For Rioters – Life in Prison or Civil Law Suits, Happy Medium Between Tiny Fines and Lengthy Prison Sentences
Rioters Are Facing Life Sentences
WASHINGTON, D.C. (August 10, 2020) - Some rioters are facing life sentences in Salt Lake City, and other rioters are facing felony charges in additional cities including Louisville, Eugene, Grand Rapids, Austin, Richmond, and elsewhere.
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While some may say that it's about time, since misdemeanor arrests and tiny fines haven't deterred rioters from burning down entire buildings including a police station, taking over large sections of at least one major city, seriously injuring innocent bystanders and law enforcement officers (including blinding some) and causing massive property damage, with the riots sometimes continuing for weeks at a time.
But prosecutors who filed the charges will probably face intense pressure to drop them, or at least let the rioters plead to much less serious misdemeanors, predicts public interest law professor John Banzhaf, who suggests a more effective way of deterring such lawless conduct without relying upon local police and prosecutors, who too often have been reluctant to take the same effective action against rioters as they would if motor cycle gangs or foreign terrorists engaged in the same criminal conduct.
Moreover, argues Banzhaf, any prosecutors who try to bring felony cases to court will find it very difficult to prove each element of the crime beyond a reasonable doubt, and may face judges who are sympathetic to the rioters' cause.
That's why Professor Banzhaf suggests that when protesters cross the line and engage in clearly criminal activities, the victims bring civil torts actions or - using the phrase he popularized, "Sue The Bastards" - where the burden of proof is much less, and the process is controlled by the victims and their attorneys, not public officials subject to pressure.
Banzhaf, a staunch defender of the First Amendment, has long advocated civil [tort] law suits against those who go beyond lawful protest and engage in criminal conduct, and especially those who deliberately harm completely innocent third parties as a way of deterring such conduct, especially in situations where police (and even national guard), threats of arrest and possible prosecution, and widespread condemnation of looting and arson simply have not worked.
Victims Filing Civil Law Suits Against Rioters
He notes that, in New York City, victims are in fact beginning to sue those whose criminal conduct caused injury, with one law suit already filed, one by a civilian broadcaster being weighed, and several more promised.
A New York City police detective has filed a civil tort suit seeking monetary damages against an alleged rioter for physical injuries he allegedly sustained during widespread looting. A broadcaster discussed on his TV program his hopes of suing the criminals who damaged his studio during the New York City rioting.
The president of the New York City Detectives' Endowment Association, which represents some 19,000 current and former detectives, has vowed to sue any protestor, rioter or looter who attacked its members. And a civil law suit inspired by Banzhaf against those who unlawfully blocked a bridge, effectively imprisoning thousands in their cars, and allegedly leading to death when an ambulance was delayed, is ongoing.
Those who suffered personal injury and/or property damage as a result of the prior riots, or riots which might occur in the future, have a novel weapon which some are using or considering using, since even massive law enforcement presence, arrests or threats of arrests, curfews, or leaders urging peaceful protests were not able to deter rioters, says Banzhaf.
One journalist has now brought a civil law suit, and another has publicly discussed bringing such an action, says Banzhaf, who has been urging adding civil law suits, and especially class actions, to the weapons against those who engage in criminal conduct to make a point.
Journalist Andy Ngo has just filed a law suit against rioters and others who physically beat him while he was covering a protest which turned into a riot. The law suit, filed in Oregon's Multnomah County, includes claims of assault, battery, intentional infliction of emotional distress and Oregon's Racketeer Influenced and Corrupt Organization (RICO) Act.
More recently, journalist John Tabacco discussed, on his program "Liquid Lunch," how he is considering bringing a law suit for damages his TV studio suffered as a result of the recent riots. Banzhaf, who was his on-air guest on the program, explained the advantages of a civil law suit, and how Tabacco might go about bringing it.
Minority-Owned Businesses Suffering The Damages
Banzhaf notes that criminal riots have continued to proliferate, despite increased law enforcement presence, curfews, and pious pronouncements, and many of the victims of this criminal conduct are members of minority groups whose places of business - often uninsured - were damaged or even destroyed.
But just because government has so far proven ineffective in protecting them, they are not without some remedy, notes Professor Banzhaf, who is known for advocating and using legal action as a tool for fighting wrongdoing and achieving social justice.
Unlawful destructive criminal riots in many cities have resulted in major incidents of arson, widespread looting, physical assault, destructive vandalism, other damage to property - including the property of African Americans and other minorities - but police, the national guard, arrests (which have been few and far between), the threat of criminal fines, and pleas for calm and order from many have failed to deter those bent on engaging in criminal activity to make their point.
But there is a remedy for criminal riots which could be helpful in this and other similar situations of unlawful - and especially felonious - criminal activities, suggests Banzhaf, who cites a few instances where it has been used.
Although arrests (with little threat of significant jail time) and small fines have generally be ineffective from discouraging those seeking to draw attention to causes by going far beyond their First Amendment rights to protest, and instead engaging in serious crimes against the public welfare and against completely innocent third parties, a major civil class action law suit for all the damages suffered by the hundreds of people adversely affected is much more likely to deter them from engaging in such crimes in the future, suggests Banzhaf.
The law professor notes that. under the legal doctrine of "joint and several liability," any one person or business injured or damaged as a result of criminal rioting can sue any one or more of the criminals (called joint tort feasors) actively engaged in criminally destructive and unlawful rioting for the total of all the damages caused, even if it is impossible to identify with specificity which criminal caused each specific instance of damage.
If the threat of arrests and possible fines for rioters who commit serious crimes which endanger or harm others isn't enough to deter them from engaging in criminal trespass, destruction of property, arson, looting, obstruction of traffic, destructive vandalism, and even physical attacks, perhaps it's time for a new remedy - civil law suits by one or more victims of such crimes - says Banzhaf.
Using Legal Action As A Weapon
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 serious criminal actions, often targeted at innocent bystanders, as a means of pressuring authorities to act on their grievances, since the threat of arrests - which are often rare - does not seem to have much deterrent effect.
He says that police, for a variety of reasons, often do not even arrest illegal rioters who commit even the most serious felonies in their presence, so those who wish to engage in illegal arson, looting, vandalism, and other criminal destruction aimed at innocent third parties are encouraged to generate publicity for their cause, and pressure authorities by committing these and other crimes. Recently, authorities have refused to prosecute many of those arrested for rioting.
The idea of using class action law suits to punish criminal activities and deter such illegal wrongdoing is neither new nor strictly academic, notes Banzhaf.
For example, at least one law suit inspired by Banzhaf was brought on behalf of drivers effectively imprisoned (the tort of false imprisonment) by illegal blockages of the George Washington Bridge in New York City. Indeed, now that the Supreme Court just vacated the criminal sentences of two major conspirators, this still-pending civil action may be the only hope of bringing justice to the perpetrators, and of deterring such unlawful action for the future.
Banzhaf notes that civil law suits against those who commit criminal riots in concert with others - even those actions far less serious and less harmful than burning buildings and assaulting police or even blocking traffic - to try to advance their cause have also been successful in a number of notable instances.
As early as 1988, a federal jury found two white supremacist groups - the Ku Klux Klan and the Southern White Knights - and 11 people responsible for the violent disruption of a 1987 civil rights march in Forsyth County, Ga., and awarded nearly $1 million in damages to the plaintiffs who filed the suit.
Suing The Bastards With Civil Lawsuits
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 - much less engaging in widespread destruction - 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, criminal protesters are often willing to accept a small fine and a 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.
In contrast, a civil law suit, in which each and every participant can be sued for the entire amount of the damages under the legal principle of "joint and several liability," might serve as a much more effective deterrent than the minor threat of arrests and possible criminal prosecution, suggests Banzhaf.
While everyone has a constitutional right to protest in public, that right clearly does not extend to engaging in serious crimes to draw attention to a cause or grievance, no matter how important or righteous that cause may seem.
As illegal criminal riots by various groups continue to proliferate, causing serious harm to governmental bodies as well as to innocent third parties, those harmed may no longer be helpless, even when police refuse to take appropriate action and/or prosecutors decline to prosecute, and even when the individuals who actually caused specific harms cannot be conclusively identified, says Banzhaf.
Banzhaf, famous for developing novel winning law suits - including over $12 million from McDonald's over its french fries, and against Spiro Agnew to recover the money he took in bribes - has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."