Usually, the scales of justice are balanced on police investigations and prosecutorial strategy. But sometimes, citizens lead the charge.
Citizen-sworn arrest warrants seem like a relic of the past, but in Virginia, anyone with enough evidence can seek charges against someone else.
In the weeks and months after white supremacists stormed through downtown Charlottesville, leaving a trail of violence, city police have received dozens and dozens of reports. But other citizens who were injured at the rally chose a different route.
As a citizen, seeking an arrest warrant is not that hard, with enough preliminary evidence.
On Oct. 9, Harold Ray Crews, who attended the failed United the Right rally, sought a warrant for felony unlawful wounding against DeAndre Harris, a young man beaten bloody in the Market Street Parking Garage after police broke up the event.
Crews went before a magistrate and swore out the warrant as a private citizen.
In his complaint, Crews wrote, “Deandre Harris, hereinafter Harris, did on 8-12-17 on Market Street strike me to the left cheek with a blunt weapon without provocation either to himself or any companions.”
“As a result of this attack I have been permanently scarred,” he wrote.
Warrants for felony charges require that a police officer or a commonwealth’s attorney’s office authorize the charge and sign the warrant, said Charlottesville Commonwealth Attorney Dave Chapman — who would not speak specifically about Harris’ case.
“If it’s a felony matter, a magistrate cannot issue an arrest warrant without the commonwealth’s attorney or law enforcement officer signing it,” Chapman said.
In this case, Charlottesville police Officer R.A. Oberholzer signed the warrant, authorizing it and Harris’ subsequent arrest. Magistrate Merlyn Goeschl then signed off on it.
The warrants were served to Harris on Oct. 13, and he was released from custody on an unsecured $5,000 bond.
While there are benefits to the citizen warrant system, there can also be obvious repercussions, said Josh Bowers, a professor of criminal law at the University of Virginia and a former public defender.
Historically, Bowers said, criminal justice was pursued and administered by private citizens, which included constables and magistrates. Though the system no longer operates quite in that way, he said there is some benefit of lay people playing a role in the criminal justice system — such as citizen-sworn arrest warrants.
“It helps to make sure the criminal justice system doesn’t become too detached from the community,” Bowers said. “There are times when police and prosecutors fall down on the job. A classic example is the failure of police and prosecutors in the South during the Jim Crow era, with white violence against black citizens.”
However, both Bowers and Chapman said the system allows people to use it as an opportunity to manipulate the criminal justice system to their own ends. Most notably, it can be used as a form of retaliation or expression of biases.
“Private citizens may exercise their own biases to the detriment of someone who doesn’t deserve to be arrested or prosecuted, or who was a victim — as might be the case with Harris,” Bowers said. “From videos I’ve seen, he seems like the victim.”
“With the right magistrate asking the right questions, you may have the right kind of check, but I don’t think we saw that here,” he added. “I think they were entirely too quick to ignore the context in which it was sought and to issue the warrant where risk of race-based vindictiveness was intolerably high.”
From time to time, Chapman said, it is necessary to bring perjury charges against individuals who are found to have lied under oath in order to seek an arrest warrant against someone. Sometimes, the issue is handled with a lesser offense of making a false statement.
“It’s a solemn act,” said Chapman. “The person is making a sworn statement under penalty of perjury. The law intends that it not lightly be undertaken and that the person be obviously truthful.”
Other states — including North and South Carolina, Georgia, Maryland, Idaho and New Hampshire — also allow private citizens to initiate criminal charges, to an extent. In South Carolina, for example, a citizen can approach a magistrate with a criminal complaint, but the magistrate cannot issue an arrest warrant, only a courtesy summons, according to section 22-5-110 of its state code.
In 2011, Virginia changed its law to require that citizens write out their complaint.
On Aug. 11, Emily Gorcenski, who uses they/their pronouns, went to UVa’s Rotunda to film the surge of white supremacists marching across Grounds the night before the Unite the Right rally was scheduled to take place. Gorcenski said they were pepper sprayed, while people screamed derogatory remarks at them.
The next morning, armed with a photo of the man they suspected of causing their injury, Gorcenski filed a police report with the UVa police department. After they gave the officer their statement, he suggested that they go before a magistrate and swear out an arrest warrant against the suspect — identified as Christopher Cantwell, a man who has risen to prominence in the white nationalist movement through his podcast, “Radical Agenda.”
Putting their statement down on paper, Gorcenski said they made a formal complaint in front of the magistrate and testified to the evidence they had that gave enough probable cause to suspect Cantwell was the perpetrator. Because the charges they sought are felonies — illegal use of gas and unlawful injury — the UVa police officer also testified and signed off on the warrants.
“At the time, the only thing I had was the photograph; I didn’t have video evidence,” Gorcenski said, describing footage that appears to show Cantwell deploying a substance near the Thomas Jefferson statue. “In fact, it was a month before I even looked at any of that video because it was just too difficult to watch.”
“That was enough for probable cause to issue an arrest warrant,” they said.
Gorcenski said it’s not as simple as walking in and asking for an arrest warrant. They had to identify Cantwell; report where he lived in order to serve the warrant; and offer enough evidence to show a crime was committed.
“It is a very low bar for that evidence; the magistrates are not lawyers or judges,” they said. “But they do have a duty to determine whether they think there’s probable cause.”
Last week, the charge of unlawful bodily injury was dismissed against Cantwell at his preliminary hearing because a judge decided there was not enough evidence to show he directly targeted Gorcenski. But Gorcenski said that they never sought that charge in particular because they never accused Cantwell of directly spraying them.
“I was actually surprised that they assigned two charges to me,” said Gorcenski. “I didn’t expect that. My accusation was never that Christopher Cantwell approached me directly with deliberate intent to injure me.”
“My accusation was that he used it in a public space and that I was affected by it,” they said. “I didn’t actually need to know that charge. The police were able to work with the magistrate to look up what the appropriate charge was, based on [the officer’s] testimony and my testimony.”
In October, Gorcenski also sought a warrant against Jason Kessler, the man who organized the Unite the Right rally. They accused Kessler of publishing their home address online with the intent to harass. As a misdemeanor charge, it was a little easier for Gorcenski to seek this warrant because they did not need a police officer or commonwealth’s attorney to sign off on it.
“I provided evidence — I had to provide quite a bit of evidence in this case — to show there was a crime committed because the statute I have it on, the internet harassment, is ‘with intent to harass,’” Gorcenski said. “The law doesn’t just say you can’t post somebody’s address. The law says you can’t do it with the intent to harass or intimidate.”
Gorcenski also had to provide evidence showing Kessler had direct control over the account that published their address. They showed the magistrate evidence that linked the account to Kessler’s personal domain and email, and that his personal Twitter advertised the account as belonging to him.
Right after it happened, Gorcenski said they were not going to do anything about it, except report the tweet to Twitter, which declined to delete the post. But five days later, Charlottesville police swarmed their home after someone called in an anonymous report that there was a disorder involving a firearm.
Police responded as a priority one call, meaning someone’s life was reported to be in imminent danger. As a gun owner, Gorcenski said the incident could have ended badly.
“I’m a gun owner and I’m under threat regularly because of all this nonsense,” Gorcenski said. “I answer the door sometimes with a gun if I don’t know who it is.
“So, I could have been shot dead, had I been home.”
While it will be difficult to prove who made the call, Gorcenski said there is an open investigation and they have their suspicions of who it was.
In terms of the process of swearing out warrants, Gorcenski said there are both benefits and downsides. But, they said, they will continue to use it as long as it can be used to get justice for the people who need it.
“I think the process itself is kind of ridiculous,” Gorcenski said. “We’ve seen it with the very fraudulent evidence used to swear out a warrant for DeAndre Harris.”
“But while it’s here, I’m going to use whatever avenues I can to find justice,” they said. “This system needs to start serving marginalized people or it needs to be taken down. I’m not sure which.”