A federal lawsuit accusing the former chiefs of the Charlottesville and Virginia State Police forces of ordering officers not to intervene in the violence at the Aug. 12, 2017, white supremacist rally has been dismissed on appeal.

Robert Sanchez Turner filed the suit in September 2017 through Nexus Caridades Attorneys, a Verona-based law group. It was one of the first lawsuits to be filed in the wake of the rally and is now among the few to reach some degree of resolution.

Turner’s suit sought an unspecified amount in punitive damages from then-city Police Chief Al Thomas and then-state police Col. W. Steven Flaherty, as well as the city of Charlottesville.

The lawsuit was dismissed last year by a U.S. district court judge and was subsequently brought to the 4th Circuit Court of Appeals, which denied the appeal in a written opinion Friday.

In the complaint, Turner claimed that law enforcement officials commanded “subordinates to stand down while hundreds of white supremacists and their sympathizers assaulted and seriously injured counter-protesters.”

When announcing the lawsuit in September 2017, with the pain still fresh, Turner said he was seeking answers to why the police stood down.

“I’m here, standing up, because that’s what I have to do. The pain is still there from being beaten,” he said. “I’m here standing so we all can get answers from the police why they were standing around, watching everything happening ... and not helping anybody.”

The lawsuit stated that Turner was not engaged in any taunting or name-calling and did not engage in any form of violence. The suit accused Thomas and Flaherty of being “accessories to, and facilitators of, unconstitutional hate crimes” and claims officers were within 10 feet of Turner when he was assaulted.

A report prepared by Tim Heaphy — a former U.S. attorney for the Western District of Virginia whose law firm, Hunton & Williams, was hired by the city to review its preparations for and response to the rally — seemingly backed up Turner’s claims. The 207-page report alleged that Thomas intentionally allowed the fighting in and around Market Street Park on the morning of the rally so that an unlawful assembly could be declared.

“When violence was most prevalent, CPD commanders pulled officers back to a protected area of the park, where they remained for over an hour as people in the large crowd fought on Market Street,” the report says.

The report further alleges that the violence was compounded by poor communication between city officials, the CPD and state police, the latter of which had its own operational plan that it did not disclose and continues to fight requests for its disclosure.

In May 2018, U.S. District Judge Norman K. Moon dismissed Turner’s lawsuit, writing that the defendants had qualified immunity.

Specifically, Moon said the issue at question was whether there is a constitutional duty under the 14th Amendment for police to intervene to protect a citizen from criminal conduct by third parties. Because, as Moon wrote, he did not find this duty to be “clearly established,” he granted the defendants qualified immunity.

Nexus Caridades appealed the case to the 4th Circuit Court of Appeals, which affirmed Moon’s decision.

In their opinion, the appellate judges upheld the lower court’s decision and wrote that they agreed that the facts alleged did not amount to a violation of clearly established law.

“Before us is Turner’s claim that Thomas and Flaherty violated his substantive due process rights by ordering officers at the rally not to intervene in violence among protesters,” they wrote. “In general, a defendant’s mere failure to act does not give rise to liability for a due process violation.”

The opinion cited in part the Pinder v. Johnson case, in which a police officer was sued after he told a woman it was safe to return home after her ex-boyfriend was arrested because he would be in custody that night. The ex-boyfriend later returned to her home and burned it down, killing her children.

However, in that case, the 4th Circuit Court of Appeals found that the state does not commit an affirmative act every time it does anything to make the injury of a third party likely.

“But it was not clearly established at the time of the rally that failing to intervene in violence among the protesters would violate any particular protester’s due process rights,” they wrote in the rally case. “Accordingly, we agree with the district court that Thomas and Flaherty are entitled to qualified immunity, and we affirm the dismissal of Turner’s complaint.”

With his appeal denied, it appears Turner’s case is over.

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Tyler is a reporter for the Daily Progress. You can reach him at (434) 978-7268

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