What kind of message does failing to prosecute white supremacists send?
By Anne Coughlin
To mark the anniversary of the Unite the Right rally, commentators took stock of the successful prosecutions of white supremacists who committed violence and spread hatred in Charlottesville. Such prosecutions are a measure of law enforcement’s commitment to punishing violent offenders, offering closure to the community, deterring copycat crimes, and uprooting racist ideology.
At the sentencing of James Fields for the murder of Heather Heyer and the maiming of numerous peaceful protesters, Thomas Cullen, the U.S. attorney for the Western District of Virginia, said that such prosecutions “send a message that our government condemns this type of activity and will do all within our power to hold folks accountable.”
Likewise, when three members of a militant white-supremacist group known as the Rise Above Movement were sentenced in Charlottesville federal court for violence they committed here and elsewhere, Colonel Gary Settle, the Virginia State Police superintendent, declared that the sentences “stand as evidence that Virginia has zero tolerance for such criminal activity.”
What message then does a prosecutor send by failing to prosecute crimes committed by white supremacists?
While federal and Charlottesville prosecutors have successfully brought multiple cases against the white supremacists who committed crimes in their jurisdictions during that hate-filled weekend two years ago, Albemarle County Commonwealth’s Attorney Robert Tracci has not.
As the world knows, on August 11, 2017, hundreds of white supremacists marched through the University of Virginia. They carried burning torches and shouted intimidating phrases such as “Blood and soil,” “You will not replace us,” and “Jews will not replace us.”
When they arrived in front of the Rotunda, the torch mob approached a small group of students and other community members who were standing near a statue of Thomas Jefferson. This small group linked arms and chanted, “Black lives matter.” The white supremacists surrounded the group and pinned them at the base of the statue, continuing to scream racist and anti-Semitic slurs. Some hurled their torches into the air. Others wielded their torches as weapons and attacked.
Under Virginia law, it is a felony to burn an object in a public place when that person has the intent to intimidate others and does so in a manner that places others in reasonable fear of bodily injury. UVA’s Lawn and Rotunda are public places, and they are located in Albemarle County.
This means that Albemarle Commonwealth’s Attorney Tracci has the authority and the responsibility to decide whether Virginia law was broken that night. His ongoing failure to prosecute these cases severely damages the community’s willingness to trust law enforcement generally, and his office specifically.
As a partial excuse for his inaction, Tracci has pointed out that then-Charlottesville commonwealth’s attorney Dave Chapman did not bring charges in connection with two torch-burning rallies that took place in the city that year. However, Chapman explained in a legal memo his decision not to prosecute the less-threatening incidents in the city, in part by contrasting them with the torch-bearing mob at the Rotunda.
Unlike the city cases, Chapman described the events of August 11 as a case where a prosecution might be “on firm ground” because they involve “specific circumstances that would cause people who are then and there present to have a legitimate and immediate fear of death or bodily harm.”
The events of August 11 were traumatic for many reasons, and the fears of those present were legitimate. As the media has reported, the anti-racist protesters were terrified by the mob, and some were physically injured in the melee.
That trauma was exacerbated by the fact that police did nothing that night to protect people from the torch-bearing mob. As a result, the community’s confidence in law enforcement has been badly shaken. When members of the Rise Above Movement were arrested, FBI Special Agent Adam Lee alluded to this loss of trust when he said that he hoped the arrests would remind “communities like Charlottesville to remember who the good guys are.” Tracci should take immediate steps to show that Albemarle County has zero tolerance for white supremacist violence and intimidation. He should file felony charges under the “burning objects” statute. If he does not, voters should keep Tracci’s record and its message in mind when they head to the polls in November.
Anne M. Coughlin is the Lewis F. Powell, Jr., professor of law at the University of Virginia School of Law.
Amend Virginia’s burning object statute
By Robert Tracci
Enacted in 2002, Virginia’s burning object statute establishes a felony offense for “[a]ny person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”
On May 13, 2017, white supremacists with tiki torches chanting “you will not replace us” and “blood and soil” conducted a rally at Charlottesville’s Market Street (formerly Lee) Park. On August 11, 2017, tiki torch-carrying white supremacists chanting similar racist slogans marched on UVA Grounds. And on October 7, 2017—two months after August 2017—white supremacists carrying tiki torches and chanting racist slogans yet again returned to Market Street Park.
In a memorandum to then-city manager Maurice Jones, Charlottesville’s prior commonwealth’s attorney declined prosecution under the burning objects statute, stating: “There is a threshold problem with the statute. The statute refers to ‘burn an object.’ The question could arise—and would in criminal law—as to whether carrying a burning torch falls within the definitional scope of burning an object. That alone could prevent a prosecution.” While this memorandum distinguished the May and October torch-lit rallies from the August 11, 2017, rally on UVA Grounds, the “threshold problem” conforming a tiki torch to the burning objects statute presents in all three rallies.
Recognizing these legal deficits in Virginia’s burning objects statute, pages 174-175 of the Heaphy Report urged the General Assembly to: “consider broadening the intent standard for the criminal prohibition on the use of open flames to threaten or intimidate. This [burning objects] statute should be altered to track the language of statutes that proscribe the use of swastikas and burning crosses and include the use of fire with the intent to intimidate.”
In October 2018—14 months after August 2017—UVA issued additional no-trespass orders for actions on August 11, 2017. Notably, UVA declined to issue no-trespass orders to all torch marchers. The standard for issuing a no-trespass order is considerably lower than that necessary to sustain a criminal conviction.
Earlier this year, Delegate David Toscano introduced HB2010 to codify the burning objects recommendation contained in the Heaphy Report, but it did not receive a hearing. I supported—and still support—its favorable consideration.
Working with law enforcement partners and available witnesses, this office has sought lawful accountability for violations of Virginia law occurring on UVA Grounds on August 11, 2017, by prosecuting malicious bodily injury, illegal use of tear gas, and assault and battery charges. The office has reviewed recordings, video evidence, livestreams capturing contemporaneous observations of those present, emergency communications traffic, and other available information.
While the Heaphy Report deemed UVA’s preparation and response to August 11 “woefully inadequate,” the subsequent investigation by the UVA Police Department and others has been thorough and professional. And I continue to encourage all victims of August 2017 to cooperate with the ongoing investigation.
Following the events of August 2017, UVA’s Board of Visitors took prompt and commendable action to better protect the university community, including adopting prohibitions on open flames on UVA Grounds without a permit. It is time for the General Assembly to complement these efforts by amending Virginia’s burning objects statute.
In our system of justice, a prosecutor must faithfully apply the law and uphold ethical standards in all cases. These obligations inhere in a prosecutor’s oath and are spelled out in the Rules of Professional Responsibility. Compromising these principles would affront our values in a manner those who brought hate to our community in 2017 never could.
Robert Tracci is the Albemarle County commonwealth’s attorney.