Joshua Geltzer, executive director, left, and Mary McCord, senior litigator from practice, right, of the Institute for Constitutional Advocacy and Protection.
Photo: Brent Futrell/Georgetown Law

A lawsuit filed in Virginia state court Thursday looks to block white nationalists from returning to the streets of Charlottesville, Virginia, by claiming they acted as private militias in violation of the state constitution during a rally that turned deadly in August.

It’s one of the ways Mary McCord and Josh Geltzer, lawyers at Georgetown Law’s Institute for Constitutional Advocacy and Protection, hope to prevent future violent events like what happened in Charlottesville, which left one woman dead and many others injured. McCord and Geltzer, along with a team from Georgetown and private practice, filed the lawsuit in the Charlottesville Circuit Court on behalf of several businesses and organizations.

The National Law Journal caught up with the attorneys to learn more about the legal theory and their plans to use similar statutes in the future.

Q: To start, tell our readers why you filed this lawsuit.

Mary McCord: During the rally, we were horrified by what we saw happening on the streets of Charlottesville. So a couple days later, I went onto the Lawfare blog to write a story calling for a federal crime of domestic terrorism, for purposes of crimes like what James Fields was charged with.

While I was on that post, I saw that Philip Zelikow, a history professor at the University of Virginia, posted an article about some cases he prosecuted back in the early 1980s, when he was a civil rights and constitutional law lawyer in the South. He teamed up with the Southern Poverty Law Center to bring cases against the KKK in Texas and North Carolina, using those states’ own statutory anti-militia provisions.

And in his post, he said we’ve got similar statutes and constitutional provisions in Virginia, and so before these militaries come back and march into our town, there’s a tool to do something about that.

So, I called the team together and said I think we ought to follow up on this. We quickly called Zelikow. I met with him and talked it through and we started developing the legal theory.

We realized Virginia’s constitution clearly says that in all cases, the military should be under the strict subordination of the civilian power or the government, giving the monopoly on use of force to the civilian government, not to rogue private armies. We also saw Virginia’s statutes include provisions that prohibit paramilitary activity, like the kind of activity we saw in Charlottesville on Aug. 12.

We began an extensive and exhaustive review of online videos, photographs and social media chats. We came down to Charlottesville and we interviewed people who experienced the rally, either as participants in the counterprotests, as near bystanders or as business people. We talked to many people to get our picture of the facts that would support the allegations in the complaint.

Q: So what is the legal theory and what are the allegations in the lawsuit?

McCord: Essentially, the legal theory is based on that constitutional provision I mentioned, the anti-paramilitary activity statutes, and statutes that prohibit the false assumption of peacekeeping or law enforcement duties.

What we saw through all this extensive evidence is that there were groups that came to Charlottesville that were self-professed militia. These were the ones in full camouflage, with semiautomatic rifles. They purported to be peacekeepers, not on either ideological side, but they looked and operated just like a military and were unauthorized.

They had their own command structure, yet they were not coordinating with the state or official military or law enforcement at all. That seems to fit squarely within what’s prohibited.

We also saw that some of the alt-right groups also were organized as military. Not with the same modern weapons and implements of the self-professed militia, but with the helmets, the shields and weapons of a different sort–bats, batons, clubs, etc.

They also operated in a very militaristic fashion. They maneuvered under command and control. They exhibited intimidating military pageantry in the way that they marched through the streets. There were other groups present there, in smaller numbers, that just didn’t fit this definition.

So, this is a case about not having private armies operating within a state. It’s about the state’s authority to control the military.

Q: The plaintiffs include various businesses and neighborhood groups in the Charlottesville area. How were they allegedly harmed?

Josh Geltzer: We think the fear, the confusion, the lingering effects of what was a deliberate, violent assault on the city is what these very plaintiffs, in their different ways, suffered. The folks that we’ve spent a lot of time talking to in Charlottesville, they remind us a lot of victims of crime, of the type Mary spent a lot of time with as a federal prosecutor.

These are people who were traumatized. They came out that day and they were confused as to who was real law enforcement and who was there to provoke violence. They had, of course, someone die on their streets.

To see this sort of landscape was itself a harm. Flowing from that were businesses that suffered that day and have suffered since from the reputational harm—unfair to this wonderful and historic city—but the reputational harm that has flowed from the connotations of that weekend, that has persisted for two months now and will persist into the future. And they suffer from the promise that’s been made by these groups who were here two months ago to return, because they’ve said repeatedly they’re coming back to Charlottesville.

Q: Isn’t there a concern that this lawsuit threatens the First or Second Amendment rights of the defendants?

Geltzer: We’ve been working carefully with First Amendment and Second Amendment scholars to ensure this lawsuit remains laser focused on what its subject [is], which is private paramilitary activity that generates the sort of violence and sows the sort of confusion we saw in Charlottesville.

There is of course case law protecting speech, including even speech that you or I might find hateful. But that’s not what the defendants descended on this city two months ago to do. They didn’t engage in peaceful expression of views.

In fact, what they engaged in were military-like sorties, in which they sent out groups to deliberately provoke counterprotesters into violent acts, to which they then sought eagerly to respond with the violence they came here planning to carry out. Then they retreated back behind barricades that had been set up. That sort of military-like look, formation and action leading to violence, that’s what this suit targets. It doesn’t touch protected expression.

There is of course Second Amendment jurisprudence protecting the right to bear arms in individual defense, and again this suit does not aim to touch that. This is about when groups descend, paramilitary-like, in a way that threatens, terrorizes and confuses populations. It’s a far cry as we see it from the jurisprudence on that individual self-defense right that’s recognized in the Second Amendment.

Q: Have you been in touch with other localities about filing similar suits?

Geltzer: We’ve been focused so far on this suit but our institute stands ready to work with other jurisdictions. These groups have not been shy about saying they’re going to take this sort of behavior elsewhere and we would be eager to work with jurisdictions to get in front of that problem rather than have it play out the way it did here two months ago.

McCord: We are engaging in doing a 50-state survey, and we actually already have a couple of states that are on the radar where there have been some indication that these groups might be planning a rally. And I’m deliberately not mentioning them because I don’t even want to give these groups the publicity of having additional planned rallies in a news story.

Q: What exactly would the survey include and how would it be used in the future?

McCord: It would be an entire listing of all 50 states and what constitutional provisions they have that might be similar to Virginia’s. There’s quite a number of states that have those.

There are also statutes that are like Virginia’s anti-paramilitary activity statutes and there’s another category of statutes that a lot of states have that’s not in Virginia, but that’s also a very strong anti-militia statute and it also applies to parading and things like that.

So it’s just a matter of getting a compendium of what’s out there so that states will know readily what they have. You might say states should already know, but these provisions haven’t been used in this way for a long time, so I think frankly they were not front of mind until the kind of thing that we saw in Charlottesville. I think that changed people’s thinking of what’s an acceptable way of voicing opinions in our country.

Cogan Schneier can be contacted at cschneier@alm.com.