Charlottesville Lawsuit Aims to Bleed Tiki Torch-Wielding White Nationalists Dry

On August 12th, 2017, Marcus Martin and his then-fiancée Marissa Blair were in downtown Charlottesville with Blair’s friend and co-worker Heather Heyer. They had spent the day at the edge of the skirmishes erupting around the Unite the Right rally before finding themselves in the middle of a throng of jubilant counterprotesters. That was the moment James Alex Fields plowed his Dodge Charger into the crowd at full speed, killing 32-year-old Heyer. Martin was able to push Blair out of the car’s path before he was struck and launched into the air, breaking a leg and an ankle. (That’s him in the photo above, frozen in midair after hitting the trunk of Fields’ sedan, in the Pulitzer Prize-winning photo of the horrific event.)  

Natalie Romero, a University of Virginia undergrad, had her skull fractured in the car attack. Rev. Seth Wispelwey was shoved and screamed at and spit on by white supremacists while he stood, arms linked with other clergy, in a counterprotest earlier that day. Devin Willis and Elizabeth Sinnes, students at UVA, were confronted on campus by tiki-torch-wielding racists chanting “Jews will not replace us” the night prior.

Martin, Blair, Romero, Wispelwey, Willis, and Sines are among the nine plaintiffs suing some of the most notorious white nationalist leaders in the country in a long-delayed civil trial set to begin October 25th. “These were all people who were very grievously injured — physically and, of course, emotionally,” says Amy Spitalnick, executive director of Integrity First for America (IFA), the civil rights nonprofit behind the lawsuit. “Many of us remember the sounds and the images [from Charlottesville]. I’m not sure as many people remember that there were actual human beings surrounded and trapped and beaten by these Nazis.” 

The list of defendants, 24 in total, includes Fields (currently serving a life sentence, plus an additional 419 years, after pleading guilty to killing Heyer and injuring 28 others), as well as Jason Kessler, who secured the permit for Unite the Right rally; Richard Spencer, credited with coining the term “Alt-Right”; Christopher “Crying Nazi” Cantwell; Daily Stormer founder Andrew Anglin; and Matthew Heimbach and his father-in-law, Matthew Parrot, co-founders of the Traditionalist Worker Party. A smattering of other ADL- and SPLC-designated hate groups will also go on trial — including Vanguard America, Identity Evropa, League of the South, the National Socialist Movement, the Nationalist Front, and two chapters of the KKK.

IFA calls the suit “the only current legal effort to take on the vast leadership of the violent white nationalist movement.”

Lawyers for the victims will utilize a Reconstruction-era law known as the Ku Klux Klan Act — as well as more than 5.3 terabytes of digital evidence — to try and prove that white nationalists conspired to cause racially-motivated violence that day in Charlottesville. 

If they succeed, the individuals and organizations will be forced to pay the victims for the damage they inflicted. No particular figure is named in the court documents, but it is IFA’s explicit goal that the costs will bankrupt the defendants. That’s not a far-fetched outcome: Identity Evropa founder Nathan Damigo is already in bankruptcy proceedings — a fact he cited in an attempt to avoid liability in this trial; Kessler has complained that the enormous cost of lawsuits stemming from the rally have forced him to move back in with his parents; Spencer, whose organization was just ordered to pay $2.4 million to a different victim injured in Charlottesville, has said he can’t afford a lawyer for this case.

The architect of the lawsuit is Roberta Kaplan, a 25-year veteran of the white-shoe law firm Paul, Weiss, Rifkind, Wharton & Garrison where she famously argued before the Supreme Court on behalf of her client Edie Windsor to win federal recognition of same-sex marriages in the United States. Since leaving the firm four years ago, Kaplan has gone on to defend Amber Heard against a defamation claim from Johnny Depp, and represent E. Jean Carroll in her lawsuit against Donald Trump.

Kaplan had just left Paul, Weiss and hung out a shingle of her own in August 2017 when white supremacists rallied in Charlottesville. The Monday after the rally, Kaplan suggested the office order pizza and watch the news coverage. “It was stupid in part because it was so upsetting,” she says in retrospect. “One of the paralegals got very upset and ran out of the room in tears. And I had the classic reaction that I tend to have about things like this, which is: ‘Something’s got to be done about it.’”

Kaplan called her friend, the lawyer and journalist Dahlia Lithwick, who lives in Charlottesville. “I said, ‘Hey, I’m thinking about this idea of bringing a case. Could you introduce me to some folks?’” Within two weeks, Kaplan and her team were on a plane to Charlottesville to meet with people impacted by the weekend’s violence — many of whom are now plaintiffs in the case. At the time, Kaplan says, “The town was still very much in a state of fear.” Several of the white Mercedes sprinter vans, like the ones white supremacists had rented to attend the rally, were still driving around Charlottesville, she remembers, and “people were very spooked by that.” 

There was a sense, Spitalnick says, that none of the gears of government at the federal level — like the Civil Rights division at the Justice Department — were budging in response to the violence in Charlottesville. “What had happened was horrific, it clearly couldn’t have been an accident, and there needed to be some sort of accountability, and the Department of Justice, led then by Jeff Sessions, was unlikely, at best, to pursue that sort of accountability,” says Spitalnick, who was then working in the New York Attorney General’s Office. Civil rights investigations and prosecutions declined by two-thirds during the Trump four-year term, even as hate crimes spiked by more than 20 percent.

Around the time Kaplan and her team began meeting with prospective plaintiffs, a hacker broke into the Discord server where much of the planning in advance of the rally in Charlottesville took place. Screenshots of the chats posted on Unicorn Riot show attendees discussing everything from what they’ll wear to the rally, to where they should pee. Users also posted memes about running over protesters with cars, discussed a North Carolina law that protects drivers who hit protesters, and debated whether they could shoot someone and claim self-defense under Virginia’s “no retreat” law. 

“It’s unusual to get social discovery before you file a complaint, but we used those texts to figure out who was truly responsible,” Kaplan says.

With a set of plaintiffs and a list of defendants, all that was left to do was figure out a legal framework to pursue them under. Kaplan’s team found it in an 1871 law designed to stanch the flood of Klan atrocities that swept the South after the Civil War. The law empowers the victims of racial violence to sue, for damages, members of a conspiracy responsible for that violence — if they can prove a conspiracy. IFA believes they can, and that their job will be made easier by the digital trail white nationalists left ahead of the rally. “Social media is really just the Klan den of the 21st century,” Spitalnick says. But instead of plotting racial violence out in the woods somewhere, “now it’s online and stretches across the country and around the globe and leads to violence at a far larger scale.”

In order to prove their case, though, the plaintiffs’ lawyers will have to establish a conspiracy existed. To help with that, Kaplan brought on Karen Dunn as co-lead counsel, who is a partner at her old firm, Paul, Weiss, and before that, was a federal prosecutor in the Eastern District of Virginia, where she specialized in national security and conspiracy cases. 

“This is where my prosecutorial experience is helpful,” Dunn says. A conspiracy, she explains, has just two parts: an agreement between at least two people, and an act in furtherance of the conspiracy. “To be part of a conspiracy, you need to act with a common purpose — but not all co-conspirators need to know each other. They don’t need to join the conspiracy at the same time. They don’t have to have ever met. They just have to be joined together by a common purpose,” Dunn explains.

Crucial to this particular case, Dunn adds, “Each co-conspirator is liable for the acts of the other co-conspirators that were reasonably foreseeable. So, for example, if members of the conspiracy are talking, prior to August 12th, about running over protesters with a car, that’s something that was reasonably foreseeable to members of the conspiracy.”

Lawyers for the defendants disagree. “There’s no evidence of that,” says William Edward ReBrook, the lawyer representing both the Nationalist Socialist Movement, and Jeff Schoep, the organization’s then-commander, who renounced neo-Nazism in 2019. “We’ve been going through this now for two years and the defense counsel has yet to produce a single piece of evidence that there was a conspiracy. It’s a fact that people got hurt, and it’s a fact that my client said hateful things. But that’s protected by the Constitution — even hate speech is protected.” (Lawyers for the other 22 defendants did not respond to Rolling Stone’s requests for comment, or had no comment they wished to share ahead of the trial.)

Almost four years after lawyers first filed their complaint, the trial is finally set to open in federal court in Charlottesville on October 25th. The delay has stemmed, in part, from the defendants’ refusal to cooperate. According to Spitalnick, some have destroyed evidence or refused to turn it over — at one point, Schoep claimed his phone fell in the toilet — others have failed to show up for depositions.

In the meantime, Kaplan and Spitalnick, both Jewish, have been the target of threats and hate speech, both online and by mail. In online comments, Kessler, who secured the permit for the rally, stoked those flames: “I’m never one to engage in conspiracy talk or blame everything on other ethnic groups but this Integrity First for America is a blatant front for powerful Jews to vent their hostility towards whites organizing as a political class,” he tweeted in 2018. 

The volume is such that, according to Spitalnick, security — both monitoring threats on the web and providing physical security for the plaintiffs, legal team, expert witnesses and others ahead of the trial — has become the single biggest line item in IFA’s budget. (The nonprofit reported a budget of $5.3 million in 2019, the most recent year available.)

That security may be put to the test in Charlottesville. Already some defendants have called on their supporters to show up at the courthouse in Virginia. “We need support,” Michael Hill, founder of the League of the South, said during a September appearance on Blood River Radio. “We need not only people on the ground … We need support, and we need money. The enemy has funded this thing to the tune of $10 million, and their expressed purpose is to destroy us. They have come out publicly and said that… If you’re gonna let us be destroyed, you just be prepared to come take our place. If you want us to stay on the front lines, then help us and we’ll be there.”