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Turner v. Thomas

United States Court of Appeals, Fourth Circuit

July 19, 2019

ROBERT SANCHEZ TURNER, Plaintiff - Appellant,
v.
AL THOMAS, JR., in his individual capacity and his official capacity as Chief of Charlottesville Police Department; CITY OF CHARLOTTESVILLE, VIRGINIA; W. STEVEN FLAHERTY, in his individual capacity, Defendants - Appellees.

          Argued: March 21, 2019

          Appeal 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)

         ARGUED:

          Dallas 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.

         ON BRIEF:

          Mario B. Williams, NEXUS DERECHOS HUMANOS ATTORNEYS, INC., Atlanta, Georgia, for Appellants.

          Mark 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.

          Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.

          FLOYD, CIRCUIT JUDGE

         Appellant 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.

         I.

         Because 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.

         The 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 ...


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