In a victory for those seeking answers about the apparent stand-down of police officers at the deadly August 2017 white supremacist rally in Charlottesville, Virginia, a judge this week ordered the Virginia State Police (VSP) to release a redacted copy of its operational plan.
The order came from Judge Richard Moore of the Virginia 16th Judicial Court as the result of a FOIA lawsuit brought by this reporter and another freelance journalist with legal representation provided by the Reporters Committee for Freedom of the Press. VSP has 30 days to comply with the order.
White supremacist James Fields allegedly drove his car into a crowd of counterprotesters at the Charlottesville rally, killing activist Heather Heyer.
The state police’s operational plan is distinct from the operational plan made by the Charlottesville Police Department, which was recently provided to Rewire.News by the City of Charlottesville.
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Coordination between the state and city police was poor, according to an investigation led by former U.S. Attorney Tim Heaphy at the request of the City of Charlottesville. The two forces didn’t use the same radio channels and VSP’s operational plan was not provided to city officers. While the reasons for CPD’s failure to make arrests during the riot are now understood, the state police’s failure has still not been publicly explained. Charlottesville Police Chief Al Thomas, who told officers to “let them fight for a while” as violence spread during the hate rally, resigned just days after the Heaphy report was released.
The administration of former Virginia Gov. Terry McAuliffe (D) refused to cooperate with Heaphy’s investigation and did not make senior officials from the state police or the Department of Public Safety and Homeland Security available for interviews.
The McAuliffe administration has attempted to prevent other investigators from obtaining a copy of the state police operational plan. Heaphy was denied a copy, but indicated in his report that his staff found a forgotten copy of the plan left in a Charlottesville conference room after VSP conducted a meeting in that room.
During the March 13 FOIA hearing, VSP First Sgt. Chris Clark, the author of the state police operational plan, was called as a witness. Clark indicated that he did not believe Heaphy really had a copy of the plan or that one of the 700 copies printed was left in a conference room.
A review of the events of August 12 was ordered by McAuliffe’s administration and was conducted by the International Association of Chiefs of Police with help from Kyle Olson, a domestic security and terrorism consultant. But when called as a witness, Olson said, “to the best of my knowledge, we and the International Chiefs of Police were not provided with the [VSP] Plan.”
Days before Virginia’s November 7, 2017, gubernatorial election in which McAuliffe’s lieutenant governor was running for governor, McAuliffe’s counsel, Noah Sullivan, contacted this reporter’s attorneys asking to make a deal. Sullivan offered to provide some of the requested documents in exchange for an agreement to put the initial FOIA hearing on hold until after the election. That deal was rejected. The first FOIA hearing took place on election day. A motion by attorneys for the City of Charlottesville asking that the petition be refiled to name the city rather than the police department led to a delay of several months after the election until the next hearing could take place.
Called as a witness in the March 13 hearing, Sullivan recalled “three or four meetings” he attended with then-Gov. McAuliffe and law enforcement officials to discuss plans ahead of the so-called United the Right rally. Sullivan denied he and the governor’s office had refused to cooperate with Heaphy, contrasting with Heaphy’s description of negotiations with Sullivan, which resulted in refusals to provide documents or interviews with officials. “The level of VSP cooperation was disappointing, given the agency’s substantial role in the summer protest events,” the report said.
The ruling by Judge Moore is potentially significant as case law.
The Commonwealth of Virginia argued that the operational plan is exempt from FOIA release under a statute that says tactical plans by law enforcement agencies are not subject to FOIA requests. State attorneys pointed out that the Plan includes tactical information such as hotels where state police were housed and exact times that areas were swept for bombs. The state argued that details like these made it dangerous to release the plan, given that VSP is likely to be required to prepare for another similar event on August 12, 2018.
However, a state law passed in 2016 says that when a portion of a document is FOIA-exempt and other portions are not FOIA-exempt, the state must redact that document and release it rather than holding back the entire document.
Judge Moore weighed these competing statutes for weeks before ruling that a redacted plan must be provided.
“It is my view that if there are parts of the plan that do not jeopardize safety or security, particularly if they have already been released or disclosed officially by the Governor’s report, [the Heaphy Report], or the CPD’s recently released plan, they should now be disclosed and turned over,” Moore wrote.
The state government has until the end of April to comply with the ruling.