Conte v. Commonwealth
| Decision Date | 27 April 2023 |
| Docket Number | 3:20-CV-00038 |
| Parties | GREGORY CONTE AND WARREN BALOGH Plaintiffs, v. COMMONWEALTH OF VIRGINIA, et al. Defendants. |
| Court | U.S. District Court — Western District of Virginia |
This matter is before the Court on Defendants' motions to dismiss, Dkts. 10, 16, 21, 23, and 28. Plaintiffs Gregory Conte and Warren Balogh, attendees of the 2017 Unite the Right rally, have sued sixteen defendants, including the Commonwealth of Virginia, Virginia's Governor, Virginia State Police officials, Virginia's Secretary of Public Safety and Homeland Security, the City of Charlottesville Charlottesville's Mayor and Vice Mayor, the Charlottesville Police Department, Charlottesville's Police Chief, and alleged Antifa leaders. They claim that Defendants violated their First Amendment speech rights and Fourteenth Amendment rights to due process and equal protection, and violated the Racketeer influenced and Corrupt organizations Act (“RiCo”). Plaintiffs' Complaint is partially foreclosed by the Fourth Circuit's opinion in Kessler v. City of Charlottesville, No 20-1704, 2022 WL 17985704 (4th Cir. Dec. 29, 2022) (per curiam) (unpublished), which raised similar claims. Plaintiffs' other claims fare no better. For the following reasons, their pro se suit will be dismissed.
The following facts are alleged in Plaintiffs' Complaint and must be assumed true for purposes of resolving a motion to dismiss. See King v. Rubenstein 825 F.3d 206, 212 (4th Cir. 2016) (). Plaintiffs attended the Unite the Right (“UTR”) rally in Charlottesville in 2017 “to engage in expressive political activity in opposition to a proposal by the Charlottesville City Council to remove the statue of Confederate General Robert E Lee” from Charlottesville's Lee Park. Dkt. 1 (“Compl.”) ¶ 23. On June 13, 2017, Jason Kessler secured a permit for the UTR rally to take place on August 12, 2017. Id. ¶ 28. The City of Charlottesville (“the City”) notified Kessler on August 7, 2017, that it was revoking the permit, but it did nothing “to modify or revoke the permits issued to counter-protestors for demonstrations planned within blocks of Lee Park.” Id. ¶¶ 29-30. Judge Glen E. Conrad granted a preliminary injunction on August 11 2017, which enjoined the City and its City Manager Maurice Jones from enforcing their attempt to revoke the permit, allowing the demonstration to proceed. Id. ¶¶ 2, 31 (citing Kessler v. City of Charlottesville, Va., et al., No. 3:17-cv-00056, 2017 WL 3474071 (W.D. Va. Aug. 11, 2017)).
Plaintiffs assert that, while acting under color of state law and “with deliberate hostility and indifference to the rights of Plaintiffs and other UTR demonstrators,” Defendants acted to “restrict UTR demonstrators from expressing specific viewpoints while at the same time permitting counter-protestors to engage in violent and lawless behavior.” Id. ¶ 32. Near Lee Park, on Market Street, counter-protestors “rallied” and City and State Police “restrict[ed] UTR demonstrators from entering by any means other than the Market Street entrances.” Id. ¶ 33. Plaintiffs allege that the counter-protestors “includ[ed] large numbers of ‘Antifa.'” Id. Plaintiffs further allege that, “[w]hen attendees tried to pass, Antifa locked arms and attacked with fists, poles, hammers, and other weapons.” Id. ¶ 34. In Plaintiffs' view, “[n]o such combat would have occurred at the UTR demonstration if not for the deliberate acts of Defendants.” Id. ¶ 35.
Charlottesville Chief of Police Al Thomas and Virginia State Police (“VSP”) Lieutenant Becky Crannis-Curl “were present in supervisory and/or final decision making capacities.” Id. ¶ 36. Chief Thomas, after learning violence erupted, allegedly stated: “Let them fight, it will make it easier to declare an unlawful assembly.” Id. ¶ 38. Lt. Crannis-Curl said “VSP was going ‘off-plan' and that she was not going to send any troopers out into the crowds to make arrests.” Id. ¶ 42. VSP Superintendent Colonel Steven Flaherty stated that “VSP's primary role on August 12 was ‘park security,' and troopers were not going to ‘wade into the mess on Market Street.'” Id. Similarly, Chief Thomas put forward a non-intervention order for Charlottesville police, which they obeyed. Id. ¶¶ 45, 47. “He told his subordinates after a previous July 8, 2017 demonstration that ‘I'm not going to get [protestors] in and out' during the UTR rally.” Id. ¶ 45. Therefore, Plaintiffs allege that when counter-protestors refused to let UTR attendees access the rally location, “[t]he officers stood in silence.” Id. ¶ 47.
Law enforcement eventually “moved in . . . to declare an unlawful assembly.” Id. ¶ 48. However, Plaintiffs allege that the officers enforced the order to disperse against only UTR demonstrators, not counter protestors. Id. Plaintiffs assert that they and other UTR demonstrators could not “peacefully rally, hear any speakers, or engage in any other lawful political speech or expressive activity” because of “Defendants' deliberate interference and pretextual dispersal order.” Id. ¶ 50. They also assert that they “were forced to defend themselves from physical violence wrongfully perpetrated by violent counter-protestors and by VSP officers themselves.” Id. Plaintiffs allege that they “and the vast majority of other UTR demonstrators dispersed” after police declared an unlawful assembly, but “Antifa did not.” Id. ¶ 49.
Police deployed a “chemical ‘pepper spray' like substance,” which hit Plaintiff Balogh in his head, causing him to “suffer[] a burning sensation as the chemical mixed with his sweat,” and he “suffered temporary loss of vision.” Id. ¶ 54. Plaintiffs assert that Defendants' use of such a substance was not needed because “there was no violence within the park.” Id. ¶ 60. Days later, Plaintiff Balogh continued to “experience[] a burning feeling,” and “[w]hen he showered, the residue from the chemical burned his eyes days after the incident.” Id. ¶ 55. Also, “a masked attacker wielding a stick like weapon from behind” struck him in the arm after he exited Lee Park, injuring him. Id. ¶ 56. Plaintiffs assert Plaintiff Balogh could not “properly identify his attacker due to Defendants['] failure to enforce [Va.] Code § 18.2-422 ‘Prohibition of wearing of masks in certain places' and exceptions regarding counter-protestors such as Antifa.” Id. ¶ 57.
Defendants include the Commonwealth of Virginia, Terence McAuliffe (Governor of Virginia at the time of the events alleged in the Complaint, named in his individual capacity), Virginia State Police, Steven Flaherty (a Colonel in the Virginia State Police at the time of the events alleged in the Complaint, named in his individual capacity), Becky Crannis-Curl (a Lieutenant in the Virginia State Police at the time of the events alleged in the Complaint, named in her individual capacity), Brian Joseph Moran (Secretary of Public Safety and Homeland Security for Virginia at the time of the events alleged in the Complaint), the City of Charlottesville, Michael Signer (Mayor of Charlottesville at the time of the events alleged in the Complaint, named in his individual capacity), Wes Bellamy (Vice Mayor of Charlottesville at the time of the events alleged in the Complaint, named in his individual capacity), the Charlottesville Police Department, and Al Thomas, Jr. (Chief of Police of the City of Charlottesville at the time of the events alleged in the Complaint, named in his individual and official capacities).[1] After Plaintiffs filed their Complaint and Defendants filed their motions to dismiss, this case was stayed until fifteen days after issuance of the Fourth Circuit's mandate in Kessler v. City of Charlottesville, No. 3:17-cv-72, Dkt. 61. The Fourth Circuit affirmed Kessler v. City of Charlottesville, 441 F.Supp.3d 277, 292 (W.D. Va. 2020), aff'd, No. 20-1704, 2022 WL 17985704, and Defendants' motions to dismiss are now ripe for review.[2]
To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The purpose of a Rule 12(b)(6) motion is to “test the sufficiency of a complaint,” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King, 825 F.3d at 214 (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). “Thus, when considering a motion to dismiss, a court must consider the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.” Bing v. Brivo Systems, LLC, 959 F.3d 605, 616 (4th Cir. 2020). Nevertheless, only facts can render a claim for relief plausible. “[F]ormulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor is it sufficient for a plaintiff to plead facts merely consistent with liability. The plaintiff must plead enough factual content to nudge a claim across the border from mere possibility to plausibility. Id. at 570; see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Further, district courts must construe pro se complaints liberally, but that “does not require those courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Plaintiffs bring First Amendment, Fourteenth Amendment, gross negligence - failure to train, RICO, and RICO conspiracy claims against the Commonwealth and the VSP. State sovereign immunity under the Eleventh Amendment bars these...
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