Constitutional institute warns Broadway and Elkton police about coordinating with militia groups

By Randi B. Hagi, assistant editor

Some armed observers watch the Black Lives Matter protest in Broadway on July 6 at the corner of Turner Avenue and Main Street. Some people who came to watch the protest were affiliated with militia groups, others were not. (Photo by Randi B. Hagi)

Following their responses to Black Lives Matter rallies in Broadway and Elkton this summer, militias and two police departments in Rockingham County have caught the attention of a national legal center that monitors militia groups and sometimes takes constitutional issues to court.  

Mary McCord, the legal director of Georgetown University’s Institute for Constitutional Advocacy and Protection, sent letters on Aug. 21 to the police departments in both towns warning them about the constitutional risks of coordinating with militia groups, providing a toolkit for responding to protests and offering training and advice about protecting “public safety while preserving constitutional rights during public protests and demonstrations.”  

“It is concerning that these militias have asserted collaboration with the police departments of both Broadway and Elkton,” McCord wrote. 

Her letter goes on to say the Constitution’s Second Amendment does not authorize private paramilitaries – arguably, militias – to organize. And under Virginia law, McCord wrote, militias can only be lawfully called forth by the governor in defense of the state. Another statute “prohibits individuals who are not law enforcement officers from exercising law enforcement functions,” the letters state. 

“A lot of this is about education,” McCord told The Citizen about why she wrote to the police departments. “Local officials are largely unaware of the statutes that are on the books and feel a little bit hamstrung about what they can do to prevent the militia activity. And the widespread mythology across the country about the Second Amendment is that, particularly in an open carry state, that the Second Amendment protects this type of activity, but it doesn’t.”

Determining whether police departments or militia members inapporpriately collaborated or acted in the wake of the Black Lives Matter protests hinges on a number of questions, including whether rural militias are, by definition, paramilitary organizations. 

In addition: 

  • Were the militias assuming law enforcement duties at those protests? 
  • Did their presence infringe upon the first amendment rights of the protesters? 
  • And how did the police departments respond to the militias that expressed a desire to assist law enforcement officers?

Such questions have become increasingly of interest nationally, as political tensions erupted into deadly violence, like in the case of 17-year-old Kyle Rittenhouse, who has been charged with first-degree intentional homicide after allegedly shooting two protestors in Kenosha, Wisconsin, last month. Rittenhouse might be a member or supporter of a militia in that area, according to NPR, possibly the group that law enforcement officers thanked and tossed bottles of water to in a video taken by journalist Kristan Harris.

Georgetown already had a close eye on militia groups before this summer. The Institute for Constitutional Advocacy and Protection formed in 2017, following the white nationalist Unite the Right rally in Charlottesville.

“When we saw the militias that had come – there were sort of two different categories,” McCord told The Citizen. “There were the self-professed militias, the ones that are in the camouflage with the AR-15 and the helmets and the combat gear … But we also saw the far-right groups …  who were also engaging in paramilitary activity because of the way they organized together while armed and used force and paramilitary techniques against others.”

Following the violence in the wake of that rally, the institute assisted the city of Charlottesville, businesses and neighborhood groups in getting 20 rally organizers and participants – including Jason Kessler, the Pennsylvania Light Foot Militia, The League of the South, the Nationalist Socialist Movement, and the left-wing group Redneck Revolt – to sign consent decrees that prohibit them from organizing paramilitary groups to return to Charlottesville, as AP News reported in 2018.

This is a map of Broadway shared between the former Broadway police chief and a militia member regarding positioning of law enforcement officers during the July 6 Black Lives Matter protest. The map was included in records The Citizen received from Broadway in response to a Freedom of Information Act request.

Documents show connections 

McCord and her team at the institute were alerted to the militia presence in Rockingham County by JMU librarian Grace Wilson, who attended the Broadway protest on July 6. 

“I just want people to care. I’ve been very concerned to see the rise of private militias seeming to go unchecked in this area,” Wilson said. “And so I’m hoping others will also be concerned, and we can bring a little bit more awareness in the community, and hopefully achieve some more transparency.”

Wilson filed a Freedom of Information Act (FOIA) request with the city of Broadway, asking for records of communications to and from the police department containing words like “protest,” “Black Lives Matter,” “riots” and “militia.” 

The Citizen filed a similar Freedom of Information Act request with the Broadway Police Department on Aug. 28, asking for communications between the department and representatives of the Rockingham County and East Rockingham South Page militias.  The department provided more than 30 pages of documents, including police memos about the event and emails from the protest organizer and militia members.  

According to the documents, Mark W. Baughan of the East Rockingham South Page Militia wrote Broadway Police Chief Randy Collins an email on July 2, saying, “I am going to doctor up that map a bit based on what we talked about and will send the revised Version over via email.” 

The document to which Baughan was referring was a map of the town of Broadway, with the positions of law enforcement officers marked alongside numbered positions such as “South Main Street watch paths between buildings.” 

Baughan did not respond to The Citizen’s email request for an interview.

Broadway Town Manager Kyle O’Brien told The Citizen that there was no record of the police department’s response to militia members because those conversations took place over the phone. 

Collins, the Broadway police chief, has since retired. The new chief offered to pass on The Citizen’s request for comment to Collins, but Collins never responded.  

Wilson forwarded the documents she received to the Georgetown Institute for Constitutional Advocacy and Protection. 

“It definitely shows communication between militias and the police of both Elkton and Broadway, and definitely shows a strong desire on the part of the militias to coordinate with them,” McCord said. “It’s less clear about whether the police actually responded in a favorable way … whether the police actually encouraged that or, worse, actually collaborated or supported it. The only thing that’s really clear to me is that they didn’t immediately squash it.”

The correspondence between the local police department and militia leaders “raises more questions than it answers anything,” Wilson said. “To me, this definitely shows a relationship. I think as citizens in the community and the county… we all want to feel like we’re protected and we’re safe.”

Efforts to obtain communications between the Elkton Police Department and militia groups turned up less information. Elkton Clerk of Council Denise Monger responded to a FOIA request that county resident Jake Krug filed on behalf of the Shenandoah Socialist Collective, saying, “we have no documents that are not confidential responsive to this request.” 

Emails exchanged between the former Broadway police chief and a member of a militia group before a July 6 Black Lives Matter protest in Broadway.

Militia members disagree over role

Part of the complexity of this situation is that the people who came armed and stood around the protests in Elkton and Broadway were there for different reasons. The emails Wilson obtained indicate that the Rockingham County and East Rockingham South Page militias were present at both the Elkton protest on June 17 and Broadway in July. Other individuals appeared to be unaffiliated counter-protesters or observers or could have been part of other groups.

According to one representative of the Rockingham County Militia, the group has been misrepresented both by Georgetown and one of their own members. In a previous article, militia member Brian Robbins told The Citizen that during both protests, “the whole time we were in contact with the police force … we were in coordination with the police the entire time, before and after the events, both” in Elkton and Broadway.

The documents Wilson received in response to her request include an introductory email from Robbins to Chief Collins but no response from Collins. 

Fellow Rockingham County Militia member Terry Cubbage told The Citizen in a later interview that Robbins’ statements in that article were inaccurate. 

“We did contact both Broadway and Elkton Police Departments, in which we were told they, along with the sheriff’s office had the matter in hand, and they didn’t need any assistance from us,” Cubbage said. “They stated that we were not needed but could not tell us to stay away, because it was also our right to be there just as anyone else had the right to be there.”

From Cubbage’s perspective, the Georgetown letters were incorrect in asserting that the Rockingham County Militia may have exercised law enforcement functions.

“We did not participate in any law enforcement activity because we are not sworn officers,” Cubbage said. “We were tucked away to the side, just as regular citizens were that were trying to protect their community … It’s a civic obligation. It’s not an actual law enforcement duty.”

Cubbage also said the Rockingham County Militia members did not openly carry rifles at either protest but, rather, had concealed handguns.

“The group that was there that had firearms that was displayed was not part of RCM. And that’s what we need to understand here, is RCM is being made to be the ones out intimidating,” he said. “We were carrying legal firearms that were concealed carry that is legal to the state of Virginia and the United States. And I want to make that clear, that right to be able to carry … that doesn’t mean that we were there to shoot somebody or anything like that. I mean, people carry concealed a lot, especially in Rockingham County.”

Some citizens want police to seek training 

Whatever their intentions may have been at those protests, some citizens remain concerned about the presence of armed militia members at peaceful protests and militia groups in general. 

“I think here on out, we need to see change moving forward. No collaboration with the militia or any type of militia that’s in the area,” said Jessani Collier, one of the youth organizers of the Broadway Black Lives Matter protest. 

Collier said she hopes the departments take the Georgetown Institute up on the offer of free training about “what to do and how to handle protests if they get out of hand —  just so they can avoid situations, like things that happened in Kenosha where militias were literally terrorizing people in the streets as they were protesting.” 

“What we really want to see is them take that training,” Collier said.

If the Broadway Police Department doesn’t strongly denounce the militias, or accept Georgetown’s offer of free consultations, Wilson said it could further damage the community’s trust of police.

“I think they’re failing Black citizens,” Wilson said. “They’re failing the folks that are scared of this militia.”

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