Argued: March 21, 2019
from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior, District Judge. (3:17-cv-00064-NKM-JCH)
S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS, INC., Atlanta,
Georgia, for Appellant.
Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia; David Patrick Corrigan, HARMAN
CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia;
Richard Hustis Milnor, ZUNKA, MILNOR & CARTER LTD,
Charlottesville, Virginia, for Appellees.
B. Williams, NEXUS DERECHOS HUMANOS ATTORNEYS, INC., Atlanta,
Georgia, for Appellants.
R. Herring, Attorney General, Samuel T. Towell, Deputy
Attorney General, Erin McNeill, Assistant Attorney General,
Toby J. Heytens, Solicitor General, Matthew R. McGuire,
Principal Deputy Solicitor General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee W.
Steven Flaherty. Jeremy D. Capps, Douglas E. Pittman, HARMAN
CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia,
for Appellee Al Thomas, Jr.
FLOYD, HARRIS, and RICHARDSON, Circuit Judges.
Robert Sanchez Turner was attacked by protesters at the
"Unite the Right" rally on August 12, 2017 in
Charlottesville, Virginia. Turner claims that, pursuant to a
stand-down order under which police officers at the rally
were instructed not to intervene in violence among
protesters, officers watched his attack and did nothing to
help. Turner brought suit against Al Thomas Jr., former Chief
of the Charlottesville Police Department; W. Stephen
Flaherty, Virginia State Police Superintendent; and the City
of Charlottesville. The district court concluded that Thomas
and Flaherty were entitled to qualified immunity and
dismissed Turner's complaint for failure to state a
claim. We agree with the district court that the facts
alleged in Turner's complaint do not amount to a
violation of clearly established law. Accordingly, we affirm.
Turner's claim was dismissed on the pleadings, we take as
true all well-pleaded allegations in the complaint. See
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 253 (4th Cir. 2009). On August 12, 2017, the
"Unite the Right" rally was held in
Charlottesville's Emancipation Park to protest the
City's decision to change the Park's name from
"Lee Park" and remove a Confederate monument from
its grounds. Jason Kessler, leader of the far-right advocacy
group "Unity & Security for America," led
efforts to organize the rally.
City granted Kessler a permit to hold the rally and informed
him that heavy police presence and security would be
provided. But less than a week before the event, citing
traffic and safety concerns, the City revoked the permit.
Kessler challenged the revocation in the Western District of
Virginia on First and Fourteenth Amendment grounds, and the
district court reinstated the permit. According to Turner,
Thomas and Flaherty were "enraged" by the decision
to reinstate the permit. J.A. 24. In response, they enacted a
stand-down order under which officers on duty at the rally
would "refrain from intervening in any violent
confrontations between white supremacists and
counter-protesters unless given a direct command to do
so." J.A. 25. Turner alleges that officers told
protesters at the rally ...