State & Local Law News

Charlottesville: First Amendment Freedom Intersects Laws Prohibiting Private Militias and Protecting Public Safety

by Marilyn J. Harbur

On August 12, 2017, heavily armed private militias and so-called “alt-right” groups converged on Charlottesville, Virginia, ostensibly in exercise of their First Amendment rights at a “Unite the Right” rally. As evident from televised accounts, engagement with counter-protest groups and law enforcement quickly led to violent clashes, including an assault by motor vehicle on a group of counter-protesters that fatally injured one person and injured 19 others. The alt-right groups’ pledge to return to Charlottesville led to the filing of a lawsuit asking the court to prevent the defendants from returning to Virginia and engaging in what the plaintiffs allege to be unlawful paramilitary activity under Virginia law.

On October 12, 2017, citing the alt-right organizers’ vows to return to Charlottesville, the Georgetown Law Center’s Institute for Constitutional Advocacy and Protection (ICAP) filed a complaint in state circuit court asking for declaratory and injunctive relief on behalf of 16 plaintiffs, including the City of Charlottesville, local businesses, and community associations. Defendants named in the complaint are ten entities and 11 individuals, including Pennsylvania Light Foot Militia, New York Light Foot Militia, Virginia Minutemen Militia, American Freedom Keepers, LLC, American Warrior Revolution, Redneck Revolt, Socialist Rifle Association, Traditionalist Worker Party, Vanguard America, League of the South, Inc., and National Socialist Movement, and Jason Kessler, Elliott Kline, Christian Yingling, George Curbelo, Francis Marion, Ace Baker, Matthew Heimbach, Cesar Hess, Spencer Borum, Michael Tubbs, and Jeff Schoep. On January 4, 2018, the plaintiffs moved to amend the complaint to add additional plaintiffs and three additional defendants: the III% People’s Militia of Maryland, Gary Sigler, and Eugene Wells. The defendants unsuccessfully attempted removal to federal court, and the case remains in the Circuit Court for the City of Charlottesville.

The first line of the complaint sums up ICAP’s legal theory: “The establishment of private armies is inconsistent with a well-ordered society and enjoys no claim to protection under the law.” In language dating back to the Virginia Declaration of Rights of 1776, Article I, Section 13, of the Virginia Constitution, Virginians provided that “in all cases the military should be under strict subordination to, and governed by, the civil power.” Other state constitutions contain variations of this language. See, for example, Article I, Section 27, of the Oregon Constitution: “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”

The ICAP complaint also relies on Virginia Code provisions and state statutes prohibiting “unlawful paramilitary activity” and forbidding falsely assuming the functions of any peace officer or law-enforcement officer. See Va. Code Ann. §§ 18.2-433.2 and 18.2-174. Recognized long ago by the U.S. Supreme Court in Presser v. Illinois, 116 U.S. 252, 267 (1886), “[m]ilitary organization and military drill . . . are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.” Courts have embraced this theme. See, e.g., Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klu Klan, 543 F. Supp. 198, 216 (S.D. Tex. 1982). ICAP’s complaint explains that “these dangers were vividly demonstrated at the ‘Unite the Right’ rally at Emancipation Park in Charlottesville,” when “[t]outed as an opportunity to protest the removal of a controversial Confederate statute, the event quickly escalated well beyond such constitutionally protected expression” and “private military forces transformed an idyllic college town into a virtual combat zone.”

Facts Make the Case for Relief

ICAP’s 79-page complaint, since amended to 93 pages, chronicles in detail the events and alleged motivations of the participants at the August 12 rally:

Several white-nationalist organizations came to Charlottesville to fight. Applying techniques developed well in advance, affiliated bands of alt-right warriors used clubs, flagpoles, and shields to batter their ideological opponents. Sporting matching uniforms and weaponry—and with command structures to coordinate their actions—they functioned as paramilitary units . . . not “as individuals” exercising their Second Amendment rights to self-defense, but “as members of a fighting force.” District of Columbia v. Heller, 554 U.S. 570, 593 (2008).

First Amended Complaint, City of Charlottesville v. Pennsylvania Light Foot Militia, No. CL 17000560-00 (Charlottesville Cir. Ct. Jan. 4, 2018) (the proposed amended complaint, attached to the motion to amend, is 93 pages and can be found at http://www.law.georgetown.edu/academics/centers-institutes/constitutional-advocacy-protection/upload/charlottesville-complaint.pdf).

The complaint continues that although the private militia groups and their commanders purported to function as peacekeepers, carrying assault rifles as they patrolled the sidewalks in combat boots, military-grade body armor, and many in camouflage uniforms, they terrified local residents and caused attendees to mistake them for authorized military personnel. The plaintiffs allege that Virginia and the City of Charlottesville have taken on a “talismanic significance” in the white-nationalist community, moving from the Internet into the streets. Making good on their pledge to return to Charlottesville as often as possible, the groups’ reappearance at Emancipation Park on October 7 in a torch-lit procession “designed to intimidate local residents” has, in fact, increased the level of community apprehension: a co-organizer of Unite the Right closed out the incident by leading his followers in chanting, “We will be back!” The complaint cites filmed news accounts for substantiation.

As ICAP and the city and local businesses allege, their lawsuit is aimed at restoring the “longstanding public-private equilibrium disrupted by Defendants’ unlawful paramilitary conduct.” The injunction sought in the case is not seeking restriction of the individual Second Amendment right to arm oneself for self-defense nor the First Amendment right to peaceably assemble and express political views, however abhorrent to others. They allege: “No independent military company has a constitutional right to parade with arms in our cities and towns,” citing Commonwealth v. Murphy, 166 Mass. 171, 173 (1896). Paragraph 9 of the complaint provides a persuasive summation:

Plaintiffs—the civilian government whose authority to protect public safety was undercut by unauthorized private armies on August 12, the Charlottesville residents who were terrorized that day, and the local businesses that have lost significant revenues as a result—seek declaratory and injunctive relief to prevent Defendants from returning to Virginia organized as military units and engaging in paramilitary activity. Without such relief, Charlottesville will be forced to relive the frightful spectacle of August 12; an invasion of roving paramilitary bands and unaccountable vigilante peacekeepers.

The gripping factual allegations in pages 17–71 of the Complaint display a sincere plea for court protection from defendants. The well-documented descriptions include “chaos,” “threw punches and even torches,” “melee,” “assault rifles,” “Shoot! Fire the first shot in the race war, baby! Shoot!,” “shield walls,” “shooting,” “beating,” and “injury.” In describing the various ways that the alt-right groups planned and anticipated violence at the rally, ICAP’s complaint cites a Daily Stormer message the morning of August 12, 2017: “WE HAVE AN ARMY!—THIS IS THE BEGINNING OF A WAR!” and an “equally menacing message later that evening: ‘[T]o everyone, know this: we are now at war.’ ” Complaint, at 63.

Causes of Action—Five Counts

In support of plaintiffs’ sevenfold prayer for declaratory and injunctive relief, the Causes of Action are pleaded in five counts.

Count 1, described earlier, is the Strict Subordination Clause, Article I, Section 13, of the Virginia Constitution, which is self-executing like most of the Virginia Constitution’s Bill of Rights. The plaintiffs allege that not only will the defendants’ continued operation in Virginia as military units, or as members and commanders thereof, violate the constitution, but it also will cause irreparable harm to plaintiffs, for which no adequate legal remedy exists.

Counts 2 and 3 rest on a characterization of the rally events as “civil disorder” within the meaning of Virginia Code sections prohibiting unlawful paramilitary activity. These counts again allege that irreparable harm will be caused to plaintiffs for which no legal remedy exists, necessitating an injunction against defendants from future violations.

Count 4 cites Va. Code § 18.2-174 and focuses on defendants’ actions in falsely assuming the functions of peace officers or other law-enforcement officers. In addition, plaintiffs allege that “defendants intend to ‘keep the peace’ at future alt-right rallies occurring in Virginia.” Complaint, at 76. The irreparable and incalculable harm to plaintiffs from defendants’ planned conduct is alleged as the basis for the court’s exercise of its authority to enjoin defendants from violating the Virginia statute in the future.

Finally, Count 5 invokes the common law of Public Nuisance. Black’s Law Dictionary distinguishes public from private nuisance as affecting “an indefinite number of persons, or all the residents of a particular locality, or all people coming within the extent of its range or operation, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Consistent with that definition, the plaintiffs describe the defendants’ conduct in engaging in paramilitary activity independent of any civil authority in public streets, public parks, and other public areas, substantially interfering with public health, safety, peace, and comfort, and the general welfare, as conduct that constituted a public nuisance. Further, the threat of that continued conduct, they claim, will continue the public nuisance and cause irreparable harm to the plaintiffs, for which no adequate legal remedy exists, necessitating injunctive relief. But unlike the plaintiffs’ claims for declaratory and injunctive relief for violations of Virginia statutory provisions, this public nuisance theory is intriguingly broad and indefinite in scope. Perhaps courts in Virginia have applied a public nuisance abatement construct in comparable factual circumstances, but it will be interesting to see whether the court will use “public nuisance” in addition to the statutory bases for granting relief to plaintiffs in this case.

The defendants have filed a variety of individual responses to the ICAP complaint, some filed by attorneys, others not. A motion to dismiss was filed in federal court before the case was remanded to the state circuit court, claiming that the causes of action were in essence not actionable. One defendant argued that the circuit court has no jurisdiction over actions implicating First Amendment issues. Another defendant claimed that wrongful actions of law enforcement officers caused any problems that may have occurred. The plaintiffs’ amended complaint filed on January 4 is expected to yield a new round of response filings.

Pre-Event Work with Other Cities

Clearly, the Charlottesville plaintiffs would have preferred for events not to have taken place as they did. Efforts to prevent similar violent incidents include the Southern Poverty Law Center’s release of a new training video to help law enforcement agencies prevent violence while protecting the rights of both speakers and protesters when hate groups stage rallies in their towns. According to Heidi Beirich, director of the SPLC’s Intelligence Project, the video includes lessons learned in Charlottesville, where local agencies were criticized for not intervening in assaults they witnessed. The video’s checklist includes tips about the research police should do ahead of an event; how to communicate clearly with representatives of the groups that will be present; and how and where to erect buffer zones and entry checkpoints.

ICAP also has worked with the cities of Murfreesboro and Shelbyville, Tennessee, to avert a situation similar to that in Charlottesville. White Lives Matter rallies were planned for late October 2017, when attorneys from the Georgetown Institute for Constitutional Advocacy and Protection offered assistance to these municipalities in using the laws on the books in Tennessee to protect their cities from the violence that Charlottesville suffered while respecting First Amendment rights. ICAP attorneys Joshua Geltzer, Mary McCord, and others (drafters of the complaint described in this article) helped the cities of Murfreesboro and Shelbyville to develop successful safety plans. As a result, the events passed without violence but at tremendous expense incurred by the cities, particularly for preparation. News accounts claimed that the rallies were expected to be the largest of their kind since the “Unite the Right” rally in Charlottesville but the police in both cities set up barricades to separate the two factions and restricted items that could be used as weapons. In Shelbyville, the alt-right marched and the counter-protestors demonstrated. Before the Murfreesboro rally, which was scheduled to begin a few hours later, the League of the South called off the rally, so very few alt-right protestors attended, but thousands of counter-protestors were in attendance.

Conclusion—Not Yet

It would be nice to conclude this article with a statement that a Charlottesville event will not reoccur, but that would be unrealistic. Defendant Jason Kessler’s application for a permit to rally again in Charlottesville on the one-year anniversary of the Unite the Right rally has been denied, but Kessler has vowed to return on the anniversary. Complaint, at 72–73. We will continue to watch the ICAP lawsuit to see how the judicial branch of government will play its role in averting more “Charlottesvilles.”

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Marilyn J. Harbur

Marilyn J. Harbur is co-chair of the Section’s State Attorneys General and Department of Justice Issues Committee and a Senior Attorney General, Oregon Department of Justice. She can be reached at marilyn.harbur@doj.state.or.us.