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Jason Kessler files motion to overturn rally trial verdict, reduce punitive damages

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Kessler suit

DAILY PROGRESS PHOTO/ANDREW SHURTLEFF James Kolenich, attorney for Jason Kessler, speaks with the media after the jury gave a partial verdict in Sines v Kessler case Nov. 23, 2021 at the Federal Courthouse in Charlottesville.

Jason Kessler and two other defendants have filed post-trial motions seeking to overturn a federal jury’s verdict finding them responsible for a conspiracy to commit acts of violence surrounding the 2017 Unite the Right rally.

Kessler, Nathan Damigo and Identity Evropa are among more than a dozen defendants in the Sines v. Kessler lawsuit that spun out of the deadly events that rocked Charlottesville in August 2017.

After a month-long trial in Charlottesville’s federal court last fall, Kessler, Damigo, Identity Evropa and others were found by an 11-person jury to have entered into a conspiracy to commit violence in the Charlottesville events.

The jury’s decision was based on Virginia conspiracy laws. The jury could not make a unanimous decision on two federal conspiracy counts based on a federal anti-Ku Klux Klan law. Those counts specifically alleged the defendants entered into a conspiracy to commit racially motivated violence.

Racial motivation was a factor in the state conspiracy claim, though not as explicitly as the federal claims.

The jury also ordered the defendants to pay $1 in compensatory damages to seven of the nine plaintiffs and $500,000 in punitive damages. Each corporate defendant was ordered to pay $1 million.

Kessler was additionally ordered to pay $200,000 for racial, religious or ethnic harassment or violence committed against plaintiffs Natalie Romero and Devin Willis.

However, in a post-trial motion filed last week, Kessler’s and Damigo’s attorney, James Kolenich, argued that in spite of the jury’s findings the plaintiffs failed to prove his clients entered into a conspiracy.

“The plaintiffs were required to “present specific facts that would allow a jury to reach a verdict that is based on more than mere speculation,” Kolenich wrote, citing language from prior court cases. “Pursuant to [federal law], a district court may grant judgment notwithstanding the verdict if there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party.”

The bulk of Kolenich’s arguments end in the request for a directed verdict, which is a ruling entered by a judge who has determined there is insufficient legal evidence for a jury’s conclusion. For practical purposes, a directed verdict overturns a jury’s decision.

Kolenich argued that the plaintiffs’ evidence of unlawful conspiracy against Damigo included that he was friends with co-defendant Richard Spencer and Spencer’s friends and associates; that he was present at Alt Right parties where planning for Unite the Right was undertaken; that he asked for fake Antifa accounts to be set up; that he admitted that he and/or Identity Evropa were “working with other Alt Right groups as to August 11th and 12th,” among other related evidence.

None of that evidence provides anything that would allow the jury to find either unlawful agreement or foreseeability of any acts that injured any plaintiff, Kolenich argues.

“First, there is no evidence of what the contents of any communications Mr. Damigo was proven to have, was,” he wrote. “Where evidence of contents was proven, it was innocuous such as ‘working with other Alt Right groups.’”

Additionally, Kolenich argues that video depositions and other exhibits do not implicate Damigo in “anything more than having what the law considers racial animus as well as being acquainted with other Alt Right personalities.”

Kolenich further argues that the plaintiffs’ claims of conspiracy against Identity Evropa appear to depend entirely on the activities of defendant Elliott Kline, who declined to show up for the trial.

Kline’s actions were outside the scope of what Identity Evropa authorized him to do, Kolenich argued. He said the plaintiffs “provided no evidence that [Identity Evropa] ever authorized Mr. Kline to enter into an unlawful conspiracy.”

The arguments on Kessler’s behalf are more complicated. Kolenich argued that evidence against Kessler was based on constitutionally protected rhetoric that “does not amount to unlawful agreement or foreseeability.”

“The evidence at trial showed that Mr. Kessler limited his plans for physical altercation to legitimate self-defense,” Kolenich writes. “He was careful to include warnings that Antifa must start any fights or there could be no Battle of Charlottesville, though he was confident Antifa could be relied on to give the Alt Right a legal reason to fight them.”

Kessler is entitled to a directed verdict on the plaintiffs’ fourth claim regarding the torch march injuries to plaintiffs Willis and Romero because, in part, neither plaintiff gave testimony that they saw him at the march.

The punitive damages awarded were also “unconstitutionally excessive,” Kolenich argued. He cited prior a U.S. Fourth Circuit Court of Appeals ruling that “it is [the court’s] obligation to order a remittitur or award a new trial” in these situations.

A remittitur is the legal process by which an excessive verdict of the jury is reduced.

Kolenich also argued that punitive damages must bear some reasonable relationship to the compensatory amount awarded and that Virginia code limits punitive damages to $350,000.

“As such, the court must reduce the [punitive damages] awarded to plaintiffs [Seth Wispelwey] and [Elizabeth Sines] to zero and order a new trial,” Kolenich wrote. “The Court should further reduce the awards to all other plaintiffs to no more than 526 to 1.”

Kessler and Damigo’s filing is the latest post-trial filing from a defendant seeking either a new trial or reduced damages. Chris Cantwell, a neo-Nazi who represented himself during the trial, has already filed several motions and documents alleging he is entitled to a new trial.

Counsel on behalf of the plaintiffs has yet to respond to any of the motions from the defendants, though they are expected to respond to Cantwell in the coming weeks.

coming weeks.

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