Case Summary and Outcome
The U.S. District Court for the Western District of Kentucky Louisville Division upheld protesters right to claim for damages on various counts including assault and battery against audience members who attacked them, and against Trump and his campaign for inciting violence and negligence. Three individuals attended a Donald Trump for President rally with the intent to peacefully protest but when then-Presidential Candidate Donald Trump noticed them in the crowd he stated, “get ’em out of here.” In response, audience members Heimbach and Bamberger, as well as an unknown individual, began to physically attack the protesters in an alleged effort to remove them from the hall. Applying the three-part test from Brandenberg v. Ohio, the Court found it plausible that Trump’s speech advocated the use of force; that whether or not the Defendants intended for the violence to occur is a matter to be litigated; and that the requirement that violence was likely to result was met by allegations that violence actually occurred. Notably, the District Court rejected the defense that Trump’s speech was constitutionally protected speech under the First Amendment, stating “The law is clear….that ‘[s]peech that falls within th[e] category of incitement is not entitled to First Amendment protection.” With regard to the negligence claim, the Court reasoned that the complaint sufficiently established that Trump had a duty of care to the Plaintiffs and their harm was foreseeable. In these circumstances, the Court found the Plaintiffs’ incitement to riot claim plausible and denied the motion to dismiss.
On March 1, 2016, three individuals attended a Donald Trump for President rally with the intent to peacefully protest. When then-Presidential Candidate Donald Trump noticed the protesters in the crowd he stated, “get ’em out of here.” Defendants Heimbach and Bamberger, as well as an unknown individual, began to physically attack the protesters. One of the plaintiffs, Nwanguma, was violently shoved and punched, and was confronted with racial and sexist slurs by the defendants. Another plaintiff, a seventeen-year-old high school student, was punched in the stomach by an unknown audience member believed to be a member of the Traditionalist Worker Party, a white nationalist group that Defendant Heimbach was representing at the rally.
As the protesters were being assaulted, Trump allegedly stated, “don’t hurt ’em, if I say ‘go get ’em’ I get in trouble with the press . . .” The three protesters were violently removed from the rally by other audience members.
The three protesters filed a complaint in the U.S District Court for the Western District of Kentucky Louisville seeking damages for the actions of Donald Trump, the Trump presidential campaign, and the audience members who engaged in violence. The complaint alleged that audience members Heimbach and Bamberger committed assault and battery against them. The complaint further alleged that Donald Trump and the Trump Presidential campaign incited a riot and were vicariously liable and negligent for the violent actions of the audience members.
The Trump Defendants filed various motions to dismiss large parts of the complaint that alleged incitement, agency/vicarious liability, negligence, gross negligence, and recklessness arguing that the Court would not be able to reasonably infer from the pleaded factual content that the Defendants were liable for the alleged misconduct.
Bamberger likewise sought dismissal of all the claims against him while Heimbach did not seek dismissal of claims, instead he moved to strike certain portions of the complaint.
J. Hale denied a majority of the Defendants’ motions to dismiss. The Court’s reasoning was as follows:
Donald Trump and his campaign’s motion to dismiss three counts of the complaint, which accuse them of incitement, vicarious liability and negligence:
- Incitement to riot. The Trump Defendants’ firstly argued that the incitement to riot claim was implausible because there was an “obvious alternative explanation” for Trump’s words, “get ’em out of here,” namely that he intended for professional security to remove the protesters. The Court stated that the mere existence of an alternative explanation for Trump’s statement does not make all other explanations implausible and it questioned the alternative explanation put forward by the Defendants in the light of the facts pleaded by the Plaintiffs. These included that Trump failed to instruct audience members to stop or to instruct security guards to intervene as well as comments allegedly made by Trump on multiple other occasions endorsing or encouraging violence against protesters. In these circumstances the Court found that the Defendants failed to provide an “obvious alternative explanation” for Trump’s statement warranting dismissal of the incitement claim. Secondly, the Defendants argued that the incitement claim failed because it didn’t allege that there was an actual riot. The Court found that facts alleged against Trump complied with the Kentucky statutory requirements to incite a riot which do not require a riot to actually take place, the speaker’s intention for the riot to occur is sufficient. The Defendants’ third argument was that Trump’s speech was protected by the First Amendment. The Court cited Bible Believers v. Wayne Cty., 805 F.3d 228, 245 (6th Cir. 2015): “[W]hen a speaker incites a crowd to violence, his incitement does not receive constitutional protection.” It then employed the three-part test in Brandenburg v. Ohio which states that: “[S]peech may not be sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech”. Applying this test the Court found it plausible that Trump’s speech advocated the use of force; that whether or not the Defendants intended for the violence to occur is a matter to be litigated; and that the requirement that violence was likely to result was met by allegations that violence actually occurred. In these circumstances, the Court found the Plaintiffs’ incitement to riot claim plausible and denied the motion to dismiss.
- Vicarious liability. The Plaintiffs alleged that Defendants Heimbach and Bamberger were acting as agents of Trump during the rally. Agency requires a fiduciary relationship in which one is subject to the control of another and consents to act on their behalf. While the Court noted that Trump had some control over the Defendants, the Court found that the Plaintiffs failed to allege enough factual support to establish an agency relationship. The Court dismissed the portion of the complaint alleging the Trump Defendants were vicariously liable.
- Negligence. The Trump Defendants argued that they can’t be found negligent because they had no duty to the plaintiffs; security at the rally was adequate; there was no causal connection between Trump’s speech and the injuries; the Plaintiffs assumed a risk of injury by protesting at the rally; and the First Amendment precludes liability for negligence. The Court dismissed all contentions as without merit. It emphasized that the Plaintiffs pleaded that the Defendants had a duty to them and, in any event, under Kentucky law, every person owes a duty to every other person to prevent foreseeable injury. The Plaintiffs adequately alleged that Trump could reasonably foresee injury because audience members including Heimbach and others with him were wearing Traditionalist Worker Party T-shirts, a recognized racist hate group, and thus ordering the removal of an African American woman was reckless. The Plaintiffs alleged that their injuries were a direct and proximate result of the Defendants’ actions and this was supported with ample facts, said the Court dismissing the Defendants arguments to the contrary. Further, the Court dismissed Defendants’ arguments that the Plaintiffs’ complaint didn’t contain allegations about the type of security needed or present at the rally because, it said, the negligence claim regarding security was not about how many security guards were present or needed, rather the reliance on audience members to remove the protesters from the rally. Finally, the doctrine of assumption of risk argued by the Defendants was abolished in Kentucky decades ago and could not be used as a defense.
Motions to dismiss brought on behalf of Defendant Bamberger. Bamberger argued that the assault and battery claims were void because the Plaintiffs failed to allege that Nwanguma felt threatened or was actually injured when she was hit and shoved by the Defendant. The Court finds it is a reasonable inference that Nwanguma feared “unwanted touching” as required by Kentucky law. Furthermore, even if Nwanguma was only entitled to nominal damages, the claim would not be barred for failure to allege the nominal damages as a general allegation of damages includes nominal damages. The Court, however, granted the Bamberger’s motion to dismiss the portion of the claim requesting punitive damages because no cause of action for punitive damages existed but this doesn’t preclude recovery of a punitive damages award on future determination.
Defendant Heimbach’s request to strike parts of the claim referring to his membership of the white nationalist group and statements he made regarding how Trump could further the interests of the group. The Court said that portions of the pleading can only be struck if required for the purposes of justice and when there is no possible relation to the controversy. The statements in issue provided related background context for Heimbach’s alleged assault on non-white and anti-Trump individuals. Furthermore, the statements could potentially show that Trump Defendants were aware of the presence of white nationalists in the crowd and the racial slurs used by Heimbach were relevant to the reprehensible environment in which the alleged controversy occurred.
In summary, the Court allowed Trump Defendants’ motion to dismiss on the vicarious liability charge leaving the Plaintiffs’ incitement to riot and negligence claims to be litigated; the Court also granted Defendant Bamberger’s motion to dismiss a separate punitive action claim. All other motions to dismiss were denied and will be litigated.
J. Hale referred the matter to Magistrate Judge H. Brent Brennenstuhl for resolution of litigation planning and all non-dispositive matters.
(Note: though not addressed in this decision, the Plaintiff’s motion for a hearing to decide whether Donald Trump should be deposed prior to the Presidential inauguration was denied as moot.)