State Created Danger

Episode Transcript
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Speaker 1 (00:01):
Cool zone media.

Speaker 2 (00:06):
What happens when a Nazi rally comes to town. Maybe
it's a little different from town to town, But as
a resident of Charlottesville, Virginia, I've spent the last eight
years trying to answer that question. In one very particular instance,
they Unite the Right rally on August twelfth, twenty seventeen.

(00:28):
It didn't take eight years to find the obvious answer
to that question. It's violence. Before the day of the
rally even dawned, there was violence. There was violence at
rallies all over the country in the months leading up
to August twelfth, violence encouraged by and at the hands
of the men who were busy organizing the event that

(00:48):
would cap off what they called the Summer of hate.
And when the day finally came, the violence they'd been
promising to deliver all summer left blood in our streets,
but not a single speech was made that day. Fights
broke out in the streets as rallygoers arrived at the park.

(01:08):
Police watched and waited as neo Nazis who'd taken cross
country flights looking for a fight, hunched, kicked, bludgeoned, and,
in at least one instance, choked, counter protesters who stood
in their way. The rally itself never even really happened.

(01:30):
Police dispersed the crowd before it ever really got started,
and it had already been over for hours when one
man who'd hoped to attend it took his revenge on
the counter demonstrators, murdering heather Hire and injuring dozens of others.
And I'll tell you some of those stories one of
these days. There were a handful of criminal prosecutions, and

(01:52):
I spent years sitting quietly on a wooden bench, watching
and dutifully taking notes. But those cases, for the most part,
were pretty open and shut, and they were resolved fairly
quickly by the standards of the court.

Speaker 1 (02:10):
The civil lawsuits took.

Speaker 2 (02:11):
Longer, years longer, and they often raised more questions than
they answered, questions the court is perhaps not equipped to answer.
But the Court has been quite clear on one question
in particular, one raised by several different lawsuits. Do the

(02:31):
police have an obligation to protect anyone? The answer is no.
I'm Molly Conquer, and this is weird, Blue Guys. This

(03:02):
wasn't the episode I meant to write this week. I
was working on something else, entirely, something I'm still working on.
When I realized it was a longer and more complicated
narrative than I felt like I could get my arms
around this week, so I set it aside and started
scrambling at the eleventh hour for something I thought I
could pull together quickly, something I already know a lot
about and won't lose myself for days trying to do

(03:24):
a lot of new research. But then I saw a
blog post from an attorney, Glenn Keith. Allen is a
man whose story should be told on its own, and
I think I will eventually, So I won't tell you
more than you need to know here. I'm very comfortable
describing him as a neo Nazi lawyer. That's what the

(03:47):
Southern Poverty Law Center called him in a headline of
an article published in twenty sixteen, when they revealed that
the attorney working for the Baltimore Police Department had been
a dues paying member of the neo Nazi group National
Alliance for decades.

Speaker 1 (04:02):
Now.

Speaker 2 (04:03):
The SBLC has done a lot of great work over
the years, But I don't mean to say that my
ironclad certainty here comes only from repeating their claim. No, No,
I'm very sure that I can say that Glenn Allen
is a neo Nazi lawyer because he unsuccessfully sued the
SPLC for defamation. In the memorandum dismissing his suit, the

(04:27):
judge notes that not only had Allan failed to show
there was any falsehood in the claims that had been
made by the SBLC, he didn't even appear to be
disputing the claim that he was in fact a neo Nazi.

Speaker 1 (04:43):
I mean, there's that, and.

Speaker 2 (04:45):
There is also the fact that he spent the last
couple of years being the go to guy when neo
Nazis need a lawyer. He's represented members of Patriot Front
in lawsuits in Virginia and Washington State and in their
criminal cases in Idaho. He currently represents members of the
Goyam Defense League in a lawsuit in Georgia. He's represented

(05:06):
white supremacist publications American Renaissance and v DARE. He was
hired by Nathan Dimigo, the former leader of the neo
Nazi group Identity Europa, in his ongoing effort to use
a bankruptcy case to evade paying damages to the victims
of the United's Right Rally. Allan has also filed petitions
to the Supreme Court on behalf of members of the
neo Nazi street fighting gang, the Rise Above movement. And

(05:30):
then there's the case I'm talking about today. Last week,
Glenn Allen posted an update to his website to share
some sad news. He wrote, on April seventh, twenty twenty five,
the Supreme Court denied our petition. The Court's decision, although

(05:50):
not surprising, is regrettable. The Court missed an opportunity to
advance the cause of First Amendment protection for unpopular speech
and to admonishi the City of Charlottesville for taking sides
against Warren and the other pro monument protesters. The cases
talking about was originally filed by Gregory Conti and Warren

(06:11):
Baylaw in twenty nineteen. Both men had attended the United
Right rally in Charlesville, Virginia, on August twelfth, twenty seventeen,
and felt their civil rights had been violated by various
parties then named as defendants in their lawsuit, the Commonwealth
of Virginia, the City of Charlesville, the Virginia State Police,

(06:31):
then Governor of Virginia Terry mccauliffe, the Charlesville Police Department,
several individual members of both police agencies and city staff,
as well as the sort of random assortment of individual
counter protesters. Now I realize as I'm writing this that
as continuously present as the events of summer twenty seventeen

(06:53):
have felt here in Charlottesville, I was eight years ago.
It was national news back then, but it's likely faded
from the memories of people everywhere else. And if you're
too young to have been watching the news eight years ago,
you might never even have known enough to forget. The

(07:14):
rally was, on its surface about Confederate statues. Back in
twenty seventeen, that was a pretty hot issue. Granted, a
lot of people had been voicing opposition to the presence
of those monuments to racism for a century or so
since they'd been put up, but it became a subject
of national concern in twenty fifteen after the Charleston church shooting.

(07:40):
Cities around the country were starting to talk about taking
them down, and many did. But here in Virginia, a
state law stood in the way of local decision making
on the subject. Local governments needed state permission to take
down a monument or a memorial to any war. The
law even species hifically prohibited quote the placement of Union

(08:03):
markings or monuments on previously designated Confederate memorials. But a
court ruling in late twenty fifteen seemed to hint that
perhaps the law could be interpreted to mean that it
only applied to statues erected after that law was passed,
which could mean it didn't apply to Charlottesville. That legal

(08:27):
battle lasted years, and it probably isn't interesting to normal people,
so I won't get into it. But what you need
to know here is that in twenty sixteen, the city
of Charlottesville was starting to take real steps toward trying
to take down the statues of Robert E. Lee and
Stonewall Jackson, and some people were very, very angry about it.

(08:53):
At the end of May twenty seventeen, a local resident
named Jason Kessler filed an application with the City of
Charlesville for a special event permit. He wanted to hold
an event on August twelfth, twenty seventeen, in the park
where the Roberty Lee statue stood. He described the event
as a free speech rally in support of the Lee monument,

(09:16):
and on his application he estimated that about four hundred
people would attend, but it wasn't about the statues, not
really not. In the end, this statue was a focal point,
a rallying cry, a lightning rod. Whatever it was, an excuse,
it was a breaking point. The men who descended on

(09:39):
this little college town were here to put black people
in their place. They were here to fight the Jewish agenda.
They were here to fist fight Antifa. They were here
to kill communists. Sure a lot of them were proud
of their Southern heritage, I guess, but that doesn't really
help explain the swastika tattoos, does it. Where the months

(10:00):
of messages exchanged, and a discord server where attendees gleefully
discussed their fantasies about killing counter protesters.

Speaker 1 (10:09):
There were several.

Speaker 2 (10:10):
Conversations in the discord server about whether it was legal
to run people over. Memes were posted about plowing through
a crowd with heavy machinery.

Speaker 1 (10:19):
It was all just a joke.

Speaker 2 (10:21):
Everyone was laughing until someone actually did it. The rally
was supposed to begin at Nune That's what the permit said.
Attendees would gather in the park near the statue of
Roberty Lee, and they would listen to speeches from far
right micro celebrities like Richard Spencer, Baked Alaska, Christopher Cantwell,

(10:42):
Augustus and Victus, Matthew Heinbach, and Mike Pinovich. But like
I said, no one ever gave a speech. The streets
downtown were packed with counter protesters. At the very last
minute that morning, the event organizer, who'd been the group's
police liaison, backed of the agreed upon plan to have
the scheduled speakers shuttled into the park with a police escort,

(11:05):
and within an hour of that decision, all hell had
broken loose in the streets near the park. By eleven
thirty am, the local police had declared the gathering and
unlawful assembly. State police and riot years showed up a
few minutes later to clear the park by force. One
of the only funny pictures taken that day shows Richard
Spencer's mid tantrum as he's being shoved out of the

(11:29):
park by a line of riot cops. There's a lot
to be said about the months leading up to that
day in August. Much of it has already been said,
and some of it I'm sure I'll write some other day,
but today, just in case you don't remember, the summer
of twenty seventeen. That'll do, because the facts at issue

(11:52):
in that lawsuit are here at the entrance to the
park between about nine thirty am in noon. The plaintiffs
in this lawsuit, Gregory Kanti and Warren Baylaw, are Nazis.
People throw that word around a lot, so I'll let
you hear it from them. Here's Warren on his own

(12:13):
podcast explaining to his wife that they have a responsibility
to spread Hitler's message.

Speaker 3 (12:21):
The fact is, the fact is, and we all know it.
I think everybody who watches the show knows it. Hitler
was a true patriot. He was a complete idealist, a
entirely selfless man. He was also a genius, and he
was probably the greatest political leader that Europe has ever seen.

Speaker 2 (12:40):
And here's Greg in one of his many bizarre, straight
to camera short video rants from his social media.

Speaker 4 (12:49):
The FBI is full of pedophiles, and our countries have.

Speaker 1 (12:54):
Been ruled by twos phraars. And you think that that
flag is the problem.

Speaker 2 (13:04):
You're not practical, You're just pussy.

Speaker 1 (13:08):
Hitler is our only hope.

Speaker 2 (13:17):
It was hard to find one of Greg's videos that
clearly expressed his point of view, but that didn't also
contain so many slurs that it would become incomprehensible once
I bleeped them out. But they're Nazis. These guys love Hitler.
They're like really obsessed with Hitler. Honestly, the Hitler worship

(13:37):
here is actually kind of weird, even in their own
social circles. Warren Baylaw is actually a second generation National Socialist.
His father, Alan Baylaw, was a high ranking member with
a National Alliance before Warren was even born. As for
Greg Conti, he was coaching field hockey at a Catholic girls'
school in Maryland before he was fired when the school

(14:00):
he was Richard Spencer's lackey. In twenty twenty, both Allan
and Warren Baylaw and Greg Conti were founding members of
a now defunct neo Nazi organization called the National Justice Party.
And in twenty seventeen, Warren Baylaw and Gregory Kanti were
inside the park when the Virginia State Police showed up

(14:21):
a riot year to enforce that dispersal order. Daniel Schular,
a photojournalist taking pictures that day for the Tulsa World,
captured an image that shows both men right up against
the riot.

Speaker 1 (14:33):
Shields on August.

Speaker 2 (14:36):
Twelfth, twenty nineteen, the very last day of the two
year statute of limitations to bring the claim under Virginia law,
the pair filed a federal civil rights lawsuit claiming that
the police, the city, and the counter protesters had conspired
to deprive them of their right to hold that Nazi rally,
that by clearing the park, and that by refusing to

(14:59):
beat back the CA counter protesters on their behalf, the
police had violated their First Amendment rights and denied them
their Fourteenth Amendment right to equal protection. There are some
other more bizarre claims involving wild allegations of a criminal
conspiracy between Antifa and the government actors, but those rico

(15:20):
allegations aren't really worth getting into. It's very silly stuff.
The underlying idea, quoting from the suit, defendants intentionally encouraged
and facilitated mob violence by counter protesters against lawful Unite
the Right demonstrators, creating a civil disturbance as a pretext
to disperse the demonstrators before the Unite the Right rally began.

(15:45):
So they're saying that police didn't just let counter protesters
interfere with the rally. They're saying they think police set
that up so they'd have an excuse to then crack
down on the Nazis.

Speaker 1 (15:58):
Quote.

Speaker 2 (15:59):
Rather than applying simple and proven techniques such as allowing
Unite the Right demonstrators and counter protesters to use separate areas,
the defendants forced them together into a restricted space, then
deliberately communicated to counter protesters that attacks on Unite the
Right demonstrators would go unpunished. Predictably, and as defendants intended,
counter protesters attacked and assaulted United the Right demonstrators, and

(16:22):
the defendants used those violent attacks against lawful demonstrators as
a pretext to disperse the entire gathering. I mean, citation
needed for most of that. But here's the thing. No
one disputes that the police fucked up. The city admits it.

(16:43):
The police kind of admitted it. The independent review flawed
as it was found that to be the case. Protesters
and counter protesters alike were dumbfounded by the complete and
total inaction of the police who just stood there and
watched as the violence unfolded. People with blood running down

(17:07):
their faces were screaming at the police to do something, anything,
and they really did just stand there. That's not in dispute.
The legal question here is not did they do that?
But can they do that? And the answer is unequivocally yes,

(17:30):
yes they can. There isn't a law on the books
or a decision in the case law that says they
have to do a goddamn thing to help you. There
are a disturbing number of cases bearing this out. There
are cases in state courts like Loziito versus New York City.
In February of twenty eleven, the NYPD was on a

(17:51):
manhunt for a man on a stabbing spree. He'd already
stabbed several people to death when he bore the train
that morning, Acting on a tip that the serial stabber
had been spotted on the subway platform, boarded the same train.
They saw the man they were looking for and recognized him,

(18:12):
but they would later say they thought he had a gun.
Now again, he'd been on a stabbing spree for twenty
four hours. Do you think if he had a gun,
he might have I don't know, shot anyone prior to
this moment rather than stabbing them all to death. But
they say they thought he had a gun. So they
locked themselves in the conductor's car and just watched through

(18:32):
the window as their suspect brutally stabbed a man on
the train repeatedly in the head, just a few feet
away from where they were standing, but the victim fought back.
Joseph Lozito managed to pin his assailant to the ground
before losing consciousness from blood loss, and it was only
after Lozito had disarmed and subdued his own attacker that

(18:56):
the police felt safe enough to come out and make
the arrest. But his lawsuit was dismissed. The judge acknowledged
that the attack was shocking and horrific, but quote, the
law is abundantly clear that no liability flows from negligence
and the performance of a police function unless there is

(19:17):
a special relationship. If you're not in their custody, you
aren't their problem. That example lives large in my mind
because it's just so immediate and clear cut, Like I
can imagine them with their little faces pressed up against
the train window, just watching this happen because they're afraid.

(19:40):
But that's a New York State court case, so it's
not really binding here. But here are some that are.

Speaker 5 (19:48):
This is case number zero four two seventy eight Town
of Castle Rock versus Gonzales I thought the Castle Rock
was a nineteen twenties dance, but it's also a town
in Colorado. The cases here on rid of Cerchiarii to
the Court of Appeals for the Tenth Circuit. The facts

(20:08):
are truly horrible.

Speaker 2 (20:13):
That is antonin Scalia making a little joke before announcing
a decision. That should make you question what the courts
think the police are even for. In two thousand and five,
the Supreme Court ruled in Castle Rock ve. Gonzales that
the police in Castle Rock, Colorado, had no affirmative duty
to enforce a restraining order, and that their refusal to

(20:35):
do so had not violated Jessica Gonzalez's Fourteenth Amendment right
to equal protection. Jessica Gonzalez had a restraining order against
her estranged husband. He was not allowed near her or
her home, and he was only allowed limited contact with
their daughters. But one afternoon in nineteen ninety nine, he

(20:56):
kidnapped their three daughters. Jessica called the police. The officers
who responded to her call told her there was nothing
they could do about the restraining order, and they suggested
that her husband would probably bring the girls home later
in the evening. And she should just wait and if
the girls weren't back by ten pm, she could call

(21:18):
them again. Around eight thirty, she managed to get a
hold of her husband on the phone, and he told
her he had the girls at an amusement park in
a neighboring city. So she called the police again and
told them where he was and asked them to put
out an all points bulletin for the area with his
license plate number. They refused, and they told her again,

(21:40):
just wait till ten pm. They'll be home. She called
again at ten pm and they told her this time
to wait until midnight, So she went to her husband's
apartment on her own and found nothing. She called the
police again at midnight. Finally she went to the police
station herself to try to talk to somebody in person,
and nobody cared. They just weren't interested in trying to

(22:04):
find her children or their father. But he found them.
At three am, Jessica Gonzalez's a strange husband showed up
at the police station with a gun. He'd purchased that
gun earlier that same evening, sometime after he abducted his daughters,
and certainly before he used it to murder them. After

(22:29):
police shot him dead inside the police station. They found
the girl's bodies outside in his truck.

Speaker 5 (22:36):
We conclude that Colorado law did not give responded an
entitlement to enforcement of the restraining order.

Speaker 2 (22:45):
The Supreme Court ruled that there was nothing in the
law that required the police to enforce the restraining order,
and even if there were such a mandate, that wouldn't
give her the right to have it enforced. And even
if she did have the hypethetical right to have that
hypothetical mandate enforced, that right would have no monetary value.

(23:06):
So there's really no due process claim at issue here.
And then there's Toshaney the Winnebago decided by the Supreme
Court in nineteen eighty nine. This one doesn't actually involve
the police specifically, but it cited repeatedly in the lawsuits
we're talking about because it held that a government agency,
any government agency, although in this case it's the Department

(23:28):
of Social Services, has no affirmative duty to protect anyone
from any kind of harm that the government itself had
not created. Joshua D. Shaney was a four year old
boy whose father beat him so badly he was left
in a coma. And this was after Social services had

(23:49):
ignored reports of abuse for a year. When Joshua's stepmother
went to the police to report seeing the boy's father
hit him, they brushed her off and referred her to
social services, and so she made the report to Social services.
Neighbors seeing and hearing the toddler being beaten, and the

(24:10):
police sent them to social services. The boy was seen
in the emergency room three separate times, and doctors reported
seeing the signs of abuse to Social services all three times.
After the first hospital visit, the boy was briefly removed
from the home, but the state agency quickly returned him
to the custody of his abuser. A caseworker visited the

(24:33):
home at least twenty times, and her notes show that
she saw and documented signs of abuse, but no one
did anything. After Joshua was put into a coma by
his father's abuse, that social worker said, I just knew
the phone would ring some day and Joshua would be dead,

(24:58):
but she didn't do anything. The court ruled that only
Joshua's father could be held liable for the abuse, that
there was no liability for the state agency that repeatedly

(25:20):
returned the child to the custody of his abuser. Further,
the opinion says the state's failure to protect an individual
against private violence simply does not constitute a violation of
the due process claus The The Shainey case is cited
again and again in cases attempting to hold the police
or any government agency accountable or standing by and letting

(25:45):
people get hurt. Because the state is not required to
help you, they can't be held liable for anything that
happens to you simply because they actively chose not to intervene.
The only real exception to that rule are if you
are in state custody or if the dangerous situation was

(26:05):
created by that state actor. There are a nauseating number
of cases establishing the parameters here, but I'll just give
you one more. Kantie and Baila filed their suit in Virginia,
so when it was dismissed, they appealed it to the
Fourth Circuit Court of Appeals, And there is a Fourth

(26:26):
Circuit Court of Appeals case that flushes out their interpretation
of Toshaney. A nineteen ninety five opinion in the case
of Carol Pinder the officer Donald Johnson. In nineteen eighty nine,
Carol Pinder called the police. Her abusive ex boyfriend, Don
Pittman had broken into her home and he was punching

(26:47):
her and breaking things and threatening to kill her and
her children. The officer who responded to her call took
Pittman into custody and assured Carol Pinder that he would
be locked up overnight until he could be brought before
a judge in the morning. She specifically asked she was
concerned about going to work that evening because Pittman had

(27:09):
threatened her before. He'd actually only just been released from jail.
He'd been convicted of attempt at arson for trying to
set her house on fire just ten months earlier. The
officer specifically told Carol Pinder that Pittman would be in
jail all night and that she wouldn't be able to

(27:29):
file her complaint until tomorrow morning anyway, so she went
to work. She went to work that evening because the
officer promised her that this man would be in jail
until tomorrow morning, when she could speak to the judge.
But Pittman was released within hours, and while she was

(27:49):
at work that evening, Pittman set Carol Pinder's house on fire,
just like he promised. He would do just like he'd
done once before, and her three children were inside. All
three of those children died in the fire, and that
fire was set just eighteen days after the Supreme Court

(28:09):
decided the Toshaney case, and the Fourth Circuit cites to
Shaney throughout their opinion. In Pinder, there are only two
situations where the police officer would have any affirmative duty
to protect anyone. One is if there is a custodial relationship.
If you are in their custody, they're a little bit
responsible for your safety. So if Carol Pinder had been,

(28:33):
for instance, in the county jail, the police would be
responsible if her ex murdered her. But making a promise
to Carol Pinder meant nothing. Promises aren't legally binding. Again
from the opinion quote, state actors may not disclaim liability
when they themselves throw others to the lions. They do not,

(28:56):
by contrast, in title persons who rely on pises of
aid to some greater degree of protection from lions at large.
And that's the second exception from the Dushaney case. Right,
they can't throw you to the lions, meaning they can't
create circumstances that directly cause harm to come to you

(29:18):
at the hands of someone else, and that's what's called
the state created danger doctrine. On that front, the Fourth
Circuit is pretty clear. They wrote in twenty nineteen that
they've never written in an opinion recognizing the validity of
such a claim. It's a very high bar to clear
in the opinion of the Fourth Circuit, so high in fact,

(29:40):
that despite their claim that they believe it is a
valid hypothetical legal idea, it's never actually happened in the
Fourth Circuit. There are examples in other jurisdictions, but honestly,
reading these examples, I don't understand why the police in
these cases are more liable than in some cases. Is
where the court found that they weren't. There are several

(30:04):
cases involving people who were very intoxicated. So in one case,
someone was pulled over while driving drunk, and the officer
took the driver, who was intoxicated, into custody and they
took his keys, but the female passenger in the car,
who was not drunk, was not allowed to have the
keys to drive herself home. They just left her on
the side of the road and she was subsequently raped

(30:26):
and she was able to successfully sue those police officers,
saying they were responsible for this state created danger. She
would not have been there alone on the side of
the road with no transportation if the police had not
arrested the driver of the vehicle for being intoxicated and
left her without a way to get home. There was
another case where police responded to a dispute at a
bar and they threw one man out, took away his

(30:49):
key so that he couldn't drive home, and they wouldn't
let him back in, so he couldn't drive home, and
he couldn't come inside, and they didn't offer to take
him home. So he's just out there in the cold
at night in jeans and a T shirt, and he
did eventually die of hypothermia. And in that case, too,
the police were found to be responsible for having created
the dangerous circumstances in which harm came to him. So

(31:13):
it does happen. I'm not saying it's never happened. I'm
just saying the Fourth Circuit says they've never seen it.
All the cases the Fourth Circuit recognizes where a state
actor can be said to have had an affirmative duty
to anyone were cases where the injured party was in
police custody. A Fourth Circuit ruling in dove Rosa in
twenty fifteen further clarified their view of what constitutes state

(31:37):
created danger. Quote, the state, through its affirmative acts, must
itself create the dangerous situation that resulted in the victim's injury.
No constitutional liability exists where the state actors had no
hand in creating the danger, but simply stood by and
did nothing when suspicious circumstances dictated a more active role

(32:02):
for them. So deliberate indifference, just standing there and watching
harm come to someone and choosing to do nothing, that
doesn't rise to the level of actively creating the harmful circumstance.
Because doing nothing isn't doing something. Doing nothing is not

(32:24):
an action, So the act of doing nothing does not
constitute the affirmative step of taking an action. That sounds
like meaningless circular reasoning, but I promise you that comes
back again. The act of doing nothing is not legally
an action at all, And that probably feels like a

(32:46):
lot of extraneous detail. But all of this has been
to say that anyone filing a lawsuit anywhere in the
United States is going to face a steep uphill battle
if they're trying to prove that the government had any response.
It's ability to prevent harm caused by a non state actor.
The state can't violate your right to free speech, but

(33:08):
they don't have to help you speak. The state can't
burn your house down, but they don't have to stop
your ex from doing it. The state can't deny you
the right to hold your demonstration, but they can just
stand there and watch as the situation becomes too unsafe
to allow it to continue. And that legal battle would

(33:30):
be even steeper here in the Fourth Circuit, where the
Rosa and Pinder cases were decided. The Fourth Circuit does
not believe that it is possible for the state actor
to be responsible for any dangerous situation unless the injured
party was already in their custody. And by the time
greg Contein warren Bylaw filed this suit in twenty nineteen,

(33:51):
they had every reason to know it was a waste
of time. They may not have been familiar with the
case law, and they didn't have the money to hire
an attorney, but they did ask a friend who is
a lawyer to ghost write their complaint, and they surely
knew that other lawsuits making the exact same claims about
the exact same events had already been dismissed by the

(34:14):
same court. Kanti and bylaw filed their suit pro say,
meaning without a lawyer, and prose litigans are given a
lot of leeway by the court because they don't have
a lawyer's help. Their filings are interpreted much more charitably,
but they aren't allowed to secretly have a lawyer who

(34:37):
helps them in order to have it both ways, to
both have legal counsel and be afforded the leniency granted
to those who don't. Technically, though, you can get a
lawyer to ghost write your lawsuit and then just sort
of proceed from there. It's not preferred. Some jurisdictions require
you to disclose it, and most would prefer it, but

(35:00):
the ethics committees in many jurisdictions have said, yeah, yeah,
you can do this. And because Kanti and Beylaw accidentally
filed their lawsuit in the wrong jurisdiction, they originally filed
their suit in a district whose local rules do require
you to submit a signed form disclosing that you had

(35:22):
a ghostwriter. So I know that they asked their friend
Augustus Sole Invictus to draft this complaint, which again they
then filed in the wrong jurisdiction. In addition to being
an attorney, Augustus Invictus was a scheduled speaker at the
United the Right rally, and he's had some legal troubles

(35:42):
of his own in the years since. Who's recently convicted
of a felony for intimidating a group of college students
as part of a mob of torch wielding white supremacists,
But more relevant to the story at hand, After drafting
that complaint for Beilan Kanti back in twenty nineteen, he
was wasn't really very available to keep helping them out.

(36:04):
He was arrested in December of twenty nineteen for allegedly
abducting his wife at gunpoint because she was trying to
leave him. According to her own sworn statements in later proceedings,
she was coerced into not testifying at trial, so he
was never convicted on those charges. But at the time,

(36:24):
back in early twenty twenty, he was pretty preoccupied with
his own problems, so Kanti and Baila were kind of
on their own and it was truly a hopeless case.
By early twenty twenty, when it came time for the
pair to try to write some motions in their case,
the same court that would be reading those motions had

(36:44):
already dismissed four separate lawsuits making the same argument. Well,
four lawsuits, I guess were two in some change, because
one of those plaintiffs kept rears changing his claim, and
he filed three separate, slightly different cases. But the first

(37:06):
lawsuit brought before the federal court in the Western District
of Virginia that claimed that the police violated people's rights
by allowing the violence is the only one of those
cases that was filed by a counter protester. Robert Turner
was protesting the Nazi rally when he was pepper sprayed
and physically assaulted while police just stood there and watched.

(37:30):
Turner's lawyer seems to have been at least marginally more
competent than either Jason Kessler or Warren Baylaw's lawyers, so
he did come prepared to make an argument for state
created danger, alleging there had been a stand down order
given to all police on sen ahead of time. It
is alleged in the suit, and to some degree widely

(37:53):
believed in the community, that the officers had been instructed
ahead of time to do nothing, to just let the
violence happen. And that's a controversial theory. Does it feel true?

Speaker 1 (38:10):
Kind of? Yeah.

Speaker 2 (38:12):
Yeah, There's a lot of circumstantial and anecdotal evidence that
makes it feel very possible. No evidence was ever produced
that proved or disproved that any actual standdown order was
ever given by any police agency to its officers ahead of.

Speaker 1 (38:31):
Time that day.

Speaker 2 (38:33):
Both the city and state police have categorically denied it.
Two witnesses, though, a police captain and the police chief's
personal assistant, confirm that after the violence began they did
hear Police Chief Al Thomas say let them fight. It'll
make it easier to declare an unlawful assembly, which is

(38:56):
pretty damning. But it wasn't given as a demand that
was then disseminated to officers on scene, and by the
time he said it, it's already what was happening. Whether
that was the plan or not, there are scores of
eyewitness accounts, sworn statements, police after action interviews, and video
from police body cameras that prove that officers were unwilling

(39:19):
to act. We don't know why people approached lines of
cops begging them for help, and the officers just stood
there in silence. Other officers curtly answered that they would
intervene if and when commanded to do so, but they
wouldn't say what it would take for that command to happen.

(39:42):
Some officers reported being uncertain about what they were expected
to do or unwilling to risk their safety in a
volatile situation. Some of the police department employees whod been
deployed to hold intersections where the roads had been closed
weren't even sworn police officers, so they didn't carry weapons.

(40:03):
Whether this impacts how you feel about it or not,
the fact is a lot of them were scared. Whether
or not an actual standdown order had been issued that
morning was, according to Turner's lawsuit, an issue of fact
that could be determined a trial, But in alleging it,
they sought to establish something important. If true, Their argument

(40:28):
is that this constitute's state created danger. The dangerous situation
was the direct result of an order given by the
police chief, an order that was then carried out by
the police officers that sounds like it could pass the
test right. The police directly contributed to the danger by
following the order to stand down. But that's not how

(40:52):
the court felt. In the original opinion dismissing Turner's case,
Judge Norman Moon wrote, the incident in terms of a
standdown order is nothing more than an artful re characterization
of inaction as action, and the Fourth Circuit agreed with
him on appeal. The law has clearly established that in

(41:15):
action is not enough. Now they're clarifying that the act
of ordering in action ahead of time doesn't count as
taking in action at all. That's still just in action.

Speaker 1 (41:28):
Baffling.

Speaker 2 (41:43):
The next three lawsuits all came from one man, Jason Kessler,
the permit holder for the rally, and what bore you
to death at this point, because the three lawsuits are
all slightly different. In two of them, he convinced other
rally participants to add their names as coplain to one
of them.

Speaker 1 (42:00):
It's just him.

Speaker 2 (42:01):
The first time around, he only sued the city, but
in the second two lawsuits he's adding various city officials
and police agencies and the claims of all the little
bit as he goes too. But the strategy is pretty
much the same throughout. Instead of trying to argue that
what happened does meet the legal standard under Dashenyan Pinder

(42:22):
just don't mention it at all and hope no one
else does either, And so instead he relies on an
argument about the Heckler's veto, which is the situation that's
created where the state infringes on someone's free speech because
their speech is potentially very unpopular and they're worried that
there will be counter protesting that becomes disruptive. So in

(42:47):
order to prevent a disruption by people who oppose the speaker,
they simply prevent the speaker from speaking, And of course
they can't do that, right. The city couldn't have legally
denied him the permit just because they were worried the
counter protest might turn violent. They tried to do that,
and a federal court issued an injunction and gave him

(43:08):
the permit back. So that's not what happened. He had
the permit, and it also would have been a violation
of his rights and the rights of the other attendees
at his Nazi rally if the police had responded to
the disorder by merely removing them from the area, if
only they were made to leave and everyone else was
allowed to stay. Kessler suits alleged that the declaration of

(43:31):
the unlawful assembly was discriminatory because it was motivated by
the content of the speech at the rally. So he's
saying that only rally attendees were made to leave the park. Well,
only rally attendees were inside the park, and the park
was cleared. It was a very violent, but viewpoint neutral

(43:51):
barrage of pepper spray. So I won't say nobody's rights
got violated. I think some people's rights got a little violated.
But jas Sain Kessler failed to convince the court in
three separate lawsuits and one appeal that his First Amendment
rights were infringed upon in this particular way. The opinion

(44:12):
from the appeals court is brief, noting succinctly that the
rally goers were engaged in violence prior to the dispersal
order and quote. Kessler's complaint lacks any plausible allegation that
the unlawful assembly declaration and the dispersal order discriminated based
on content, So everybody had to leave.

Speaker 1 (44:29):
It was fair.

Speaker 2 (44:32):
And as much as Kessler's suit tries to dance around
having to argue against the precedent, said into Cheney, that's
where we end up. The lower court opinion says it
plainly the cases he tried to cite don't really apply.
He had his permit, the state hadn't proactively prevented him
from holding the event out of fear of public hostility quote,

(44:55):
but the law is clear that defendants had no constitutional
obligation to prevent that public hostility. I mean, for God's sake,
If the law says the police don't have to do
anything to stop three children from dying in a house fire,
even if they promised those children's mother that they wouldn't
let the man who'd previously set their house on fire

(45:15):
out of jail after he threatened to set their house
on fire again, then why would that same law entitle
you to proactive police protection to give Nazi salutes in
a public park. There is no constitutional right to police
protection from getting heckled. You can't sue the city because
everyone hated your Nazi rally. You very well could have

(45:37):
had your Nazi rally if the guys you invited to
the Nazi rally hadn't started brutalizing members of the clergy
in the middle of the goddamn street before it even started.
But now I'm editorializing so by the time Greg Kantian
Warren Baylaw file their version of this same suit, Robert
Turner's suit has already been not only dismissed, but the

(46:00):
dismissal was upheld on appeal. Again, that's the only one
of these suits that was brought by a counter protest or,
so the court is being I guess you could say fair.
That doesn't feel right, but the court is saying that
the cops are allowed to watch everybody get their ass
beat in the streets. It's content neutral. And Jason Kessler
has had two suits dismissed already, and he filed his

(46:22):
third lawsuit the same day that Kanti and Baylaw filed THEIRS,
because it was the last day under the statute of
limitations to file anything related to that day. But Kanti
and BiLaw accidentally filed THEIRS in the wrong jurisdiction, so
by the time it gets transferred to the right court
almost a year later, Kessler's third and final lawsuit has
already been torn to shreds and it's been dismissed.

Speaker 1 (46:46):
So all the arguments have been made more than once.

Speaker 2 (46:50):
There isn't much to gain by throwing the same shit
at the wall. Just to see if it's going to
stick this time, but they did it anyway.

Speaker 3 (47:00):
So we just did a scattershot thing and sued everybody
that we thought that we could we could possibly sue,
and then shoot first, asked questions later. The initial complaint,
Greg Contey and I had help from Augustus and Victus
putting it together. But then we've had a lot of
help with other.

Speaker 1 (47:19):
People and they lost too.

Speaker 2 (47:25):
By twenty twenty three, when the case was finally dismissed,
Warren Beylaw and Greg Conti weren't even really friends anymore.
The chaotic end of their short lived Neo Nazi political
party and the still unresolved allegations that maybe somebody in
leadership stole tens of thousands of dollars in member donations
is a story for some other day, But in twenty

(47:46):
twenty three, it's just Warren Beylaw who files to appeal
the decision, and now he finally has a lawyer, Glenn Allen.
When the Fourth Circuit finally upheld the dismissal laws lawsuit
in twenty twenty four, the opinion takes the case point
by point. You don't always get that in an appellate decision,

(48:08):
but I guess they just wanted to make things abundantly
clear because these guys were obviously having trouble understanding the rulings.
It's actually kind of brutal in that detached, icy way
that legal professionals sometimes eviscerate each other. I'll put it
in the show notes, but i won't get too deep
into it, because I'm willing to admit that not everyone

(48:29):
is going to find it as exciting as I did.
The opinion opens with a question. This appeal asks a
straightforward legal question, does the First Amendment protect speech amid violence?
More specifically, does the First Amendment obligate police officers to
protect the constitutional rights of protesters amid violence. We've already

(48:51):
suggested that the answer is no, and the citation they
give for this is their own prior ruling in Jason
Kessler's lawsuit, which makes the same arguments about the same facts.
And the opinion continues Warren Baylaw asks that we hold otherwise,
and after a brief summary of the facts in the case,

(49:12):
the opinion reads, maylaw would have us seize on these
facts to transform the First Amendment from a shield to
guard against invasive speech regulations into a sword to wield
against violent speech disruptions. We declined to forge such a weapon.

(49:32):
Glen Allen was still representing We're in baylaw when they
tried to get this case in front of the Supreme
Court earlier this year. And I know that Glen Allen
knows that the police don't have an affirmative duty to
protect anyone, because until he got fired for being a
neo Nazi, he was working as a defense attorney representing
the Baltimore Police Department. So I have to imagine working

(49:56):
for a notoriously brutal and corrupt police department in the
Fourth Circuit Court of Appeals, I have to imagine he
was familiar with cases liked Shaneyy Whin a Bagehope in
der Vy Johnson, and Castle Rockvey Gonzalez. But he pretends
not to be writing This breaks perhaps the most fundamental

(50:18):
pact citizens have with their government. We grant a monopoly
on violence to the sovereign in exchange for which it
assumes the duty to provide basic protection to life and limb.
Once that duty is wilfully abandoned, there is no telling
where the trouble ends. Well, Glen, I have some shocking
news for you that pact has been broken. There is

(50:42):
no pact that the state will protect your life and limb.
What he's saying is that his client is the victim.
All the men in that park were just innocently expressing
their First Amendment rights and I didn't want to hurt anyone.
They trusted that if someone needed to be hurt, the

(51:02):
government would do it for them.

Speaker 1 (51:04):
Quote.

Speaker 2 (51:05):
Those citizens who are targeted by both criminal miscreants and
corrupt government are placed between Scylla and charybdis. Upon seeing
that their government has relinquished the monopoly on violence, they
have two options. They can resort to self help and
take matters into their own hands where they can take
a beating.

Speaker 1 (51:25):
They had to do it, you see.

Speaker 2 (51:27):
They had to punch, kickshove, choke, beat, bludget a maze
all of those people. They were defending themselves. Never mind
the videos that show them organizing themselves into little raiding parties,
departing the safety of the park to dart out into
the streets to try to get a few hits in.
But why not? Why did they try to hurt people?

(51:50):
I know?

Speaker 5 (51:50):
Why?

Speaker 2 (51:51):
Why appeal a case that can't win, a case that's
already been argued from every angle, based on the exact
same underlying to the exact same judge. Why even after
the Fourth Circuit ruled against him, do they bother trying
to get it in front of the Supreme Court. I mean,
I know political wins have shifted and everything's upside down now.

(52:14):
I'm not so naive that I'm saying there's no sliver
of hope that maybe the Supreme Court would throw a
Nazia bone just for fun. I could see why they'd
be hopeful, but even the most optimistic fascist surely understands
that as much as the current administration might enjoy their
willingness to fight the race war, there's just no political

(52:36):
utility in upsetting the settled case law that keeps cops
safe from having to do the thing we all like
to imagine, therefore.

Speaker 1 (52:45):
Protecting and serving.

Speaker 2 (52:48):
But they weren't really fighting to win, were they. I mean,
some of the arguments being made might lead you to
believe that they don't know what they're talking about, And
maybe some of that really was since year and they
thought it would work, But mostly they knew it was symbolic.
After the Supreme Court denied their petition last month, Baylaw

(53:11):
finished his rambling substack posts with this message. Lastly, I
would like to thank every last man and woman who
attended the United the Right rally on August eleven and twelfth,
twenty seventeen. This lawsuit was a symbolic fight for all
the young men who sacrificed more at Charlesville than I did,
All those who spent years in prison, who had their
careers and reputations destroyed, who ended their own lives, who

(53:35):
still have the threat of imprisonment hanging over their heads.
For all their sakes, it was worth it. Just days
after the United the Right rally, all the way back
in August of twenty seventeen, Beyla wrote an essay for
Richard Spencer's alright dot com.

Speaker 1 (53:52):
The post ends.

Speaker 2 (53:53):
With we have with us the awakened fury of the
force which created and built the United States, the righteous
anger of white men who will not let tyranny tried
on our rights any longer. They don't think it was fair.
It doesn't matter what the law says. There are white men.

(54:14):
They invented the Western world. They created this system of laws,
or whatever those laws by definition exist for them. The
court must simply be confused or corrupt, probably corrupt.

Speaker 1 (54:31):
It was a.

Speaker 2 (54:31):
Setup, a cover up, a conspiracy against them. It was
the Jews, it was the communists. It isn't fair. As
Jason Kessler said in an interview with Warren Baylaw last
year on the seventh anniversary of that deadly Nazi.

Speaker 4 (54:47):
Rally, I mean, it's the right thing to do. It's
what a real political movement does. It's what real activists do.
They don't just give up and move on. They try
and fight to the name. And the truth is is,
you know, we should have won those suits.

Speaker 1 (55:07):
They have to fight back.

Speaker 2 (55:09):
They're all quite sure that they've been wronged, and they
just can't let it go. I guess, to be fair,
neither can I. For eight years, I've been trying to
sort out what really happens when a Nazi rally comes
to town. I've got a hard drive full of photos

(55:32):
and videos, diagrams and annotated images, thousands of pages of
court documents, half a dozen spiral notebooks with my own
handwritten court room notes. I've written about it for publications,
for my own website, and for podcasts. I've live tweeted
a month long trial, and I still don't really know
the answer. This may be the only thing the court

(55:54):
has been one hundred percent clear and consistent on. You
absolutely do not have any right to expect a cop
to help you if he doesn't feel like it, not
even if he promised, not even if it would be
easy for him to do it, not even if it
would save your life. It's not a violation of anyone's

(56:15):
rights for a public servant to stand completely still and
watch you die. It's a little bit funny to see crime.
Maybe Nazis sending themselves into hysterics insisting that they have
a constitutional right to see Kyle in the park with
police protection. They're not entitled to that protection, but neither

(56:37):
are you. Neither were my neighbors who were beaten in
the streets. Neither were Jessica Gonzalez's daughters or Carol Pinder's children.
The police have absolutely no duty to protect us. They
have plenty of power to hurt us, and they're well
within the bounds of the law to passively create conditions

(56:58):
where neo Nazis are free to hurt us with impunity.
They may have no duty to us, but please try
to remember we all have a duty to each other,
so be good to your neighbors and keep each other safe.

(57:30):
Weird Little Guys the same production of Pool Zone Media
and iHeartRadio. It's research, written and recorded by me, Molly Conger.
Our executive producers are Sophie Lichterman and Robert Evans. The
show is edited by the wildly talented Mary Gigan. The
theme music was composed by Brad Dickert. You can email
me at Weird Little Guys podcast at gmail dot com.
I will definitely read it, but I probably won't answer it.

(57:50):
It's nothing personal. I don't answer any of my emails.
You can exchange conspiracy theories about the show with other
listeners on the Weird Little Guys supreddit. Just don't most
anything that's going to make you on my words, Little
Guys

Speaker 1 (58:10):
Mhm

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