness, C-VILLE would have no one available to cover a case with considerable local interest.
Local attorneys James West and Josh Wheeler volunteered to challenge the subpoena and, with the support of the Rutherford Institute, prepared a motion to quash, which West filed just hours before the trial was scheduled to begin.
West says a federal court has identified reasons subpoenaing journalists is a bad idea, including the potential threat of judicial and administrative interference with news gathering. “If reporters are regularly subjected to open-ended subpoenas, they would be thinking of that in their reporting,” he says. “It would appear to turn reporters into an investigative arm of government or private parties.”
And as in C-VILLE’s case, it places a major burden on the limited resources of a small organization, says West. “You could be intentionally harassed. If a reporter has done a long series of articles that were not particularly flattering, [the subject] could subpoena the reporter so she couldn’t cover the trial.”
Kessler attorney Mike Hallahan told Baars, who had no first-hand knowledge of Kessler’s sworn statement to a magistrate that he was assaulted, which was the basis of the perjury charge, he was subpoenaing her for an October 10 article in which she’d interviewed Jay Taylor, the man Kessler claimed assaulted him.
In court, Hallahan objected to the motion to quash and initially to saying why he wanted Baars as a witness. “He wanted her as an impeachment witness for Taylor,” says West. C-VILLE was unable to reach Hallahan.
Judge Cheryl Higgins granted C-VILLE’s motion. “She was proactive in recognizing journalistic privilege,” says West.
Reporters in Charlottesville are not often subpoenaed to testify in court, but it’s happened before. A special prosecutor called NBC29’s Henry Graff as a witness in February for a case against Jeff Winder for assaulting Kessler August 13.
In 2007, Charlottesville prosecutor Claude Worrell, now a juvenile court judge, subpoenaed former C-VILLE editor Courteney Stuart, then a reporter for the Hook, to testify in a public drunkenness case.
Stuart appeared before Judge William Barkley with a motion to quash. “I cover crime,” she told the judge. “This is drunk in public—a minor crime. This week I’m also covering a capital murder. Am I to be called to testify in every crime I cover?”
Barkley denied the motion. At trial, Rutherford attorneys represented Stuart, but the defendants agreed to stipulate her story was accurate and released her as a witness. At that time, Worrell said he would subpoena reporters in the future because their role in a free press “does not mean they can opt out of their responsibility as citizens to provide information.”
Such a move “makes reporters an investigative tool of the court or government,” says Rutherford president John Whitehead. “Not a good idea.” It also compromises journalistic integrity, particularly in instances in which a reporter has promised confidentiality to a source, he says.
“A subpoena can be used to intimidate reporters and lower their profile,” says Whitehead. “It threatens freedom of the press.”
Correction: Kessler claimed Taylor grabbed his arm and got in his face, but not that Taylor slugged him as originally reported.
The Institute for Constitutional Advocacy and Protection lawsuit hopes to keep "unlawful paramilitary activity," like that seen on August 12, out of Charlottesville. Photo by Eze Amos
Exactly two months after the summer’s Unite the Right white nationalist rally that left three dead and many injured, a legal group has filed an unprecedented complaint on behalf of Charlottesville, local businesses and neighborhood associations that could prohibit “unlawful paramilitary activity” in the city.
Lawyers with the University of Georgetown Law School’s Institute for Constitutional Advocacy and Protection claim the independent militiamen and women, many carrying “60 to 80 pounds of combat gear,” such as semi-automatic assault rifles slung over their shoulders, made tensions boil at what some have called the largest gathering of white supremacists in recent history.
“Regardless of ideology, the presence of these private armies, whether armed with assault rifles or bats, batons or clubs, significantly heightens the possibility of violence, as we saw on August 12,” said Mary McCord, an attorney with Georgetown Law’s ICAP, who filed the complaint which is, as she says, “seeking to ensure that the streets do not become battlefields for those who organize and engage in paramilitary activity.”
According to the complaint, rally organizers, including homegrown Jason Kessler, solicited private militias to attend the rally, held group-wide planning calls and circulated an instructional document called “General Orders.”
“All the while, attendees encouraged one another to ‘prepare for war,’” according to ICAP.
Named defendants in the lawsuit include Kessler and Identity Evropa CEO Eli Mosley, white nationalist groups Traditionalist Worker Party, Vanguard America, League of the South, and the National Socialist Movement, and private militia groups Pennsylvania Light Foot Militia, New York LIght Foot Militia, Virginia Minutemen Militia, American Freedom Keepers, American Warrior Revolution, Redneck Revolt and the Socialist Rifle Association.
Kessler and the Pennsylvania Light Foot Militia did not immediately respond to interview requests.
“It’s a unique lawsuit,” says Rutherford Institute founder John Whitehead, who has represented far-right and far-left defendants for 40 years. “There are some real complications.”
According to Virginia law, “the military should be under strict subordination to, and governed by, the civil power,” but Whitehead points to the 2008 Supreme Court decision of District of Columbia v. Heller, in which justices voted 5-4 that the Second Amendment protects an individual’s right to carry weapons unconnected with service in a militia. He says the definition of “militia” under Virginia law is vague, and several groups named in the suit do not identify as militia groups.
The 75-page complaint is a culmination of investigations, including interviews with residents and bystanders, hours of footage, hundreds of photos and thousands of social media posts, McCord said outside Charlottesville Circuit Court after her group and members of City Council filed the suit.
“The investigation uncovered overwhelming evidence, much of which has only become available after August 12, of planning by alt-right groups to engage in the very type of militaristic violence that resulted,” McCord says. “They have vowed to come back, as have the self-professed militia purporting to be peacekeepers.”
Michie Hamlett attorneys Lee Livingston and Kyle NcNew will serve as the local counsel for the suit. Livingston reminded those outside the courthouse of the terror the city faced that day.
“August 12 is a tragic story now—a part of the lives of all Charlottesvillians,” he says. “A street we walk to restaurants, where we enjoy life with our neighbors, on that street, our neighbors were plowed over by a car. The images of bodies being smashed by that car will never leave us. A park where we celebrate festivals became a scene of medieval squad maneuvers, people struck down, people bleeding. We fear that a dark chapter was opened in our nation’s history on our doorstep, a chapter many had thought was closed in the 20th century.”
He said he hopes the suit will provide public servants “who protect the peace” a tool to prevent private armies from returning to the area, protect those who use Emancipation Park and the surrounding area from the “intimidating, unregulated soldiers,” and allow the community to come together, “in at least a small step, to reduce what feels like a dark turn of our story.”
Added Mayor Mike Signer, “I support [the lawsuit] as a stand against the disintegration of our democracy, and as a call for us to put a firm close to this horrible chapter in our democracy where people think it’s okay to parade in military outfits in public, to openly threaten violence against other people, to fire weapons into crowds, to beat people in public and to use a car as a weapon.”
Jason Kessler says he will hold his Unite the Right rally in Emancipation Park regardless of the city's decision to approve his permit for McIntire Park. Photo by Eze Amos
The Rutherford Institute and the ACLU of Virginia have given the city of Charlottesville until 12pm today to respond to their letter demanding city leaders allow Jason Kessler to hold his August 12 Unite the Right rally in Emancipation Park.
When city manager Maurice Jones announced August 7 that he approved Kessler’s event permit, but only if he holds it in McIntire Park, the white rights advocate and organizer of the rally threatened a lawsuit, said his freedom of speech was infringed and announced that the show would go on at Emancipation instead of McIntire park.
The Rutherford Institute and the ACLU had his back.
In a joint letter addressed to Jones and all five city councilors, the free speech defenders gave five reasons why Kessler should be able to hold his rally in its original location.
“Opposition can be no basis for government action that would suppress the First Amendment rights of demonstrators, no matter how distasteful those views may be,” the letter says, and adds that a last-minute relocation doesn’t give the demonstrators enough time to effectively plan for the move.
And because the city’s main reason for moving the rally to McIntire Park was to accommodate large crowds, the Rutherford Institute and ACLU say the city must provide evidence to support its attendance estimate. City leaders have forecast that “many thousands” will descend on Charlottesville this Saturday, while Kessler’s permit is for only 400 demonstrators.
“If the city is justifying its relocation of the rally elsewhere based on the presence of counter demonstrators, that constitutes an unconstitutional ‘heckler’s’ veto,’” the letter says, and makes its final point that those governing Charlottesville must act in accordance with the law, no matter how reprehensible that may be to members of the community.
Both organizations have a long history of supporting groups with unpopular speech.
Rutherford Institute founder John Whitehead coached Margie Phelps of the Westboro Baptist Church, best known for showing up at the funerals of American soldiers with signs saying, “God hates fags,” ahead of the 2011 Supreme Court decision that public hate speech can’t be the basis of liability for a tort of emotional distress, even if it’s offensive.
And the ACLU represented Ku Klux Klan member Barry Black, who was arrested after burning a cross on a private citizen’s Carroll County farm in 1999. The case also made its way to the Supreme Court, which ruled in April 2003 that cross-burning, when not used as a direct threat, is protected by the Constitution.
Correction 2:49pm: There are five members of City Council.
Riot-shield-wielding police were called in to assist in getting the KKK out of town.
Eze amos
In the post-mortem of the July 8 KKK rally in Justice Park that resulted in 22 arrests and riot-garbed Virginia State Police tear-gassing protesters, widely diverging accounts of the event are playing out like a Kurosawa film.
Police Chief Al Thomas says his force has gotten “hundreds and hundreds of compliments” for how city police handled the estimated 1,500 people who attended. At the same time, activists are decrying the “brutality” of militarized police and the tear gassing of protesters, and demanding that the charges against those arrested be dropped.
Chief Al Thomas defends the use of tear gas to disperse protesters after the KKK left. Photo Eze Amos
And four legal organizations—the ACLU, Legal Aid Justice Center, the National Lawyers Guild and the Rutherford Institute—have asked City Council and Governor Terry McAuliffe to investigate the “over-militarized” police presence, the declarations of unlawful assemblies and the use of tear gas, and called for a permanent citizen review board.
Thomas defends its use. “The crowd was becoming more aggressive toward law enforcement,” throwing water bottles, using a pepper gel and spitting, he says.
According to Solidarity Cville, police escalated a peaceful demonstration against “white supremacist hate” by declaring an unlawful assembly after the Klan left. At a July 14 press conference in front of the police department, Emily Gorcenski, who was one of those tear-gassed, called the decision “unnecessary and unreasonable” and pointed out, “Charlottesville residents can’t clear out of a Dave Matthews concert in under an hour, yet police declared a peaceful crowd to be an unlawful assembly within minutes of the KKK departure.”
In the timeline of events, the Loyal White Knights of the KKK had a permit to protest the removal of Confederate monuments from 3 to 4pm. Because of the crush of counter-protesters surrounding the park, the KKK wasn’t able to get in until about 3:45pm. Shortly before 4:30pm, Chief Thomas ordered an end to the Klan demonstration, and protesters followed the Loyal Whites out to a secured garage on Fourth Street NE.
Protesters clogged the street, and Deputy Chief Gary Pleasants declared the first unlawful assembly of the day. Police and protesters agree on one thing: “We were trying to get them out of here as fast as possible,” says Thomas.
“No one wanted to bar the KKK from leaving the city,” says Gorcenski. “We wanted to make sure the Klan didn’t spend a minute longer in Charlottesville than necessary.”
After the KKK left around 4:44pm, police headed toward High Street, where Thomas describes a hostile crowd of several hundred people becoming aggressive toward police. On-scene commanders from city police and the Virginia State Police made the decision to deploy tear gas, says Thomas.
At 4:58pm, fewer than 15 minutes after the Klan left, police declared an unlawful assembly, says Solidarity Cville.
“We reject the allegation the deployment of chemicals was in response to a police defense strategy,” says Gorcenski. “Video evidence shows police went through a lengthy, minutes-long process of preparing gas masks.”
The Rutherford Institute’s John Whitehead contends police use of military equipment, including riot shields, assault weapons, grenade launcher and BearCat, changed the dynamic of the event, and the civil liberties orgs say the “heavy-handed demonstration of force” escalated rather than de-escalated the event.
“I would say bringing a hate group in changes the event,” counters Thomas. “That’s when we saw a change, when the Klan arrived. They brought hate and fear into our city.” Thomas also notes that city cops were in their normal uniforms for most of the day and did not have riot gear.
After the Klan left, there was a scuffle on the ramp leading up to the Juvenile and Domestic Relations Court, and two people were detained there, says Gorcenski. “It was a very, very confusing situation,” she says. Police were giving contradictory instructions, and people on the ramp had nowhere to go, she recounts.
Solidarity Cville alleges one of the people sitting on the ramp was kicked in the head three times by police. In a video the group provided, it appears an officer trying to get around them stumbled against one of the seated protesters, Tracye Prince DeSon, and looks horrified when people start shouting that he’d kicked the activist.
DeSon claims police used pepper spray on him six minutes before the first tear gas was fired. A video shows a Charlottesville police officer with a cannister in his hand, and moments later people in the vicinity are filmed coughing and reacting to an irritant, including this reporter.
A number of people, among them street medics, bystanders, ACLU observers and journalists, have discussed getting tear-gassed, and many of them said they didn’t hear the order to disperse, nor the warning that a chemical agent would be used.
Solidarity Cville’s Laura Goldblatt says medics were treating a woman in distress on the grass beside the juvenile court when the first tear gas went off beside her.
C-VILLE photographer Eze Amos was behind police taking photos of a dancing man when the first cannister went off and the wind shifted. “Around my mouth was burning, around my eyes were burning,” he says. “I was choking.”
Civil rights attorney Jeff Fogel also got tear-gassed, and says it was unreasonable to order people to leave immediately after the Klan left. “Two people were arguing at the end and police said it was an unlawful assembly,” he says. “Does that justify using tear gas on 100?”
Thomas says, “It is unfortunate” that bystanders on the sidelines got caught in the tear-gas crossfire. “It does travel. A number of our officers not wearing gas masks took in some of the gas as well.”
Three people were charged with wearing a mask—a felony—and at the July 14 press conference, Don Gathers with Black Lives Matter said, “They used their shirts and scarves to protect themselves from the chemical agents released by police.” Earlier, a masked Klansman was asked to remove his mask and not arrested, says Gathers.
City Councilor Kristin Szakos, who was not present at the KKK rally, says, “I wish there hadn’t been tear gas.” She adds, “It wasn’t unprovoked. There were people who were actively confronting police.”
Police kept people safe, while allowing people to stand up to the hatred of the KKK, she says. “The Klan knows they’re not welcome here.”
NGIC employee Mike Sienda has gotten the okay to display a smaller Trump sign on his vehicle at work, but the Rutherford Institute still wants clarification on what the spy center means when it calls this one a campaign vehicle. Photo by Eze Amos
Mike Sienda already felt aggrieved when his boss at the National Ground Intelligence Center’s Rivanna Station told him in early September to not show up on grounds with his giant Trump-Pence signs on the side of his box truck.
When he was told he couldn’t park on the federal property with a smaller Trump 2016: Make America Great Again sign in the back window of his Jeep, Sienda contacted the Rutherford Institute, a local civil rights org. And within two days of its attorneys writing NGIC October 12, he was told, uh, never mind, the smaller sign is just fine.
“I think they realized it’s protected speech,” says Sienda.
The spy center had cited the Hatch Act, which prohibits federal employees from engaging in on-the-job campaigning, when it first banned Sienda’s box truck. However, the Rutherford Institute argues that the act says workers can exercise their rights “unless expressly prohibited by law,” and the regs allow bumper stickers on personal vehicles, and do not “expressly prohibit” signs over a certain size.
Sienda still hasn’t gotten the okay to bring back the bigger signs on his truck, which the Rivanna Station called a “campaign vehicle.”
“We’re going to ask them to clarify that,” says Rutherford founder John Whitehead. “If the government uses these terms, they have to define them.”
NGIC did not immediately respond to a request for comment.
Sienda is happy with his partial victory. “I’m glad to be able to participate in the political process and not worry about doing anything wrong,” he says.
