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Jeff Fogel participates in a local candidate panel during the Charlottesville People's Summit at The Haven on Saturday, June 10, 2017. The local event, which featured progressive politicians and activists engaging in panels and discussions, coincided with national People's Summit in Chicago. Photo/Ryan M. Kelly/The Daily Progress

A firebrand civil rights attorney who recently ran for Charlottesville’s top prosecutor post has filed a complaint against the magistrate who opted to have him arrested for a misdemeanor assault charge.

Earlier this month, Jeff Fogel filed a formal complaint with the 16th Judicial District’s Magistrate Office against Magistrate Justin Garwood. Per a letter attached to the complaint, Fogel accuses Garwood of unnecessarily calling for his arrest, which led to five officers awakening Fogel at his home at 12:30 a.m. the day after the alleged assault.

The simple-assault charge arose from an encounter between Fogel and right-wing blogger Jason Kessler on the night of June 1. According to previous reports, Fogel had been dining at Miller’s on the Downtown Mall at the same time as Kessler, who was there with about 10 others. Soon after, a group of people, including members of the left-wing group Showing Up for Racial Justice, arrived and began chanting “Nazis go home” at Kessler and his group.

Kessler leads a right-wing group called Unity and Security for America, which has railed against the removal of the statue of Confederate Gen. Robert E. Lee in Emancipation Park (known until recently as Lee Park) and has aligned itself with white nationalist groups. Kessler previously has said he does not identify as either a white supremacist or a white nationalist.

At some point during the incident, one person from Kessler’s group came over to Fogel and called him a “communist.” While not a member of SURJ, Fogel has been a well-known advocate for progressive causes around the city.

During that confrontation, Fogel reportedly assaulted one of Kessler’s compatriots. A video of the incident appears to show the 72-year-old attorney giving an open-handed push to a man beside Kessler.

Immediately, Kessler and his friend started walking toward the nearby Charlottesville Police Department, while Fogel and several activists followed. Video taken from within the police station appears to show Fogel speaking with a city officer, who asks him to take a seat and answer questions.

The video goes on to show Fogel and the officer having an argument; that contentious tone follows as the officer attempts to ask Fogel questions, to which Fogel demurs. He was arrested later that night without incident and taken before Garwood, whom Fogel described in an earlier report to The Daily Progress as being curt and taking issue with his interactions with officers at the police station earlier that night.

Later that day, Fogel called 16th Judicial District Chief Magistrate Avnel A. Coates to complain about Garwood’s decision to have him arrested rather than issue a summons. In a letter sent to Fogel three days later, Coates told Fogel that he had looked into the matter and concluded that Garwood’s actions were warranted.

Specifically, Coates cites the “contentious interaction” between Fogel and the officer at the police department prior to the arrest, as well as the fact that the warrant was for “the crime of assault and battery wherein there was probable cause that there was an unwanted touching of the victim.”

“For both of these reasons, it is reasonable that there was a safety concern and thus a[n arrest] warrant was issued,” Coates writes.

That response did not appease Fogel. Four days later, Fogel filed a formal complaint with the office against Garwood. In an accompanying letter to Coates, Fogel said that while he appreciated the prompt response, Fogel still “strenuously objects to [Coates’] findings on the facts, the law and the application of the law to the facts.”

“You assert that there was a miscommunication regarding the reason why Magistrate Garwood ordered my arrest and prohibited the issuance of a summons. He said to me he did so because he ‘did not like the way I spoke to the sergeant,” Fogel writes. “That is what he told me and that is what he meant. You assert that the real reason for my arrest was the fact that I had ‘a contentious interaction … earlier … at the Charlottesville Police Department.’ I fail to see the distinction.”

Fogel further criticizes the notion that, because he was charged with assault, it was reasonable to conclude that he was a “danger to the community,” noting that state law permits the issuance of summons for Class I misdemeanors such as the one he’s been charged with.

“Moreover, the magistrate knew that, according to the victim, he was not harmed in any way,” Fogel writes.

Finally, Fogel asserts that, contrary to one of Coates’ explanations, Garwood threatened to hold him without bond because of his verbal reaction to some of Garwood’s statements about why he was arrested.

“You justify this threat by claiming that magistrates ‘sometimes’ do ‘remind an offender of the possible outcomes of a bond hearing in order to give the offender a chance to correct any aggressive, unprofessional, combative, disrespectful, untruthful behavior,’” Fogel writes. “In other words, according to you, Magistrate Garwood’s threat to jail me without bond was reasonable and certainly not unusual.”

Citing case law from 1987, Fogel notes that the U.S. Supreme Court has ruled that the First Amendment protects “a significant amount of verbal criticism and challenge directed at police officers,” asserting that Garwood therefore ignored the First Amendment by having him arrested “precisely because I exercised my right to verbally criticize a police officer.”

The next hearing in Fogel’s case is set for July 5.

Earlier this month, Fogel lost the Democratic primary for commonwealth’s attorney to city Assistant Commonwealth’s Attorney Joe Platania, who faces no opposition in the general election.

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Dean Seal is a reporter for The Daily Progress. Contact him at (434) 978-7268, dseal@dailyprogress.com or @JDeanSeal on Twitter.

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