By JOHN F. BANZHAF. Originally published at ValueWalk.
Will We Now Finally Stop Coddling Criminal Protesters?; Civil Torts Actions May Be A More Effective Deterrent Than Criminal Law
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Stop Coddling Criminal Protesters
WASHINGTON, D.C. (January 7, 2021) - Yesterday’s criminal rioting at the U.S. Capitol may finally begin to convince more people that we cannot rely entirely upon law enforcement and the criminal law to deter those who are willing to engage in criminal acts to further their causes, and that suing those who engage in criminal rioting for the massive damages they cause can be a very effective deterrent, says public interest law professor John Banzhaf.
Perhaps, in looking for people to blame for yesterday’s outrage, we should remember Pogo’s famous explanation, “we have met the enemy and he is us,” says Banzhaf.
He notes that for many years governmental leaders, including police chiefs and mayors especially, have been willing to tolerate if not even directly encourage criminal behavior on behalf of a cause – both left-leaning and right-leaning – especially if they found it to be a sympathetic one.
So people who chained themselves to trees or earth-moving equipment because they wanted to protect the environment, deliberately blocked traffic and caused massive property damage to protest alleged social injustices, used physical violence to drive controversial speakers from college campuses, destroyed statues or other “offensive” symbols, burned down entire buildings including a police station, or even used massive force to occupy several blocks of a major city, often received little or no punishment.
Even where there may have been little sympathy for the cause behind the criminal behavior, those who engage in it were often never arrested, even when there was videotape clearly documenting their crimes.
Criminal Charges Were Often Dropped
If there were arrests, criminal charges were too often dropped, or the criminals allowed to plead to minor offenses and pay a tiny fine – a small price to pay for the excitement and status of participating an such an event.
Where prosecutors do file felony charges, they will probably face intense pressure to drop them, or at least let the criminal protesters plead to much less serious misdemeanors, predicts Banzhaf, who suggests an 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 criminals rioting for a cause as they would if motor cycle gangs or foreign terrorists engaged in the same criminal conduct.
That’s why Professor Banzhaf suggests that when criminal protesters cross the line and engage in activities which clearly constitute crimes, the victims bring civil torts actions – or using the phrase he popularized, “Sue The Bastards” – where the burden of proof is much less than in a criminal case, 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 criminal conduct, especially in situations where police threats of arrest and possible prosecution, and widespread condemnation of looting and arson, simply have not worked.
A few are following his suggestions.
Victims Are In Beginning To Sue
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 a death when an ambulance was delayed, is ongoing.
Those who suffered personal injury and/or property damage as a result of the prior riots, including the one at the Capitol, 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 criminal protesters, says Banzhaf.
A Weapon Against Those Who Engage In Criminal Conduct
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 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.
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.
There Is A Remedy
But just because government has so far proven ineffective in protecting them, they are not without some remedy, notes Banzhaf, who is known for advocating and using legal action as a tool for fighting wrongdoing and achieving social justice.
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.
Detering Illegal Wrongdoing
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 vacated the criminal sentences of two major conspirators, this civil action may be the only hope of bringing justice to the victims, 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.
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 criminal protesters who allegedly engaged in illegal activities at the Mall of American faced restitution claims from the City of Bloomington.
Protesters Are Willing To Accept A Small Fine
In these and many similar situations, criminal protesters are often willing to accept a small fine 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 in the criminal riot can be sued for the entire amount of the damages suffered by all victims 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.”
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