Charlottesville officials join lawsuit to bar activity by private military groups
By ANN E. MARIMOW | The Washington Post | Published: October 12, 2017
Charlottesville officials voted Thursday to join a lawsuit intended to prevent a repeat of the violence at a white-nationalist rally in August by targeting the heavily armed militiamen who showed up at the demonstration.
The lawsuit hangs on a rarely invoked provision of Virginia's constitution that attorneys say bars private military groups and could be used throughout the country as officials from Boston to Berkeley look to avoid similar clashes at political protests.
"Charlottesville has been besieged repeatedly by these groups, and key organizers and leaders of the Unite the Right rally have pledged to return to Charlottesville as often as possible," according to documents set to be filed Thursday in state court. The filings target white-nationalist leaders - including rally organizer Jason Kessler - and several private militias.
Without court intervention, the lawsuit says, "Charlottesville will be forced to relive the frightful spectacle of August 12: an invasion of roving paramilitary bands and unaccountable vigilante peacekeepers."
The complaint lists 22 white-nationalist organizations, leaders and private militia groups as defendants, saying these "military forces transformed an idyllic college town into a virtual combat zone." Many wore matching uniforms and used command structures to coordinate their actions.
The groups of men dressed in camouflage and carrying semiautomatic rifles at the August rally confused even Virginia's public safety secretary, Brian Moran, who first assumed some were soldiers in the state's National Guard, which had been called in for the first time in 28 years to help with a civil disturbance.
The lawsuit is the second filed Thursday in the aftermath of the deadly August rally that attracted hundreds of white supremacists, white nationalists and neo-Nazis from across the country to protest the planned removal of Confederate statues from city parks. Nineteen people were injured in clashes between white nationalists and counterprotesters, and Heather Heyer, 32, was killed after a reported Nazi sympathizer allegedly drove his car into a crowd of pedestrians.
Charlottesville Council memberson Thursday signed onto a legal strategy developed by a new Institute for Constitutional Advocacy and Protection at Georgetown Law School.
"Our complaint shows that there are legal tools available to ensure that the streets do not become battlefields for those who organize and engage in paramilitary activity," said the institute's senior litigator, Mary B. McCord, a longtime federal prosecutor who was most recently head of the Justice Department's National Security Division.
Under Virginia law dating to 1776, the state constitution specifies that "in all cases the military should be under strict subordination to, and governed by, the civil power." That means, according to the court filing, that the "government alone retains a monopoly on the organized use of force."
The lawsuit tries to preempt likely arguments from defendants, saying it does not seek to restrict individual rights to gun ownership or free-speech rights to assemble and express political views.
"Whatever their stated intentions, these groups terrified local residents" and created confusion about who was in charge, the lawsuit asserts.
The lawsuit's reliance on provisions in the state constitution distinguishes it from the federal lawsuit filed earlier Thursday, which was brought by individuals seeking monetary damages and to stop named white supremacists and organizations from menacing behavior.
Laws similar to Virginia's have been used throughout history in cases filed in Texas and North Carolina to shut down paramilitary activities by the Ku Klux Klan. The statutes on the books in most states make clear that only the government can control military organizations in a state.
After the August rally, University of Virginia historian Philip Zelikow thought of a Texas case he'd worked on in the 1980s that relied on state law banning "military companies" not authorized by the governor. In that case, a judge stopped the Ku Klux Klan from training paramilitary groups to harass Vietnamese American fisherman on the Texas Gulf Coast.
Zelikow called the Charlottesville case an important reminder of laws already on the books for decades "that are meant to keep our political protests and confrontations free from paramilitary intimidation and companies of men with guns."
An article that Zelikov had written about the Texas case on the Lawfare site caught McCord's attention in August. "If you say it's okay for private military groups to mass carrying assault weapons at political confrontations, that's a powder keg," Zelikow said.
Among the defendants in the case invoking Virginia's constitution is Christian Yingling, a leader of the Pennsylvania Light Foot Militia, who has said that he and his troops "convoyed in" to Charlottesville to defend free speech and maintain civil order.
"Our mission was to help people exercise their First Amendment rights without being physically assaulted," Yingling said in an earlier interview with The Washington Post.