Kessler Settles Lawsuit Over Militia Groups at Unite The Right Rally

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Jason Eric Kessler (FILE IMAGE) Jason Eric Kessler (FILE IMAGE)
George Curbelo (center) with the New York Light Food Militia in Charlottesville (Photo courtesy George Curbelo) George Curbelo (center) with the New York Light Food Militia in Charlottesville (Photo courtesy George Curbelo)
Christian Yingling (center) of the Pennsylvania Light Foot Milita in Charlottesville (Photo courtesy Justin Ide/Reuters) Christian Yingling (center) of the Pennsylvania Light Foot Milita in Charlottesville (Photo courtesy Justin Ide/Reuters)

The final defendants named in a lawsuit to prevent some paramilitary groups from returning to Charlottesville have entered agreements to settle the case.

Unite the Right rally organizer Jason Eric Kessler was the last to enter into a consent decree this week. The group Redneck Revolt also settled this week.

Kessler agrees not to facilitate - and to actively discourage - any organized, armed paramilitary activity at any future rallies in Charlottesville.

On behalf of City Hall and downtown businesses, Georgetown Law filed the suit back in October 2017. The defendants were facing five counts involving actions from August 12, 2017, including "falsely assuming the functions of peace officers" and "strict subordination."

The complaint also alleged that rally organizers - such as Kessler - sought to recruit private militia groups and that attendees encouraged one another to "prepare for war.”

All of the organizations in the lawsuit have agreed not to return in groups of two or more while armed at any demonstration or event in the city. They can still attend rallies, but cannot organize any use of force.

Since all defendants have settled, a trial set for the end of July is no longer necessary.

07/12/2018 Statement from Attorney Jeffrey E. Fogel:

As lawyers and members of the Charlottesville community, we were shocked when the city included Redneck Revolt in its lawsuit against militias. We condemned the “equivalency” approach which tracked Trump’s claim that there were good (and bad) people on both sides. A team of 14 lawyers, expending busloads of money, descended on Charlottesville, in part, to go after the only armed people who were present on August 12 for the purpose of protecting the community. And to add insult to injury, this is the City that failed to protect anyone and has moral responsibility for murder, aggravated physical injuries and mayhem in the streets.

07/12/2018 Release from Georgetown Law:

CHARLOTTESVILLE, Va. (July 12, 2018) – One month before the one-year anniversary of the violent “Unite the Right” rally in Charlottesville, lead organizer Jason Kessler became the final defendant to enter into a consent decree resolving a lawsuit brought by Georgetown Law’s Institute for Constitutional Advocacy and Protection on behalf of the city and others. Under the terms of the decree, Kessler promised that he will not facilitate—but will instead actively discourage—organized, armed paramilitary activity at any future rallies in Charlottesville.

On Wednesday, Kessler became the last in a series of defendants who agreed to be bound by court-enforceable consent decrees that permanently prohibit these rally organizers and participating militias, alt-right organizations, and their leaders from participating in Charlottesville protests and rallies as unauthorized organized armed groups using force or projecting the ability to do so. Redneck Revolt, which describes itself as an “anti-racist, anti-fascist community defense formation,” also entered into a consent decree on Tuesday. Redneck Revolt was the only other remaining defendant that would have faced trial in state court, which was set to begin on July 30. Earlier this week, a Charlottesville Circuit Court judge ruled that the plaintiffs’ amended complaint could proceed to trial on all counts.

“Should Kessler hold an anniversary rally in Charlottesville on August 12, as he has vowed to do, these court orders ensure that he and other participants will not repeat the organized and intimidating displays of paramilitary power that led to chaos, fear, and violent confrontations in the city streets last year,” said Mary McCord, senior litigator at Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP), lead counsel for plaintiffs in the lawsuit.

ICAP originally filed suit on behalf of the City of Charlottesville, local businesses, and neighborhood associations against rally organizers, private militias, and alt-right groups on Oct. 12, 2017. The lawsuit relied on Virginia state laws that require all displays of military power to be under strict subordination to civil authorities and prohibit private paramilitary activity and the usurpation of the role of law enforcement.

ICAP later showed in a public report that all 50 states have a variety of similar prohibitions at their disposal. ICAP has since successfully consulted with authorities in several communities about how to restrict paramilitary activity at other protests and demonstrations.

In its amended Charlottesville complaint, ICAP, joined by local counsel MichieHamlett, recounted how much of the violence and mayhem that unfolded during the “Unite the Right” rally in Charlottesville had been carefully arranged in advance. The complaint documented more than a month of planning among alt-right organizers and participants through social media, often using private channels. According to the complaint, the rally’s organizers—Jason Kessler and Elliott Kline, the latter of whom last month entered into a consent decree resolving the case against him—solicited alt-right attendees to form military-style shield walls, invited private militias to provide security for the rally, held group-wide planning calls, and circulated an instructional document entitled “General Orders.” All the while, attendees encouraged one another to “prepare for war.”

Under the 19 consent decrees and four additional default judgments that are expected to be entered soon by the court, the individuals and organizations sued are permanently enjoined from returning to Charlottesville “as part of a unit of two or more persons acting in concert while armed with a firearm, weapon, shield, or any item whose purpose is to inflict bodily harm, at any demonstration, rally, protest, or march.”

Defendants can still attend rallies and engage in free expression, but they may not engage in the organized and armed use of force or projection of the ability to use force. In Virginia, which is an open-carry state, individuals may arm themselves for purposes of self-defense. But, under the court orders, defendants may not coordinate their armed activity with each other during protests and similar events, thus avoiding the type of private paramilitary activity that proved so dangerous a year ago.

Separately, Kessler is suing the City of Charlottesville, which denied him a permit for an anniversary rally on Aug. 12. A hearing on Kessler’s motion for a preliminary injunction to require issuance of the permit will be held in that case on July 24. Kessler has also applied for a permit to hold another anniversary rally in Washington, D.C. Individuals are prohibited from openly carrying weapons in Washington, and even those who have concealed-carry permits are restricted from carrying firearms in certain areas, including on White House and Capitol grounds and the National Mall.

In working on this case, ICAP was joined by local counsel MichieHamlett as well as the law firm of Paul, Weiss, Rifkind, Wharton & Garrison.

“Those of us who make our home in Charlottesville were left dumbfounded by outsiders who brought violence and hatred to our city on August 12,” commented Lee Livingston, a partner at MichieHamlett. “Our MichieHamlett team was delighted to assist ICAP and Paul Weiss to enforce key provisions of the Virginia Constitution and Virginia Code that prevent paramilitary groups from seeking control of the public square.”