Kessler v. City of Charlottesville

• Citation: 441 F.Supp.3d 277
• Decision Date: 21 February 2020
• Docket Number: Case No. 3:19-cv-00044
• Parties: Jason KESSLER, et al., Plaintiffs, v. CITY OF CHARLOTTESVILLE, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

441 F.Supp.3d 277

Jason KESSLER, et al., Plaintiffs,

v.CITY OF CHARLOTTESVILLE, et al., Defendants.

Case No. 3:19-cv-00044

United States District Court, W.D. Virginia, Charlottesville Division.

Signed February 21, 2020

Elmer Woodard, Blairs, VA, James Edward Kolenich, Pro Hac Vice, Kolenich Law Office, Cincinnati, OH, for Plaintiffs.

Richard Hustis Milnor, Taylor Zunka Milnor & Carter LTD, Chartlottesville, VA, David Patrick Corrigan, Melissa Yvonne York, Harman Claytor Corrigan & Wellman, Erin Rose McNeill, Office of the Attorney General of Virginia, Richmond, VA, for Defendants

MEMORANDUM OPINION

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

INTRODUCTION

Before the Court are five motions to dismiss Plaintiffs' complaint for failure to state a claim. The claims against each Defendant are based on substantially the same theory.¹ Namely, Plaintiffs allege that Defendants—the City of Charlottesville, Charlottesville's then-city manager and then-chief of police, a Virginia State Police Lieutenant, and Charlottesville's current city manager—unconstitutionally effectuated a "heckler's veto" of the Unite the Right rally in Charlottesville, Virginia, on August 12, 2017, which Plaintiff Jason Kessler organized, and Plaintiff David Matthew Parrott attended.

Where the state suppresses speech based on the threat, or possibility, of a hostile or violent response from the audience, it can be said to have effectuated a "heckler's veto." In this case, Plaintiffs allege that Defendants used the expected chaos and violence caused by the confrontations between "Antifa" counter-protestors and Alt-Right protestors as grounds to shut down Plaintiffs' rally—thereby restricting Plaintiffs' speech based on the hostile public reaction to the message of the event. In doing so, Plaintiffs allege that Defendants violated their First Amendment rights.

In Count I, Plaintiffs plead that then-Charlottesville Chief of Police Defendant Al S. Thomas, acting in his individual capacity, violated their First Amendment rights by ordering Charlottesville police officers to allow counter-protestors at the August 2017 "Unite the Right" rally to impose a heckler's veto upon Plaintiffs. They also allege in Count V that Defendant Thomas is liable on a supervisory liability theory under Section 1983 because he affirmatively caused Charlottesville police to "fail in their duty to not participate in, cause, or acquiesce" in counter-protestors' heckler's veto.

In Count II, Plaintiffs allege that Virginia State Police Lieutenant Defendant Becky Crannis-Curl, in her individual capacity, is liable to Plaintiffs under Section 1983 because she ordered Virginia State Troopers to permit counter-protestors to impose a heckler's veto upon Plaintiffs, pursuant to a stand-down order, in violation of their First Amendment rights. Like their claim against Defendant Thomas, Plaintiffs also allege in Count VI that Defendant Crannis-Curl is liable under a supervisory liability of Section 1983 because she "affirmatively caused the Virginia State Troopers to "fail in their duty to not participate in, cause, or acquiesce" in the counter-protestors' heckler's veto.

Plaintiffs plead in Count III that then-Charlottesville City Manager Defendant Maurice Jones, in his individual capacity, also ordered, acquiesced in, or otherwise approved Defendant Thomas's plan to permit the counter-protestors to impose a heckler's veto upon Plaintiffs' event, thereby using "the resulting chaos as an excuse to declare an unlawful assembly" in violation of Plaintiffs' First Amendment rights. Plaintiffs also allege a Monell claim against Defendant City of Charlottesville in Count IV of their complaint, arguing that Charlottesville is liable for Jones's alleged ratification of the stand-down order Thomas issued to police in order to make it "easier to declare an unlawful assembly."² Plaintiffs argue that this policy, and the subsequent declaration of an unlawful assembly in accordance with it, unconstitutionally effectuated a heckler's veto in violation of their First Amendment rights.

Because of the procedural posture of this case, the Court is required to accept as true the allegations in Plaintiffs' complaint when considering Defendants' motion to dismiss. Even still, Plaintiffs' claims fail as a matter of law because Plaintiffs have not alleged any violation of their constitutional rights. Accordingly, Defendants' motions to dismiss will be granted.

I. STANDARD OF REVIEW

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a complaint to determine whether a plaintiff has properly stated a claim. The complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In evaluating a motion to dismiss under Rule 12(b)(6), the Court must accept all of the allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor, King v. Rubenstein , 825 F.3d 206, 212 (4th Cir. 2016). A motion to dismiss "does not, however, resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Id. at 214.

Although the complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. A court need not "accept the legal conclusions drawn from the facts" or "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Simmons v. United Mortg. & Loan Inv., LLC , 634 F.3d 754, 768 (4th Cir. 2011) (quotation marks omitted). This is not to say Rule 12(b)(6) requires "heightened fact pleading of specifics," instead the plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; see Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("only a complaint that states a plausible claim for relief survives a motion to dismiss").

A court may consider a document outside the complaint when evaluating a motion to dismiss if the document is authentic and integral to the complaint. Goines v. Valley Community Servs. Bd. , 822 F.3d 159, 164 (4th Cir. 2016). In their complaint, Plaintiffs extensively quote from and cite to the Independent Review of the 2017 Protest Events in Charlottesville, Virginia, conducted by Timothy Heaphy of the law firm then known as Hunton & Williams LLP ("Heaphy Report")—citing the document over a dozen times in their nineteen-page complaint. Cf. Goines , 822 F.3d at 164 ("Although the complaint included a few quotes from and references to the Incident Report, Goines' claims do not turn on, nor are they otherwise based on, statements contained in the Incident Report."). Such references include, but are not limited to, Defendant Al Thomas's directive, "Let them fight, it will make it easier to declare an unlawful assembly." Dkt. 1 at ¶ 51 (citing Heaphy Report p. 133). Plaintiffs failed to attach this report to the complaint, but Defendant Thomas attached certain portions of this report to his motion to dismiss. Dkt. 43-1, Ex. 1. At the hearing on these motions to dismiss, counsel for each of the parties affirmatively and expressly indicated their consent to the Court considering the report when evaluating the pending motions to dismiss.

Considering the complaint not only extensively relies on direct quotations and information from the report, but further, that Plaintiffs' claims clearly and directly turn on such quotations and information cited from the Heaphy Report, the Court finds that Plaintiffs have incorporated it into their complaint. The Court has determined that it is integral to the complaint, see Goines , 822 F.3d. at 166, and the parties have not disputed the Report's authenticity. What is more, all parties have consented to the Court considering it. Consequently, although the Court finds that the allegations within the complaint itself are sufficient to support its ruling, the Court also will consider the Heaphy Report in its review of the motions to dismiss.

II. ALLEGED FACTUAL BACKGROUND

On August 12, 2017, Plaintiff Jason Kessler planned to hold, pursuant to a permit, the "Unite the Right" ("UTR") rally in Charlottesville, Virginia. Dkt. 1 at ¶ 72. Kessler alleges that he planned to "speak, hear others speak, and engage in expressive political activity" in opposition to the Charlottesville City Council's proposal to remove a Confederate statue from the formerly named Lee Park in Charlottesville. Id. at 9. Plaintiff David Matthew Parrott alleges that he attended the UTR rally in order to engage in "expressive political activity" in support of Kessler as well as observe the speaking presentations planned for the event. Id. at ¶ 10. Plaintiffs allege that their "Alt-Right" message, id. at ¶ 11, which was to be showcased at the UTR rally, is considered by many "to be offensive due to its liberal use of racially and religiously offensive language," id. at ¶ 12.

Plaintiffs allege that, among the various groups of counter-protesters, Antifa, a group "who dislike Alt-Right political messaging," id. at 13, attended the UTR rally in order to "stop or attempt to stop" Plaintiffs from expressing their Alt-Right message at the event. Id. at ¶ 16. Plaintiffs provide a variety of allegations about Antifa's "violent rhetoric" against Alt-Right and politically conservative speakers at rallies and events across the country prior to the August 12 UTR rally in Charlottesville. Id. at ¶¶ 23–27. Plaintiffs further contend that Defendants in this case were aware of Antifa's "violent history and tactics," id. at ¶¶ 27, 30, as well as their intentions for the UTR rally planned in Charlottesville. Id. at ¶ 31. Specifically, Plaintiffs allege...