By Laura Merriman
On November 23, 2021, after four years of waiting, a jury in Sines v. Kessler found that fourteen individuals and ten white supremacist organizations conspired to commit racially motivated violence in Charlottesville, Virginia during the “Unite the Right” rally on August 12, 2017.[1] The rally, organized to protest the removal of a Robert E. Lee statute, devolved into violent clashes with counter-protestors, culminating with James Alex Fields Jr. driving his car into a crowd of counter-protestors killing Heather Heyer and injuring dozens more.[2] The jury awarded the plaintiffs—nine Virginia residents including counter-protesters and those injured by Fields—$25 million in punitive damages and an additional one million in compensatory damages.[3] The civil suit not only compensated the plaintiffs, but was also part of a larger strategy to disrupt and dismantle extremist groups.[4]
Civil litigation is not a new tool in the fight against extremism.[5] Beulah Mae Donald (“Mrs. Donald”), with the help of the Southern Poverty Law Center (“SPLC”), sued the United Klans of America (“United Klan”)—the largest Klan organization in the country at the time—for the murder of her nineteen-year-old son, Michael Donald in 1981.[6] The all white jury awarded her $7 million , allowing Mrs. Donald to go after the United Klan’s assets.[7] As a result, United Klan had to turn over its headquarters to Mrs. Donald, effectively ending its operation.[8] SPLC continued to win multi-million-dollar judgments against the Ku Klux Klan (“KKK”), Aryan Nation, and other white supremacist organizations in the 1980s and 1990s forcing them to turn over their assets to satisfy judgments.[9]
The Charlottesville civil suit followed similar tactics: plaintiffs brought claims under Virginia state law and two federal claims under 42 U.S.C. § 1985, popularly known as the Ku Klux Klan Act of 1871 (“KKK Act”).[10] The KKK Act was the third and final enforcement act passed by Congress during Reconstruction in response to widespread intimidation and violence in the Southern states, mostly at the hands of the KKK.[11] The KKK Act made it a federal crime for “two or more persons . . . [to] conspire to prevent, by force, intimidation, or threat” from voting, holding office, testifying, or serving on a jury.[12] It gave the president the authority to use the military to protect civil rights where state officials failed to act.[13] It is also one of the few laws that allows individuals to sue private citizens, not the government, for depriving them of the their civil rights.[14] The law effectively shut down the KKK until 1915, though terrorism against African Americans continued.[15] In addition the Charlottesville suit, the KKK Act is the basis of a lawsuit against the main participants in the January 6 riot.[16]
To prevail, the Charlottesville suit plaintiffs needed to show the defendants planned the violence in advance.[17] The plaintiffs provided evidence from online message boards and text messages leading up to the rally as evidence of conspiracy to commit violence, including communications endorsing vehicular attacks.[18] The defendants based their defense on the First Amendment arguing they were merely expressing their beliefs.[19] University of Virginia Law professor George Rutherglen doubted, however, that the free speech defense would succeed in defending “racially discriminatory confrontations and violence.”[20] Furthermore, Judge Norman K. Moon rejected the defendants’ early attempts to dismiss the case on First Amendment grounds citing the KKK Act.[21]
The jury ultimately deadlocked on the federal claims under the KKK Act but found the defendants liable of conspiracy under Virginia law.[22] Even prior to judgment, the lawsuit impacted the defendant’s finances. A few of the defendants faced sanctions and fines for destroying evidence or ignoring proceedings, while others felt the toll of the costly drawn-out litigation.[23] Defendant Richard Spencer described the suit as “financially crippling” and caused him to reduce his public appearances out of fear of another lawsuit.[24]
Having secured a judgment, plaintiffs can now search for any of the defendants’ assets, including bank accounts, cars, and even furniture and have it seized to satisfy the judgment.[25] Though assets are harder to find today than in the 1980s when these organizations had land, buildings, and bank accounts.[26] Now assets can be in cryptocurrency, which is much harder to find and seize—such is the case for Tanya Gersh, who is trying to collect a $14 million judgment for an antisemitic harassment campaign against Andrew Anglin, whose assets are in Bitcoin.[27]
Since the damages are for an intentional civil wrongdoing, defendants cannot discharge them through bankruptcy.[28] Plaintiffs will have the power to garnish up to twenty-five percent of defendants’ paychecks, seize assets as soon as they are accumulated, and “keep the judgment alive until the defendants’ estates are settled.” [29] The likely effect is that defendants will be forced out of the public life because any time they draw attention to themselves through events or public statements, they risk a new subpoena about assets or new wage garnishment orders.[30]
It is unlikely the plaintiffs in the Charlottesville suit will collect the full $26 million or stop the defendants from starting new organizations with similar missions.[31] Yet, plaintiffs and their attorneys see the verdict as an overall success.[32] Following the ruling, plaintiffs’ attorney Roberta Kaplan stated the verdict sent a clear message that racist and antisemitic violence will not be tolerated.[33] They plan to refile and retry the federal conspiracy claims, confident a new jury will find for the plaintiffs.[34]
[1] Tyler Hammel, Jury Hits Rally Organizers with Millions of Dollars in Damages, Daily Progress (Nov. 23, 2021), https://dailyprogress.com/news/august12/jury-hits-rally-organizers-with-millions-of-dollars-in-damages/article_81ffded6-4cb1-11ec-ae69-8f1e78cb683b.html; Neil MacFarquhar, The Charlottesville Rally Civil Trial, Explained, N.Y. Times, https://www.nytimes.com/live/2021/charlottesville-rally-trial-explained#why-is-this-a-civil-case (Oct. 28, 2021).
[2] MacFarquhar, supra note 1.
[3] Tyler Hammel, Rally Trial Defendants Unlikely to Pay Most of Their Punitive Damages, Daily Progress (Dec. 3, 2021), https://dailyprogress.com/news/august12/rally-trial-defendants-unlikely-to-pay-most-of-their-punitive-damages/article_5ab5e11c-5469-11ec-ad53-437e76c20b25.html; MacFarquhar, supra note 1.
[4] Odette Yousef, Hate on Trial in Virginia, Four Years after Deadly Extremist Rally, NPR (Oct. 25, 2021, 5:10 AM), https://www.npr.org/2021/10/25/1048371482/hate-on-trial-in-virginia-four-years-after-deadly-extremist-rally.
[5] Id.
[6] Id.; Robin Toner, A Mother’s Struggle with the Klan, N.Y. Times (Mar. 8, 1987), https://www.nytimes.com/1987/03/08/us/a-mother-s-struggle-with-the-klan.html.
[7] Toner, supra note 6.
[8] Donald v. United Klans of America, Southern Poverty Law Center, https://www.splcenter.org/seeking-justice/case-docket/donald-v-united-klans-america (last visited Jan. 27, 2022); Yousef, supra note 4.
[9] Yousef, supra note 4.
[10] Gillian Brockell, The Deadly History Behind the 1871 Law Underpinning the Charlottesville Trial, Wash. Post, (Nov. 24, 2021, 7:00 AM), https://www.washingtonpost.com/history/2021/11/24/kkk-act-charlottesville-trial/; 42 U.S.C. § 1985.
[11] Brockell, supra note 10.
[12] 42 U.S.C. § 1985; Brockell, supra note 10.
[13] Brockell, supra note 10.
[14] MacFarquhar, supra note 1.
[15] Id.
[16] Id.
[17] Id.
[18] Id.; Hammel, supra note 1.
[19] MacFarquhar, supra note 1.
[20] Id.
[21] Id.
[22] Hammel, supra note 1.
[23] MacFarquhar, supra note 1; Yousef, supra note 4.
[24] Yousef, supra note 4.
[25] Hammel, supra note 3.
[26] Yousef, supra note 4.
[27] Id.
[28] Hammel, supra note 3.
[29] Id.
[30] Id.
[31] Hammel, supra note 1.
[32] Id.
[33] Id.
[34] Id.
Post image by Blake Emrys on Flickr
