Anna Bninski ‘23
Executive Editor
Like most current students at the Law School, I was not in Charlottesville during the events of August 11 and 12, 2017. But this is my hometown. And so throughout the day of August 12, I followed the events through news headlines, through friends’ posts. I called my family. Alone in New England, I watched feeds with disbelief spiking into horror. It was one of the worst days of my life—and my trauma was remote, mediated by six hundred miles of distance and a computer screen. I still cannot quite fathom what those events must have been like for those on the ground when the white supremacists descended on our town.
That experience is at the heart of Sines v. Kessler, the jury trial currently in progress at the Charlottesville federal courthouse.[1] On Tuesday, November 2, the Karsh Center for Law and Democracy and the UVA College of Arts & Sciences Jewish Studies Program hosted “The Charlottesville Trial,”[2] a panel discussion of the case featuring the Law School’s former Dean John C. Jeffries, Professor Leslie Kendrick, and Professor James Loeffler of the Jewish Studies Program. Professor Micah Schwartzman moderated, and opened the event with a brief overview of the far-right rallies, the counter-protests, and the violence that took place on August 11 and 12, 2017.[3] He noted that the case fills a space that might have been filled by federal action, if the Department of Justice had pursued claims.
Sines v. Kessler is a multi-plaintiff suit, brought against the far-right organizers by people harmed during the rallies and violence. Opening statements took place on October 28; as of writing, the trial is scheduled to end on November 19 but has been moving slowly.
This courtroom sketch by Bill Hennessy shows the jury listening to opening statements in Sines v. Kessler. Courtesy of nbc29.com.
Each panelist brought an interesting, nuanced approach to multiple issues, which this article can only provide an abbreviated summary of.
Dean Jeffries explained that Sines includes both a state law civil conspiracy claim (essentially, that the defendants “contemplated and committed” torts in concert) and a federal claim under 42 U.S.C. 1985 (3). Enacted in 1871, the “Ku Klux Klan Act,” as Section 1985 (3) is known, provides for damages against people who conspire to deprive others of “equal enjoyment of rights secured by law,” (as phrased by the presiding Judge Norman K. Moon ’62, quoted by Dean Jeffries).[4] Unlike the more familiar civil rights claim under Section 1983, this action does not require that the action be taken under color of law.
The scope of this action is a narrow one, Dean Jeffries emphasized, as our legal system generally secures individual rights against government interference, rather than against the actions of other people. “You are free to not date Democrats, or not date Republicans,” Dean Jeffries pointed out, in one of the lighter moments of the discussion. However, the few rights that are secured against private actors are rooted in the 13th Amendment; this brings racially-motivated infringement of rights within the scope of Section 1985 (3).
Dean Jeffries hazarded a guess that the plaintiffs will be able to make out their federal claim, but stated that the state law civil conspiracy claim looks like a better bet.[5] He also noted that the case functions more as a statement about the consequences of organizing events like the ones that occurred in 2017 than as a source of meaningful compensation, since “these defendants are mostly judgment-proof … you can’t get blood from a stone.” Indeed, more than one defendant is currently imprisoned; the prospects of plaintiffs actually receiving damages for their physical and mental harms appear slim.
Professor Kendrick spoke to the First Amendment questions raised by conspiracy claims that are adjacent to political expression. Conspiracy typically consists of an agreement plus an overt act. Even though the agreement component means that “most conspiracies, you can imagine, are made of words,” Professor Kendrick clarified that in general conspiracy falls outside of the First Amendment’s protection of free speech. She noted that, while political speech is protected, political motivation for someone’s violent act “is not going to immunize their actions.”
Professor Kendrick explained that there is a line between teaching or “conspiring to convince someone of ideas,” which is not actionable conspiracy, and making preparations for violence. If plaintiffs can show conspiracy to commit violence, “the First Amendment is not going to swoop in and change that.”
Professor Kendrick noted that the trial outcome will depend on how well explained the somewhat thorny legal issues are, how concretely defendants can be connected to the violence, and how well the jury understands the whole picture—which is quite a complex one, given the multiple plaintiffs and defendants.
Professor Loeffler has been following the trial closely, watching on closed-circuit television at the courthouse along with members of the media. One primary takeaway: “there is no substitute for actually knowing the law.” He described a somewhat chaotic scene on the defense, with a multiplicity of lawyers (one of whom apparently started a line of questioning that implicated his client, before being cautioned by Judge Moon) and two defendants appearing pro se. Professor Loeffler had perceived a “palpable reluctance to get involved” during the voir dire process, as many people who were called as potential jurors had no interest in reliving the events that traumatized the community. Jury service, especially in a case this long, is a substantial and difficult responsibility.
He also expanded upon Professor Kendrick’s point that the long, complex case offers plenty of room for a mixed verdict, or for jury confusion. There’s the potential both for the defense to torpedo itself and for the jury to turn against plaintiffs’ very well-organized legal team, which has suffered some dog-whistles about being from “out of state.”[6] With all the moving parts and many parties, Professor Loeffler predicts that the jury will look to Judge Moon for guidance—and perhaps to move the case along.
While the courtroom is closed to the public, one can listen to the proceedings in real time by calling (888) 808-6929; access code 4334643. Judge Moon has prohibited recordings; “I would respect that prohibition,” advised Professor Schwartzman.
With the outcome remaining uncertain, likely for weeks, Dean Jeffries had one certain observation: in a case making a statement about the consequences of racist and anti-Semitic violence, “a statute called the KKK Act is exactly the right remedy.” I know I am not alone in hoping that the application of the law brings this town some type of justice, however difficult and delayed.
[1] A variety of criminal proceedings also followed those events (which are variously termed “Unite the Right” or “The Summer of Hate,” depending on whom you ask). The most prominent of these led to the 2019 sentencing of James Alex Fields, who drove his car into counter-protestors, to life in prison for the death of Heather Heyer.
[2] Out of consideration for the fact that Charlottesville is a place, whatever its (abundant) problems and complexities, rather than solely a thing that happened, I would have lobbied for a different event title. Other locals might disagree with me, though.
[3] Elizabeth Sines ’19, the named plaintiff, was a student at the Law School when she counter-protested and witnessed Fields’ car attack.
[4] I was lucky enough to intern in Judge Moon’s chambers this past summer—happy to be a resource if anyone is looking into interning in the W.D.Va.!
[5] He also brought us all back to CivPro basics with a reminder about supplemental jurisdiction and the incentives out-of-state attorneys have to file in federal court.
[6] The plaintiffs’ team includes prominent attorneys. Karen Dunn, a former federal prosecutor, served as associate White House Counsel under President Barack Obama and Senior Advisor and Communications Director to former Sen. Hillary Clinton. Roberta Kaplan successfully argued at the Supreme Court for the invalidation of the Defense of Marriage Act, and recently resigned from the Time’s Up Legal Defense Fund due to her ties to former New York Governor Andrew Cuomo.