The “Unite the Right” rally on August 12 left one dead, 19 injured, and the city of Charlottesville in a state of turmoil and fear. In its aftermath, local leaders hurriedly vowed that justice would be served and order and safety restored. Most assumed this meant that the white supremacists who committed violent assaults on people of color, including the five men who violently beat a black man in a parking garage, would be punished. But instead, many of the people being arrested, including 10 new suspects the Charlottesville Police Department just announced they are seeking, are counter-protesters—and many of their arrests are happening solely on the basis of accusations being brought by white supremacists.
Activists and anti-white supremacist protesters began getting arrested long before August 12, in a series of moves that many found to be political. Jason Kessler, one of the organizers of the Unite the Right rally, lives in Charlottesville, and anti-racist activists had long been using nonviolent techniques to make it clear he was not welcome in town. On May 20 and June 2, Kessler got into yelling matches with Veronica Fitzhugh, a local activist, and Jeff Fogel, a prominent local defense attorney. Both times, based solely on the word of Kessler, the CPD arrested both Fitzhugh and Fogel on charges of disorderly conduct and assault, respectively.
To understand how this is possible, one has to know that Virginia is one of a handful of states that will grant a warrant for someone’s arrest solely based on a complaint made by a private citizen. That means that any person, as long as they show up in person in front of a magistrate—who is not a lawyer or a judge—can allege that they were the victim of a crime and the magistrate will issue an arrest warrant without the police having investigated the facts.
The magistrate also uses his or her discretion as to how the accused will be brought into custody. They can either issue a simple summons based on the victim’s complaint, meaning the accused must appear in court on their own volition, or a warrant for arrest, meaning handcuffs, mugshots, and booking.
Predictably, these “citizen-initiated” warrant statute doesn’t benefit everyone equally. Though a local antifa activist also used used it to seek consequences when Kessler doxxed her online, many local people of color and activists are hesitant to trust local law enforcement. Besides, many of the white supremacists who committed crimes in Charlottesville live in other states. So this statute has mostly been used against counter-protesters.
In North Carolina, the only other state that allows this statute to be interpreted as broadly as Virginia does, thousands of citizens signed several petitions started by victims urging the state to reconsider the statute or clarify that the complaint must have factual merit for a magistrate to grant the arrest warrant. “I work in law enforcement and see how unfair this system can be,” wrote Elizabeth Kistler, a deputy sheriff in Hanover County, on one such petition. “It is basically a grudge match where whoever makes it to a magistrate first, wins.” Even if the charges are eventually dismissed, citizens still suffer emotional, physical, and social damages.
Just this week, Fitzhugh and Fogel were found not guilty and cleared of all charges, and Fogel also filed complaints against the magistrate who issued his arrest warrant as well as the two police officers who carried it out, alleging that the circumstances of his arrest were unlawfully harsh and public. But the damage had been done. Fitzhugh and Fogel were both arrested at their homes, and their mugshots appeared online and in several local papers. Fogel was running at the time for the position of Commonwealth’s Attorney on a platform of radical racial justice reform, and his reputation in the campaign was damaged.
“The City of Charlottesville wasted precious resources to protect Nazis and the Klan as it pursued baseless allegations against Ms. Fitzhugh and Mr. Fogel,” said members of Solidarity Cville in a statement. “Now, two months after the events of August 12, Charlottesville residents still wait for justice to be served against the people who brought violence into our community.”
Three protesters were also arrested at the first City Council meeting following August 12, a marked increase in force from the usual response to protests, which is escorting them out. CPD spokesperson Lieutenant Steve Upman wrote to Splinter in an email that it’s the first time in his memory that arrests have occurred at such a meeting.
Seven white supremacists are being held without bond in the Charlottesville Albemarle Jail, but many, including writer and activist Shaun King, say these arrests were more due to national social media efforts and pressure than from local investigatory efforts. Further, two of the main leaders of the August 12 rally are still free. Richard Spencer held an additional white supremacist torch rally on October 8, and Jason Kessler is back at it as well, doxxing and threatening any who disagree with his views. Meanwhile, the CPD continues to carry out more citizen-initiated arrests of counterprotesters.
Deandre Harris, the black special education instructional aide who was beaten so badly that his wrist was broken and his head required 10 staples, was arrested on October 11, and Corey Long, a black counter-protester who turned an aerosol can thrown at him by a white supremacist into a flamethrower was arrested on October 15. Long was charged with assault and battery and disorderly conduct, misdemeanors (as most of the citizen-initiated charges have been), but the charges against Harris are unlawful wounding—a felony.
“The victim went to the Magistrate’s office, presented the facts of what occurred and attempted to obtain the warrant,” said CPD Lieutenant Steve Upman in an October 9 press release. “The magistrate requested that a detective respond and verify these facts. A Charlottesville Police Department detective did respond, verified the facts and a warrant for Unlawful Wounding (Va Code 18.2-51) was issued.”
The statute is clear, attorney Jeff Fogel says, that a citizen-initiated complaint cannot result in a felony arrest warrant without the sign-off of the Commonwealth’s Attorney or an investigation by the Charlottesville Police Department, but law enforcement has given conflicting statements about their participation in Harris’ arrest. At first, they said the magistrate issued the warrant, then a second statement was issued. “Someone’s lying,” Fogel says.
The accuser is Harold Crews, of the League of the South, an organization labeled by the Southern Poverty Law Center as a hate group. “Mr. Crews was allowed to exploit the judicial system by bypassing [Charlottesville PD] and presenting incomplete and misleading evidence directly to a magistrate judge who in turn issued the warrant for Mr. Harris’ arrest without proper investigation,” wrote S. Lee Merritt, Harris’s lawyer, in a statement.
Harris no longer lives in Charlottesville, as he quit his job and moved away after his attack, fearful he would be attacked or harassed online if he stayed. Unfortunately, his arrest confirms his fears. In the same statement, Merritt said the charge was a “clearly retaliatory” effort by white supremacists because Harris used social media to help identify the perpetrators in his beating.
Then, on October 23, the Charlottesville Police Department issued a press release with photos asking for the public’s help to identify 10 suspects wanted in relation to an investigation of an assault on the downtown mall during the Unite the RIght rally. When asked for further details, Lieutenant Upman told Splinter that it was a “reported incident,” that it is still under investigation, and that the “victim” in the case sustained minor injuries. Several of the 10 people in the photos are black and several are holding the signature black flags of the Antifa.
When local journalist Coy Barefoot posted the press release and the photos on his Facebook page, the community flurried to respond, and many asked him to take the pictures down.
“The CPD asks the public to identify members of the counter-protest for suspected assault but does nothing to ID the ALT-Right members who assaulted the public on Aug 11/12?” said Afton resident Cee Rea in a Facebook comment. “It’s becoming harder and harder to determine who the CPD is trying to protect.”
Emily Gorcenski, the activist who Jason Kessler doxxed and criminally endangered, begged to differ: “It’s never been hard to determine who the CPD protects.”