Another Charlottesville Can Be Stopped. Here’s How.

Georgetown University lawyers found a collection of items from the state's constitution and other statutes that could have been used to prevent organized, armed groups from attending the rally.

[Photo: People gather near the statue of Confederate Gen. Robert E. Lee, which is covered in a large black cloth.]
Lack of information may have contributed to the City of Charlottesville's decision to allow weapons as the various "alt-right" groups gathered on August 12. Mark Wilson/Getty Images

A question lingered after the deadly August 12 white supremacist rally in Charlottesville, Virginia: Why were weapons permitted in and around the violent “Unite The Right” gathering? 

Attendees and counter-protesters carried handguns, rifles, tasers, knives, pepper spray, tear gas, shields, sticks, rocks, bottles of bleach, and flagpoles doubling as spears. A group of experts this week from Georgetown University’s Law Center has issued a report suggesting legal ways of stopping weapons from being brought to white supremacist events through the United States.

Lack of information may have contributed to the City of Charlottesville’s decision to allow weapons as the various “alt-right” groups gathered on August 12. Charlottesville’s Commonwealth’s Attorney instructed the police department that a ban on weapons would only be legally permissible “if there a pre-existing restriction on the possession of those items in the park,” according to an investigative report prepared by former U.S. Attorney Tim Heaphy.

Lawyers from Georgetown’s Institute for Constitutional Advocacy and Protection (ICAP) scoured Virginia law to find a collection of items from the state’s constitution and other statutes that could have been used to prevent organized, armed groups from attending the rally, where a man allegedly drove his car into a group of counter-protesters, killing activist Heather Heyer and injuring many others.

“We saw these large groups of white nationalists parading down the residential streets of Charlottesville … under the command of what they called officers,” said Mary McCord, senior litigator at ICAP and a visiting professor at Georgetown Law, referring to groups including the League of The South and the National Socialist Movement. “These groups marched in a coordinated fashion and as they approached a designated spot they used their shields … to physically and forcibly push through counter-protesters …. We saw then after they entered into Emancipation Park, they didn’t commence to engage in free expression or give speeches.”

McCord and her colleagues at ICAP believe that this behavior constituted acting as a military unit and cited the Virginia Constitution’s language stating that “in all cases the military should be under strict subordination to, and governed by, the civil power.”

Georgetown’s ICAP lawyers have also taken aim at Redneck Revolt (a left-wing-militia) as well as the Three Percenter militia groups that attended the August 12 hate rally with the stated aim of keeping the peace but not as supporters of white nationalism.

“These groups proclaimed that they were there to protect the peace,” says McCord, “and they took it on themselves to usurp the role of legitimate police on that day …. One of these groups stationed themselves at intervals at the South end of the park …. They stood guard looking like the National Guard and in fact confused many people who at first blush though they were the National Guard.”

In ICAP’s view, looking and acting like law enforcement officers or the U.S. military constitute illegal acts.

A Virginia law states that “any person who falsely assumes or exercises the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer” is guilty of a misdemeanor. Another law makes it generally illegal for people who are not in the military to wear a uniform that makes it look like they are.

Christian Yingling, commanding officer of the Pennsylvania Light Foot militia, disagrees with the idea that the law against dressing like military personnel should apply to militias. His organization (none of whose members have been charged with or accused of crimes in connection to the August 12 rally violence) has been named as one of many defendants in a lawsuit brought by the City of Charlottesville and a group of local businesses with legal help and advice from ICAP. Yingling and his group are depicted on the cover of the new report from Georgetown’s ICAP.

“That law is written to prevent ‘stolen valor,” Yingling said, referring to the practice of impersonating military veterans for personal gain.

“The uniforms people see us wearing out in public is stuff that’s available to the general public,” Yingling said. “You can buy the multi-camo uniforms on Amazon …. I think they are taking that way out of context …. We aren’t out there claiming to be part of the military. Some of us, a very large portion, are ex-military and they don’t even wear the rank that they carried in the military. That [law is] to stop stolen valor, not to stop militia from showing up at events.”

ICAP found that most states have laws similar to these and they believe that these and other legal strategies can be used by localities when planning for events like the so-called Unite the Right rally. To begin testing their approach, they offered assistance to local officials in Shelbyville, Tennessee, and Murfreesboro, Tennessee, after a pair of “White Lives Matter” rallies were planned in those towns last October by white supremacists, led primarily by the League of The South.

“We, of course, were very concerned that the League’s White Lives Matter rally would escalate into the same kind of violence” as in Charlottesville, said Murfreesboro Assistant City Attorney Adam Tucker. “However, working with attorneys at ICAP, we were able to draw restrictions for the rally that helped protect First Amendment rights while protecting safety.”

Violence did not erupt at either of the twin rallies planned in Tennessee. Officials in both towns, working with the state police and the National Guard, set up separated protest zones with segregated entry points for both sides. Weapons and other objects were banned and there was a single arrest all day. Only around 200 white supremacists showed up at the first rally and the second fizzled entirely when the League of The South decided at the last moment not to show up as thousands of counter-protesters waited for them.

But whether First Amendment rights for anti-fascist protesters were really protected by security procedures in Murfreesboro is open to debate.

Common objects including bottles of water and lighters were prohibited at the Murfreesboro event. Police running security checkpoints moved very slowly as lines grew. Roughly one in three counter-protesters were turned away for possessing prohibited items that might be found in nearly anyone’s purse or backpack. This reporter was denied entry once for possessing protective eye wear and again for a safety pin. There was no trash can where prohibited items could be disposed. Anyone with such an item was required to exit the area to dispose of the item before returning to the end of the line. This process resulted in lines so long and slow that many counter-protesters gave up on trying to get access.

Tucker defended the security procedures formulated with ICAP.

“If someone saw [a trash can beside the security table] and deposited an explosive or incendiary device in a trash can,” Tucker said. “That was why law enforcement did not supply trash cans at the security checkpoints.”

The Charlottesville lawsuit supported by Georgetown’s ICAP seeks to establish legal precedent that could potentially be used to prevent armed groups from appearing at political rallies. But Yingling wishes they had just picked up the phone first. He thinks groups like his, including Redneck Revolt, shouldn’t be lumped in with white supremacist groups that engaged in violence. But if Charlottesville wants them to stay away, he says they’ll do it without the trouble of a court order.

“We’ll talk about why it’s right we should be here, you talk about why it’s wrong,” Yingling says. “Why should we have to hash this out in court? …. We are willing to listen. Always. If they say they don’t want us here, we won’t come back.”

Mary McCord sees an urgency to ICAP’s work. After August 12, threats of new rallies and additional violence have popped up around the country. The League of The South—whose members engaged in brutal violence at Unite the Right—announced ambitious plans for more events in 2018. And Charlottesville may be looking at a sequel this summer.

“We built a case that would prohibit the groups … from returning to Virginia and engaging in the kind of paramilitary activity we saw,” McCord said. “It doesn’t seek money damages. This is purely forward-looking relief. It would not prohibit engaging in freedom of speech …. One of the reasons we decided to do this was that a number of the participants vowed to return to Charlottesville.” Jason Kessler, an organizer of last summer’s hate rally, “has said that he intends to return [for another rally] on the one year anniversary of that rally.”