Judge Moon Upholds Charlottesville Verdict, Reduces Damages

On December 30th, Judge Moon of the Western District of Virginia Federal Court, issued an order denying my motion for review of Magistrate Judge Joel Hoppe’s decision denying me more time to file post trial motions in the Charlottesville Unite the Right rally civil trial. Moments after that, he issued a memorandum opinion describing why he upheld the Jury’s verdict in the case, and reduced the punitive awards from many millions, down to $350,000 for the entire lawsuit.

Though the motion was not added to the record, you can read what I sent to the Court on December 26th here. It summarises in a far more legible format, the numerous handwritten motions I had sent from prison to the Court.

In case you haven’t been keeping up, in August of 2017, a permitted demonstration held by pro-White activists was held in Charlottesville, Virginia. The demonstration was attacked by Antifa and Black Lives Matter thugs, but the demonstrators didn’t take it lying down. We defended ourselves, admirably, and were relentlessly persecuted through the legal system afterwards. There were civil and criminal trials, but the criminal matters are beyond the scope of this post. Today I am writing about the civil trial, and today’s judgement.

I represented myself in the case back in November of 2021. During the trial I was incarcerated, and for 14 months of that incarceration, the Plaintiffs in the case failed to keep me apprised of what was happening in the case, as is their obligation. Shortly after this misconduct was discovered, the Plaintiffs sent me a 2 terabyte encrypted hard drive at the county jail where I was held with thousands of files on it, hoping to make up for this supposed clerical error (or flood me with stuff I would obviously have no capacity to review).

Under the best of circumstances, this would not have resolved the problem, and these were not the best of circumstances.

Less than two weeks after receiving this giant dump of discovery and legal filings, I was moved from that county jail to a private prison in Tallahatchie, Mississippi, run by the Corrections Corporation of America. I was stripped of all my property, including the hard drive and all my documents at the time I was moved. There, I was only allowed to receive electronic materials from my attorney, but I was pro se and didn’t have one. I spent a month trying to explain this to the facility’s administration, and before the problem could be resolved, I was shipped to USP Marion’s Communications Management Unit (CMU).

The CMU is frequent home to prison litigators and political prisoners, and I was a member of both categories. The facility is designed, and the staff are trained, in part, to obstruct pro se litigation. I was not allowed to possess vital documents in the case, my access to digital discovery was limited, I was prevented from getting help from other prisoners, and for over a year I was denied the ability to purchase a part required to use a typewriter.

I could write for days on the subject of the government’s unlawful interference in the litigation, but we’ll leave it there for now. It is described in greater detail in the aforementioned motion.

The case had 6 counts.

The first two counts alleged a racially motivated violent conspiracy. The jury deadlocked on these counts after asking during jury deliberations if “words are a form of violence”.

The 3rd count was a Virginia civil conspiracy to violate any one of half a dozen Virginia statutes, including the Virginia “hate crimes” statute which allowed the Defendants to be held liable for racially motivated “violence, vandalism, or harassment. The Jury found all defendants liable on this count and gave $1 in compensatory damages to all but two Plaintiffs, and held individual Defendants liable for $500,000 in punitive damages and organizational defendants liable for $1,000,000 in punitive damages.

The 4th count contained no conspiracy element for the same Virginia hate crimes statute, holding a 5 of the defendants (including me) liable for $250,000 in compensatory damages to two Plaintiffs (total $500,000), and $200,000 in punitive damages.

The 5th Count was against James Fields, who after being attacked while driving, crashed his car into the crowd, killing one person not party to the suit, and injuring several of the Plaintiffs. This count held him liable for assault.

The 6th Count was also against James, and held him liable for intentional infliction of emotional distress.

I had asked the Court to grant me more time to file post trial motions owing to the unlawful interference in the litigation by the government. Magistrate Judge Joel Hoppe denied that motion, and I asked for review by Judge Moon. On December 26th, 7 days after I was released from custody, I submitted my post trial motion to the Court. Today, the Court denied my motion for review of the Magistrate’s order, stating, in relevant part;

That was more than enough time for Cantwell to develop and raise his post-trial arguments. And Cantwell took full advantage of that time, filing numerous, lengthy, and substantial post-trial motions that were fully considered by the Court. See Dkts. 1488 (initial post-trial motion), 1536 (supplement); see also Dkt. 1557 (second supplement); Dkt. 1580 (third); Dkt 1610 (another). Notwithstanding Cantwell’s claims of lack of access to record materials, he has raised a multitude of legal and evidentiary challenges—many more than any other Defendant in fact—and this Court has fully considered them. On account of the fulsome and detailed nature of the arguments Cantwell has raised in his briefing, the Court discerns no prejudice from his claims of lack of access to the record or delays in receipt of documents. At bottom, the Court can discern no reason why the Magistrate Judge would have been required to afford him additional time at all, much less the requested and substantial months-long delays Cantwell repeatedly sought.

Moments later came the memorandum opinion upholding the Jury’s verdict, but reducing the awards.

The Court affirms the jury verdict finding all Defendants liable, reduces the punitive damages award as compelled by the Virginia statutory cap on punitive damages, and otherwise affirms the jury verdict.

The first thing to understand, is that the decision is just plain wrong, and provides ample grounds for appeal. We’ll talk about the reduction of damages, which is a meaningful victory for us, but that is less important than what is at the heart of the matter. Without the verdict on Counts 1 and 2, which alleged a racially motivated violent conspiracy, we are left with the Virginia hate crimes statute, which allows the Defendants to be held liable for harassment. Since a permitted demonstration is not harassment, and since we were not sued for harassment, the jury improperly held us liable for constitutionally protected speech.

As I argued;

The primary thrust of Cantwell’s argument is that Plaintiffs ought not be able to collect a consolation prize of hate speech reparations after suing for a racially motivated violent conspiracy. While the jury instructions may have been given an accurate description of Va. Code Ann. § 8.01-42.1 in their instructions, that Plaintiffs only needed to prove one and not all possible theories of liability on Counts 3 and 4 (racially motivated violence, vandalism, or harassment), the Defendants, and Cantwell in particular, were sued for violence, not harassment. There is no conceivable possibility that they were held liable for vandalism.

If the Jury had found a conspiracy to commit racially motivated violence, there would have been a verdict on Counts 1 and 2. Similarly, if, as Plaintiffs contend, Defendant Fields’s car crash was the overt act of the conspiracy of Count 3, the Jury would have had no trouble reaching a verdict on Counts 1 and 2. Since Fields (under threat of execution) pleaded guilty to intentionally striking Plaintiffs with his car out of racial animus, anyone who conspired with him to do such a thing would clearly have run afoul of Counts 1 and 2, and, like Fields, this lawsuit would be the least of their problems.

Instead, after asking the Court if  “words are a form of violence”, the jury deadlocked on Counts 1 and 2, returning verdicts of liability on the remaining

The implications here are very obvious. The Jury was happy to find the Defendants liable for the racially motivated harassment component of Counts 3 and 4 because they found the Defendants’ political demonstration distasteful, and wanted them punished for their words. During deliberations, one or more jurors said “Words are a form of violence” with the implication that words alone were cause to find on Counts 1 and 2 as well as Counts 3 and 4, and the less unreasonable people in the room drew a line they would not cross.

It would also be nonsensical to award $1 in compensatory damages from coconspirators in a racially motivated homicide and assault, especially since Ms.
Sines was awarded damages from Mr. Fields. Yet, her and Mr. Wispelwey were awarded $0 from the Defendants of Count 3. The Plaintiffs were only awarded a token sum of compensatory damages in a (legally inadequate) attempt to justify the punitive awards, because there were no actual damages to compensate on Count 3.

The Jury only sought to punish the Defendants for their demonstration. Not to compensate the Plaintiffs for harm done, because the words did no actual harm. While Cantwell appreciates their restraint, he was not sued for harassment. He was sued for violence. Without a finding of a racially motivated violent conspiracy, Cantwell cannot be held liable for expressing views others find distasteful, much less for being in the company of others who express those views.

The Court ignored the plain sense of this, and responded as follows;

Cantwell challenges the jury’s verdict finding him liable for civil conspiracy in Count III. See Dkt. 1488 at 7–8. Cantwell argues that, because the jury did not reach a verdict on either Counts I or II, “the parties are now left to ponder just what law the Defendants were found to have conspired against.” Id. at 7. Cantwell’s argument lacks merit. The Virginia state law civil conspiracy instructions clearly described the elements of the offense. See Dkt. 1461 at ECF 38– 40 (Instruction 23). And indeed, Cantwell does not contend otherwise. Cantwell’s argument in this respect does nothing more than attempt to fabricate an inconsistency or ambiguity in the verdict when there is none. The jury found Cantwell liable for conspiracy. The jury also found Cantwell liable for one of the one of the listed predicate unlawful acts—racial, religious, or ethnic harassment or violence, in violation of Virginia Code § 8.01-42.1 (Count IV).

Well, exactly. They found us liable for one of these things. Since the Jury didn’t find us liable for a violent conspiracy, we were held liable for something other than that, and we were not sued for something other than that. Therefore the verdict should not be upheld.

He responds again subsequently,

Cantwell also argues that given the fact that the jury didn’t reach a verdict on Counts I or II, that the jury must have found Defendants “liable for something other than violence, such as speech.” Dkt. 1536 at 11. However, the Court contrasted “abstract advocacy of lawlessness, or mere advocacy of the use of force, which is protected speech” under the First Amendment, from whether Defendants committed the specific violations of law that Plaintiffs alleged, including a conspiracy alleged by Plaintiffs, which “are not protected by the First Amendment.” Dkt. 1461 at ECF 53 (Instruction 30). The jury found Cantwell and the other Defendants liable for Virginia state law civil conspiracy, racial, religious or ethnic harassment or violence in violation of Virginia Code § 8.01-42.1, and other counts (for Fields). Juries are presumed to follow the court’s instructions, CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009), including here that they found Defendants liable on Counts III and IV upon finding the elements of those claims satisfied, and not based upon mere advocacy or advocacy lawlessness or use of force.

Well, actually “In the absence of evidence to the contrary, a jury is presumed to have complied with the instructions given to it.” (People v. Crow (1994) 28 Cal.App.4th 440, 446.)

Here we have evidence to the contrary. The jury clearly found us liable for something other than a racially motivated violent conspiracy, as evidenced by the deadlock on Counts 1 and 2, and by their question to the court if “words are a form of violence” during deliberations.

I will appeal this verdict, and if the 4th Circuit does its duty (which is not at all certain) I will prevail.

Now, onto the winning part.

Virginia law limits punitive damages to $350,000 “per action”.  So, for all Defendants, and all Plaintiffs, the total punitive damages were brought to this number, down from many millions.

The Judge did not alter the compensatory damages.

When the verdict came down, Defendants argued the awards on Count 3 were unconstitutional because the punitive to compensatory ratio was a violation of our due process rights. There is caselaw on this subject, see State Farm v. Campbell. You can’t compensate a Plaintiff $1 in losses then hit a Defendant with $500,000 in punitive damages because they have no relation to one another. The Court took the position that this should not be applied on a count by count basis, and that the comparison should be made to the capped punitive damages of $350,000 and not what the jury awarded.

At bottom, considering the language of Virginia’s statutory cap, the Fourth Circuit’s precedent in Al-Abood, and lacking subsequent precedent from the Supreme Court of Virginia or the Fourth Circuit clarifying the application of the statutory cap in multiple-plaintiff cases,29 the Court concludes that Virginia’s $350,000 statutory cap on punitive damages applies to the action as a whole, and not on a per-plaintiff basis. Accordingly, the jury’s punitive damages award will be reduced to $350,000 against all Defendants found liable on Counts III, IV, V and VI.

As discussed above, applying Virginia’s statutory punitive damages cap, the total punitive damages liability for Defendants is $350,000. No party argues that the Court should apply anything other than the pro-rata portion of each Defendant’s responsibility of the total punitive damages awarded for purposes of calculating the applicable ratio. No ratio comes anywhere close to raising due process concerns of an excessive punitive damages award. Here, Fields has the highest ratio of punitive to compensatory damages—the jury held him responsible for 52 percent of total punitive damages (i.e., $182,000)—and it still is well below a 1-1 ratio: 0.091 of punitive to compensatory damages. That does not present any constitutional issue of an excessive punitive damages award—far from it. See, e.g., Morris v. Bland, 666 F. App’x 233, 241 (4th Cir. 2016) (“single digit ratios generally do not present a constitutional issue”). The others’ ratios are even less consequential. Far from their protestations of an unconstitutionally excessive 500,000-to-1 ratio, Kessler, Spencer, and Cantwell, for their part, would owe a pro rata portion of punitive damages amounting to $10,208, resulting in a 0.0078 ratio of punitive to compensatory damages. Hill, Tubbs, Schoep and Damigo would owe a pro rata portion of punitive damages of $7,292, resulting in a smaller-still ratio of 0.0056 ratio of punitive to compensatory damages. League of the South, National Socialist Movement and Traditionalist Worker Party would each owe $14,583.33 in punitive damages, resulting in a 0.011 ratio of “Under a “claim-by-claim” approach for Count IV, the jury found Defendants Kessler, Spencer, Kline, Ray, and Cantwell, each responsible for $100,000 in compensatory damages, and each responsible for $200,000 in punitive damages. See Dkt. 1478 at 6 (jury verdict). As a percentage of the total capped $350,000 punitive damages award, each of the five Defendants would be responsible for about $2,916 in punitive damages on this count, resulting in a 0.029 ratio of punitive to compensatory damages for this count.

“Under a “claim-by-claim” approach for Count IV, the jury found Defendants Kessler, Spencer, Kline, Ray, and Cantwell, each responsible for $100,000 in compensatory damages, and each responsible for $200,000 in punitive damages. See Dkt. 1478 at 6 (jury verdict). As a percentage of the total capped $350,000 punitive damages award, each of the five Defendants would be responsible for about $2,916 in punitive damages on this count, resulting in a 0.029 ratio of punitive to compensatory damages for this count.”

I presume the Judge can do, or hire someone to do math, so I haven’t checked the numbers yet, but let’s say this leaves me owing roughly $113,000. That’s a lot better than the roughly $800,000 I’d have been on the hook for otherwise, but still a lot more than these crooks deserve.

More to the point, I argued that the Jury’s outrageous award was evidence of their improper motive. Seeking to punish Defendants for their demonstration, they awarded nominal compensatory damages on Count 3, for the specific purpose of punishing the Defendants’ speech with outrageous punitive awards. It is fine that the Court reduced those awards, but it does not solve the problem that this is evidence of the central claim of my argument, that we were not held liable for what we were sued for.

I have only begun, to fight.

Help me to do so, with your financial support.


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