I am always reluctant to offer Monday-morning-quarterbacking and second-guessing of what other people put in court filings, because I usually don’t know the facts that the other lawyers know, and it seems gratuitous to take pot-shots after the fact. But in the aftermath of Judge Glen Conrad’s decision to grant Jason Kessler his injunction so that the Unite the Right Rally was going to go forward at Emancipation Park, there has been a lot of public condemnation of the judge, the City Attorney, and everybody else. And I can’t help myself…
My understanding, from public reports as well as talking with a lot of people, is that Council was advised in no uncertain terms by Craig Brown, City Attorney, that they had two major points working against them:
1. The decision to move the the rally to McIntire Park, coming more than 2 months after the permit was first sought, and coming just days before the rally was to be held, looked like the City was simply buckling to political pressure. Their brief in opposition to the request for an injunction was accompanied by three affidavits — one from City Manager Maurice Jones, one from Police Chief Al Thomas, and one from Fire Chief Andrew Baxter. Some of the affidavits talked about how the concerns about numbers of alt-right attendees were growing in the days before the Rally, but they didn’t articulate a compelling problem if the number of demonstrators in the Park turned out to be 1,000 instead of 400.
2. The fact that they only sought to move the Kessler rally and not the permits for the use of McGuffey and Justice Parks looked like viewpoint discrimination, with the viewpoint disfavored by individual Councilors (as reflected in their social media posts) being the side that was getting moved. This perception that this whole business was a question of favoring one side over the other made the City’s argument very difficult.
I understand that Craig told the City Manager and/or Council that under the circumstances, with Walt Heinecke’s permits remaining in place for McGuffey and Justice Parks, he estimated a likelihood of success at no more than 1 chance in 3. This leads to a few practical, and tactical, questions — could Council have also moved the other permits? If the Nazi rally was being moved, couldn’t the Heinecke permits also have been moved? And might not the counter-protesters have wanted to be moved to McIntire Park as well?
In any event, the City filed its opposition to the injunction when its top lawyer felt that it had only a 1 in 3 chance of success — a chance of success that could presumably have been increased by also moving the counter-protesters’ permits.
As I read the City’s pleadings on August 11, and as I re-read them now with the benefit of two more weeks of news reports (including the intel from the Department of Homeland Security), I have been struck by the fact that while the brief adequately covers the law, the combination of all of the documents does not convey a sense of impending crisis. The affidavits submitted by Police Chief Al Thomas and City Manager Maurice Jones were largely conclusory, in measured, legal-ish language. The major concern given was that the numbers were likely to be higher than 400; there was almost no mention of a fear of violence based on past experience with rallies of this kind. Chief Al Thomas’s affidavit contained this one paragraph that touched on violence and danger:
“Intelligence reports gathered by the CPD Criminal Investigations Division further indicate that some Rally participants intend to carry firearms. For example, in conversations with CPD, Mr. Chiles indicated that FOAK members intend to carry firearms at the Rally.”
In the City’s brief, there is one quick reference to Jason Kessler having made statements in web forum groups that the Unite the Right Rally was going to be “like Berkeley,” with a footnote of explanation but no copies of posts or web pages to prove the point.
Certainly there was nothing that referred to the Department of Homeland Security warnings of an imminent pitched battle on the streets.
When the hearing on the injunction started at 2:30 PM on August 11, the police already had reports that a torch-light parade was planned for the University that night. The police had already had an altercation with alt-right folks at WalMart, where they were buying their tiki torches. As far as I am aware, there was no mention of those facts during the hearing. That afternoon, Charlottesville had a feeling of foreboding, like the sense that a hurricane or a blizzard was approaching. Those of us who were reading the online posts of Kessler and his friends had a “hair on fire” sense of worry about what was about to happen, but it is apparent that that sense was never conveyed to the Court.
The result was that Judge Conrad could write, in granting Kessler his injunction:
“In revoking the permit, the defendants cited ‘safety concerns’ associated with the number of people expected to attend Kessler’s rally. However, the defendants cited no source for those concerns and provided no explanation for why the concerns only resulted in adverse action being taken on Kessler’s permit.”
Consider what actually went wrong on August 12. The two biggest issues on August 12 were:
a. The fact that the Nazis were going to have to come in through the counter-protesters. On July 8, 44 KKK members were safely brought in all at one time, with an assigned area for them to park their cars and a plan to escort them to and from their cars. With many hundreds, and perhaps thousands, of Nazis coming, there was no plan that was going to allow them to come in safely (of course, they then screwed up what plan there was by coming in from different directions, but I digress).
b. The distance for separation between the two factions. I have heard experts say that the distance between the two groups should have been a minimum of 25 yards (75 feet), not 15 feet. The distance should have been enough that it would be difficult to throw something that would hit the other side, and it should have been enough that any encroachment into a DMZ could be dealt with by police.
The City should have submitted affidavits from other police chiefs who have dealt with these sorts of demonstrations, saying “Here are the conditions that you need to keep the peace”; then Chief Thomas could have said, “We can’t do that in Emancipation Park.”
I think it is fair to say that if there is another permit application for another right-wing rally, the Charlottesville government will be able to make a more compelling case for tight regulations and for having the demonstration somewhere other than downtown.
