Capitol Police Can Sue the Stop the Steal Mob, Giuliani, and Even Trump Himself

On Wednesday, it was reported that a second Capitol officer took his own life in the aftermath of the Jan. 6 riot, bringing to three the number of officers who have died in the aftermath of the event. An additional 134 capitol and D.C. officers are known to have been injured, some quite seriously. The injured police, and the families of those who have died, have civil recourse through lawsuits against a host of people who rioted, or who directly inciting the deadly attack on the Capitol—a list that potentially includes Donald Trump, members of his family, elected representatives, and Rudy Giuliani.

Of course, the easiest cases are claims against the miscreants who actually administered the violence.  Although police officers assume certain risks as a condition of their employment, they are nonetheless able to recover damages against anyone who intentionally attacks them. As one dramatic example, whoever is determined to have struck Officer Brian Sicknick in the head with a fire extinguisher, an act that led to his death, can and should suffer civil liability in addition to criminal charges. And those who suffered serious injuries will likely find it worthwhile to sue any rioter who can be identified as having assaulted them (assuming they can pay any judgment levied against them). These victims can recover punitive damages, as well, because tort law allows this remedy for intentional harms. Cases brought by family members of the two officers who killed themselves could also succeed, but they are trickier. Courts have mostly discarded an older rule that saw suicide as breaking the chain of causation between defendants’ actions and victims’ death, but it can still be hard to show that the attacks themselves were a substantial factor in bringing about the tragic event. Still, it’s possible.

Assuming the assailants can be matched to the victims, most of these cases should fall out in favor of the injured officers. A bigger (but perhaps harder to hit) target, however, are those who instigated, incited, and potentially organized the attack. For those seeking accountability for these institutional actors and political gangs, tort claims may be a key answer. The injured have a possible case against the Proud Boys’ leadership; a recent review by the Wall Street Journal found that the right-wing hate group, prompted by chairman Enrique Tarrio, helped lead the attack. (A high enough punitive damage award could cripple the group, or even “cancel” it.) The same may be true of those who organized the so-called “Stop the Steal” effort.

But of far greater political significance is a slew of possible claims against others—some of whom hold, or until recently held, elective office. The plaintiffs in such suits would need to show that these potential defendants had a hand in inciting the January 6 riot. Just as with criminal law, those who actively egg others on to violence can be held liable in a civil action for ensuing injuries or death. The First Amendment’s guarantee of freedom of speech blocks some lawsuits from succeeding, but not all. As I’ve argued previously in a piece for Slate, Trump has danced on the line between permissible, fiery speech and illegal incitement to violence before—as far back as his campaign rallies, in fact. The evidence presented in the upcoming impeachment trial in the Senate should provide grist for the argument that Trump’s rhetoric—which repeated invoked the idea that the election was stolen by fraud and that the crowd must show strength by marching down to the Capitol—crossed that line. Reading the full transcript of the hourlong ramble leaves a distinct sense that the ensuing mayhem was exactly what Trump wanted, and accounts of his enthusiastic reaction to the riot while it was going on buttress that conclusion. If it’s not enough for incitement, it’s close. (Even former attorney general and Trump-enabler William Barr flatly accused his former boss of “orchestrating a mob” to pressure Congress.)

But it should not even be necessary for an injured party to establish that Trump crossed the line from permissible speech to unlawful incitement. It’s clear enough that his actions did lead to the violence, and were unreasonable, if not in conscious disregard of the known risk. In either case, black-letter tort law leads to viable claims against him. Courts are clear and consistent in holding that anyone who places someone else in danger—even if innocently—incurs a duty to then take reasonable steps to help that person. Instead, Trump did nothing until the riot was over, even though a simple command to his frothy followers might well have quelled the violence. And then there’s his delay in bringing in the National Guard, which could have stopped the riot much sooner. (Joseph Kennedy, who teaches criminal law at the University of North Carolina, recently made a similar argument for Slate in maintaining that Trump’s  failure to act after the riot started could result in criminal prosecution.)

Nor is Trump the only “non-rioter” potentially on the hot tort seat. His personal attorney, Rudy Giuliani, who also spoke at the Jan. 6 rally that led to the riot, called for “trial by combat” to settle the election dispute. This refers to a medieval practice, whereby two combatants would fight to the death in a judicially sanctioned battle. While it’s doubtful many in the audience knew the history of the term, it’s incendiary enough on its own. Giuliani should face disciplinary action, criminal prosecution, and civil liability. Not to be outdone, Alabama Rep. Mo Brooks proclaimed at the same event that “[t]oday is the day” to start “taking down names and kicking ass.” With a huge crowd already whipped into a fevered frenzy, Brooks’s statement defending his comments are not persuasive.

The list of potential defendants goes on. Although the details are murky, it appears there was a meeting among higher-up Trump supporters the night before the Jan. 6 riots, which allegedly included Donald Trump, Jr., Kimberly Guilfoyle, Michael Lindell (yes, the “My Pillow” guy), Peter Navarro, newly elected Alabama Sen. Tommy Tuberville, and Giuliani. What was said at this meeting is a mystery, but there’s some evidence linking the event to the Stop the Steal organization. Ali Alexander, one of the coordinators of the event, claims to have spoken to Kimberly Guilfoyle on Jan. 5—the day of the alleged meeting. As of now, this falls well short of what would be needed for a civil claim against any of the supposed principals, but further investigation and civil discovery would certainly be warranted.

It’s unusual for police to sue those who harm them, either directly or indirectly. But in a case like this, they should do it. All of them were endangered, some were seriously injured, and three are gone. Civil law provides a mechanism for holding the rioters, and very likely others, to account. The lawyers should cast a wide net, because big fish may land on the ship’s deck.

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