Lynchburg man sues Charlottesville city over arrest

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CHARLOTTESVILLE, Va. (CBS19 NEWS) -- A Lynchburg man who was arrested during the anniversary weekend of the Unite the Right rally last year is suing the city of Charlottesville for violating his Fourth Amendment rights.

Courtesy of CBS19

John Miska was arrested on the Downtown Mall on Aug. 11 during a state of emergency declared by Governor Ralph Northam. He was legally carrying two loaded guns, but the arrest came after he made a purchase of other prohibited items at the CVS pharmacy and exited the store.

"The fact that you have a 64-year-old former war veteran using a stroller basically to carry Arizona tea, and he's arrested for that and light bulbs and bug spray and some razor blades while he's carrying two pistols seems so ridiculous," said John Whitehead, founder of civil rights organization The Rutherford Institute, which is representing Miska in the suit.

State law prevented the city from banning guns, but the city did ban dozens of other items including glass bottles, aerosol sprays and skateboards.

The misdemeanor charge against Miska was thrown out by a Charlottesville judge last year, and Whitehead says that paved the way for the lawsuit alleging illegal search and seizure.

"The court there dismissed the case saying that the regulations were constitutionally overbroad, which set up a constitutional issue," Whitehead said.

The suit alleges that Miska suffered injuries during the arrest, and it also alleges that police didn't arrest other people with prohibited items.

Whitehead says that's evidence Miska was unfairly targeted.

"There was no probable cause to arrest that man," he said.

Legal analyst David Heilberg says the court will need evidence about how police enforced the law in general and not just in Miska's arrest.

"He claims there's selective enforcement, and it's hard to say unless you see how he behaved compared to how other people behaved," Heilberg said.

While Miska has been involved in other civil rights legal battles, had announced his plans to shop at CVS to police upon entering the downtown area, and was vocal about his constitutional rights during his arrest, Heilberg says it probably won't matter to the court if Miska bought the items as an act of civil disobedience.

"Subjective intent is not usually relevant in constitutional determinations,” he said. “What the court usually looks at is, do the objective facts justify the law, the behavior?"

The suit asks the court to declare the city code section used that weekend unconstitutional, and it asks for Miska's legal fees and unspecified damages.

The city declined to comment on the suit.