Sines v. Kessler

• Decision Date: 03 September 2021
• Docket Number: Case No. 3:17-cv-00072
• Citation: 558 F.Supp.3d 250
• Parties: Elizabeth SINES, et al., Plaintiffs, v. Jason KESSLER, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

558 F.Supp.3d 250

Elizabeth SINES, et al., Plaintiffs,

v.Jason KESSLER, et al., Defendants.

Case No. 3:17-cv-00072

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

Signed September 3, 2021

Alexandra Eber, Pro Hac Vice, Caitlin B. Munley, Pro Hac Vice, David E. Mills, Pro Hac Vice, Samantha A. Strauss, Pro Hac Vice, Joshua Michael Siegel, Cooley LLP, Jessica E. Phillips, Pro Hac Vice, Karen Leah Dunn, Pro Hac Vice, William Anthony Isaacson, Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Katherine Marie Cheng, Boies Schiller Flexner, LLP, Washington, DC, John Benjamin Rottenborn, Woods Rogers PLC, Roanoke, VA, Robert T. Cahill, Scott William Stemetzki, Cooley LLP, Reston, VA, for Plaintiff Chelsea Alvarado.

Alan Levine, Pro Hac Vice, Amanda Lee Liverzani, Pro Hac Vice, Daniel Philip Roy, III, Pro Hac Vice, Cooley LLP, Alexandra Kendal Conlon, Pro Hac Vice, Benjamin Daniel White, Pro Hac Vice, Emily Carrie Cole, Pro Hac Vice, Gabrielle E. Tenzer, Pro Hac Vice, Jonathan R. Kay, Pro Hac Vice, Julie Eden Fink, Pro Hac Vice, Michael Low Bloch, Pro Hac Vice, Raymond Patrick Tolentino, Pro Hac Vice, Roberta Ann Kaplan, Pro Hac Vice, Joshua Adam Matz, Pro Hac Vice, Kaplan Hecker & Fink LLP, Philip Matthew Bowman, Pro Hac Vice, Yotam Barkai, Pro Hac Vice, Boies Schiller Flexner, LLP, New York, NY, Alexandra Eber, Pro Hac Vice, Caitlin B. Munley, Pro Hac Vice, David E. Mills, Pro Hac Vice, Samantha A. Strauss, Pro Hac Vice, Joshua Michael Siegel, Cooley LLP, Jessica E. Phillips, Pro Hac Vice, Karen Leah Dunn, Pro Hac Vice, William Anthony Isaacson, Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Katherine Marie Cheng, Boies Schiller Flexner, LLP, Washington, DC, John Benjamin Rottenborn, Woods Rogers PLC, Roanoke, VA, Robert T. Cahill, Scott William Stemetzki, Cooley LLP, Reston, VA, for Plaintiff Thomas Baker.

Elmer Woodard, Blairs, VA, James Edward Kolenich, Pro Hac Vice, Kolenich Law Office, Cincinnati, OH, for Defendants Jason Kessler, Nathan Damigo, Identity Evropa.

David Leon Campbell, Justin Saunders Gravatt, Duane, Hauck, Davis, Gravatt & Campbell, Richmond, VA, for Defendant James Alex Fields, Jr.

Joshua Smith, Smith LLC, Pittsburgh, PA, William Edward ReBrook, IV, The Rebrook Law Office, Burke, VA, for Defendant Matthew Heimbach.

Elmer Woodard, Blairs, VA, James Edward Kolenich, Pro Hac Vice, Kolenich Law Office, Cincinnati, OH, Joshua Smith, Smith LLC, Pittsburgh, PA, William Edward ReBrook, IV, The Rebrook Law Office, Burke, VA, for Defendants Matthew Parrott, Traditionalist Worker Party.

Bryan Jeffrey Jones, Bryan J. Jones, Attorney at law, Charlottesville, VA, for Defendants Michael Hill, Michael Tubbs, League of the South.

William Edward ReBrook, IV, The Rebrook Law Office, Burke, VA, for Defendants Jeff Schoep PO Box 13768 Detroit, MI 48213 313-671-2583, National Socialist Movement, Nationalist Front.

Richard Spencer, Whitefish, MT, Pro Se.

Christopher Cantwell, Marion, IL, Pro Se.

Vanguard America, Pro Se.

Robert Azzmador Ray, Pro Se.

Elliott Kline, Pro Se.

MEMORANDUM OPINION

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

In their motion for summary judgment, League of the South, the League's co-founder and President Michael Hill, and its "Chief of Staff," Michael Tubbs (collectively, "League of the South Defendants"), argue that they have demonstrated that there is no genuine dispute of material fact that they did not conspire with others to engage in racial violence at the "Unite the Right" rally held in Charlottesville on August 11 and 12, 2017. Thus, they argue that they are entitled to judgment as a matter of law. Accepting their argument, in other words, would hold that no reasonable jury could find in Plaintiffs’ favor that League of the South Defendants conspired with any other person or organization to engage in racial violence at Unite the Right, based on the evidence in the summary judgment record and under governing law.

More specifically, League of the South Defendants argue that they should not be held responsible for certain Plaintiffs’ injuries occurring at the "Torch March" on the evening of Friday, August 11, 2017, which they characterize as a "separate event" from the following morning's events of August 12, 2017, in which they were visibly and heavily involved. League of the South Defendants further contend that Defendant James Fields acted alone, and so they should not be held responsible for the injuries he inflicted upon Plaintiffs when he drove into a crowd of counter-protestors on August 12, 2017, striking multiple Plaintiffs and killing Heather Heyer. In their telling, League of the South Defendants merely prepared to and were forced to "defend themselves" from "attacks of violent oppositionists." They further argue that the fact that in this rally "members of the League clashed with violent political opponents," does not support Plaintiffs’ claims that they conspired to commit racial violence.

But Plaintiffs’ evidence is not just that the all-white organization, League of the South, and Michael Hill and Michael Tubbs were mere participants or attendees at Unite the Right—advocating for a white supremacist ideology that Plaintiffs find repugnant. Rather, Plaintiffs have put forward substantial evidence tending to show that the League and its highest levels of leadership: (1) were heavily involved with Co-Conspirators and Co-Defendants (including Defendant Jason Kessler, Defendant Traditionalist Workers Party, Defendant National Socialist Movement, Defendant Vanguard America, the alliance of white supremacist groups Defendant Nationalist Front, and Defendant Matthew Heimbach, among others), planning many aspects of Unite the Right; (2) were motivated by animus against Black and Jewish individuals, and sought to motivate League members and others to attend Unite the Right to protect the white race against perceived Black and Jewish "enemies"; and (3) were sought out for a key role in Unite the Right precisely because of their physicality and training to fight, which they deployed at Unite the Right—as exhibited in numerous videos, including when Defendant Tubbs led a column of the League and other Nationalist Front members into a crowd of counter-protestors on August 12, yelling "Follow me!", before they charged and a melee ensued.

Weighing the evidence is a jury function. Making credibility determinations is a jury function. Determining the truth of the matter is a jury function. A judge's role on a motion for summary judgment, by contrast, is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue of material fact for a jury to resolve at trial. Here, League of the South Defendants are the movants, asking the Court to rule on the evidence as a matter of law that no reasonable jury could find that any of them conspired to commit racial violence at Unite the Right. League of the South Defendants and their Co-Defendants will be able to make their case and present their narrative of Unite the Right to the jury as the factfinders. The jury may or may not be persuaded that their narrative represents the truth of the matter. However, because League of the South Defendants have not demonstrated there is no genuine issue of material fact and that they are entitled to judgment as a matter of law, the Court has denied their motion for summary judgment. The case will proceed to trial.

PROCEDURAL BACKGROUND

This Court previously considered and rejected motions to dismiss this lawsuit filed by many of the Defendants in this case, including League of the South Defendants. In that decision, the Court held that—taking Plaintiffs’ allegations as true and drawing all reasonable inferences in their favor—"Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit racial violence that led to the Plaintiffs’ varied injuries" at the Unite the Right rally in Charlottesville. Sines v. Kessler, 324 F. Supp. 3d 765, 773 (W.D. Va. 2018). Given the similarity in issues raised in the earlier motions to dismiss to the issues raised in the briefing on League of the South Defendants’ summary judgment motion, the Court will lay out the basis for that prior decision in some detail.

As described in that decision, Plaintiffs are Charlottesville residents who allege that they each suffered injuries at or in connection with the rally. Id. at 774–75. Defendants include groups and individuals who Plaintiffs alleged were involved in and responsible for organizing, planning, and executing the Unite the Right rally. Id. at 775–76.

Since Plaintiffs had alleged that Defendants formed a conspiracy pursuant to 42 U.S.C. § 1985(3), the law required Plaintiffs to "show an agreement or a meeting of the minds by [the] defendants to violate the [plaintiff's] constitutional rights." Id. at 783 (quoting A Soc'y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) ). At that stage of the case, this meant that "Plaintiffs must allege each Defendant entered into an agreement with a specific co-conspirator to engage in racially motivated violence at the August 11th and 12th events." Id. at 784. The Court concluded that, with one exception, "Plaintiffs have adequately pled specific factual allegations that each moving Defendant ... was part of a conspiracy to engage in racially motivated violence at the ‘Unite the Right’ events." Id. ¹

The Court considered Plaintiffs’ allegations against each Defendant, including League of the South Defendants. Id. at 792–93. The complaint described League of the South as a white supremacist organization that was "allegedly in the heart of the violence that occurred on 12 August." Id. at 792. The complaint further alleged that the League had used online messaging platforms Discord and Facebook to communicate with its members about the event, and "coordinated with the other Defendants," including Defendant Jason Kessler, who "was perhaps the overarching organizer for the event." I...