State Created Danger

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What happens when a Nazi rally comes to town?

Maybe it's a little different from town to town,

but as a resident of Charlottesville, Virginia, I've spent the last eight years trying to answer that question in one very particular instance.

The Unite the Right rally on August 12th, 2017.

It didn't take eight years to find the obvious answer to that question.

It's violence.

Before the day of the rally even dawned, there was violence.

There was violence at rallies all over the country in the months leading up to August 12th.

Violence encouraged by and at the hands of the men who were busy organizing the event.

that would cap off what they called the summer of hate.

And when the day finally came, the violence they'd been promising to deliver all summer left blood in our streets.

But not a single speech was made that day.

Fights broke out in the streets as rallygoers arrived at the park.

Police watched and waited as neo-Nazis who'd taken cross-country flights looking for a fight punched, kicked, bludgeoned, and in at least one instance, choked counter-protesters who stood in their their way.

The rally itself never even really happened.

Police dispersed the crowd before it ever really got started.

And it had already been over for hours when one man who'd hoped to attend it took his revenge on the counter-demonstrators, murdering Heather Heyer and injuring dozens of others.

And I'll tell you some of those stories one of these days.

There were a handful of criminal prosecutions, and I spent years sitting quietly on a wooden bench, watching and dutifully taking notes.

But those cases, for the most part, were pretty open and shut, and they were resolved fairly quickly by the standards of the court.

The civil lawsuits took longer,

years longer,

and they often raised more questions than they answered.

Questions the court is perhaps not equipped to answer.

But the court has been quite clear on one question in particular,

one raised by several different lawsuits.

Do the police have an obligation to protect

anyone?

The answer is no.

I'm Molly Conker, and this is Weird Little Guides.

This wasn't the episode I meant to write this week.

I was working on something else entirely, something I'm still working on, when I realized it was a longer and more complicated narrative than I felt like I could get my arms around this week, so I set it aside and started scrambling at the 11th hour for something I thought I could pull together quickly, something I already know a lot about and won't lose myself for days trying to do a lot of new research.

But then I saw a blog post from an attorney.

Glenn Keith Allen is

a man whose story should be told on its own, and I think I will eventually.

So I won't tell you more than you need to know here.

I'm very comfortable describing him as a neo-Nazi lawyer.

That's what the Southern Poverty Law Center called him in a headline of an article published in 2016 when they revealed that the attorney working for the Baltimore Police Department had been a dues-paying member of the neo-Nazi group National Alliance for decades.

Now, the SPLC has done a lot of great work over the years,

but I don't mean to say that my ironclad certainty here comes only from repeating their claim.

No,

no, I'm very sure that I can say that Glenn Allen is a neo-Nazi lawyer because he unsuccessfully sued the SPLC for defamation.

In the memorandum dismissing his suit, the judge notes that not only had Allen failed to show there was any falsehood in the claims that had been made by the SPLC,

he didn't even appear to be disputing the claim that he was, in fact, a neo-Nazi.

I mean, there's that, and there is also the fact that he spent the last couple of years being the go-to guy when neo-Nazis need a lawyer.

He's represented members of Patriot Front in lawsuits in Virginia and Washington state and in their criminal cases in Idaho.

He currently represents members of the Goyam Defense League in a lawsuit in Georgia.

He's represented white supremacist publications American Renaissance and V-DARE.

He was hired by Nathan D'Amigo, the former leader of the neo-Nazi group Identity Europa, in his ongoing effort to use a bankruptcy case to evade paying damages to the victims of the United Right Rally.

Allen has also filed petitions to the Supreme Court on behalf of members of the neo-Nazi street fighting gang, the Rise Above Movement.

And then there's the case I'm talking about today.

Last week, Glenn Allen posted an update to his website to share some sad news.

He wrote, on April 7th, 2025, the Supreme Court denied our petition.

The court's decision, although not surprising, is regrettable.

The court missed an opportunity to advance the cause of First Amendment protection for unpopular speech and to admonish the city of Charlottesville for taking sides against Warren and the other pro-monument protesters.

The case he's talking about was originally filed by Gregory Conte and Warren Baylaw in 2019.

Both men had attended the United Right rally in Charlottesville, Virginia on August 12, 2017, and felt their civil rights had been violated by various parties.

They named as defendants in their lawsuit the Commonwealth of Virginia, the City of Charlottesville, the Virginia State Police, then governor of Virginia Terry McAuliffe, the Charlottesville Police Department, several individual members of both police agencies and city staff, as well as a sort of random assortment of individual counter-protesters.

Now,

I realize as I'm writing this that as continuously present as the events of summer 2017 have felt here in Charlottesville, that was eight years ago.

It was national news back then, but it's likely faded from the memories of people everywhere else.

And if you're too young to have been watching the news eight years ago, you might never even have known enough to forget.

The rally was, on its surface, about Confederate statues.

Back in 2017, that was a pretty hot issue.

Granted, a lot of people had been voicing opposition to the presence of those monuments to racism for a century or so since they'd been put up.

But it became a subject of national concern in 2015, after the Charleston church shooting.

Cities around the country were starting to talk about taking them down, and many did.

But here in Virginia, a state law stood in the way of local decision-making on the subject.

Local governments needed state permission to take down a monument or a memorial to any war.

The law even specifically prohibited, quote, the placement of Union markings or monuments on previously designated Confederate memorials.

But a court ruling in late 2015 seemed to hint that perhaps the law could be interpreted to mean that it only applied to statues erected after that law was passed, which could mean it didn't apply to Charlottesville.

That legal battle lasted years and it probably isn't interesting to normal people, so I won't get into it.

But what you need to know here is that in 2016, the city of Charlottesville was starting to take real steps toward trying to take down the statues of Robert E.

Lee and Stonewall Jackson.

And some people were very,

very angry about it.

At the end of May 2017, a local resident named Jason Kessler filed an application with the city of Charlottesville for a special event permit.

He wanted to hold an event on August 12, 2017, in the park where the Robert E.

Lee statue stood.

He described the event as a free speech rally in support of the Lee Monument.

And on his application, he estimated that about 400 people would attend.

But it wasn't about the statues.

Not really.

Not in the end.

This statue was a focal point, a rallying cry, a lightning rod, whatever.

It was an excuse.

It was a breaking point.

The men who descended on this little college town were here to put black people in their place.

They were here to fight the Jewish agenda.

They were here to fistfight Antifa.

They were here to kill communists.

Sure, a lot of them were proud of their southern heritage, I guess.

But that doesn't really help explain the swastika tattoos, does it?

Or the months of messages exchanged in a Discord server, where attendees gleefully discussed their fantasies about killing counter-protesters.

There were several conversations in the Discord server about whether it was legal to run people over.

Memes were posted about plowing through a crowd with heavy machinery.

It was all just a joke.

Everyone was laughing

until someone actually did it.

The rally was supposed to begin at noon.

That's what the permit said.

Attendees would gather in the park near the statue of Robert E.

Lee, and they would listen to speeches from far-right micro-celebrities like Richard Spencer, Baked Alaska, Christopher Cantwell, Augustus Invictus, Matthew Heimbach, and Mike Peinovich.

But like I said, no one ever gave a speech.

The streets downtown were packed with counter-protesters.

At the very last minute that morning, the event organizer who'd been the group's police liaison backed out of the agreed-upon plan to have the scheduled speakers shuttled into the park with a police escort.

And within an hour of that decision, all hell had broken loose in the streets near the park.

By 11.30 a.m., the local police had declared the gathering an unlawful assembly.

State police and riot gear showed up a few minutes later to clear the park by force.

One of the only funny pictures taken that day shows Richard Spencer, he's mid-tantrum as he's being shoved out of the park by a line of riot cops.

There's a lot to be said about the months leading up to that day in August.

Much of it has already been said, and some of it I'm sure I'll write some other day.

But today,

just in case you don't remember the summer of 2017,

that'll do.

Because the facts at issue in that lawsuit are here at the entrance to the park between about 9.30 a.m.

and noon.

The plaintiffs in this lawsuit, Gregory Conte and Warren Baylaw, are Nazis.

People throw that word around a lot, so I'll let you hear it from them.

Here's Warren on his own podcast explaining to his wife that they have a responsibility to spread Hitler's message.

The fact is, the fact is, and we all know it, I think everybody who watches this show knows it, Hitler was a true patriot.

He was a complete idealist, an entirely selfless man.

He was also a genius, and he was probably the greatest political leader that Europe has ever seen.

And here's Greg in one of his many bizarre, straight-to-camera, short video rants from his social media.

The FBI is full of pedophiles, and our countries have been ruled by Jews for 80 years.

And you think that that flag is the problem?

You're not practical.

You're just pussy.

Hitler is

our

only

hope.

It was hard to find one of Greg's videos that clearly expressed his point of view, but that didn't also contain so many slurs that it would become incomprehensible once I bleeped them out.

But they're Nazis.

These guys love Hitler.

They're like really obsessed with Hitler.

Honestly, the Hitler worship here is actually kind of weird, even in their own social circles.

Warren Bailaw is actually a second generation National Socialist.

His father, Alan Bailaw, was a high-ranking member within National Alliance before Warren was even born.

As for Greg Conti, he was coaching field hockey at a Catholic girls' school in Maryland before he was fired when the school found out he was Richard Spencer's lackey.

In 2020, both Alan and Warren Baylaw and Greg Conti were founding members of a now-defunct neo-Nazi organization called the National Justice Party.

And in 2017, Warren Baylaw and Gregory Conti were inside the park when the Virginia State Police showed up in riot gear to enforce that dispersal order.

Daniel Schular, a photojournalist taking pictures that day for the Tulsa World, captured an image that shows both men right up against the riot shields.

On August 12th, 2019, the very last day of the two-year statute of limitations to bring the claim under Virginia law, the pair filed a federal civil rights lawsuit claiming that the police, the city, and the counter protesters had conspired to deprive them of their right to hold that Nazi rally.

That by clearing the park and that by refusing to beat back the counter-protesters on their behalf, the police had violated their First Amendment rights and denied them their 14th Amendment right to equal protection.

There are some other more bizarre claims involving wild allegations of a criminal conspiracy between Antifa and the government actors.

But those RICO allegations aren't really worth getting into.

It's very silly stuff.

The underlying idea, quoting from the suit,

defendants intentionally encouraged and facilitated mob violence by counter-protesters against lawful Unite the Right demonstrators, creating a civil disturbance as a pretext to disperse the demonstrators before the Unite the Right rally began.

So they're saying the police didn't just let counterprotesters interfere with the rally.

They're saying they think police set that up so so they'd have an excuse to then crack down on the Nazis.

Quote, rather than applying simple and proven techniques such as allowing Unite the Right demonstrators and counterprotesters to use separate areas, the defendants forced them together into a restricted space, then deliberately communicated to counter-protesters that attacks on Unite the Right demonstrators would go unpunished.

Predictably and as defendants intended, Counter protesters attacked and assaulted United the Right demonstrators, and the defendants used those violent attacks against lawful demonstrators as a pretext to disperse the entire gathering.

I mean, citation needed for most of that, but

here's the thing.

No one disputes that the police fucked up.

The city admits it.

The police kind of admitted it.

The Independent Review, flawed as it was, found that to be the case.

Protesters and counter-protesters alike were dumbfounded by the complete and total inaction of the police, who just stood there and watched as the violence unfolded.

People with blood running down their faces were screaming at the police to do something, anything,

and they really did just

stand there.

That's not in dispute.

The legal question here is not, did they do that,

but can they do that?

And the answer is unequivocally, yes.

Yes, they can.

There isn't a law on the books or a decision in the case law that says they have to do a goddamn thing to help you.

There are a disturbing number of cases bearing this out.

There are cases in state courts, like Losito versus New York City.

In February of 2011, the NYPD was on a manhunt for a man on a stabbing spree.

He'd already stabbed several people to death when he boarded the train that morning.

Two cops, acting on a tip that the serial stabber had been spotted on the subway platform, boarded the same train.

They saw the man they were looking for and recognized him,

but they would later say they thought he had a gun.

Now, again, he'd been on a stabbing spree for 24 hours.

Do you think if he had a gun, he might have, I don't know, shot anyone prior to this moment rather than stabbing them all to death but they say they thought he had a gun

so they locked themselves in the conductor's car and just watched through the window as their suspect brutally stabbed a man on the train repeatedly in the head just a few feet away from where they were standing

but the victim fought back Joseph Lozito managed to pin his assailant to the ground before losing consciousness from blood loss.

And it was only after Lozito had disarmed and subdued his own attacker that the police felt safe enough to come out and make the arrest.

But his lawsuit was dismissed.

The judge acknowledged that the attack was shocking and horrific.

But quote, the law is abundantly clear that no liability flows from negligence in the performance of a police function unless there is a special relationship.

If you're not in their custody,

you aren't their problem.

That example lives large in my mind because it's just so immediate and clear-cut.

Like I can imagine them with their little faces pressed up against the train window just watching this happen because they're afraid.

But that's a New York State court case, so it's not really binding here.

But here are some that are.

This is case number 04278, town of Castle Rock versus Gonzalez.

I thought the Castle Rock was a 1920s dance, but it's also a

town in Colorado.

The case is here on writ of Sergieri to the Court of Appeals for the 10th Circuit.

The facts are truly horrible.

That is Antonin Scalia making a little joke before announcing a decision that should make you question what the courts think the police are even for.

In 2005, the Supreme Court ruled in Castle Rock v.

Gonzalez that the police in Castle Rock, Colorado had no affirmative duty to enforce a restraining order and that their refusal to do so had not violated Jessica Gonzalez's 14th Amendment right to equal protection.

Jessica Gonzalez had a restraining order against her estranged husband.

He was not allowed near her or her home, and he was only allowed limited contact with their daughters.

But one afternoon afternoon in 1999,

he kidnapped their three daughters.

Jessica called the police.

The officers who responded to her call told her there was nothing they could do about the restraining order.

And they suggested that her husband would probably bring the girls home later in the evening.

And she should just wait.

And if the girls weren't back by 10 p.m., she could call them again.

Around 8.30, she managed to get a hold of her husband on the phone.

and he told her he had the girls at an amusement park in a neighboring city.

So she called the police again and told them where he was and asked them to put out an all-points bulletin for the area with his license plate number.

They refused and they told her again, just wait till 10 p.m.

They'll be home.

She called again at 10 p.m.

and they told her this time to wait until midnight.

So she went to her husband's apartment on her own and found nothing.

She called the police again at midnight.

Finally, she went to the police station herself to try to talk to somebody in person and nobody cared.

They just weren't interested in trying to find her children or their father.

But he found them.

At 3 a.m., Jessica Gonzalez's estranged husband showed up at the police station with a gun.

He'd purchased that gun earlier that same evening, sometime after he abducted his daughters and certainly before he used it to murder them.

After police shot him dead inside the police station, they found the girls' bodies outside in his truck.

We conclude that Colorado law did not give respondent an entitlement to enforcement of the restraining order.

The Supreme Court ruled that there was nothing in the law that required the police to enforce the restraining order.

And even if there were such a mandate, mandate, that wouldn't give her the right to have it enforced.

And even if she did have the hypothetical right to have that hypothetical mandate enforced, that right would have no monetary value.

So there's really no due process claim at issue here.

And then there's Deshaney v.

Winnebago, decided by the Supreme Court in 1989.

This one doesn't actually involve the police specifically, but it's cited repeatedly in the lawsuits we're talking about because it held that a government agency, any government agency, although in this case it's the Department of Social Services, has no affirmative duty to protect anyone from any kind of harm that the government itself had not created.

Joshua Deshaney was a four-year-old boy whose father beat him so badly he was left in a coma.

And this was after social services had ignored reports of abuse for a year.

When Joshua's stepmother went to the police to report seeing the boy's father hit him,

they brushed her off and referred her to social services.

And so she made the report to social services.

Neighbors reported seeing and hearing the toddler being beaten and the police sent them to social services.

The boy was seen in the emergency room three separate times.

And doctors reported seeing the signs of abuse to social services all three times.

After the first hospital visit, the boy was briefly removed from the home, but the state agency quickly returned him to the custody of his abuser.

A caseworker visited the home at least 20 times, and her notes show that she saw and documented signs of abuse.

But no one did

anything.

After Joshua was put into a coma by his father's abuse, that social worker said,

I just knew the phone would ring someday and Joshua would be dead.

But she didn't do anything.

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I couldn't even believe it was real.

Join me, Tatiana Siegel, executive editor of film and media at Variety, for a four-part tale of youthful ambition, artistic integrity, and the dark side of fame.

Just like my parents talk about they knew where they were when John F.

Kennedy was killed.

Pretty much everyone I know knows exactly where they were when River died.

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Drew Pinske, Corey Feldman, and more.

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The court ruled that only Joshua's father could be held liable for the abuse, that there was no liability for the state agency that repeatedly returned the child to the custody of his abuser.

Further, the opinion says the state's failure to protect an individual against private violence simply does not constitute a violation of the due process clause.

The Deshaney case is cited again and again in cases attempting to hold the police or any government agency accountable for standing by and letting people get hurt.

Because the state is not required to help you, they can't be held liable for anything that happens to you simply because they actively chose not to intervene.

The only real exceptions to that rule are if you are in state custody or if the dangerous situation was created by that state actor.

There are a nauseating number of cases establishing the parameters here, but I'll just give you one more.

Conte and Baylaw filed their suit in Virginia.

So when it was dismissed, they appealed it to the Fourth Circuit Court of Appeals.

And there is a Fourth Circuit Court of Appeals case that flushes out their interpretation of Deshaney.

A 1995 opinion in the case of Carol Pinder, the Officer Donald Johnson.

In 1989, Carol Pinder called the police.

Her abusive ex-boyfriend, Don Pittman, had broken into her home and he was punching her and breaking things and threatening to kill her and her children.

The The officer who responded to her call took Pittman into custody and assured Carol Pinder that he would be locked up overnight until he could be brought before a judge in the morning.

She specifically asked.

She was concerned about going to work that evening because Pittman had threatened her before.

He'd actually only just been released from jail.

He'd been convicted of attempted arson for trying to set her house on fire just 10 months earlier.

The officer specifically told told Carol Pinder that Pittman would be in jail all night and that she wouldn't be able to file her complaint until tomorrow morning anyway.

So she went to work.

She went to work that evening because the officer promised her that this man would be in jail until tomorrow morning when she could speak to the judge.

But Pittman was released within hours.

And while she was at work that evening, Pittman set Carol Pinder's house on fire, just like he promised he would do, just like he'd done once before.

And her three children were inside.

All three of those children died in the fire.

And that fire was set just 18 days after the Supreme Court decided the Deshaney case.

And the Fourth Circuit cites Deshaney throughout their opinion in Pinder.

There are only two situations where the police officer would have any affirmative duty to protect anyone.

One is if there is a custodial relationship.

If you are in their custody, they're a little bit responsible for your safety.

So if Carol Pinder had been, for instance, in the county jail, the police would be responsible if her ex murdered her.

But making a promise to Carol Pinder meant nothing.

Promises aren't legally binding.

Again, from the opinion,

state actors may not disclaim liability when they themselves throw others to the lions.

They do not, by contrast, entitle persons who rely on promises of aid to some greater degree of protection from lions at large.

And that's the second exception from the Deshaney case, right?

They can't throw you to the lions, meaning they can't create circumstances that directly cause harm to come to you at the hands of someone else.

And that's what's called the state-created danger doctrine.

On that front, the Fourth Circuit is pretty clear.

They wrote in 2019 that they've never written an opinion recognizing the validity of such a claim.

It's a very high bar to clear in the opinion of the Fourth Circuit.

So high, in fact, that despite their claim that they believe it is a valid, hypothetical legal idea, It's never actually happened in the Fourth Circuit.

There are examples in other jurisdictions, but honestly, reading these examples, I don't understand why the police in these cases are more liable than in some cases where the court found that they weren't.

There are several cases involving people who were very intoxicated.

So in one case, someone was pulled over while driving drunk and the officer took the driver who was intoxicated into custody and they took his keys.

But the female passenger in the car who was not drunk was not allowed to have the keys to drive herself home.

They just left her on the side of the road and she was subsequently raped.

And she was able to successfully sue those police officers saying they were responsible for this state-created danger.

She would not have been there alone on the side of the road with no transportation if the police had not arrested the driver of the vehicle for being intoxicated and left her without a way to get home.

There was another case where police responded to a dispute at a bar and they threw one man out and took away his keys so that he couldn't drive home and they wouldn't let him back in.

So he couldn't drive home and he couldn't come inside.

And they didn't offer to take him home.

So he's just out there in the cold at night in jeans and a t-shirt.

And he did eventually die of hypothermia.

And in that case, too, the police were found to be responsible for having created the dangerous circumstances in which harm came to him.

So it does happen.

I'm not saying it's never happened.

I'm just saying the Fourth Circuit says they've never seen it.

All of the cases the Fourth Circuit recognizes where a state actor can be said to have had an affirmative duty to anyone were cases where the injured party was in police custody.

A Fourth Circuit ruling in Doe v.

Rosa in 2015 further clarified their view of what constitutes state-created danger.

Quote, the state through its affirmative acts must itself create the dangerous situation that resulted in the victim's injury.

No constitutional liability exists where the state actors had had no hand in creating the danger, but simply stood by and did nothing when suspicious circumstances dictated a more active role for them.

So deliberate indifference, just standing there and watching harm come to someone and choosing to do nothing, that doesn't rise to the level of actively creating the harmful circumstance because doing nothing

isn't doing something.

Doing nothing is not an action.

So the act of doing nothing does not constitute the affirmative step of taking an action.

That sounds like meaningless circular reasoning, but I promise you that comes back again.

The act of doing nothing is not legally an action at all.

And that probably feels like a lot of extraneous detail.

But all of this has been to say that anyone filing a lawsuit anywhere in the United States is going to face a steep uphill battle if they're trying to prove that the government had any responsibility to prevent harm caused by a non-state actor.

The state can't violate your right to free speech, but they don't have to help you speak.

The state can't burn your house down, but they don't have to stop your ex from doing it.

The state can't deny you the right to hold your demonstration, but they can just stand there and watch as the situation becomes too unsafe to allow it to continue.

And that legal battle would be even steeper here in the Fourth Circuit, where the Rosa and Pinder cases were decided.

The Fourth Circuit does not believe that it is possible for the state actor to be responsible for any dangerous situation unless the injured party was already in their custody.

And by the time Greg Conte and Warren Bailaw filed this suit in 2019, they had every reason to know it was a waste of time.

They may not have been familiar with the case law and they didn't have the money to hire an attorney, but they did ask a friend who was a lawyer to ghost write their complaint.

And they surely knew that other lawsuits making the exact same claims about the exact same events had already been dismissed by the same court.

Conti and Bailaw filed their suit pro se,

meaning without a lawyer.

And pro se litigants are given a lot of leeway by the court because they don't have a lawyer's help.

Their filings are interpreted much more charitably,

but they aren't allowed to secretly have a lawyer who helps them in order to have it both ways, to both have legal counsel and be afforded the leniency granted to those who don't.

Technically, though,

You can get a lawyer to ghost write your lawsuit and then just sort of proceed from there.

It's not preferred.

Some jurisdictions require you to disclose it and most would prefer it.

But the ethics committees in many jurisdictions have said,

yeah,

yeah, you can do this.

And because Conte and Bela accidentally filed their lawsuit in the wrong jurisdiction, They originally filed their suit in a district whose local rules do require you to submit a signed form disclosing that you had a ghostwriter.

So I know that they asked their friend Augustus Soul Invictus to draft this complaint, which again, they then filed in the wrong jurisdiction.

In addition to being an attorney, Augustus Invictus was a scheduled speaker at the Unite the Right Rally.

And he's had some legal troubles of his own in the years since.

He was recently convicted of a felony for intimidating a group of college students as part of a mob of torch-wielding white supremacists.

But more relevant to the story at hand, after drafting that complaint for Baylaw and Conti back in 2019, he wasn't really very available to keep helping them out.

He was arrested in December of 2019 for, allegedly, abducting his wife at gunpoint because she was trying to leave him.

According to her own sworn statements in later proceedings, She was coerced into not testifying at trial.

So he was never convicted on those charges.

But at the time, back in early 2020, he was pretty preoccupied with his own problems.

So Conti and Bela were kind of on their own.

And it was truly a hopeless case.

By early 2020, when it came time for the pair to try to write some motions in their case, the same court that would be reading those motions had already dismissed four separate lawsuits, making the same argument.

Well, four lawsuits, I guess, or

two and some change, because one of those plaintiffs kept rearranging his claim and he filed three separate, slightly different cases.

But the first lawsuit brought before the federal court in the Western District of Virginia that claimed that the police violated people's rights by allowing the violence, is the only one of those cases that was filed by a counterprotester.

Robert Turner was protesting the Nazi rally when he was pepper sprayed and physically assaulted while police just stood there and watched.

Turner's lawyer seems to have been at least marginally more competent than either Jason Kessler or Warren Bailaw's lawyers, so he did come prepared to make an argument for state-created danger.

alleging there had been a standdown order given to all police on scene ahead of time.

It is alleged in the suit and to some degree widely believed in the community that the officers had been instructed ahead of time to do nothing,

to just let the violence happen.

And that's a controversial theory.

Does it feel true?

Kind of, yeah.

Yeah.

There's a lot of circumstantial and anecdotal evidence that makes it feel very possible.

No evidence was ever produced that proved or disproved that any actual stand down order was ever given by any police agency to its officers ahead of time that day.

Both the city and state police have categorically denied it.

Two witnesses though, a police captain and the police chief's personal assistant, confirm that after the violence began, They did hear police chief Al Thomas say,

let them fight.

It'll make it easier to declare an unlawful assembly.

Which is pretty damning, but it wasn't given as a command that was then disseminated to officers on scene.

And by the time he said it, it's already what was happening, whether that was the plan or not.

There are scores of eyewitness accounts, sworn statements, police after action interviews, and video from police body cameras that prove that officers were unwilling to act.

We don't know why.

People approached lines of cops, begging them for help, and the officers just stood there in silence.

Other officers curtly answered that they would intervene if and when commanded to do so, but they wouldn't say what it would take for that command to happen.

Some officers reported being uncertain about what they were expected to do or unwilling to risk their safety in a volatile situation.

Some of the police department employees who'd been deployed to hold intersections where the roads had been closed weren't even sworn police officers, so they didn't carry weapons.

Whether this impacts how you feel about it or not, the fact is, a lot of them were scared.

Whether or not an actual standdown order had been issued that morning was, according to Turner's lawsuit, an issue of fact that could be determined at trial.

But in alleging it, they sought to establish something important.

If true, their argument is that this constitutes state-created danger.

The dangerous situation was the direct result of an order given by the police chief, an order that was then carried out by the police officers.

That sounds like it could pass the test, right?

The police directly contributed to the danger by following the order to stand down.

But that's not how the court felt.

In the original opinion dismissing Turner's case, Judge Norman Moon wrote,

framing the incident in terms of a stand down order is nothing more than an artful recharacterization of inaction as action.

And the Fourth Circuit agreed with him on appeal.

The law has clearly established that inaction is not enough.

And now they're clarifying that the act of ordering inaction ahead of time doesn't count as taking an action at all.

That's still just inaction.

Baffling.

I couldn't even believe it was real.

Join me, Tatiana Siegel, executive editor of film and media at Variety, for a four-part tale of youthful ambition, artistic integrity, and the dark side of fame.

Just like my parents talk about they knew where they were when John F.

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Not all group chats are the same.

Just like not all atoms are the same.

Adam Brody, for instance, uses WhatsApp to pin messages, send events, and settle debates using polls with his friends.

All in one group chat.

Makes our guys night easier.

But Adam Scott group messages with an app that isn't WhatsApp, which means he still can't find that text from his friends about where to meet.

Hang on, still scrolling.

No, the address is here somewhere.

It's time for WhatsApp.

Message privately with everyone.

The next three lawsuits all came from one man.

Jason Kessler, the permit holder for the rally.

I won't bore you to death at this point because the three lawsuits are all slightly different.

In two of them, he convinced other rally participants to add their names as co-plaintiffs.

In one of them, it's just him.

The first time around, he only sued the city, but in the second two lawsuits, he's adding various city officials and police agencies.

And the claims evolve a little bit as he goes to.

But the strategy is pretty much the same throughout.

Instead of trying to argue that what happened does meet the legal standard under Deshaney and Pinder,

Just don't mention it at all and hope no one else does either.

And so instead he relies on an argument about the heckler's veto, which is the situation that's created where the state infringes on someone's free speech because their speech is potentially very unpopular and they're worried that there will be counter protesting that becomes disruptive.

So in order to prevent a disruption by people who oppose the speaker, they simply prevent the speaker from speaking.

And of course they can't do that, right?

The city couldn't have legally denied him the permit just because they were worried the counterprotest might turn violent.

They tried to do that and a federal court issued an injunction and gave him the permit back.

So that's not what happened.

He had the permit.

And it also would have been a violation of his rights and the rights of the other attendees at his Nazi rally if the police had responded to the disorder by merely removing them from the area, if only they were made to leave and everyone else was allowed to stay.

Kessler Suits alleged that the declaration of the unlawful assembly was discriminatory because it was motivated by the content of the speech at the rally.

So he's saying that only rally attendees were made to leave the park.

Well, only rally attendees were inside the park and the park was cleared.

It was a very violent but viewpoint-neutral barrage of pepper spray.

So I won't say nobody's rights got violated.

I think some people's rights got a little violated.

But Jason Kessler failed to convince the court in three separate lawsuits and one appeal that his First Amendment rights were infringed upon in this particular way.

The opinion from the appeals court is brief, noting succinctly that the rallygoers were engaged in violence prior to the dispersal order, and, quote, Kessler's complaint lacks any plausible allegation that the unlawful assembly declaration and the dispersal order discriminated based on content.

So everybody had to leave.

It was fair.

And as much as Kessler's suit tries to dance around having to argue against the precedent set in Deshaney, that's where we end up.

The lower court opinion says it plainly.

The cases he tried to cite don't really apply.

He had his permit.

The state hadn't proactively prevented him from holding the event out of of fear of public hostility.

Quote, but the law is clear that defendants had no constitutional obligation to prevent that public hostility.

I mean, for God's sake, if the law says the police don't have to do anything to stop three children from dying in a house fire, even if they promised those children's mother that they wouldn't let the man who'd previously set their house on fire out of jail after he threatened to set their house on fire again,

then why would that same law entitle you to proactive police protection to give Nazi salutes in a public park?

There is no constitutional right to police protection from getting heckled.

You can't sue the city because everyone hated your Nazi rally.

You very well could have had your Nazi rally if the guys you invited to the Nazi rally hadn't started brutalizing members of the clergy in the middle of the goddamn street before it even started.

But now I'm editorializing.

So by the time Greg Conti and Warren Bailaw file their version of this same suit,

Robert Turner's suit has already been not only dismissed, but the dismissal was upheld on appeal.

Again, that's the only one of these suits that was brought by a counter-protester.

So the court is being,

I guess you could say fair.

That doesn't feel right.

But the court is saying that the cops are allowed to watch everybody get their ass beat in the streets.

It's content neutral.

And Jason Kessler has had two suits dismissed already, and he filed his third lawsuit the same day that Conti and Baylaw filed theirs, because it was the last day under the statute of limitations to file anything related to that day.

But Conti and Baylaw accidentally filed theirs in the wrong jurisdiction.

So by the time it gets transferred to the right court, almost a year later, Kessler's third and final lawsuit has already been torn to shreds, and it's been dismissed.

So all the arguments have been made.

More than once.

There isn't much to gain by throwing the same shit at the wall just to see if it's going to stick this time

but they did it anyway

so we just did a scattershot thing and sued everybody that we thought that we could we could possibly sue and then you know shoot first ask questions later um the initial complaint uh greg conti and i had help from augustus and victus putting it together but then we've had a lot of help with other people

And they lost too.

By 2023, when the case was finally dismissed, Warren Baylaw and Greg Conti weren't even really friends anymore.

The chaotic end of their short-lived neo-Nazi political party and the still unresolved allegations that maybe somebody in leadership stole tens of thousands of dollars in member donations is a story for some other day.

But in 2023, it's just Warren Baylaw who files to appeal the decision.

And now he finally has a lawyer, Glenn Allen.

When the Fourth Circuit finally upheld the dismissal of Baylaw's lawsuit in 2024, the opinion takes the case point by point.

You don't always get that in an appellate decision, but I guess they just wanted to make things abundantly clear because these guys were obviously having trouble understanding the rulings.

It's actually kind of brutal in that detached, icy way that legal professionals sometimes eviscerate each other.

I'll put it in the show notes, but I won't get too deep into it because I'm willing to admit that not everyone is going to find it as exciting as I did.

The opinion opens with a question.

This appeal asks a straightforward legal question.

Does the First Amendment protect speech amid violence?

More specifically, does the First Amendment obligate police officers to protect the constitutional rights of protesters amid violence?

We've already suggested that the answer is no.

And the citation they give for this is their own prior ruling in Jason Kessler's lawsuit, which makes the same arguments about the same facts.

And the opinion continues, Warren Bailaw asks that we hold otherwise.

And after a brief summary of the facts in the case, the opinion reads,

Bailaw would have us seize on these facts to transform the First Amendment from a shield to guard against invasive speech regulations into a sword to wield against violent speech disruptions.

We decline to forge such a weapon.

Glenn Allen was still representing Warren Baylaw when they tried to get this case in front of the Supreme Court earlier this year.

And I know that Glenn Allen knows that the police don't have an affirmative duty to protect anyone.

Because until he got fired for being a neo-Nazi, he was working as a defense attorney representing the baltimore police department so i have to imagine working for a notoriously brutal and corrupt police department in the fourth circuit court of appeals

i have to imagine he was familiar with cases like desheney v winnebagao pinder v johnson and castle rock v gonzalez

but he pretends not to be writing

This breaks perhaps the most fundamental pact citizens have with their government.

We grant a monopoly on violence to the sovereign, in exchange for which it assumes the duty to provide basic protection to life and limb.

Once that duty is willfully abandoned, there's no telling where the trouble ends.

Well, Glenn, I have some shocking news for you.

That pact has been broken.

There is no pact that the state will protect your life and limb.

What he's saying is that his client is the victim.

All the men in that park were just innocently expressing their First Amendment rights, and they didn't want to hurt anyone.

They trusted that if someone needed to be hurt, the government would do it for them.

Quote, those citizens who are targeted by both criminal miscreants and corrupt government are placed between Scylla and Charybdis.

Upon seeing that their government has relinquished a monopoly on violence, they have two options.

They can resort to self-help and take matters into their own hands, or they can take a beating.

They had to do it, you see.

They had to punch, kick, shove, choke, beat, bludgeon, and mace all of those people.

They were defending themselves.

Never mind the videos that show them organizing themselves into little raiding parties, departing the safety of the park to dart out into the streets to try to get a few hits in.

But why?

Not why did they try to hurt people I know why?

Why appeal a case that can't win?

A case that's already been argued from every angle based on the exact same underlying facts to the exact same judge?

Why, even after the Fourth Circuit ruled against him, do they bother trying to get it in front of the Supreme Court?

I mean, I know political winds have shifted and everything's upside down.

Now, I'm not so naive that I'm saying there's no sliver of hope that maybe the Supreme Court would throw a Nazi a bone just for fun.

I could see why they'd be hopeful.

But even the most optimistic fascist surely understands that as much as the current administration might enjoy their willingness to fight the race war, there's just no political utility in upsetting the settled case law that keeps cops safe from having to do the thing we all like to imagine they're for.

protecting and serving.

But they weren't really fighting to win, were they?

I mean, some of the arguments being made might lead you to believe that they don't know what they're talking about, and maybe some of that really was sincere and they thought it would work.

But mostly, they knew it was symbolic.

After the Supreme Court denied their petition last month, Baylaw finished his rambling substack post with this message.

Lastly, I would like to thank every last man and woman who attended the Unite the Right rally on August 11 and 12, 2017.

This lawsuit was a symbolic fight for all the young men who sacrificed more at Charlottesville than I did.

All those who spent years in prison, who had their careers and reputations destroyed, who ended their own lives, who still have the threat of imprisonment hanging over their heads.

For all their sakes, it was worth it.

Just days after the Unite the Right rally, all the way back in August of 2017, Baylor wrote an essay for Richard Spencer's alt-right.com.

The post ends with:

We have with us the awakened fury of the force which created and built the United States, the righteous anger of white men who will not let tyranny tread on our rights any longer.

They don't think it was fair.

It doesn't matter what the law says, they're white men.

They invented the Western world, they created this system of laws or whatever.

Those laws, by definition, exist for them.

The court must simply be confused or corrupt.

Probably corrupt.

It was a setup, a cover-up, a conspiracy against them.

It was the Jews.

It was the communists.

It isn't fair.

As Jason Kessler said in an interview with Warren Baylaw last year, on the seventh anniversary of that deadly Nazi rally.

I mean, it's the right thing to do.

It's what a real political movement does.

It's what real activists do.

They don't just give up and move on.

They try and fight tooth and nail.

And the truth is, you know,

we should have won those suits.

They have to fight back.

They're all quite sure that they've been wronged

and they just can't let it go.

I guess to be fair,

neither can I.

For eight years, I've been trying to sort out what really happens when a Nazi rally comes to town.

I've got a hard drive full of photos and videos, diagrams and annotated images, thousands of pages of court documents, half a dozen spiral notebooks with my own handwritten courtroom notes.

I've written about it for publications, for my own website, and for podcasts.

I've live tweeted a month-long trial.

And I still don't really know the answer.

This may be the only thing the court has been 100% clear and consistent on.

You absolutely do not have any right to expect a cop to help you if he doesn't feel like it.

Not even if he promised.

Not even if it would be easy for him to do it.

Not even if it would save your life.

It's not a violation of anyone's rights.

for a public servant to stand completely still and watch you die.

It's a little bit funny to see cry baby Nazis sending themselves into hysterics, insisting that they have a constitutional right to see Kyle in the park with police protection.

They're not entitled to that protection.

But neither are you.

Neither were my neighbors who were beaten in the streets.

Neither were Jessica Gonzalez's daughters or Carol Pinder's children.

The police have absolutely no duty to protect us.

They have plenty of power to hurt us, and they're well within the bounds of the law to passively create conditions where neo-Nazis are free to hurt us with impunity.

They may have no duty to us,

but please,

try to remember:

we all have a duty to each other.

So be good to your neighbors and keep each other safe.

Weird Little Guys is a production of CoolZone Media and iHeartRadio.

It's research, written, and recorded by me, Molly Conger.

Our executive producers are Sophie Lichterman and Robert Evans.

The show is edited by the wildly talented Rory Gigan.

The theme music was composed by Brad Dickert.

You can email me at WeirdLittleGuyspodcast at gmail.com.

I will definitely read it, but I probably won't answer it.

It's nothing personal.

I don't answer any of my emails.

You can exchange conspiracy theories about the show with other listeners on the Weird Little Guy subreddit.

Just don't post anything that's going to make you one of my Weird Little Guys.

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I couldn't even believe it was real.

Join me, Tatiana Siegel, executive editor of film and media at Variety, for a four-part tale of youthful ambition, artistic integrity, and the the dark side of fame.

Just like my parents talk about they knew where they were when John F.

Kennedy was killed.

Pretty much everyone I know knows exactly where they were when River died.

Featuring new interviews with Samantha Mathis, Dr.

Drew Pinski, Corey Feldman, and more.

Listen to Variety Confidential on the iHeartRadio app or wherever you get your podcasts.

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Warning, this product contains nicotine.

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This is an iHeart podcast.