Two Capitol Police Officers Sue Trump, But Why?; Why Only Two, Why Only Cops, and Why Only Trump?
Two Capitol Police Officers Sue Donald Trump
WASHINGTON, D.C. (April 1, 2021) - Two Capitol Police officers have sued Donald Trump for the physical and emotional injuries they suffered from rioters who attacked the Capitol after hearing speeches by Trump and others, but the law suit raises many questions of both law and strategy, says public interest law professor John Banzhaf, who has frequently called for civil actions when criminal law has proven ineffective.
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Reportedly, at least 81 Capital police officers, and about 60 D.C. police officers, were assaulted on January 6th, so it appears strange if not suspicious that only two have filed suit.
The two Capitol police officers are seeking compensatory damages of at least $75.000 each - numbers which are so small that they hardly provides much incentive for Trump and/or his insurance companies to settle, and even less incentive for the four lawyers in the small firm representing the officers to stay on the case, and respond to the blizzard of defensive legal motions likely to be filed by Trump's army of attorneys.
Adding more officers as additional plaintiffs would likely produce either a bigger verdict or a larger settlement offer, and require very little additional work by the attorneys, while substantially increasing the amount they could earn in a contingent fee, notes Banzhaf, who wonders why there are only two named plaintiffs among all of the law enforcement officials and other possible plaintiffs. Indeed, the complaint repeatedly refers to "other officers."
Even better plaintiffs to add to the law suit would be the much larger number of members of Congress, congressional staffers, and others who were also present, and presumably suffered severe emotional distress from having to hide or slink away, with rioters threatening to killing people.
No Members Of The Media Brought Law Suits
It's also strange that no members of the media or media organizations have brought law suits - as they have in other riot situations - especially since the destruction of lots of valuable TV equipment was captured on videotape.
Banzhaf, who has been called a "Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars" as well as "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and who forced McDonald's to agree to pay some $15 million for failing to make a complete disclosure regarding its french fries, also says it is strange that no large law firms have yet filed a class action law suit on behalf of these thousands of potential plaintiffs - not just against Trump (and possibly other incendiary speakers such as Rudy Giuliani), but, more importantly, against the dozens of individual rioters who have been publicly identified and charged with the actual rioting and criminal assaults on the officers and others.
Interestingly, the Capitol Police officers’ complaint did include numerous references from the criminal cases brought against the rioters.
While rioters do not individually have the deep pockets that Trump has, many if not most are employed, and have property which can be seized and/or wages which can be garnished, to satisfy a monetary verdict. Moreover, some also probably has liability insurance coverage, either as part of a home policy, or as part of an umbrella policy which more and more families have acquired.
The Advantage Of Being The First To File A Class-Action Law Suit
Being the first to file a class-action law suit, even if there are only a handful of initial named plaintiffs, gives the first filing law firm major advantages, and substantially increases the chances that the firm will receive a large award and attorney fees based on all the plaintiffs in the class action, not just those initially named.
It's also strange that this small firm would seek to name only Trump, and not any of the dozens of rioters who have been publicly identified, and with their violent criminal actions clearly captured on videotape, since Trump has several defenses which would not be available to the individual rioters, says Banzhaf. These include defenses based upon the First Amendment and free speech.
Under the famous Brandenburg v. Ohio Supreme Court decision involving an incendiary speech by a KKK leader, the Supreme Court narrowed actionable inflammatory speech to only words that are “directed to inciting or producing imminent lawless action and is LIKELY to incite or produce such action” It held that First Amendment freedom of speech requires that any allegedly incendiary speech must “incite or provoke violence where there is a LIKELIHOOD that such violence will ensue” to be actionable. [emphasis added].
Certainly a U.S. President, speaking about political matters even if they are hotly disputed, should be entitled to at least as much First Amendment protection as a KKK leader, if not more - although, as Banzhaf notes, Brandenburg involved criminal law, and not the civil law which is involved in this law suit by the police officers,
Debate Around If Trump's Speech Incited Violence
Whether Trump's speech was intended to or did in fact (two separate legal issues) provoke the violence later at the Capitol was hotly debated during his second impeachment trial, with those seeking his conviction citing various incendiary words and phrases from his speech. However, this was countered by his defenders who cited portions allegedly suggesting that he urged only peaceful actions, as well as similar incendiary language which was used by other political figures which didn't cause riots.
Thus, on this issue, the evidence is far from clear.
Perhaps more importantly is the First Amendment requirement that the speech must create a "likelihood that such violence will ensue." But the fact that law enforcement officials who monitored Trump's speech on television, as well as undercover officers who were present and able to observe the mood of the crowd, apparently never sent a new warning of violence likely to ensue as a result of the speech.
So, if none sent any such new warning, perhaps the "likelihood" of violence did not seem to exist at the time, even to trained observers.
Moreover, there is growing evidence that many of those who engaged in violence came pre-prepared to riot: wore combat gear, carried weapons, and acted in concert and with real-time communications. So if many were already planning to invade the Capitol even before Trump's speech, that would suggest that Trump's speech was not a "cause" of the riot; i.e., that if the former president's rhetoric had been more moderate, they would have suddenly abandoned their plans to engage in violence.
Rioters Have Been Indicted And Arrested
Banzhaf notes that although many of the actual rioters have been indicted and arrested, apparently there have been no such indictments of Trump or Giuliani for inciting that riot, although federal prosecutors have far more evidence (and lawyers) than the small law firm had in bringing this suit. This suggests that pinning liability on the inciters, rather than the rioters themselves, would be far more difficult.
In summary, while this two-officer law suit is far from frivolous, it would be far stronger if there were additional plaintiffs, if the rioters who have been clearly identified were added as defendants, and probably if it had been filed as a class action, says Professor Banzhaf.
Indeed, a judge might note all this, and suspect that the legal action was filed more for publicity, political purposes, and/or to use pre-trial discovery to "dig up dirt" on Trump, rather than to obtain compensation for injuries; a conclusion which might make him more likely to grant the motion to dismiss the legal action which is almost certain to be filed shortly.