On March 30th two Capitol Police officers sued Donald Trump for the physical and emotional injuries they suffered in the insurrection inspired by Trump. The two officers alleged the following five causes of action against the former President:
- Directing Assault and Battery
- Aiding and Abetting Assault and Battery
- Directing Intentional Infliction of Emotional Distress
- Liability Per Se for Violation of D.C. Code § 22–1322 — Incitement to Riot
- Liability Per Se for Violation of D.C. Code § 22–1321 — Disorderly Conduct
I anticipate that Trump’s defense team will motion to dismiss this case for failure to state a cause of action under Federal Rules of Civil Procedure Rule 12(b)(6). Under this rule a lawsuit can be dismissed because it is deficient on its face. The court assumes all the well pled factual allegations of Plaintiffs are true but the court will dismiss if the facts alleged do not support a recognized cause of action against the Defendant.
I decided to pick one of the above causes of action and research some relevant case law for the District of Columbia. I picked the second, aiding and abetting assault and battery. I did so knowing the law for aiding and abetting a tort committed by another varied quite a bit by jurisdiction. I had no idea of D.C.’s standards in this regard.
For this tort I would expect Trump’s lawyers to argue he could not possibly have aided and abetted the assaults and batteries committed against the two Plaintiffs, after all he was never even there. He never had any direct prior contact with those who attacked the officers.
With Google as my friend, I started my research. The first case I found was Kasim Kurd v. Republic of Turkey, a 2019 decision by the District Court for the District of Columbia. The case involved supporters of Turkish President Erdogan, and even members of his security team, assaulting protesters during his 2017 visit to D.C. The plaintiff sued some who did not directly participate in the attack for nonetheless aiding and abetting it. Here I found stunningly encouraging language.
Citing a case I will get to momentarily, the District Court found that the “Defendants intentionally helped to create a dangerous and injurious atmosphere which assisted other Defendants in committing battery.” The Defendants were responsible for “creating an environment in which all Plaintiffs were vulnerable to injury.” Does that sound familiar?
I thought I could not find more favorable language than that, until I looked up the Court of Appeals case the District Court in Kurd cited as the basis for its decision. That case is Halbertson v. Welch, 705 F.2d 474 (1983). Two of the three judges in this unanimous decision may be familiar names to you, Robert Bork (failed nominee to the Supreme Court over the Anita Hill matter) and future Supreme Court Justice Antonin Scalia.
The case involved a husband and wife. The husband went out nightly and burglarized homes. His wife never went with him but she generally knew what her husband was doing and did enjoy the lavish lifestyle his very successful “career” as a burglar brought them. That success came to a dramatic end when her husband killed a homeowner. The homeowner’s widow sued the wife for aiding and abetting in the wrongful death of the widow’s husband. The burglar’s wife motioned to dismiss under Rule 12(b)6) for many of the reasons Trump would.
The court rejected her motion to dismiss. The decision extensively evaluated the question of whether merely encouraging violence made one civilly liable for what occurred. It favorably cited one case where a defendant did nothing, but shouted encouragement (e.g. “hit him more”). Then the Halbertson court provided some of the most favorable wording imaginable.
“Suggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.”
Look at that again. The words need only “plant the seeds of action.” They don’t have to be direct calls for violence and this is especially true when the words “are spoken by a person in an apparently position of authority.” There is no greater position of apparent authority than the President of the United States. Further, those who committed the battery say they acted on the words of the President. The lawsuit by the two officers in this case cites the insurrectionists as shouting things like:
“we are listening to Trump — your boss . . . We can take you out . . . We were invited here by the President of the United States.”
Halbertson noted that it is sufficient that the Defendant should have “foreseen an appreciable risk of harm to others at the time of encouragement.” As the Capitol Police officers point out, prior “Stop the Steal” rallies in D.C. had already been associated with violence that included injuries to police.
I’m sure the attorneys for the Capitol police officers were aware of Halbertson when they filed the lawsuit including this cause of action. You can see how they borrow language from the cases in the screenshot of a portion of their lawsuit below. The Halbertson and Kurd case providing strong language to resist Trump’s likely upcoming motion to dismiss. The Plaintiffs allege facts sufficient that a reasonable jury could infer that the President of the United States aided and abetted the assaults and batteries against them.