Candidate for Commonwealth's Attorney Charged with Assault

Jun 5, 2017

The First Amendment is facing a difficult test in Charlottesville, where small groups of people who call themselves “anti-fascists” have twice surrounded a handful of white supremacists as they sat on the downtown mall.  The protesters carried signs, chanted loudly, and demanded the white nationalists leave town. Now, a lawyer who says it’s their constitutional right to do that has been charged with assault, and lots of people are debating where the right to free speech ends.  Sandy Hausman has that story.

Commonwealth's Attorney Candidate Jeff Fogel poses for a mug shot after his midnight arrest for assault.

The latest confrontation occurred Thursday night when more than a dozen protesters surrounded right-wing activist Jason Kessler and some friends sitting outside Miller’s Pub.  The group chanted ‘Nazis go home!’ and Kessler responded by turning on his cell phone’s video camera.  He stood up and walked to a nearby table where lawyer Jeff Fogel was enjoying a burger.  Fogel is a Democrat, running for commonwealth’s attorney.  He’s also defending Veronica Fitzhugh -- one of the protesters who, during a previous encounter, shouted in Kessler’s face.  But Thursday it was Kessler who did the shouting. 

“You’re a partisan liberal hack!" he told Fogel.  "Are you going to tell me to get out of here because of my political beliefs?  You communist!  You want to throw down with me buddy?"

" Can I give you some advice?" Fogel asked.

" Come at me!" Kessler replied.

" I’ll give you some advice," Fogel said. " If you provoke a breach of the peace, baby, you are in trouble.”

At that point, one of Kessler’s colleagues – Caleb Norris – joined the argument, getting too close to Fogel, who pushed him away.  Kessler exploded.

“Oh, my God.  This guy just assaulted you – press charges, press charges.  Hey, dude, press charges against him now," Kessler told Norris. " He’s running for Commonwealth’s Attorney.”

Police briefly detained Fogel, who gave them an argument before being released.  A few hours later officers arrived at his house.

“Five police officers in five patrol cars showed up at about 12:30 in the morning," Fogel recalls. " I was in bed.  I jumped out.  I put on my pajama pants and slippers, and I ran downstairs.  I don’t know why the police needed to pound on my door instead of just ringing the doorbell.  I went outside.  They told me they were arresting me.  I couldn’t believe it!”

The 72-year-old lawyer was handcuffed and charged with assault, and the presiding judge reportedly said he had approved the midnight arrest because of the way Fogel spoke to the police.

“I was quite shocked when when I heard the magistrate say that, and I think I said some sharp words back to him – like he was an 'embarrassment to his profession,'  and he can’t 'sit there in his little room and act like a dictator.  This is a country of laws, and that kind of thing is not permitted,'  at which point he threatened to keep me locked up, and I said, ‘I can’t believe – now you want to lock me up because you don’t like what I’m telling you. Go ahead, lock me up and let’s see how that plays out.'”

The judge released Fogel, who is due back in court this morning.  As it turns out, he has to be there anyway to defend Veronica Fitzhugh.  Fogel will likely argue that he and she are free to say what they think – that the constitution protects those who have hounded Kessler, but at the University of Virginia’s law school, Professor Doug Laycock isn’t so sure.

“Part of the problem here is no one has any sympathy for the victims of this who have done some pretty reprehensible things themselves, but there just cannot be a right to follow around fellow citizens that you disagree with and make their lives miserable,” he says.

He notes court rulings that upheld laws against stalking and picketing the home of a doctor who performed abortions – rulings that protected personal privacy.  On the other hand, he’s not sure the charge of assault against Fogel will stick.

“The person who’s pushed could sue the person who pushed him, but what are his damages?  What is a jury going to do with that?”

Later in his video monologue, Kessler referred to the attack as a “little push,” and Norris did not appear to be harmed in any way.  Likewise, Fogel doesn’t think this incident will hurt his chances for election on June 13th, since he believes voters in Charlottesville have no fondness for Kessler and his friends.