Sines v. Kessler

Decision Date09 July 2018
Docket NumberCase No. 3:17–CV–00072
Citation324 F.Supp.3d 765
CourtU.S. District Court — Western District of Virginia
Parties Elizabeth SINES, et al., Plaintiffs, v. Jason KESSLER, et al., Defendants.

Alan Levine, Pro Hac Vice, Cooley LLP, Christopher Bradford Greene, Pro Hac Vice, Gabrielle E. Tenzer, Pro Hac Vice, Joshua Adam Matz, Pro Hac Vice, Julie Eden Fink, Pro Hac Vice, Roberta Ann Kaplan, Pro Hac Vice, Seguin Layton Strohmeier, Pro Hac Vice, Kaplan & Company, LLP, Joshua James Libling, Pro Hac Vice, Philip Matthew Bowman, Pro Hac Vice, Yotam Barkai, Pro Hac Vice, Boies Schiller Flexner, LLP, New York, NY, David E. Mills, Pro Hac Vice, Cooley LLP, Karen Leah Dunn, Pro Hac Vice, William Anthony Isaacson, Pro Hac Vice, Boies Schiller Flexner, LLP, Washington, DC, John Benjamin Rottenborn, Woods Rogers PLC, Roanoke, VA, Robert T. Cahill, Cooley LLP, Reston, VA, for Plaintiffs.

Elmer Woodard, Blairs, VA, James Edward Kolenich, Pro Hac Vice, Kolenich Law Office, Cincinnati, OH, David Leon Campbell, Justin Saunders Gravatt, Duane, Hauck, Davis & Gravatt, P.C., Richmond, VA, Bryan Jeffrey Jones, Bryan J. Jones, Attorney at law, Charlottesville, VA, for Defendants.

Michael Enoch Peinovich, Hopewell Junction, NY, pro se.



In 1871, Congress passed a law "directed at the organized terrorism in the Reconstruction South[.]" Chapman v. Houston Welfare Rights Org. , 441 U.S. 600, 610 n.25, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) ; see 42 U.S.C. § 1985. Over a hundred and forty years later, on August 11th and 12th, 2017, the Defendants in this lawsuit, including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted. Charlottesville residents who suffered injuries at the rallies, the Plaintiffs, allege that this violence was no accident. Instead, they allege the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. The Defendants retort that they were simply engaged in lawful, if unpopular, political protest and so their conduct is protected by the First Amendment. While ultimate resolution of what happened at the rallies awaits another day, the Court holds the Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit the racial violence that led to the Plaintiffs' varied injuries. Accordingly, the Plaintiffs' claims largely survive, although one Defendant is dismissed and other claims are pared down.


This opinion addresses one precise question: the legal sufficiency of the Plaintiffs' allegations that the Defendants conspired to engage in racial violence. This question comes before the Court because some of the Defendants have moved the Court to dismiss the complaint.1 A motion to dismiss a complaint tests the legal sufficiency of the allegations to determine whether the Plaintiffs have properly stated a claim; "it does not, however, resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." King v. Rubenstein , 825 F.3d 206, 214 (4th Cir. 2016). And so the Court does not today choose between the parties' competing narratives of what "actually happened" at the August rallies.

Plaintiffs' complaint is required to "to provide the ‘grounds’ of [their] entitle[ment] to relief," but this "requires more than labels and conclusions[.]" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). A court need not "accept the legal conclusions drawn from the facts" by Plaintiffs 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). But the Court takes all factual allegations in the complaint as true and draws all reasonable inferences in the Plaintiffs' favor. Rubenstein , 825 F.3d at 212. In sum, a complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955.


Before addressing the complaint, three brief points are necessary. First, Plaintiffs' complaint is 112–pages long, pushing the limits of Rule 8(a)'s requirement of a "short, plain statement." Fed. R. Civ. P. 8(a). While the Court will not ask the Plaintiffs to trim their complaint, the following summary will necessarily leave out some details. To the extent those details are material to the Court's analysis, they are discussed later in the opinion. Second, the complaint frequently uses vague nouns, lumping all Defendants and all co-conspirators together. Because this style of pleading raises problems addressed below, the following summary focuses on allegations that are tied to specific Defendants. Third, it is important to remember that the following summary is a recounting of allegations. While the Court does not repeatedly state "Plaintiffs allege that Defendant X did Y ," this summary should not be taken as the Court's endorsement of one version of the facts.

A. The Plaintiffs

The Plaintiffs are ten Charlottesville residents who each allegedly suffered some injury related to the rallies. Their relationships to the Defendants fall into three general groups. First, there are those that attended a counter-protest on the night of Friday, August 11th, 2017. As discussed more fully below, various Defendants led a torchlight march at the University of Virginia. At the end of that march, some Plaintiffs were assaulted. One of these Plaintiffs was Tyler Magill, who was surrounded and assaulted by various marchers around a Thomas Jefferson statue. (Dkt. 175 at ¶ 166). The marchers hurled torches at Magill and others, sprayed them with pepper spray, and threw other liquids on them. (Id. at ¶¶ 169, 173, 174). He later suffered a "trauma-induced stroke" and related injuries. (Id. at ¶ 11). Plaintiff John Doe, an African–American UVA student, attended the march where he also was harassed and assaulted. (Id. at ¶ 13). He suffered various emotional injuries. (Id. at ¶ 293). A third Plaintiff, a UVA student named Natalie Romero, was also surrounded and assaulted at the statue. (Id. at ¶ 18).

Second, another group of Plaintiffs was injured when one of the Defendants, James Fields, drove his car into a crowd of counter-protestors after the "Unite the Right" rally on Saturday, August 12th. Plaintiff Romero also falls into this second group, as she was hit by Fields's car and sustained subsequent injuries. (Id. ). Plaintiff Marcus Martin, an African–American counter-protestor, was hit by Fields's car and sustained a broken leg and ankle. (Id. at ¶ 17). He pushed his fiancé, Plaintiff Marissa Blair, out of the way of the oncoming car, but she too suffered various physical injuries. (Id. at ¶ 16). Plaintiff Chelsea Alvarado was also hit by Defendant Fields's car, and she suffered physical and emotional injuries. (Id. at ¶ 19). Plaintiff Elizabeth Sines, a second year law student, witnessed the events and suffered severe emotional distress and shock. (Id. at ¶ 15). Plaintiff April Muñiz was close to being hit by the car, and she has been diagnosed with acute stress disorder and trauma since the event. (Id. at ¶ 12).

Third, there are two other Plaintiffs who are more difficult to classify. Plaintiff Seth Wispelwey is a minister who led an ecumenical organization called "Congregate" in non-violent protest. (Id. at ¶¶ 11, 134). He was part of a church service across from the torchlight march on the 11th, was confronted by one of the Defendants after the torchlight rally, and was assaulted while counter-protesting on Saturday. (Id. at ¶¶ 178, 182, 208). The last Plaintiff is Hannah Pearce. She is a member of Congregation Beth Israel, a synagogue close to the park where the Saturday rally took place. (Id. at ¶ 14). She peacefully protested throughout the weekend and was subjected to anti-Semitic harassment. (Id. at ¶¶ 219–21).

B. The Defendants

Two of the primary organizers of the Friday and Saturday events were Defendants Richard Spencer and Jason Kessler. Defendant Richard Spencer planned the Friday night march and encouraged his many followers to attend the Saturday rally. (Dkt. 175 at ¶ 21). Defendant Jason Kessler is a Charlottesville resident who applied for, and eventually received, a permit to hold the Saturday rally. (Id. at ¶¶ 20, 55).

Two other promoters were Defendants Christopher Cantwell and Michael Peinovich. Defendant Cantwell attended the events and faced criminal charges for using pepper spray at the Friday night march. (Id. at ¶ 22). Defendant Michael Peinovich hosts a podcast called The Daily Shoah and was featured on a promotional poster for the event. (Id. at ¶ 42).

Many of the individual Defendants who helped plan the events are part of organizations that are themselves Defendants. Defendants Andrew Anglin and Robert "Azzmador" Ray run a website called The Daily Stormer. (Id. at ¶¶ 25, 27). They used this platform and associated "book clubs" to promote the events, which Ray attended. (Id. ). The website is owned by an Ohio limited liability corporation, Defendant Moonbase Holdings, LLC. (Id. at ¶ 26).

Defendant Vanguard America is a white nationalist group with twelve chapters across the country. (Id. at ¶ 24). Many of its members attended the events. (Id. at ¶¶ 153, 197). Plaintiffs alleged one of its members, Defendant James Fields, intentionally drove his car into a crowd of counter-protesters, killing one individual and injuring many others. (Id. at ¶ 23).

Another organizer was Defendant Eli Mosley. (Dkt. 175 at ¶ 29). He is associated with the white supremacist organization Defendant Identity Evropa. (Id. at ¶¶ 29, 30). The founder of that organization is Defendant Damigo, who helped facilitate transportation for the events. (Id. at ¶ 28). Defen...

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    ...violence and by threats of violence" that occurred within the "context of constitutionally protected activity"); Sines v. Kessler , 324 F.Supp.3d 765, 802–03 (W.D. Va. 2018) ("Of course, peaceful picketing ... and peaceful marching ... are the sorts of expressive activities that are protect......
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