Leaders of either of the two factions which are likely to clash today in Portland can face massive civil lawsuits for damages, even if their demonstrations do not turn violent, as many expect them to, notes public interest law professor John Banzhaf.
If the threat of arrests for protestors who commit crimes which endanger or harm others isn’t enough to deter them from committing criminal trespass, destruction of property, obstruction of traffic, vandalism, and even physical attacks, perhaps it’s time for a new remedy – civil lawsuits by victims of such crimes.
While such suits have always been possible, and several have been successful, a recent ruling provides new ammunition and encouragement, argues Banzhaf.
A federal appeals court has 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 lawsuits against others who help organize illegal demonstrations, including those in Portland.
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.
Banzhaf has been a major advocate for using legal action as a weapon against demonstrators who go far beyond their First Amendment rights and engage in criminal actions, often targeted at innocent bystanders, as a means of pressuring authorities to act on their grievances, since the threat of arrests, and of small fines for disturbing the peace or other misdemeanors, do not seem to have much deterrent effect.
He says that police for a variety of reasons too often do not arrest demonstrators who commit crimes in their presence, so those who wish to organize and/or engage in illegal blockages, occupations, and even theft and/or damage to property are encouraged to generate publicity for the cause and pressure authorities by committing crimes which, while perhaps “non-violent” in themselves, can nevertheless cause harm and considerable inconvenience to innocent members of the public.
Although this new ruling is based upon the leader’s negligence in carrying out the illegal blockage of this highway, and seeks damages for the physical injury which resulted, the principle might well be applied to other torts [civil actions], and to other types of legal harm besides physical injury, suggests Banzhaf.
Indeed, he notes that the unanimous court opinion begins its legal analysis by reminding readers that “Louisiana Civil Code article 2315 provides that ‘[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.'”
Banzhaf notes that civil lawsuits against those who commit criminal act to try to get their way have also been successful in a number of notable instances.
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 or occupying buildings to advance their agenda, says Banzhaf, who has promoted the idea – and the very slogan – of “Suing the Bastards” when the law is broken.
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 for his criminal conduct. As NPR reported it, he was apparently ready to accept a relatively painless conviction 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 American faced restitution claims from the City of Bloomington.
In these and many similar situations, protesters are often willing to accept a small misdemeanor fine and conviction for a chance to focus attention on their cause, especially if it means they get to have a criminal trial which can generate even more publicity for them and for their grievance, argues Banzhaf.
A civil lawsuit, in which each and every participant can be sued for the entire amount of the damages, might serve as a much more effective deterrent than the threat of arrests and possible criminal prosecution, suggests Banzhaf.
As illegal criminal protests by various groups continue to proliferate, causing harm as well as considerable inconvenience to innocent third parties, those harmed may no longer be helpless, even when police refuse to take appropriate action or prosecutors decline to prosecute, and even when the individuals who actually caused specific harms cannot be conclusively identified, says Banzhaf.
While the new legal ruling is binding only on courts within the 5th Circuit, this decision could serve as legal precedent for additional law suits in federal courts in other jurisdictions, suggests Banzhaf, who has been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” and an “Entrepreneur of Litigation, [and] a Trial Lawyer’s Trial Lawyer.”