Too broad: Judge dismisses August 11 charge against CVS shopper

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John Miska was arrested for possessing the razor blades he'd just purchased at CVS.
Photo Janis Jaquith John Miska was arrested for possessing the razor blades he’d just purchased at CVS. Photo Janis Jaquith

A judge today said the city’s lengthy list of prohibited items on the Downtown Mall over the August 12 anniversary weekend swept “far too broadly,” and he dismissed a charge against a disabled veterans activist for possession of razor blades that were purchased August 11 at CVS.

John Miska, 64, bought two cases of Arizona iced tea, a can of bug spray, lightbulbs, and a pack of razor blades, and was arrested outside CVS for possessing prohibited items in the downtown area, where access was limited to two entry points on Water Street. Citizens attempting to enter the mall had to have bags and wallets searched before they were allowed to enter—although Miska was able to open carry a firearm. Metal beverage cans, aerosols and razor blades were prohibited, although Miska was only charged for the blades.

Miska entered a not guilty plea and was represented by the Rutherford Institute, a local civil rights organization.

Virginia State Police Sergeant S.W. Johnson, one of the 700 state police in town for the weekend, testified that he’d been alerted to Miska’s plans to purchase the forbidden items because the vet “made certain statements about his intentions to go to CVS” to the checkpoint staff. Johnson stopped Miska when he came out of the store with his walker, which carried the cases of iced tea, and he said he could see the other alleged contraband in the plastic CVS bag.

“He said he had common items for household use,” said Johnson. “He said he likes tea.” Miska declined Johnson’s offer to help him take the items to his car, and the officer took him into custody, Johnson testified.

Other people on the mall were drinking out of cans in restaurant patio areas, but Johnson did not arrest them because they appeared to be “part of private establishments,” he said.

Judge Bob Downer ruled in favor of Miska’s motion to dismiss and seemed to take a dim view of the city’s ban of certain items while allowing businesses on the mall to sell those items, commenting, “If the city really wanted to prohibit these items, they should have shut down all the stores that sold them.” He also said the restrictions were “too much” and that the ban was too broad.

“This case—in which a dozen police swarmed a disabled veteran with a walker buying cans of iced tea and bug spray from a CVS—is far from the only example of a dysfunctional, excessive government that overreaches, overspends, and is completely out of sync with the spirit of the Constitution,” said constitutional attorney and Rutherford president John W. Whitehead.

Also heard in Charlottesville General District Court were five other cases of those arrested over the anniversary weekend.

Former C-VILLE Weekly contributor Toby Beard, who was charged with “obstruction of free passage” August 12 during a march from Washington Park to downtown, pleaded guilty to a lesser infraction of walking in the street when a sidewalk was available. He was given a $15 fine, which was suspended.

His attorney, Janice Redinger, said after the hearing that the commonwealth dropping the charge from a Class 1 misdemeanor to a traffic infraction “was an acknowledgement that no crime took place.”

Chloe Lubin was charged with assault and disorderly conduct, and was ordered to do 50 hours of community service by January 31 for each charge. An obstruction of justice charge was dropped, with the condition it could not be expunged, and a misdemeanor charge of carrying a concealed weapon also was dismissed.

North Carolina resident Algenon Cain, who was charged with two counts of trespassing, did not appear in court. He was found guilty and fined $250 on the first count, with $200 suspended, and $250 on the second charge.

Veronica Fitzhugh was charged with misdemeanor assault and entered an Alford plea, which is a guilty plea that acknowledges the prosecution has enough evidence to convict but the defendant maintains her innocence. She was sentenced to complete 20 hours of community service by January 31.

Spotsylvania resident Martin Clevenger was charged with disorderly conduct following an encounter with Fitzhugh at Market Street Park. According to state trooper J.M. Hylton, who was standing behind a barricade in front of the Lee statue, Clevenger walked up to the statue and saluted.

“A female approached him and begin to scream and curse,” said Hylton. Clevenger “snapped and leaned over and shouted” at Fitzhugh.

Video showed Fitzhugh screaming “go home” and  “get the fuck out of my town” at Clevenger.

He replied multiple times, “If history is forgotten, you are bound to repeat it.” He also said that Fitzhugh was touching him and asked officers to arrest her. In the video, he stands saluting the statue while Fitzhugh continues to shout at him, until he suddenly turns to confront her, which, he testified, was because she insulted his father’s military service.

“I was there peacefully protesting,” said Clevenger. “You can see her spitting at me. That’s assault.” He said he acted in self-defense when she disparaged the “honor of my father.”

Downer said the case is one of the most difficult to decide because of the latitude required by the First Amendment. But he said  “the conduct of Ms. Fitzhugh certainly provoked” Clevenger’s reaction, and found Clevenger not guilty.

Outside the courthouse, anti-racist activists followed Clevenger into the Market Street Parking Garage and shouted at him and the police officers there. Clevenger sped out of the garage on a motorcycle.

Miska was screamed at with shouts of “fuck you racist” as he left the courthouse with his attorney, Elliot Harding.

Said Miska, “Perhaps we’ve shown the screaming meemies there is a way to protest government overreach within the system.”

Veteran John Miska was called a Nazi as he left the courthouse. Staff photo

Updated October 1 with comments from Whitehead, Redinger and Miska.

 

 

 

 

 

 

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