The Washington PostDemocracy Dies in Darkness

Opinion White supremacists are using an old playbook but so are the lawyers fighting them

Members of the Oath Keepers at the east front of the U.S. Capitol on Jan. 6. (Manuel Balce Ceneta/AP)
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Karen Dunn is a partner at Paul, Weiss, Rifkind, Wharton & Garrison, one of the law firms that assisted the D.C. attorney general in filing the recent lawsuit against the Proud Boys and the Oath Keepers. Roberta A. Kaplan is the founding partner of Kaplan Hecker & Fink.

The D.C. attorney general recently filed a lawsuit against the Proud Boys and the Oath Keepers, two extremist groups, for their role in planning and executing the Jan. 6 insurrection at the U.S. Capitol.

The case is notable for its attempt to hold accountable those responsible for violence that occurred that day. But just as notable is how the attorney general intends to make the case against them: through a statute that reaches all the way back to the civil rights battles of the Reconstruction era.

The central pillar of this extraordinary new lawsuit is the Ku Klux Klan Act of 1871. The law was designed to enforce the 13th, 14th and 15th Amendments to the Constitution, which abolished slavery, prohibited states from denying any person in the United States the equal protection of the laws and vested in every citizen the right to vote. White-supremacist violence was rampant in the wake of these Reconstruction amendments, and the KKK Act was intended to prevent the efforts by the KKK and other white-supremacist actors to effectively re-enslave Black people in the former Confederate states after the Civil War.

The law includes Section 1983, a mainstay in our courts that provides a private right of action against state actors who deprive residents of their constitutional rights. It also includes Section 1985, a lesser-known counterpart that regulates private conduct in a much narrower set of circumstances: when private individuals or organizations, such as the KKK, engage in a conspiracy to interfere with the government, obstruct justice or deprive people of their civil rights.

As a result of this limited scope, Section 1985 suits are relatively rare, and successful Section 1985 suits are even rarer. Perhaps unsurprisingly, those that have succeeded have tended to coincide with periods of intensified and pervasive racial violence in our nation’s history: during Reconstruction, during the KKK’s revival in the 1920s and during the civil rights movement in the 1960s.

Now, more than 150 years after its passage, with white-supremacist violence again on the rise, Section 1985 is experiencing something of a renaissance. Four years ago this past summer, the alt-right stormed the streets of Charlottesville. While the organizers publicly called the event “Unite the Right,” for months beforehand they privately called it the “Battle of Charlottesville.” The events of that weekend have been scarred into our nation’s collective memory: menacing hordes of tiki-torch-wielding men chanting “Jews will not replace us”; swaths of armed white supremacists brutally assaulting peaceful protesters; and bloodied bodies strewn across a narrow street after James Alex Fields Jr. barreled his car through a crowd, killing Heather Heyer and injuring many others.

In October 2017, we brought the first KKK Act suit in a long while based on these facts, alleging a conspiracy to commit racially motivated violence under that statute and under Virginia’s state conspiracy law. Just last month, after an intense four-week trial, we secured a $26 million verdict against the defendants.

As 2022 approaches, and as covid-19 once again forces us to live constrained lives, we have had some time to reflect on the four years we spent litigating our Charlottesville case. This case illustrated the importance of scouring the universe for sources of evidence wherever they may be found, including racist podcast recordings of the defendants, video footage shot on iPhones by local activists and messages leaked by an anonymous group from the private social media channels the defendants used to organize the conspiracy. It depended on deploying the traditional principles of conspiracy law against individuals who had planned, organized and perpetrated racially motivated violence in the most untraditional of ways. And it relied heavily upon expert testimony about antisemitism and white supremacy to help the jury connect the dots between racism and violence. All these are lessons learned that we imagine can inform present and future Section 1985 cases.

We also learned the mixed emotions that come with litigating such cases — not just for the litigants and the attorneys but for all of us. While the law enables private parties to meet the moment by combating violent hate with legal tools that protect and defend civil rights, we are mindful of the extreme circumstances that have made this statute relevant over the course of our country’s history and profoundly saddened by its enduring relevance. We should not need lawsuits to remind us that violent bigotry and hate have no place in the United States. As a country, we can and must do better.

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