Justices To Review Bridgegate Crime, But Civil Liability Remains; Bridget Ann Kelly May Skate Criminally, But Tort Liability May Deter Others
WASHINGTON, D.C. (July 1, 2019) – It is possible if not likely that the Supreme Court has just agreed to review the criminal conviction of Bridget Anne Kelly for her alleged role in causing massive traffic blockages at the George Washington Bridge near New York City so that her conviction can be overturned on legalistic grounds; a move which would substantially remove deterrents to government officials and others who might be considering causing other disruptions to the public to achieve political goals.
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But even if criminal law is not able to deter those seeking to advance their goals by causing major disruptions and inconvenience to the general public, the prospect of civil liability - including huge verdicts accompanied by punitive damages - remains, says public interest law professor John Banzhaf, who helped inspire tort law suits against Kelly and others involved in what has become known as Bridgegate.
He notes that the criminal law has generally not been an effective deterrent because police are often reluctant to arrest those causing illegal disruptions, and the fines which can result are often small compared with the opportunity to become a "martyr" to the cause, and publicize it at a trial.
Regardless of whether it constitutes a crime under federal law, causing major disruptions of traffic, and trapping tens of thousands of innocent people in their cars for hours, constitutes a violation of civil law, and gives rise to law suits for various civil torts, says Banzhaf, who has advised attorneys for innocent people trapped in such traffic jams to "Sue The Bastards," a phrase or motto associated with him.
He issued such advice with regard to Bridgegate, and at least two civil actions, under a variety of different tort theories or legal causes of action, were filed and are still before the courts. They seek to hold Kelly, and others allegedly involved, legally responsible in civil suits for the damages the traffic disruptions caused them.
Some of the harms were particularly serious, notes Banzhaf, and went beyond people missing work, important doctor's or employment/hiring appointments, ticket holders missing events, etc.
For example, paramedics responding to two different emergency calls were significantly delayed. In one case an elderly woman died, allegedly as a result of the delay.
Two recent developments are likely to encourage more innocent victims of politically-motivated public disruptions to sue, and for lawyers approached by the victims to agree to accept the cases, says Banzhaf.
The law professor has won over 100 discrimination cases, and has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and an "Entrepreneur of Litigation, and a Trial Lawyer's Trial Lawyer."
First, a federal appeals court recently ruled that a Black Lives Matter organizer who led his followers to block a highway as part of an illegal protest can be sued by persons injured as a result; a decision likely to prompt civil law suits against others who help organize illegal demonstrations or otherwise wrongfully causes blockages.
This decision could open the door for people who suffer as a result of illegal demonstrations - including blockages of streets or bridges, sit ins or other occupations of buildings or businesses, etc. - to sue the leaders, often easily identified through social media, even if they cannot sue the individual protesters who caused the harm or the organization behind it, suggests Banzhaf.
Although this particular ruling is based upon the organizer's alleged negligence in carrying out the illegal blockage of this highway, and seeks damages for the physical injury which resulted, the underlying legal principle might well be applied to other torts [civil actions], and to other types of legal harm besides physical injury, suggests Banzhaf.
Second, a jury recently returned a $44 million verdict (later reduced only because state law limited punitive damages) against Oberlin College in favor of a local bakery which had suffered losses as a result of defamatory statements which the institution allegedly encouraged. The verdict was remarkable, and possibly prophetic, for at least two reasons, says Banzhaf.
First, a jury finding that a tiny bakery suffered over $11 million in damages is extraordinary, given the amount of business it may do in the short period of time the defamatory conduct occurred. It suggests that juries may be very sympathetic to innocent victims of wrongful politically-motivated actions of others, suggests Banzhaf.
Second, most of the wrongful actions were engaged in by Oberlin's students, yet plaintiffs were able to convince a jury that the college should be liable for massive actual as well as punitive damages largely for its lesser role of encouraging and/or supporting these student actions.
The size of the massive verdict - millions in actual damages to compensate a bakery, and tens of millions to punish a college - is important because it is already attracting attorneys who, like sharks, are attracted to blood in the waters.
Attorneys in private practice see the size of the verdict, especially compared with the wrongfulness of Oberlin's conduct, as a powerful incentive to take on such cases because they stand to collect a substantial portion of any award.
The same may also apply to suits for other types of wrongful conduct which, in the past, might not have been brought because of the small size of the anticipated compensation to attorneys. Never underestimate the commitment and tenacity of a lawyer on a hefty retainer agreement, says Banzhaf.
"Suing the Disruptors" - like "Suing the Bastards" - may be the most effective way to help deter those who might consider engaging in illegal activities - including disrupting and inconveniencing the general public - to create support, or at least publicity, for a cause, says Banzhaf, citing these examples.
When other groups learn that the Sea Shepherd Conservation Society has been forced to pay $2.55 million to Japanese companies for illegally using acid and smoke bombs to disrupt their whaling, they may think twice before blocking traffic to advance their agenda, says Banzhaf.
In another example, a student who illegally chained himself to some construction equipment because he opposed an oil pipeline was forced to pay out big bucks in a civil la suit for his criminal conduct. As NPR reported it, he was apparently ready to accept a relatively painless conviction and tiny fine for trespass, but not to pay the pipeline company $39,000 in restitution.
Similarly, eleven protesters who allegedly engaged in illegal activities at the Mall of America faced restitution claims from the City of Bloomington.
Pro-life activists were successfully sued under RICO for physically blocking access to abortion clinics under a theory which might even by used against those involved in other cases, says Banzhaf.
Outrages such as Bridgegate should never occur, says Banzhaf, and if those responsible aren't punished criminally, civil law suits may prove to be the most effective remedy, he argues.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
