Last August, emboldened by the election of President Donald Trump, the white supremacist movement stepped out of the shadows to take to the streets of a quiet college town in broad daylight.
Organizers had pitched the “Unite the Right” rally as a free speech gathering of white nationalists opposed to the removal of a statue of Confederate Gen. Robert E. Lee. Instead, police stood by as running clashes left racists and anti-fascist protesters bloodied and traumatized. By the end of the day, Heather Heyer lay dead on a city street, run down by a white supremacist behind the wheel of a Dodge Challenger.
Now, a novel legal strategy aims to prevent a similar march from recurring this summer. A lawsuit filed last October by the city of Charlottesville targeted more than two dozen groups and individuals under an untested Virginia state law barring “paramilitary activity.” Ideologically, the defendants are a mixed bag, ranging from “Unite the Right” organizer Jason Kessler to the constitutionalist Pennsylvania Light Foot Militia to the leftist group Redneck Revolt. They are accused of unlawful paramilitary activity, falsely assuming the role of peace officers by purportedly attempting to “keep the peace,” and being a public nuisance.
The array of defendants has a strange bedfellows quality that some find hard to stomach. Pam Starsia, the attorney for Redneck Revolt, whose members arrived in Charlottesville armed with semi-automatic rifles and sidearms to protect a park where anti-fascist protesters gathered, said she felt “furious” that the lawsuit put her client “in this position of having our legal interests aligned” with the same groups Redneck Revolt came to Charlottesville to oppose. Last week a local faith-based group, Congregate C’ville, called for Redneck Revolt to be dropped from the lawsuit.
Starsia, meanwhile, has argued that the Virginia law against paramilitary activity is fundamentally unfair. “The case seeks to impose on Redneck Revolt an unconstitutional choice,” she wrote in her motion to dismiss the suit. “Redneck Revolt members may choose to exercise either their First Amendment rights to free speech and group assembly at public protests, or their Second Amendment and state law protected right to bear arms, but they may never exercise both rights at the same time.”
The case sits at the intersection of racial violence and constitutional rights, yet the groups most closely associated with those issues have stood on the sidelines. Though the defendants have raised both First and Second Amendment claims, neither the American Civil Liberties Union nor the National Rifle Association has offered assistance or filed briefs in the case. The Southern Poverty Law Center, which has championed similar actions in the past, is not involved in this one.
The one national group to take a position on the issue is Everytown for Gun Safety, which has spoken out against the presence of guns at public demonstrations. “Cities and local governments have the right to maintain public order,” Alla Lefkowitz, deputy director for litigation for Everytown, told The Intercept. “Neither the First nor the Second Amendment gives people the right to intimidate people.”
The city of Charlottesville agrees. It wants to move the discussion away from the Constitution to the issue of public safety. Yet the lawsuit raises a key question about the capacity for violence inherent to First and Second Amendment rights: Where do we draw a line between guaranteeing those rights and protecting the public?
The two remaining defendants who continue to fight a court order barring them from returning to the city, Jason Kessler and Redneck Revolt, highlight a bitter paradox: a white supremacist leader and a group of anti-fascists who confronted each other in Charlottesville last summer now hope to preserve the right to organize and mobilize — even if that means facing off violently in the streets all over again.
The driving force behind City of Charlottesville v. Pennsylvania Light Foot Militia is Mary McCord, a former federal prosecutor. She left the Justice Department months before the violence in Charlottesville to join Georgetown Law School as a visiting professor and senior litigator for the university’s Institute for Constitutional Advocacy and Protection. McCord spent more than 20 years trying cases and arguing appeals in Washington, D.C.’s U.S. Attorney’s Office. She went on to main Justice, where she ran the National Security Division, supervising counterintelligence and terrorism cases, including the investigation into the Benghazi attacks. When she left the Justice Department in April of 2017, she was the acting assistant attorney general for national security. Among her responsibilities was overseeing the investigation into potential links between the Trump campaign and Russia.
In the days after the violence in Charlottesville, McCord was a private citizen trying to make sense of the breakdown of law and order in a city she knew well. On August 15, she came across a piece in which Philip Zelikow, a University of Virginia professor and former attorney for the Southern Poverty Law Center, recounted a 1982 federal suit filed by the SPLC that successfully shut down a Ku Klux Klan training camp in Texas whose members had harassed local Vietnamese-American fishers. The SPLC team relied on a Texas law forbidding the operation of paramilitary groups. That case provided a template for similar successful actions in North Carolina against KKK affiliates. Virginia had a similar law, Zelikow wrote.
Charlottesville didn’t offer a perfect analogue. For one, there was a confusing diversity of groups on the ground. “Not only were there the alt-right who were out there, marching down the streets in full battle regalia with shields and helmets and banners and all kinds of primitive weapons — bats, batons, clubs,” McCord told The Intercept. “We also had seen in videos these guys who looked exactly like the National Guard, but they weren’t, who were in fatigues, combat boots, tactical vests, AR-15’s, multiple clips, helmets, with radio communications, extremely organized.”
McCord drove to Charlottesville to ask Zelikow whether a similar action could work there. Over lemonade on his porch, she realized that under Virginia’s Constitution and the state’s anti-paramilitary law, it could. The law forbids groups from training with weapons or using them in a manner that promotes “civil disorder.” It defines weapons broadly to include “any firearm, explosive or incendiary device, or technique capable of causing injury or death,” an important distinction since many of the groups arrived with crude weapons like bats.
Months later, the city of Charlottesville and a group of local business owners filed their lawsuit, drafted by McCord and her team at Georgetown. The 95-page complaint divides the defendants into two distinct categories: the “alt-right” and the militias. The first group included the white supremacist Traditionalist Worker’s Party; Vanguard America; The League of the South; and the National Socialist Movement; as well as those groups’ leaders. The second set of defendants included “constitutionalist” militias like the Pennsylvania and New York Light Foot militias and two leftist groups, the Socialist Rifle Association and Redneck Revolt. Each group in this category had carried visible assault weapons in Charlottesville, but beyond their embrace of Second Amendment rights, their political views diverged.
Since the Georgetown suit is a civil matter, the threat of imprisonment for the defendants is remote. A judge would only order someone to be imprisoned if they were held in contempt. The lawsuit, instead, seeks a judgment that finds that the defendants violated Virginia’s anti-paramilitary laws and a court order that stops the groups from returning to Charlottesville.
Twenty-one of the defendants have already settled or received a default judgment, signing agreements stipulating that they will not return to Charlottesville as armed factions. The latest settlement — signed Monday by white supremacist Matthew Heimbach of the Traditionalist Worker Party — was preceded by three agreements filed Friday by his group, Vanguard America, and “alt-right” leader Elliott Kline. The city of Charlottesville also asked for a court order that would bar the remaining defendants from returning.
McCord says that this case could lay a foundation for future criminal cases under Virginia’s anti-paramilitary statute. “I don’t think most police and law enforcement and prosecutors really had any idea it existed before the case,” she said.
In fact, the Charlottesville Police Department sent mixed signals to the militias before the rally. In a recorded conversation obtained by a blogger via a Freedom of Information request, one detective told a self-described militia “commander” that “you’re obviously more than welcome to come [to the rally]. … Anybody is invited and they can come, and you can obviously carry a gun, just as long as you are following the law.” The officer didn’t mention the Virginia anti-paramilitary statute or suggest that showing up armed to a street protest could be a prosecutable offense.
As it turns out, all of the right-wing groups that made noise in the streets in the name of the First and Second Amendments have been unwilling to do so in a courtroom. Some white supremacist defendants struggled to find lawyers to represent them. (Because this is a civil lawsuit, the defendants do not have a right to court-appointed counsel.) Several defendants could not be located or have not responded to the suit, raising the likelihood that the court will enter a default judgment against them.
The white supremacist defendants enlisted two attorneys unafraid of representing them. A Virginia defense lawyer, Elmer Woodard, counsel for the Traditionalist Workers Party, Vanguard America, and National Socialist Movement, previously represented Richard W. Preston Jr., the Maryland KKK imperial grand wizard who pleaded no contest to discharging a firearm during the rally, and Jacob Goodwin, who was convicted for his role in the beating of DeAndre Harris, an African-American man, in a parking garage during the Charlottesville rally. (In a separate case, a jury acquitted Harris on charges of assaulting a white supremacist.)
Kolenich, who is representing “Unite the Right” organizer Kessler in this case and a separate federal lawsuit, recently told the Cincinnati Enquirer: “It’s plain that white people are the chosen people in the New Testament. It’s the job that we were given, to spread Christianity around the world. That doesn’t involve hatred of other races, not even of ethnic Jews. But it does involve opposing their un-Christian influence in society.”
Kolenich told The Intercept in an email that counterprotesters “are legally responsible for initiating the violence at Charlottesville and that the City is responsible for allowing and even encouraging it.”
“The city’s (and other plaintiffs [sic]) view seems to be that if you know your speech will result in counterprotester violence then it’s your fault for insisting on engaging in the speech,” he wrote. “This argument is garbage and legally frivolous and I look forward to defeating it.”
The most coherent challenges to the suit so far have come from the left. Starsia, the attorney representing Redneck Revolt, is a self-described “social justice advocate” with a busy private practice providing pro bono representation to local activists. Before Starsia moved to Charlottesville, she worked as an associate with the prestigious white-shoe firm Skadden Arps. Like Mary McCord, she is a graduate of Georgetown Law. For her, the violence at the “Unite the Right” rally was not the spontaneous collapse of social order. Instead it marked the preventable culmination of months of tension surrounding the proposed removal of the statue of Robert E. Lee from a city park.
“The community stood up against organized white supremacy on August 11 and August 12, while the city and, in particular, the police stood down,” she said. “This lawsuit … is just this giant smoke-and-mirrors act to make it look like the city is doing something and to distract from the fact that they haven’t told us how they’re going to keep us safe next time.”
Starsia’s client, Redneck Revolt, is one of two leftist groups named in the suit. (The other, the Socialist Rifle Association, could not be located to be served.) Redneck Revolt is a self-described “anti-racist, anti-fascist community defense formation” founded in 2016 with a mission to confront white supremacy. The group claims to have more than 45 branches in 30 states; its ethos is reflected in its post-Charlottesville rallying cry: “You don’t stand by and let people get hurt.”
While many right-wing militias exist for the purpose of defending their constitutional rights against the encroachment of the state, Redneck Revolt sees constitutional rights as a means rather than an end. The government cannot be trusted to protect the marginalized, the group says; members armed themselves in Charlottesville “as a reaction to increasing violence and threats against members of their communities,” according to a press release.
Redneck Revolt had been invited to provide security at Justice Park by Charlottesville’s Anarchist People of Color, according to Dwayne Dixon, one of Revolt’s members and an assistant professor at the University of North Carolina. The group had researched Virginia’s gun laws and determined that they could openly carry assault rifles without a permit provided their weapons were not loaded. Throughout the day, approximately seven Redneck Revolt members stood guard around the park with assault rifles strapped to their chests, muzzles pointed to the ground, ammo clips fixed to their belts. They sought to be a visual deterrent to any white supremacists seeking to enter the park.
“This wasn’t a cavalier cosplaying stunt,” said Dixon. “Charlottesville was the first time any of us had open-carried before. It’s not like this is routine behavior or anything that we really craved. … People made some really hard decisions as to whether this was a good idea and what kind of risks they were willing to bear.”
They had run a greater risk of being shot than of shooting someone, he said, but had hoped at least to “make the Nazis pause and realize that the balance of power doesn’t rest in their hands.”
The Redneck Revolt members were not immediately welcomed by the counterprotesters they had arrived to protect, however. The appearance of the group surprised the community organizer who had secured the permit for the park.
“I was freaked out because they were totally armed with AR-15’s, ammo vests, and sidearms,” said Walt Heinecke, a University of Virginia professor who held the permit for Justice Park and who had hired private security to protect counterprotesters gathered there. “I thought they were neo-fascists. But I went down, and I talked to them; it turned out that they were from the Redneck Revolt. They were cool. We talked logistics. … I didn’t want any weapons inside the park,” he said. The group abided by his wishes, agreeing to stick to the perimeter.
Dixon made clear in an interview that Redneck Revolt is not a militia and does not have uniforms, ranks, or a command structure. “We’re a horizontal, community self-defense organization, full stop.”
McCord called the decision to name Redneck Revolt in the lawsuit “painful.”
“This case was not conceived of because of Redneck Revolt, that’s for sure. They fit the description, so it was pretty hard not to include them,” she said. “A lot of people were alarmed at their carrying of assault rifles, just the way they were alarmed at the other people carrying assault rifles. It amps up the potential for violence so significantly.”
Some Charlottesville residents see a recurrent failure by outside parties to distinguish between hate groups committed to violence and the protesters challenging them. The ACLU’s decision to represent Kessler in the critical days before the march, for instance, drew widespread criticism and forced the group to defend its defense of white supremacist speech. President Donald Trump infuriated many when he said that there “were very fine people on both sides.”
Similarly, the Charlottesville lawsuit casts white supremacists and anti-fascists in the same legal terms. “I know the Constitution and the First Amendment and Second Amendment have this content-neutrality problem, but really, when you get right down to it, it’s about those racially intolerant and race-hatred groups that happen to carry weapons that are the problem,” said Heinecke.
For Starsia, the danger of the lawsuit is not only that it suggests a false equivalency between the defendants, but that it could set a harmful legal precedent for activists confronting white supremacists. “It’s not shocking that this ‘both sides behaving badly’ narrative is invoked. It’s a way of making the status quo look like a reasonable middle ground,” she said. “Anything that the state does to ostensibly target the right ultimately will come back to hit the left even harder.”
Legislative developments in response to the violence in Charlottesville have not been encouraging. Virginia’s attorney general and a state delegate introduced a “domestic terrorism” bill in the state legislature that seeks to outlaw discriminatory violence and violence committed to suppress individual rights. Like federal international terrorism laws, the proposed Virginia statute would criminalize providing material support to a domestic terror group. It would create a statewide list of terrorist groups, similar to the State Department’s list of Designated Foreign Terrorist Organizations. The bill, part of an effort by Virginia Attorney General Mark Herring to address a 50 percent increase in hate crimes between 2016 and 2017, failed to make it out of committee.
At the same time, there has been no successful effort to tighten Virginia’s gun laws since the rally. In fact, the legislature recently repealed a law restricting firearms in houses of worship and lawmakers declined to consider a piece of legislation brought by a Charlottesville delegate to empower localities to restrict weapons at public gatherings.
Redneck Revolt hopes that a Virginia law restricting towns and cities from limiting the “purchase, possession, transfer, ownership, carrying, storage or transporting of firearms” will help convince a judge to dismiss the Charlottesville lawsuit. But Dixon doesn’t see guns as the solution to the anger that boiled over in Charlottesville.
“Guns are a really unfortunate appendage. And they’re a very selective tool. But they’re not going fix the goddamn problem,” he said. “They just put bodies in the ground and scare people.”