By Tyler Hammel
CHARLOTTESVILLE — Larry J. Sabato has been with the University of Virginia for quite a while, but he never expected to see something like he did on Aug. 11, 2017.
Standing on the Lawn that evening, the Lawn pavilion resident and director of the UVa Center for Politics was unsure what to expect exactly. Surely the rumors they’d heard of a torch march couldn’t be real, he said.
Students were moving in to Lawn rooms that weekend, and Sabato said he and other faculty members had gone around earlier, encouraging them to leave for the night, “just in case.” It’s a good thing they did, he said, because not long after night came, so did the marchers.
“Just as it got dark, I saw some lights appear just from the west of Old Cabell [Hall], and then hundreds of these people appeared,” he said in a recent interview. “It immediately reminded me of Nazi rallies I had studied. They had hatred on their faces; I would call it a nightmare, but I was wide awake.”
What happened next is well-known, the haunting images of white men in polo shirts carrying torches, screaming anti-Semitic chants and surrounding counter-protesters, UVa faculty and students in front of the statue of Thomas Jefferson.
More than two years after that rally, some continue to advocate for criminal charges for the marchers under a state burning statute, despite claims from officials the statute is too weak.
The statute in question, Virginia Code Section 18.2-423.01 — a successor to a previous cross-burning law — makes it illegal to burn an object in a public place with the intent to intimidate or to make someone fear for their safety or life. The alleged crime could be treated as a felony or misdemeanor; felonies have no statute of limitations in Virginia.
For the last two years, Anne Coughlin, a professor of criminal law and procedure at UVa, has advocated for charges to be brought against the rally participants and organizers under the code section. After initially being cautious in advertising her search for students who had witnessed the march, Coughlin took her work public in April 2018 after Jason Kessler, the lead organizer of the Aug. 12, 2017, Unite the Right rally, returned to UVa Grounds.
Soon after, Kessler was issued a no-trespass order for misleading police and intimidating students at UVa’s law library. The decision was upheld on appeal.
UVa later expanded that list to 10 people last October, adding four members of the white supremacist Rise Above Movement who participated, as well as rally organizer and UVa graduate Richard Spencer, among others.
“More could have been done to prosecute these people who marched on UVa,” Coughlin said. “There is no doubt in my mind that they were there to intimidate and harm.”
Various students have expressed their willingness to talk with UVa police since the rally, Coughlin said, though many have since graduated and moved away.
Despite calls from Coughlin and others to charge participants and organizers under the burning statute, Albemarle County Commonwealth’s Attorney Robert Tracci has so far declined to do so. Alleged crimes on UVa’s Lawn fall under Albemarle’s jurisdiction.
Tracci, citing concerns about the statute, has recommended broadening the intent or the criminal prohibition on the use of open flames to threaten or intimidate, and endorsed a bill to that effect proposed earlier this year by Del. David J. Toscano, D-Charlottesville. The bill died in the General Assembly in February.
“It is my understanding additional public announcements from the University of Virginia Police Department encouraging witnesses and victims to provide interviews and other information may be forthcoming in the coming weeks,” Tracci wrote an email this week. “I applaud these outreach efforts and encourage those affected to contact the University of Virginia Police Department.”
Tracci also pointed to several similar torch rallies held in Charlottesville in 2017 in which former Charlottesville Commonwealth’s Attorney Dave Chapman also declined to pursue charges under the burning statute.
“I yield to nobody in my abhorrence of racism, white supremacy, and agents of hate who affront America’s values,” Tracci wrote. “The exercise of legitimate law enforcement authority rests upon the fair and faithful application of our Constitution and laws.”
“Public confidence in the prosecution function depends upon prosecutors bringing criminal charges based on applicable law, available evidence, and ethical obligations designed to safeguard the fair administration of justice in all cases.”
When asked about the rally and potential charges, a UVa spokesman said school police officials are still investigating the incident and that the university does not comment on active investigations.
While criminal charges stemming from the torch rally continue to be uncertain, civil cases continued to pop up prior to the statute of limitations expiring earlier this month. Perhaps the most significant of the lawsuits, Sines v. Kessler, filed by area residents at the time of the rallies, targets leaders and groups that put the UTR rally together.
The first named plaintiff, Elizabeth Sines, had been a UVa student at the time of the rallies and was among the first to see the torch-bearing marchers descend on Grounds, according to NPR.
The path to trial already has been long-winded, with various defendants ignoring discovery requests and even allegedly threatening plaintiffs’ counsel. Given the complicated nature of the lawsuit, it appears unlikely it will reach trial anytime soon.