Two Capitol Police Officers Sue Trump Over Capitol Riot

recently wrote about the lawsuit by Rep. Eric Swalwell against former President Donald Trump as a serious miscalculation that could result in a legal vindication for Trump either on the trial or appellate levels. In my view, the lawsuit contravenes free speech as well as controlling case law from the Supreme Court. Now two Capitol Police officers injured during the riot, James Blassingame and Sidney Hemby, have sued on similar grounds with many of the same inherent flaws. The 40-page lawsuit was written by D.C. attorney Patrick Malone, who previously filed ethics complaints against lawyers representing the Trump campaign or the Republican party.  Trump lawyers many view this lawsuit as a greater opportunity than a liability for their client.

The officers seek $75,000 in damages in their complaint but also ask for unspecified punitive damages.

The complaint presents five counts. There are actually six “counts” listed but there are two count fives in the complaint.  The second “Count Five” is actually just a demand for punitive damages, rather than an actual separate tort.  The first five counts are:

COUNT ONE (Directing Assault and Battery)

COUNT TWO (Aiding and Abetting Assault and Battery)

COUNT THREE (Directing Intentional Infliction of Emotional Distress)

COUNT FOUR (Violation of a Public Safety Statute: D.C. Code § 22-1322 – Incitement to Riot)

COUNT FIVE (Violation of a Public Safety Statute: D.C. Code § 22-1321 (a)(1), (a)(2), and (b)Disorderly Conduct)

The lawsuit notably includes the same claim of intentional infliction of emotional distress that was raised by Swalwell.  That claim runs directly counter to the controlling case law.  In 2011, the court ruled 8-1 in favor of Westboro Baptist Church, an infamous group of zealots who engaged in homophobic protests at the funerals of slain American troops. In rejecting a suit against the church on constitutional grounds, Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts distinguished our country from hateful figures like the Westboro group, noting that “as a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The complaint adds a strained “aiding and abetting” claim in addition to the direct claim of assault and battery.  For example, the complaint alleges “Trump aided and abetted his followers’ assault and battery on James Blassingame and Sidney Hemby through his suggestive words and encouragement leading up to and on January 6, 2021, which were spoken from his position of authority and gave his message extra weight.” Imagine what would happen to free speech in the United States if people could be sued for their “suggestive words and encouragement” for third parties who later violate the law.

In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”

Trump never called for violence and instead told his followers to go to the Capitol peacefully to “cheer” on those challenging the electoral votes.Such protests at capitals are common and, while reckless, Trump’s speech could as easily be interpreted as a call for protest rather than violence.

Notably, the Ku Klux Klan leader Clarence Brandenburg also referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court still overturned the conviction.

The court has consistently rejected these types of arguments as a threat to free speech in our society. In Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In another case, NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.

The complaint also includes a direct claim of incitement to riot.  This will force the court to answer the question raised in the second impeachment. I have repeatedly asked in columns why, if incitement was so clear and public, there has yet to be a criminal charge brought against Trump. A wide array of legal experts insisted that this was a strong and clear case for such a charge and District of Columbia Attorney General Karl Racine garnered widespread acclaim by announcing soon after the Jan. 6 riot that he was investigating Trump for a possible incitement charge. Then nothing happened. That was strange given the insistence by legal experts that the crime was public and obvious on Jan. 6. Yet, four months have gone by without word of an interview for Trump, let alone a charge, on criminal incitement. Why?

The reasons could be timeline which shows a chaotic and conflicting account:

►Trump ended his speech at 1:10 p.m.

►The first rioter entered the U.S. Capitol at 2:12.

►According to CNN, Trump had a heated call around 2:20 with House Minority Leader Kevin McCarthy, who told him of the breach.

►Around 2:26, Trump mistakenly called Utah Sen. Mike Lee instead of Alabama Sen. Tommy Tuberville. After Lee gave Tuberville his phone, he reportedly said that Trump did not appear to realize the extent of the rioting in the building.

►At 2:38, Trump called for his followers to be peaceful and to support police.

The biggest risk for Democrats is that this lawsuit (and Swalwell’s lawsuit) will give Trump the ultimate vindication in court. These cases are brought under the lower civil standard of proof. If Trump were able to defeat these cases under the easier standard, it would substantially undermine claims of a criminal violation.

The multiplicity of such lawsuits can increase the changes of getting a sympathetic trial judge. However, these lawsuits are inherently flawed and represent serious threats to free speech. On the existing evidence, they will likely fail on appeal, even if they survive the trial level litigation.  Moreover, the closeness of the filings may allow the Trump team to effectively choose the weakest case to try these issues by slowing walking the other cases.

The absence of commentary on the threat to free speech in these lawsuits is itself chilling. While I condemned Trump’s speech (while it was still being given) and his reckless role in this riot, such views should not blind us to the implications of these actions. If courts were to adopt the arguments in these lawsuits, we would gut protections for free speech in the United States.

The complaints make sweeping and, in my view, reckless claims of liability for political expression. In the end, free speech should be vindicated but these lawsuits also could bring a type of legal vindication for Trump before the 2024 election.

Here is the complaint: Blassingame v. Trump

25 thoughts on “Two Capitol Police Officers Sue Trump Over Capitol Riot”

  1. ►Trump ended his speech at 1:10 p.m.

    ►The first rioter entered the U.S. Capitol at 2:12.

    One hour and two minutes.

    Plenty of time to defeat the imminence prong of the Brandenburg standard.

    1. If Roberts has anything to do with it, The Donald has already lost, such is the parlous state of justice in America today.

  2. Zoe Tillman: “Speaking of legal fallout for Trump for pushing false voter fraud claims (see: buzzfeednews.com/article/zoetillman/trump-lawsuits-capitol-riot-police), WI Gov. Tony Evers is asking a judge to order Trump + his lawyers to pay $144K in legal fees as a sanction https://assets.documentcloud.org/documents/20536635/3-31-21-tony-evers-motion-attorney-fees-trump.pdf And there’s more: WI Gov. Tony Evers is also seeking $106K in legal fees from Sidney Powell and her team for that unsuccessful election challenge …”
    https://twitter.com/ZoeTillman/status/1377430951299411968 — the tweet thread has a couple of excerpts

  3. Did or has anyone ever sued the Military for violating it’s oath of office to The Constitution? Lots of big bucks in that one. Since only the California National Guard showed up after the Capitol Police refused to do their job.

  4. Are they represented by the same folks who represented the woman who falsely accused Justice Kavanaugh?? If not the same, others like them.

  5. It would be more appropriate to sue those who decided to not beef up security despite intelligence reports that indicated potential problems. That would be Pelosi and her gang.

  6. The threat to free expression is real, and intentional. The people behind the 5 years of war on Trump–the FBI, CIA, Democratic Party and most Democratic pols, the great majority of the media, academia, Big Tech, Wall Street, much of the military hierarchy, on and on–believe that with the “long coup of 2016-21” they have now achieved power and are consolidating it so they can hold it indefinitely. Given their confidence in that, of course they see it as time to get rid of the nuisance “free speech” thing. Doing so will help them consolidate and hold power while making it easier to advance their own agenda and interests. A win-win.

    It would be a shock if they showed any honest concern about preserving free speech, or, indeed, ANY of the Bill of Rights. Pass HR1, get a lot of judges in place to uphold it, a couple of rigged elections under it, and the Bill of Rights is a dead letter. THAT is the plan.

    When Franklin said that the Constitutional Convention had provided for “a republic, if you can keep it,” well… we kept it for 230 years, which is really not bad.

  7. It seems that most polarizing figures benefit from the intellectual incapacity of their opposition.
    This was true for Clinton, Bush, Obama, and now Trump.
    Hate and anger may animate action but rarely result in effective action.
    The propaganda campaign that propelled a semi comatose Biden to office, being the exception that proves the rule

  8. Speaking of suits against Trump, here’s other news from yesterday –

    “New York state’s highest court on Tuesday cleared the way for a former “Apprentice” contestant’s defamation lawsuit against Donald Trump to move forward, allowing her lawyers to eventually question the former president under oath. The “Apprentice” contestant, Summer Zervos, claimed in the weeks before the 2016 election that Mr. Trump groped and kissed her without her consent in 2007. In 2017, she sued Mr. Trump for defamation after he denied her allegations and called her story a “hoax.” Mr. Trump has said the suit has no merit.
    “Mr. Trump’s lawyers had argued that state-court lawsuits against a sitting president must be put on hold or dismissed, repeatedly delaying Ms. Zervos’s suit. In a one-sentence order Tuesday, New York’s Court of Appeals said the issues Mr. Trump presented had become moot. Tuesday’s ruling means that Mr. Trump could be questioned under oath for the lawsuit. In 2018, Manhattan Supreme Court Justice Jennifer Schecter had ruled that a deposition of Mr. Trump and other evidence gathering could move forward. The deposition hasn’t occurred because Mr. Trump appealed her ruling on presidential immunity to higher courts. …”
    https://www.wsj.com/articles/summer-zervos-lawsuit-against-donald-trump-can-move-forward-11617130269

    Zervos has been very patient. This case has been pending for 4 years while Trump was in office.

    1. Anonymous you know better, Turley will and has enabled Trump all the way, and will continue to do so at will.

  9. So if this is OK can CBP, sue Biden and Karmela for emotional distress for ignoring American Immigration law or how about the police in Portland, Seattle, New York going after their administrations for allowing unabated riot? Getting wacky, go all the way.

  10. The mistakes in the complaint suggests an emotional rather than a legal attack.

    All of the suits together feel like a swarm of chihuahuas attacking.

    And like a swarm, no one attack is material, but together they add up in legal costs and effort.

    The Dems really are a vindictive bunch.

    1. And like a swarm, no one attack is material, but together they add up in legal costs and effort.

      They are doing Trump a favor by bringing these suits. Not only does it keep him in the news cycle, they will lose and further embolden his base of supporters. That’s money well spent.

  11. Trump doesn’t actually have such a good record.

    He settled the Trump University class action for $25 million.
    He’s currently being sued for defamation by Summer Zervos and E. Jean Carroll and has lost on his motions to dismiss.
    He may well end up sued by NY State for financial crimes.

  12. DEM/WOKE/Political Activist Lawyers using two STOOGES to sue Trump. For the next Four years we shall see such law suits by the DEMS, they ALL have Trump SYNDROME – they hate Trump and they FEAR TRUMP – 2022 and 2024. TRUMP has a pretty good record when being sued by the DEM’s.and POLITCAL ACTIVIST.

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