Kessler V Charlottesville Appeal Brief

USCA4 Appeal: 20-1704 Doc: 26 Filed: 03/02/2021 Pg: 1 of 25
RECORD NO. 20-1704
In The
United States Court of Appeals

For The Fourth Circuit
JASON KESSLER,
Plaintiff – Appellant,
v.
CITY OF CHARLOTTESVILLE et al.,

Defendants – Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA
AT CHARLOTTESVILLE
BRIEF OF APPELLANT
James E. Kolenich
KOLENICH LAW OFFICE
9435 Waterstone Boulevard, Suite 140
Cincinnati, Ohio 45249
(513) 444-2150
Counsel for Appellant
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF JURISDICTION .......................................................................... 1
ISSUES PRESENTED ............................................................................................... 2
STATEMENT OF THE CASE .................................................................................. 2
I. WELL PLED ALLEGATIONS ............................................................ 2
II. THE COURT DISMISSES APPELLANT’S COMPLAINT ............... 4
SUMMARY OF THE ARGUMENTS ...................................................................... 5
ARGUMENTS ........................................................................................................... 5
I. THE TRIAL COURT ERRED IN FINDING THAT

APPELLEES WERE PROTECTED BY QUALIFIED
IMMUNITY ................................................................................5
A. Standard of Review ..................................................................... 5
B. Discussion ................................................................................... 6
II. THE TRIAL COURT ERRED IN FINDING THAT

DeSHANEY APPLIES TO THIS HECKLER’S VETO CASE
………………………………………………………………9
A. Standard of Review ................................................................... 9
B. Discussion ................................................................................. 10
III. THE TRIAL COURT ERRED IN FINDING THAT APPELLEES DID

NOT PARTICIPATE OR ACQUIESCE IN A HECKLER’S VETO
WHEN THEY DECLARED AN UNLAWFUL ASSEMBLY AND
CANCELLED THE APPELLANT’S SPEECH ................................... 12
ii
CONCLUSION ........................................................................................................ 15
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF FILING AND SERVICE
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Bell Atl. Corp. v. Twombly ., ,

550 U.S. 544, 555 (2007)................................................................................9
Berger v. Battaglia
779 F.2d 992 (4th Cir. 1985)........................................................................... 8
Bible Believers v. Wayne Cnty.,,

805 F.3d 228, (6th Cir. 2015) .....................................................................6, 7
Booker v. S.C. Dept of Corr., ,

855 F.3d 533, (4th Cir. 2017) .......................................................................... 6
Boos v. Barry,
485 U.S. 312 (1988).........................................................................................7
Cantwell v. Connecticut,
310 U.S. 296 (1940).........................................................................................6
Church of the American Knights v. City of Gary,

334 F.3d 676, (7th Cir. 2003.) ........................................................................8
Clatterbuck v. City of Charlottesville,

708 F.3d 549, (4th Cir. 2013.) ......................................................................14
Collin v. Smith,
578 F.2d 1197, (7th Cir. 1978); ......................................................................7
Cox v. Louisiana,
379 U.S. 536, (1965);......................................................................................7
Deshaney v. Winnebago County Department of Social Services,

489 U.S. 189 (1989),................................................................................ passim
iv
Doyle v. Town of Scarborough,

2016 WL 4764902, (D. Maine Sept. 13, 2016); ......................................10,11
Draego v. City of Charlottesville

Case No. 3:16-CV-00057, (W.D. Va. Nov. 18, 2016) ................................. 13
Edwards v. South Carolina,

372 U.S. 229 (1963).................................................................................…6, 7
Forsyth Cty., Ga. v. Nationalist Movement,

505 U.S. 123, 134 (1992)............................................................................... 13
Frye v. Kansas City Police Dep't, ,

375 F.3d 785 (8th Cir. 2004) ........................................................................... 7
Grider v. Abramson,
994 F.Supp. 840, 845-16 (W.D.Ky. 1998) .................................................... ..9
Morlock v. West Cent. Educ. Dist.,,

46 F. Supp. 2d 892,922 (D. Minn.1999) ...................................................10, 11
Musso v. Hourigan
836 F.2d. 736 (2d Cir.1988); ....................................................................10, 11
Ovadal v. City of Madison,

416 F.3d 531 (7th Cir. 2005) ......................................................................... ..9
PeTA, People for the Ethical Treatment of Animals v. Rasmussen,

298 F.3d 1198, 1206-07 (10th Cir. 2002); ..................................................... ..8
Ray v. Roane,
948 F.3d 222, 226 (4th Cir. 2020) ................................................................. ..5
Reno v. American Civil Liberties Union,

521 U.S. 844, 880, (1997),............................................................................. ..8
Republican Party of N. Carolina v. Martin ,

980 F.2d 943, 952 (4th Cir. 1992) ................................................................. 10
v
Reynolds v. Middleton,
779 F.3d 222, (4th Cir. 2015) ........................................................................ 14
Rock for Life-Umbc v. Hrabowski,

411 F. App'x 541, 554 (4th Cir. 2010)........................................................... ..9
Safar v. Tingle,
859 F.3d 241, 245 (4th Cir. 2017.) ................................................................ 10
Smith v. Ross,
482 F.2d 33, 37 (6th Cir. 1973); .................................................................... ..9
Startzell v. Fisher
533 F.3d 183, 200 (3d Cir. 2008) .................................................................. ..7
Terminiello v. City of Chicago,

337 U.S. 1 (1949).....................................................................................…7, 8
Texas v. Johnson,
491 U.S. 397 (1989)....................................................................................... ..7
Tobey v. Jones , ,
706 F.3d 379, 387 (4th Cir. 2013) ................................................................. ..9
Turner v. Thomas,
930 F. 3d 640 (4th Cir. 2019)……………………………………..6, 10, 11, 12
Weidman v. Exxon Mobil Corp.,

776 F.3d 214, 219 (4th Cir. 2015.)…. .....................................................…9, 12
Williamson v. Stirling,
912 F.3d 154, 187 (4th Cir. 2018) ................................................................... 6
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. I .....................................................................................passim
STATUTES
42 U.S.C. § 1983 ..............................................................................................1, 10
vi
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1704
JASON KESSLER,
Plaintiff-Appellee,
v.
CITY OF CHARLOTTESVILLE et al.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA
BRIEF OF APPELLANT
STATEMENT OF JURISDICTION
This case arises under the First Amendment to the United States
Constitution, U.S. CONST. amend. I, and 42 U.S.C. § 1983. The District Court
had subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. On February
21, 2020, that Court granted each defendant’s motion to dismiss all the plaintiff’s
claims. (JA 391; DE 53). On June 18, 2020, the District Court overruled plaintiff’s
motion for reconsideration. (JA 422; DE 63). On June 29, 2020, plaintiff timely
appealed. (JA 428; DE 64). This Court’s jurisdiction rests on 28 U.S.C. § 1291.
1
ISSUES PRESENTED
I. DID THE TRIAL COURT ERR IN APPLYING DeShaney v. Winnebago

Cty. TO THE APPELLANT’S FIRST AMENDMENT HECKLER’S VETO
CLAIMS ?
II. DID THE TRIAL COURT ERR IN FINDING THAT THE APPELLEES’
CANCELLING OF APPELLANT’S SPEECH DUE TO PUBLIC
DISORDER DID NOT CONSTITUTE JOINING OR ACQUIESCING IN
A HECKLER’S VETO?
III. DID THE TRIAL COURT ERR IN FINDING THAT EVEN IF A

CONSTITUTIONAL VIOLATION OCCURRED THE APPELLEES
WERE PROTECTED BY QUALIFIED IMMUNITY?
STATEMENT OF THE CASE
Appellant Jason Kessler held a permit to hold a political rally in
Charlottesville, Virginia on August 12, 2017. (JA 21 ¶75-76.) Kessler had to sue in
the Western District of Virginia to secure his preferred event location. (JA 216.)
Kessler was to be be a featured speaker at the rally. (JA 11, 202, 204.) Kessler’s
speech was announced as an “Alt-Right” political event. (JA 11, 202, 204.) Alt
Right speech is considered deeply offensive by many due to it’s racist and anti-
Semitic content and phraseology. Appellees were aware of significant public
hostility to Mr. Kessler’s planned speech and event. (JA 11-17). Appellees were
aware that certain members of the hostile public were highly likely to physically
attack Mr. Kessler and his supporters at the rally location. (JA 11-17; 203, 320)
Several elected officials in Charlottesville were outspoken in their hostility to the
content of Kessler’s speech as well (JA 134 identifying Charlottesville as “capital
of the resistance” to, inter alia, racism) including one, Wes Bellamy, whom Kessler
2
had individually singled out for political opposition. (JA 156). Mr. Bellamy
resigned from his private employment after Mr. Kessler publicized some of Mr.
Bellamy’s social media activity. (JA 157).
Appellees’ engaged in a plan to use the expected public hostility as an
excuse to cancel Kessler’s speech. (JA 12, 14, 16, 17.) Appellees did so due to both
public and political opposition to the content of Kessler’s speech. (JA 11-17; 134,
140, 157 wherein a police officer stated that one elected official’s anti-Kessler
speech was “tantamount to war rhetoric”, and 162.) Appellees caused a large
number of police officers (JA 232, 239, and 262) to be present at the speech
location but ordered those police to ignore public disorder and violence until such
time as it was bad enough to declare an “unlawful assembly” under State law. (JA
17, 266.)
The expected melee did in fact occur despite members of the public begging
police to intervene. (JA 18, 20.) The unlawful assembly having been declared, Mr.
Kessler, who was at the designated speaker’s location and had identified himself to
police as both the event permit holder and a scheduled speaker, was ejected,
pursuant to the a priori plan of the Appellees, from the rally location together with
everyone else. No effort whatsoever was made to find a less restrictive means of
restoring the public order than the complete suppression of Mr. Kessler’s First
Amendment protected speech. (JA 21.)
3
Mr. Kessler filed suit against Appellees in the Western District of Virginia
bringing “heckler’s veto” based claims. (JA 10.) The District Court held, with no
objection from Appellant, that a report commissioned by the City of Charlottesville
known as the “Heaphy Report” was integral to the Complaint. (JA 394.1) The
Court then dismissed all claims for failure to state a claim on February 21, 2020
and overruled Appellant’s R. 59 motion on June 18, 2020. Mr. Kessler timely filed
his Notice of Appeal on June 29, 2020.
I. THE COURT DISMISSES APPELLANT’S COMPLAINT
All Appellees filed motions to dismiss for failure to state a claim. In examining
the case, the trial Court assumed that Kessler’s speech was protected by the First
Amendment. (JA 411). With one minor exception, the Court did not find any of
Appellant’s factual allegations to be implausible. (JA 410.)
Rather, the Court made the novel finding that the “no duty” holding from
Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989),
applied to Mr. Kessler’s heckler’s veto claims. (JA 404) The Court also examined
whether the Appellees’ unlawful assembly declaration constituted an impermissible
participation or acquiescence in a heckler’s veto. (JA 411.)
1
The entire Heaphy report was attached to Appellant’s Complaint (JA 121-340; DE 7-1)
4
Though Mr. Kessler argued for strict scrutiny in this section, the Court opted for
intermediate scrutiny. (JA 411.) The Court also touched very briefly on qualified
immunity, finding that Fourth Circuit persuasive precedent specifically allowed
Appellees to cancel a free speech protected event due to the mere threat of counter
protestor violence. (JA 413.)
SUMMARY OF THE ARGUMENTS
Mr. Kessler respectfully contends that 1) Deshaney does not apply to a
heckler’s veto claim; 2) the District Court erred in failing to apply strict scrutiny to
plaintiff’s “acquiesced in” claim and under strict or intermediate scrutiny the
appellees were prohibited from making content based decisions regarding
Appellants protected speech and were also required to do something, rather than
absolutely nothing, to protect Mr. Kessler’s speech rights from being negatively
impacted by appellees’ unlawful assembly declaration; and 3) Mr. Kessler’s
alleged rights were clearly established on August 12, 2017.
ARGUMENTS
I. THE TRIAL COURT ERRED IN FINDING THAT APPELLEES

WERE PROTECTED BY QUALIFIED IMMUNITY.
A. Standard of Review
The standard of review for a qualified immunity based motion to dismiss is de
novo. Ray v. Roane 948 F.3d 222, 226 (4th Cir. 2020).
5
B. Discussion: Heckler’s Veto right was Clearly Established
To determine whether a right was clearly established, Courts in the Fourth Circuit
“ask whether, when the defendant violated the right, there existed either controlling
authority—such as a published opinion of this Court—or a "robust consensus of
persuasive authority," Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th Cir. 2017)
“that would have given the defendants "fair warning that their conduct was
wrongful." Williamson v. Stirling, 912 F.3d 154, 187 (4th Cir. 2018).” Turner v.
Thomas, 930 F. 3d 640 (4th Cir. 2019).
In Bible Believers v. Wayne Cnty., 805 F.3d 228, 236 (6th Cir. 2015) the Sixth
Circuit engaged in an extended discussion of the heckler’s veto doctrine. The Sixth
Circuit held: “The [protestors] attended the Festival to exercise their First Amendment
rights and spread their religious message. The way they conveyed their message may
have been vile and offensive to most every person…….; nonetheless, they had every
right to espouse their views. See Cantwell, 310 U.S. at 309, 60 S.Ct. 900. When the
message was ill-received, the police did next to nothing to protect the [protestors] or to
contain the lawlessness …….in the crowd… ......... On this record, there can be no
reasonable dispute that the [police] effectuated a heckler's veto, thereby violating the
[protestors] First Amendment rights.”
In making this holding the Sixth Circuit relied on numerous U.S. Supreme Court
decisions. “[E]xpressive activity cannot be proscribed merely because it ‘stirred people
to anger, invited public dispute, or brought about a condition of unrest.’ ” Edwards v.
6
South Carolina, 372 U.S. 229, 238 (quoting Terminiello v. City of Chicago, 337 U.S. 1,
5 )” ; “[P]olice cannot punish a peaceful speaker as an easy alternative to dealing with a
lawless crowd that is offended by what the speaker has to say. Bible Believers 805 F.3d
228, 250. “[T]he espousal of views that are disagreeable to the majority of listeners may
at times “necessitate police protection,” Edwards, 372 U.S. at 237.
The Sixth Circuit is not alone in it’s interpretation of the heckler’s veto. The Third
Circuit has explained “"If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397,
414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also Boos v. Barry, 485 U.S. 312,
322, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) ("[I]n public debate our own citizens must
tolerate insulting, and even outrageous, speech in order to provide adequate breathing
space to the freedoms protected by the First Amendment.") Startzell v. Fisher
533 F.3d 183, 200 (3d Cir. 2008). “[W]e agree with appellants that the heckler's veto
analysis is not so limited (to an anticipated hostile reaction) but may apply to situations
where police restrict speech that is taking place” Id. quoting Frye v. Kansas City Police
Dep't, 375 F.3d 785 (8th Cir. 2004).
The Seventh Circuit has explained that “ the Supreme Court held in Terminiello v.
City of Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), and the holding
has been repeated countless times, see, e.g., Cox v. Louisiana, 379 U.S. 536, 551-52, 85
S.Ct. 453, 13 L.Ed.2d 471 (1965); Collin v. Smith, 578 F.2d 1197, 1206 (7th Cir.
7
1978); PeTA, People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198,
1206-07 (10th Cir. 2002); see also Reno v. American Civil Liberties Union, 521 U.S.
844, 880, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), that a permit for a parade or other
assembly having political overtones cannot be denied because the applicant's audience
will riot. To allow denial on such a ground would be to authorize a "heckler's
veto." Church of the American Knights v. City of Gary 334 F.3d 676, 680 (7th Cir.
2003.)
The Fourth Circuit, far from calling any of the above into question, substantially
agrees with all of it. In the Fourth Circuit, Berger v. Battaglia 779 F.2d 992, 1001 (4th
Cir. 1985) commands "Nevertheless, however real the dilemma [ of public violence], we
think and hold that the [police] Department" must enforce the First Amendment.” Berger
at 1001. In the Fourth Circuit the only choice "wholly consistent with the First
Amendment" is to protect the speaker's rights as against a heckler's veto. Berger at 1001-
1002.
“Historically, one of the most persistent and insidious threats to first amendment
rights has been that posed by the `heckler's veto,' imposed by the successful importuning
of government to curtail `offensive' speech at peril of suffering disruptions of public
order. Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985). Courts have recognized a
heckler's veto as an impermissible form of content-based speech regulation for over
sixty years. See Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed.
1131 (1949). Repeatedly, courts have emphasized the state's responsibility to permit
8
unpopular or controversial speech in the midst of a hostile crowd reaction. See, e.g.,
Ovadal, 416 F.3d at 537; Smith v. Ross, 482 F.2d 33, 37 (6th Cir. 1973); Grider v.
Abramson, 994 F.Supp. 840, 845-16 (W.D.Ky. 1998). In the abstract, at least, the
impermissibility of a heckler's veto is clearly established by First Amendment
jurisprudence.” Rock for Life-Umbc v. Hrabowski 411 F. App'x 541, 554 (4th Cir. 2010).
Appellant respectfully asserts that the above establishes the necessary
“robust consensus of persuasive authority," required to demonstrate that the specific
First Amendment right he is asserting in this litigation was “clearly established” in this
Circuit on August 12, 2017. Accordingly, the trial Court erred in finding appellees were
protected by qualified immunity.
II. THE TRIAL COURT ERRED IN FINDING THAT DeSHANEY

APPLIES TO THIS HECKLER’S VETO CASE
A. Standard of Review.
“[W]e review a grant of a motion to dismiss for failure to state a claim de
novo.” Weidman v. Exxon Mobil Corp. 776 F.3d 214, 219 (4th Cir. 2015.) In
reviewing a motion to dismiss for failure to state a claim, we must "accept as true
all of the factual allegations contained in the complaint and draw all reasonable
inferences in favor of the plaintiff." A complaint need only "give the defendant
fair notice of what the ... claim is and the grounds upon which it rests." Tobey v.
Jones , 706 F.3d 379, 387 (4th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly , 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A Rule 12(b)(6) motion
9
to dismiss ‘does not resolve contests surrounding facts, the merits of a claim,
or the applicability of defenses.’ " Id. (quoting Republican Party of N. Carolina v.
Martin , 980 F.2d 943, 952 (4th Cir. 1992) ).
B. Discussion: DeShaney does not apply to First Amendment cases
“Section 1983, of course, is not an independent source of substantive rights,
but simply a vehicle for vindicating preexisting constitutional and statutory rights.
The first step in any such claim is to pinpoint the specific right that has been
infringed.” Safar v. Tingle 859 F.3d 241, 245 (4th Cir. 2017.)
“Compared to the "more generalized notion" of due process, the Fourth
Amendment "provides an explicit textual source of constitutional protection
against [unreasonable seizures and arrests]," Id. Here, the First Amendment
provides “an explicit textual source” of protection for Mr. Kessler’s First
Amendment rights. The Trial Court did not fail to note that fact in it’s Opinion. (JA
411 at footnotes.)
Importantly, none of the four cases relied on by the District Court in making
it’s DeShaney holding come anywhere near applying DeShaney to a heckler’s veto
or any other First Amendment claim. The District Court cited to Musso v.
Hourigan, 836 F.2d. 736 (2d Cir.1988); ;Doyle v. Town of Scarborough, 2016 WL
4764902, (D. Maine Sept. 13, 2016); Morlock v. West Cent. Educ. Dist., 46 F.
Supp. 2d 892,922 (D. Minn.1999); and Charlottesville connected Turner v.
Thomas, 930 F. 3d 640 (4th Cir. 2019).
10
Not a single one of these cases applies DeShaney to a First Amendment case.
In Musso the Court held that one city councilman had no duty to prevent another
city councilman from violating the First Amendment right of a speaker at public
council meetings. The Musso Court allowed claims to proceed against government
officials who actually violated the Plaintiff’s rights as well as other councilmen to
the extent they participated in the violation. Musso did not hold there was no duty
regarding its plaintiff’s alleged rights, nor did it deal in any way with heckler’s
veto or DeShaney.
In Doyle the Court held that city councilors had no duty regarding a
plaintiff’s First Amendment rights where they had no supervisory authority over
other councilors but were liable for their own misconduct. The Doyle Court did not
deal with heckler’s veto law or DeShaney.
Morlock was a student speech case. The Morlock Court was unimpressed
with its plaintiff’s argument that her speech had been chilled since the school
“tolerated sexual harassment” and she was consequently less willing or unwilling
to report said harassment. Once again, there is zero discussion of heckler’s veto
law or DeShaney though the phrase “no duty” does appear.
Lastly, the District Court and Appellees each cited to the Fourth Circuit case
of Turner v. Thomas 930 F. 3d 640 (4th Cir. 2019.) The Turner plaintiff seems to
11
have argued that the authorities’ failure to intervene in the violence in
Charlottesville VA on August 12, 2017 until it reached a crescendo actually caused
the violence, or made it worse, and this caused the personal injury to the Turner
plaintiff. Said plaintiff explicitly brought a state created danger/DeShaney claim
and therefore the Court properly applied DeShaney analysis. As above, there was
no discussion of a heckler’s veto claim.
Accordingly, there is no case law support whatsoever for the District Court’s
application of DeShaney to Appellant’s heckler’s veto claim. Indeed, as explained
above, mandatory precedent in this Circuit requires that the District Court not
apply “the more generalized” law of DeShaney to this First Amendment case.
III. THE TRIAL COURT ERRED IN FINDING THAT APPELLEES DID

NOT PARTICIPATE OR ACQUIESCE IN A HECKLER’S VETO
WHEN THEY DECLARED AN UNLAWFUL ASSEMBLY AND
CANCELLED THE APPELLANT’S SPEECH
A. Standard of Review.
“[W]e review a grant of a motion to dismiss for failure to state a claim de
novo.” Weidman v. Exxon Mobil Corp. 776 F.3d 214, 219 (4th Cir. 2015.)
B. Discussion
The District Court acknowledged that Appellees had a duty not to participate
or acquiesce in a heckler’s veto of Mr. Kessler’s protected speech. (JA 409, 411).
The District Court ignored much Appellant’s operative Complaint when it
12
analyzed Appellant’s claim that the unlawful assembly declaration and
subsequent complete suppression of Appellant’s speech constituted impermissible
participation or acquiescence in a heckler’s veto. (JA 409.)
It is the contents of the Heaphy Report that adds necessary detail to the
allegedly conclusory allegation cited by the Court. (JA 410.) The Heaphy Report
was attached as an exhibit to Appellant’s Complaint and the the Court itself held
the report to be integral to the Complaint. (JA 394.) Thus, that reports contents
must be considered in this appeal.
As listed above there was ample allegation that City of Charlottesville
officials were opposed to the content of Appellant’s speech. (JA 134, 140, 156,
157). Moreover “"Listeners' reaction to speech is not a content-neutral basis for
regulation." Draego v. City of Charlottesville Case No. 3:16-CV-00057, at
*31 (W.D. Va. Nov. 18, 2016; Moon, J.) citing Forsyth Cty., Ga. v. Nationalist
Movement, 505 U.S. 123, 134 (1992). Indeed, if Appellant’s Complaint says
anything, it says that “Antifa” was going to show up and punch Nazis on August
12, 2017 in Charlottesville. (JA 10-118.) Accordingly, the District Court must be
reversed so it can apply strict scrutiny to this portion of the Complaint.
The proper scrutiny level notwithstanding, the Court did apply intermediate
scrutiny. (JA 411.) “Under intermediate scrutiny, the State bears the burden of
proving that the law is "narrowly tailored to serve a significant government interest
13
and leave[s] open ample alternative channels of communication."
Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th Cir. 2013.) The
means chosen must not be substantially broader than necessary to achieve the
government's interest. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989.)
To demonstrate narrow tailoring, Appellees are required to present "actual
evidence supporting [their] assertion that [the] speech restriction[s] [do] not burden
substantially more speech than necessary." Reynolds v. Middleton, 779 F.3d 222,
229 (4th Cir. 2015).
Appellees must "prove that [the government] actually tried other methods to
address the problem." Reynolds at 231 (emphasis in original). "[T]he government
must show [] that it seriously undertook to address the problem with less intrusive
tools readily available to it, and must demonstrate that [such] alternative measures
. . . would fail to achieve the government's interests, not simply that the chosen
route is easier." Reynolds, 779 F.3d at 231-32 (emphasis in original).
Neither the District Court Opinion nor the Appellees have shown how
Appellee’s alleged actions comply with the above legal standard. Not unless
Appellees’s police officers telling Mr. Kessler he is not allowed to speak and must
leave with everyone else (JA 21) constitutes an ample alternative channel of
communication or unless the “capitol of the resistance’s” police chief commanding
14
“let them fight, it will make it easier to declare an unlawful assembly” (JA
17) constitutes narrowly tailored in this Circuit.
C. Remaining Claims
The District Court dismissed Mr. Kessler’s Monell and supervisory liability
claims in quick fashion (JA 22-23) as it found they must be dismissed due to the
finding that no constitutional violation had been successfully pled or that qualified
immunity applied. Appellant concurs that if this Court sustains the trial Court then
the Monell and supervisory liability claims also fail. However, as shown above the
District Court must be reversed and, if so, then it must be reversed as to the Monell
and supervisory claims as well.
CONCLUSION
For the reasons stated above, Mr. Kessler respectfully requests that this
Court reverse the District Court as to all claims and remand this matter so that
Appellant can begin litigating his case. In the alternative, Mr. Kessler requests that this
Court reverse the District Court and remand this matter so that that Court can
reexamine the motion to dismiss issues in the light of the correct legal standard, to wit:
that DeShaney does not apply to heckler’s veto claims, that Mr. Kessler’s alleged rights
were clearly established in this Circuit on August 12, 2017, that strict scrutiny should
be applied to the participation or acquiescence in a heckler’s veto claim cause of action
or at least that the correct intermediate scrutiny standard should be used to examine the
viability of the claim.
15
Respectfully submitted, this 2nd day of March 2021.
/s/ James E. Kolenich

James E. Kolenich
KOLENICH LAW OFFICE
9435 Waterstone Blvd., Suite 140
Cincinnati, OH 45249
Ohio Bar # 0077084
(513) 444-2150
[email protected]
/s/ Elmer Woodard

Elmer Woodard
5661 US Hwy 29
Blairs, VA 24527
434-878-3422
Email: [email protected]
ATTORNEYS FOR PLAINTIFF-APPELLANT

JASON KESSLER
16
CERTIFICATE OF COMPLIANCE
1. This brief complies with type-volume limits because, excluding the parts of
the document exempted by Fed. R. App. P. 32(f) (cover page, disclosure
statement, table of contents, table of citations, statement regarding oral
argument, signature block, certificates of counsel, addendum, attachments):
[ X ] this brief contains [4,533] words.
[ ] this brief uses a monospaced type and contains [state the number of]
lines of text.
2. This brief complies with the typeface and type style requirements because:
[ X ] this brief has been prepared in a proportionally spaced typeface using

[Microsoft Word 365] in [14pt Times New Roman]; or
[ ] this brief has been prepared in a monospaced typeface using [state

name and version of word processing program] with [state number of
characters per inch and name of type style].

Dated: March 2, 2021 Counsel for Appellant
17
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 2nd day of March, 2021, I caused this Brief of Appellant
and Joint Appendix to be filed electronically with the Clerk of the Court using the CM/
ECF System, which will send notice of such filing to the following registered CM/ECF
users:
Richard Hustis Milnor, Esq.

Direct: 434-977-0191
ZUNKA, MILNOR & CARTER LTD
414 Park Street
Charlottesville, VA 22902-0000
Counsel for Appellee City of Charlottesville
David Patrick Corrigan

Direct: 804-747-5200
HARMAN CLAYTOR CORRIGAN & WELLMAN
P. O. Box 70280
Richmond, VA 23255
Counsel for Appellee Al S. Thomas
Melissa Yvonne York

Direct: 804-747-5200
HARMAN CLAYTOR CORRIGAN & WELLMAN
Suite 100
P. O. Box 70280
Richmond, VA 23255
Counsel for Appellee Al S. Thomas
Toby Jay Heytens

Direct: 804-786-7240
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA
202 North 9th Street
Richmond, VA 23219
Counsel for Appellee Becky Crannis-Curl
Michelle Shane Kallen

Direct: 804-786-7704
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA
202 North 9th Street
Richmond, VA 23219
Counsel for Appellee Becky Crannis-Curl
Rosalie Fessier
Direct: 540-885-1517
TIMBERLAKE SMITH
18
25 North Central Avenue
P. O. Box 108
Staunton, VA 24402-0108
Counsel for Appellee Maurice Jones

Counsel for Appellant Jason Kessler
19

Kessler V Charlottesville Appeal Brief

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Kessler V Charlottesville Appeal Brief

Uploaded by

Copyright:

Available Formats

USCA4 Appeal: 20-1704 Doc: 26 Filed: 03/02/2021 Pg: 1 of 25

RECORD NO. 20-1704

United States Court of Appeals

CITY OF CHARLOTTESVILLE et al.,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

Counsel for Appellant

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF JURISDICTION .......................................................................... 1

ISSUES PRESENTED ............................................................................................... 2

STATEMENT OF THE CASE .................................................................................. 2

I. WELL PLED ALLEGATIONS ............................................................ 2

II. THE COURT DISMISSES APPELLANT’S COMPLAINT ............... 4

SUMMARY OF THE ARGUMENTS ...................................................................... 5

I. THE TRIAL COURT ERRED IN FINDING THAT

A. Standard of Review ..................................................................... 5

II. THE TRIAL COURT ERRED IN FINDING THAT

A. Standard of Review ................................................................... 9

III. THE TRIAL COURT ERRED IN FINDING THAT APPELLEES DID

CERTIFICATE OF FILING AND SERVICE

Bell Atl. Corp. v. Twombly ., ,

Bible Believers v. Wayne Cnty.,,

Booker v. S.C. Dept of Corr., ,

Church of the American Knights v. City of Gary,

Clatterbuck v. City of Charlottesville,

Deshaney v. Winnebago County Department of Social Services,

Doyle v. Town of Scarborough,

Draego v. City of Charlottesville

Edwards v. South Carolina,

Forsyth Cty., Ga. v. Nationalist Movement,

Frye v. Kansas City Police Dep't, ,

Morlock v. West Cent. Educ. Dist.,,

Ovadal v. City of Madison,

PeTA, People for the Ethical Treatment of Animals v. Rasmussen,

Reno v. American Civil Liberties Union,

Republican Party of N. Carolina v. Martin ,

Rock for Life-Umbc v. Hrabowski,

Terminiello v. City of Chicago,

Weidman v. Exxon Mobil Corp.,

U.S. CONST. amend. I .....................................................................................passim

42 U.S.C. § 1983 ..............................................................................................1, 10

CITY OF CHARLOTTESVILLE et al.,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

had subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. On February

I. DID THE TRIAL COURT ERR IN APPLYING DeShaney v. Winnebago

III. DID THE TRIAL COURT ERR IN FINDING THAT EVEN IF A

STATEMENT OF THE CASE

Appellant Jason Kessler held a permit to hold a political rally in

Semitic content and phraseology. Appellees were aware of significant public

Several elected officials in Charlottesville were outspoken in their hostility to the

content of Kessler’s speech as well (JA 134 identifying Charlottesville as “capital

Bellamy’s social media activity. (JA 157).

Appellees’ engaged in a plan to use the expected public hostility as an

Amendment protected speech. (JA 21.)

objection from Appellant, that a report commissioned by the City of Charlottesville

his Notice of Appeal on June 29, 2020.

I. THE COURT DISMISSES APPELLANT’S COMPLAINT

Appellant’s factual allegations to be implausible. (JA 410.)

whether the Appellees’ unlawful assembly declaration constituted an impermissible

participation or acquiescence in a heckler’s veto. (JA 411.)

immunity, finding that Fourth Circuit persuasive precedent specifically allowed

protestor violence. (JA 413.)

SUMMARY OF THE ARGUMENTS