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The American justice system is going to be very busy in both civil and criminal courts in the coming months and years as a result of the Capitol riot. It stands to reason that many of the individuals who will stand trial or plea bargain for having participated in this event will claim that they were misled and file lawsuits against those who misled them. Jobs have been lost, families will be divided, and very large punitive damage awards will certainly be asked for from juries who may be very sympathetic. In October of 2002, a Los Angeles jury awarded $28 billion in punitive damages against Philip Morris. Will that record now be broken?
Many business owners and civic leaders, apparently believing that there was significant election fraud, encouraged their friends, colleagues, employees, and independent contractors to take up the cause of President Trump in order to protest such alleged fraud. If an employer encouraged his or her employee to participate in the Washington march, could he or she have potential civil or criminal liability as a result thereof?
In general, under the rules of negligence, an individual is considered to be negligent if he or she committed a criminal act that caused injury. It therefore seems probable that there will be a significant number of lawsuits filed on behalf of individuals who were injured or lost their lives or property as a result of these actions. It should be noted that it has been reported on National Public Radio and elsewhere that Department of Justice officials have indicated that it is quite unlikely that President Trump or any other government official will be prosecuted for the riots, but the civil law may implicate them, and it is often difficult to predict what prosecutors will or will not do.
Although there has been no proof of widespread election fraud, unfortunately many individuals believed that there was. To what extent does an employer have a responsibility to warn an employee not to go to this type of event as opposed to encouraging them? Given that there were well over a thousand people at the event and over forty (so far) that may face long term criminal charges, not to mention five or more lost lives, business leaders need to be very careful about how to characterize what they did and how they communicate going forward. Any business that is in this situation should contact legal counsel and act solely upon their advice, but the following analysis may be helpful.
Familiar Territory
This is not the first time that President Trump or others have been accused of inciting a riot. During a 2016 campaign rally in Louisville, Kentucky, protestors were attacked by Trump supporters following Mr. Trump’s repeated statements to “get ‘em out of here” ( Nwanguma v. Trump, 903 F.3d 604, 606 [6th Cir. 2018]). These words were then followed by “don’t hurt ‘em” (id). The protestors brought suit against Trump, and while the case was eventually dismissed, it gives guidance on how the present situation may play out. In determining whether Trump’s statements amounted to the required standard for having a civil cause of action against him, which is known as “incitement”, the court conducted an objective analysis of his words and concluded that they did not pass the “Brandenburg Test” that is discussed below, and thus remained protected under the First Amendment to the United States Constitution.
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The First Amendment is central to the foundation of the United States, and courts have consistently issued rulings protecting it except in very specific circumstances. This article will explore the potential charges most likely to be brought against President Trump and/or those who may be considered to have inappropriately encouraged what became a horrific riot. The success of any charge will ultimately hinge on whether the individual’s rhetoric falls into the narrow category of unprotected speech.
Federal Anti-Riot Act – First Amendment Exception
Words are powerful. Words are so powerful that the First Amendment to the Constitution preserves freedom of speech, however, this right is not absolute. One facet of speech that is not protected under the First Amendment is incitement to violence. It is illegal to yell out “fire” in a crowded theatre unless there is a fire, and in the public’s best interest to regulate speech that is blatantly untrue and may cause damages.
The Federal Anti-Riot Act was passed alongside the Civil Rights Act of 1967 and has ultimately remained good law despite being at the center of many constitutional challenges regarding free speech. The Act provides as follows:
(a) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent –
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph - [1]
Shall be fined under this title, or imprisoned not more than five years, or both.
In 1969, The Supreme Court case Brandenburg v. Ohio created a three-pronged rule to define the standard for what constitutes “incitement” for the purposes of the above statute. The “Brandenburg Test” is as follows:
1) The speech explicitly or implicitly encouraged the use of violence or lawless action.
To establish the first prong of the test, a court will conduct an analysis of whether the actions of alleging election fraud and instructing supporters to “go to the Capitol” ‘encouraged violence or lawless action’.
2) The speaker intends that his speech will result in the use of violence or lawless action.
The second prong of intent can be inferred from the circumstances. Witnesses will likely be called to testify about the various and multiple announcements and verifications of false information about election claims by the President and many elected and appointed civil servants and how this impacted the behavior of those who participated in the riots.
3) The imminent use of violence or lawless action is the likely result of his speech.
The third prong will involve determining whether the violence that ensued in our nation’s capital ‘was a likely result’ of the disseminated inaccurate information.
If a court finds that the combined impact of tweets, speeches, court filings, and general communications was a consorted effort by co-conspirators and not protected speech, then those who willingly participated in such communications may well face very serious criminal charges and be held liable for civil damages.
It is noteworthy that those who may be prosecuted under the above federal statute may also be pardoned by an acting president. The same does not apply to the laws of the District of Columbia.
District of Columbia Riot Law
In addition to the Federal Anti-Riot Act, Section 22-13229(d) of the Code of the District of Columbia provides a similar and straightforward prohibition against rioting or inciting a riot by anyone “who willfully incited or urged others to engage in the riot”.
The statute reads as follows:
§22-1322. Rioting or inciting to riot.
(d) If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than the amount set forth in ‘ 22-3571.01, or both.
Prosecutors may claim that any person or persons who worked for the government or for the President in a responsible position knew, or should have known, that a likely result of “goading on” individuals who were susceptible to being influenced and being violent, such as the Proud Boys, could be expected to riot when they attended a protest to “take back our country” on January 6th.
The Watergate prosecutor, John Dean, famously said “I could indict a ham sandwich” in 1969.
There may be a lot of ham in the situations that grand juries in the District of Columbia may be considering in the near future, but obtaining a criminal conviction will be difficult. Typically a jury must determine that there is ‘clear and convincing’ evidence that all requirements of a crime have been met.
As O.J. Simpson knows, you may be found not guilty in criminal court but still be responsible for civil damages by showing that the ‘preponderance of the evidence’ standard is met in a civil suit. Like O.J. Simpson, it is anticipated that Donald Trump will soon be living in Florida where creditors cannot reach a debtor’s homestead and certain other assets.
Executive Order on Protecting American Monuments, Memorials, and Statutes and Combating Recent Criminal Violence
Going back to possible federal causes of action, we can look at legislation enacted by Donald Trump himself to protect monuments and memorials.
“My Administration will not allow violent mobs incited by a radical fringe to become the arbiters of the aspects of our history that can be celebrated in public spaces.”
– Executive Order 13932
On June 26, 2020, President Trump issued his Executive Order on Protecting American Monuments, Memorials, and Statutes and Combating Recent Criminal Violence. Those who participated in and/or encouraged the January 6, 2021 siege may be in direct violation of Sections 2(a) and/or 2(b) of the Executive Order.
Section 2(a). It is the policy of the United States to prosecute to the fullest extent permitted under Federal law, and as appropriate, any person or any entity that destroys, damages, vandalizes, or desecrates a monument, memorial, or statute within the United States or otherwise vandalizes government property.
Section 2(b). It is the policy of the United States to prosecute to the fullest extent permitted under Federal law, and as appropriate, any person or any entity that participates in efforts to incite violence or other illegal activity in connection with the riots and acts of vandalism described in section 1 of this order.
Based on the images and videos of the damaged Capitol building that have circulated the internet since last Wednesday, it seems that the rioters who were able to infiltrate the building violated this Executive Order.
Voluntary Manslaughter, Involuntary Manslaughter, and Felony Murder
Another question is who will be held responsible for the deaths that resulted from the riot? The jury instructions for voluntary and involuntary manslaughter for the District of Columbia read:
A. VOLUNTARY MANSLAUGHTER
The elements of voluntary manslaughter, each of which the government must prove beyond a reasonable doubt are that:
- Defendant caused the death of decedent.
- At the time s/he did so, the defendant intended to kill or seriously injure the decedent [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to the decedent [another person].
- S/he did not act in self-defense.
It would be hard for a prosecutor to prove that the individuals who were engaging in lying to the public about false election fraud and encouraging others to participate in the January 6th protest “intended to kill or seriously injure” anyone, but perhaps easier to prove to a jury that they acted with “conscious disregard of an extreme risk of death or serious bodily injury”.
Involuntary manslaughter, on the other hand, has a much lower bar.
B. INVOLUNTARY MANSLAUGHTER
The elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are that:
- The defendant caused the death of the decedent.
- The conduct that caused the death was a gross deviation from a standard of reasonable care.
- The conduct that caused the death created an extreme risk of death or serious bodily injury.
The requirement for the causation of death appears to be satisfied, and the communications that took place may be considered to be a “gross deviation from a standard of reasonable care” that is expected from elected officials and political appointees who are on the payroll of the U.S. government. It seems sad that there is apparently no rule against telling lies to the public. The question becomes whether the conduct that caused the death “created an extreme risk of death or serious bodily injury”.
Given that there were death threats being made by members of the Proud Boys and others at the time on social media, it would seem that a jury verdict of involuntary manslaughter would have to be upheld on appeal. In the District of Columbia, involuntary manslaughter is punishable by a prison sentence of up to thirty years.
In addition to voluntary and involuntary manslaughter, another potential charge is felony murder. Felony murder is a common law doctrine that allows any death that occurs in the commission of a felony to be considered murder. The federal murder statute (which is applied to crimes in Washington D.C.) includes the following definition of felony murder:
“[a killing ] committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children.”
Whether President Trump or anyone who participated in the riots could be charged with felony murder will depend on whether prosecutors attempt to fit what happened at the Capitol building into one of the above listed felonies. If one of the felonies applies, then it must also be shown that the death occurred “in perpetration of” the felony.
Of the listed felonies, the most likely felony that prosecutors would apply is treason. The U.S. Code defines treason as follows:
§2381. Treason
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid or comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
A conviction for felony murder with the underlying felony of treason may be difficult for prosecutors to prove beyond a reasonable doubt unless the riots are deemed to be an act of war against the United States.
As more information comes to light regarding the circumstances of the five deaths and the many careers and free lives and otherwise complete families that were lost in the capital riot, it will become more clear whether those who perpetrated the untruths and encouraged the actions that were taken will be prosecuted and for what crimes, and to what degree the trails blazed by investigators and the press cause civil liability suits to be viable. At this stage, and based on the current evidence, the most likely of the high impact criminal charges that would be brought against those responsible may be involuntary manslaughter. It remains to be seen who will be held civilly responsible for the property damage, but laws may be changed and records may be broken as a result of this situation.
Individuals and companies that have liability exposure may be able to give notice to liability insurance carriers and employers and may have some coverage for attorney fees and some degree of civil liability and criminal defense costs, but such coverages will not cover punitive damages or criminal liabilities. Creditor protection laws and planning for those at risk can also be considered, but it can be a crime to transfer assets for the purpose of avoiding the payment of restitution to the U.S. Government, or even to avoid individual creditors in some jurisdictions. Some defendants may divorce and pay assets to the spouse before going to jail so that there will be nothing left for the creditors. Very rough days lie ahead for those who were integrally involved. We have seen families broken when white collar individuals go to jail for breaking federal laws. It is not a pleasant sight.
Extreme facts often result in new laws being made by the courts. Our court systems are a very strong, well-practiced and orderly system, but the results that come from civil and criminal litigation are often unpredictable and dynamic. I am so glad that we have a free court system to handle situations like these, and the ethical judges, lawyers and others who confirmed that the elections were not “rigged” and must now deal with the aftermath of what happens when a large group of people is misled and manipulated. Justice cannot be guaranteed, but due process is, and it will be interesting to see how this plays out as Americans and the rest of the world watch our justice system in action to make sure that it is still intact.