Jeff Fogel woke to the sound of someone furiously banging on his door. He quickly threw on a T-shirt and pajama bottoms while the banging continued, and stole a glance at his alarm clock before running downstairs. It was 12:30 a.m. in Charlottesville, Virginia.
When Fogel opened the door, he couldn’t believe what he saw. He was face-to-face with five police officers on his front porch and behind them, five police cars lit up the neighboring houses red and blue with their flashing lights.
As one of the city’s leading defense attorneys, Fogel was on a first-name basis with a lot of Charlottesville’s top cops, but he was confused about why they would seek him out so late. As a joke, Fogel put out his hands, wrists pressed together in a handcuff position. “Haha. You’re all here to arrest me, right?”
It wasn’t a joke. “You’ve gotta be kidding me,” he half-shouted.
The commotion woke up Fogel’s wife and houseguest, who both made their way downstairs. Fogel turned around and shouted, “Hey everybody, come down and see the brave men of the Charlottesville police department, coming to arrest a 72-year-old man!”
The officers wouldn’t allow Fogel to get his keys or get dressed. Minutes later, as he sat in the back seat of a police car, Fogel realized that throughout his 48-year career as a civil rights attorney, he never understood how much it hurt to be handcuffed. He also realized the arrest would have reverberations. It was early June, and in less than two weeks, voters in Charlottesville would go to the polls to decide on the city’s next district attorney, with one of the candidates vowing to rein in police abuse and roll back mass incarceration. That candidate was now bound for the police station.
But something else also shocked observers of the August demonstrations. The police appeared uninterested in stopping violence between white supremacists, many of whom came armed, and rival demonstrators. As the day wound down, Heather Heyer, an antiracist demonstrator, was mowed down by a car allegedly driven by white supremacist James Alex Fields Jr.
Charlottesville police, who declined to comment for this story, have denied that the police were given an order to “stand down.” But according to testimonials and videos from the day, officers passively stood by while people were pepper-sprayed, beaten, and thrown to the ground. In a video obtained by the New York Times, police did nothing even after a white supremacist fired a gun in the direction of a black man.
The spectacle of Charlottesville police sparked a national discussion on whether some police officers are sympathetic to a far-right, white nationalist perspective. Two days after the demonstrations, the president of a local police union in New Mexico was caught sharing an internet meme joking about running over protesters. In September, the head of the Pennsylvania police union called Black Lives Matter protesters “a pack of rabid animals,” but he previously defended an officer who sported a Nazi tattoo.
Nothing illustrates the point better than the case of DeAndre Harris, a 20-year-old Charlottesville local who turned up to protest hate groups in his city. After the events in Charlottesville, a video emerged of Harris falling to the ground and getting savagely beaten by six white nationalists wielding baseball bats and two-by-fours. All of this happened in a parking garage next to the police station, but no arrests were made at the time.
Charlottesville police would later arrest three of the men in connection to the beating, but only after an internet campaign, led by The Intercept’s Shaun King, identified them and pressured the police to apprehend them.
And now, police are about to arrest a fourth. On Tuesday, an unidentified local magistrate in Charlottesville issued an arrest warrant for Harris as well, making him a wanted man in connection to his well-documented beating. According to the Washington Post, the magistrate issued the warrant after a self-identified “southern nationalist” accused Harris of injuring him during his own assault.
It may seem shocking that local officials would take the word of a white nationalist at face value despite a mountain of video evidence suggesting otherwise. But it shouldn’t, because it’s happened before. Two months earlier, Charlottesville police arrested their most prominent critic on the word of a white nationalist, and his case is still pending.
When Jeff Fogel came to Charlottesville ten years ago, he was already a celebrated civil rights lawyer. After graduating from Rutgers Law School in 1969, he became a highly sought-after defense attorney, and eventually became the executive and legal director for the American Civil Liberties Union of New Jersey. He went on to become the legal director for the Manhattan-based Center for Constitutional Rights, where he worked on a landmark case against the city’s stop-and-frisk policy.
Fogel is an old-school progressive, and when I caught up with him in September in a Charlottesville coffee shop, everything about him reminded me of Bernie Sanders. Bald except for a patch of white hair on the back of his head, Fogel wears a pair of square glasses and even speaks with a hint of an old-school Brooklyn accent, like Sanders when he denounces the influence of “millionahs and billionahs.”
He told me that he was driven to become a defense attorney early in life after a visit to a New Jersey state prison. “When I went into a prison the first time, in Trenton state prison in 1970, it was outrageous what I saw,” he said. “The conditions were horrible. Almost everybody was black. It was just so out front.”
And for all his passion, there is a side of Fogel that is defiant and sarcastic. The license plate on his Mazda reads “CVL RGTS,” so cops know who they’re dealing with before they pull him over.
Unhappy with life in the city, Fogel moved to Charlottesville and set up a private practice in 2007. He took cases that involved false arrests and excessive force, among other abuses, and quickly established himself as one of the city’s leading defense attorneys.
To give a cheeky example, in 2012 Fogel handled the case of a black man who was arrested for saying “fuck you” to a patrol officer. The judge threw out the case, because cursing at a cop is protected speech. Fogel helped him sue the department for damages, and the city settled.
Fogel has also been an outspoken critic of the city’s stop-and-frisk system. Throughout the years, he told me, the department’s data has shown that around 70 to 80 percent of the people stopped were black, even though the population of Charlottesville is only 20 percent black.
“So I went to the [city] council,” he told me, “and I said listen, I think the program is terrific. The only thing we have to do is shift it from focusing on black people to focusing on white people. You’ll catch a lot of people.”
In 2015, Fogel filed a Freedom of Information Act lawsuit on behalf of the NAACP and the Charlottesville Public Housing Association of Residents, or PHAR, seeking documentation for the reasons of the stops. The city fought to exempt their release as “criminal investigative material,” and Fogel lost.
Like so many progressives, Fogel was deeply disturbed by Donald Trump’s election. Two nights after election day, he woke up at 3:00 a.m., and decided right then that he wanted to be more than just a critic.
Fogel decided to run for commonwealth attorney. The sitting top prosecutor, Dave Chapman, had announced he was not seeking re-election, and Fogel saw it as his opportunity to defy the Trump administration, much like civil rights activist Larry Krasner did in Philadelphia. As federal law enforcement would become more draconian, Fogel could make Charlottesville an example of a progressive alternative.
“I just thought that I’ve got to try and do something locally, without interference from the feds,” Fogel told me. “To show everyone we really can do something affecting the racial inequities, as well as mass incarceration.”
In the past couple of years, groups like the ACLU have tried to draw attention to a little-known fact: Local prosecutors are the most powerful people in the criminal justice system. They decide when and how to bring criminal cases, and when 9 out of 10 cases are resolved by plea bargains, judges often have limited involvement overseeing their cases.
As a candidate for local prosecutor, Fogel did what only a few people have done before – he ran on a platform of reforming the police and dramatically rolling back mass incarceration. His campaign platform promised to avoid mandatory minimums, reduce the number of felony prosecutions, and carefully scrutinize stop-and-frisk policies.
But one of Fogel’s proposals in particular attracted more attention than the others: his promise not to prosecute anyone for possessing marijuana. The proposal particularly ruffled the feathers of Joe Thomas, a local conservative radio host, who interviewed Fogel about it. He later released a 26-minute segment titled “Roll Me A Fogel” – in which he mixed the interview with soundbites from Afroman’s song “Because I Got High.”
It was, in many ways, a Charlottesville replica of the radical campaign run by Krasner in Philadelphia. Krasner ran on a “decarceration” platform and won his primary race in May, sending shock waves throughout the law enforcement world just two weeks before Fogel’s arrest in June.
Fogel faced steep odds throughout his race. His opponent in the Democratic primary was Joe Platania, the heir apparent and former deputy district attorney. Platania knew his boss would be retiring ahead of time, and with his months-long head start, locked down the major Democratic donors and endorsements.
Fogel, meanwhile, was winning over progressive, grassroots groups, like Showing up for Racial Justice and Together CVille, and getting endorsed by Joy Johnson, a leader with PHAR. He had a shot.
When he got there, Kessler was eating at a table in an open pavilion, and Fogel decided to watch the action from afar. He got an outdoor table at Miller’s, a restaurant adjacent to the pavilion. He ordered a burger, fries, and a beer, and posted to watch the protest.
After a confrontation with the protesters, in a twist of bad luck, Kessler exited the pavilion toward Miller’s. While speaking at his camera phone, he recognized Fogel as he walked by his table. “Here we have this candidate … Joe [sic] Fogel,” he said and proceeded to get into a heated argument with him.
At one point, Fogel told Kessler to “get a job and do something productive during the day.” According to Kessler’s own video footage, he responded by shouting, “You are a communist!” Then Caleb Norris, one of Kessler’s associates, looked at Fogel and called him a “communist piece of shit,” at which point Fogel took a step toward Norris and lightly put his hand on Norris’s chest, while Norris swatted it away.
“Oh my God! This guy just assaulted — press charges, press charges,” shouted Kessler. “This communist!” He turned to Norris and said, “Hey, dude, press charges against him now. He’s running for commonwealth attorney.” (Kessler did not reply to multiple requests for comment from The Intercept.)
Kessler later posted his video of the argument to YouTube, so you can judge for yourself:
When I met with Fogel, he didn’t come across as a man capable of a violent assault, at least not a successful one against a much younger group of men. The 72-year-old is active in the city, but he told to me that he had to take a medical leave several years ago due to a heart attack.
That night, Fogel followed Kessler and his entourage to the police station, where Kessler showed them his video and told them his version of the events. Fogel later told me that police said “they have a video,” but declined to show it to him. Frustrated he wasn’t allowed to see and explain Kessler’s video, and figuring it would amount to nothing, Fogel decided not to cooperate.
He asked an officer if he was free to leave, and the officer did not give him a straight answer. Fogel got angry, and after arguing with the officer about whether he was under arrest, he was told he was allowed to leave. Kessler later posted another video of that argument, titled “Lawyer Jeff Fogel Abusing a Police Officer.”
Fogel went home and went to bed. He would be roused later that night, arrested, and charged with misdemeanor assault. The police had chosen to believe the story that a known white nationalist and serial exaggerator told – that a 72-year-old man had violently assaulted a young neo-Nazi.
The police sought what’s called a non-permitted warrant — granted by local magistrate Justin Garwood — which can’t be effectuated by summons. The warrant gave them some flexibility about when they could execute it – so they could have delayed physically arresting Fogel until the next morning. But they chose to do it after midnight that night, dragging him to the police station in his pajamas.
Fogel later told me that he was taken before the magistrate and spoke to Garwood one-on-one. According to Fogel, he asked Garwood why he allowed such a warrant rather than just having the police call him down to the station. “Because I didn’t like the way you spoke to the sergeant in the police department,” Garwood told him.
Garwood threatened to have him detained, but then released him on a $5,000 personal security bond. When he got back to his house at 2:30 a.m., his wife was still looking for him at the county jail. Because Fogel didn’t have his keys, he sat outside and waited for her.
(Garwood did not respond to a request for comment from The Intercept, and the story will be updated if he does.)
Fogel filed a formal complaint with Avnel A. Coates, the chief magistrate for the judicial district that includes Charlottesville. Three days later, Coates sent him a letter, saying the arrest was appropriate, because there was “probable cause that there was an unwanted touching of the victim” and that “it is reasonable that there was a safety concern.”
But for Fogel, the damage was already done. The day after the arrest, his ruffled mugshot was plastered all over the local paper. Discussion of the arrest overshadowed any news coverage of the debates or his campaign.
On Election Day, a record number of people turned out — and nearly 40 percent of them cast their ballots for the man in his PJs. It wasn’t enough, but Fogel said he considers that a success — that his ideas were catching on. “It still seems significant that with that radical a program, I could get 40 percent of that vote,” he said.
Meanwhile, the criminal case against Fogel stalled. After the local prosecutor recused himself, and the state initially had trouble finding a special prosecutor who hadn’t dealt with Fogel as a defense attorney in their line of work. But the case is scheduled to go forward later this month.
The Charlottesville Police Department is also investigating Fogel’s arrest internally. According to emails Fogel shared with me, the officer in charge of the investigation communicated to Fogel that it was finished, but the department maintains it is ongoing.
I filed public records requests seeking the investigation’s conclusions, as well as the police body camera footage of Fogel’s arrests, but both were withheld as investigative files. And whether or not the results of the investigation are ever made public, Fogel is clear about why he thinks they chose to arrest him.
“I’ve been a persistent critic of the police department. That’s why I got arrested. So you all might want to think about that.”
Fogel came close, but it wasn’t enough, and elections have consequences. The prosecution of DeAndre Harris will be handled for now by Commonwealth Attorney Dave Chapman, who will pass it off after the general election to his deputy, Joe Platania.