I’VE BEEN SUGGESTING THIS FOR A WHILE, but GWU lawprof John Banzhaf emails this press release on suing protesters who cause illegal harm and disruption:
llegal protests on university campuses have already triggered a number of legal actions, but so far the lawsuits likely to be most successful, and most effective at strongly discouraging similar criminal activity in the future – class actions brought by as few as one student or faculty member – seem to be overlooked, says a class action expert.
Public interest law professor John Banzhaf – who has been called a “King of Class Action Law Suits,” “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” and “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” points out than even one individual student or faculty member harmed by illegal actions by protestors can bring a class action lawsuit against each and every one of the criminal protestors who can be identified (e.g. by cell phone or video camera recordings, arrest records, etc.).
In addition to the serious financial and other burdens of having to hire lawyers to defend against such suits, and the impact on their future credit ratings, each protestor could be found legally liable for the entire amount of all the damages to all of the thousands of class action plaintiffs under the well-established legal doctrine of joint and several liability, says the law professor, who promoted such lawsuits against the January 6th rioters.
Indeed, it’s a legal tactic even the Wall Street Journal (as well as others) has recommended, even for far less serious crimes such as simply temporarily blocking traffic:
If DAs won’t prosecute, victims can sue for false imprisonment
Such class action lawsuits could be brought for familiar torts (civil damage actions) such as assault and battery, false imprisonment, and tortious interference with existing contractual advantage, as well as less familiar ones such civil conspiracy and prime facie tort, says Banzhaf, who has already inspired such public interest lawsuits.
University protestors seem largely undeterred by actual or threatened arrests since in many cases the typically minor criminal charges are likely to be dropped by the university and/or by sympathetic prosecutors. If not, a tiny criminal fine may be seen as a small price to pay by students striving to achieve a major social goal, argues Banzhaf.
Similarly, many universities are likely not to impose serious – if any – discipline on students who exceeded their rights of free speech and expressive activities by engaging in criminal tortious conduct such as:
■ Trespass to land (illegally occupying university property, especially with tents),
■ Civil assault and harassment (which need not involve any touching or actual harm),
■ Civil battery (even the slightest touching which proves to be harmful or even simply offensive)
■ False imprisonment (menacingly surrounding a student or professor, not permitting janitors to leave a building)
■ Tortious interference with existing contractual advantage (preventing students from going to classes and/or the library, from taking exams, experiencing graduation, etc.)
A lesser known but very powerful tort action is a civil conspiracy. It allows a plaintiff to seek damages from two or more parties who agree to commit an unlawful act, or to engage in combination even in a lawful act (e.g. hundreds of protestors all telephone or try to withdraw money from their account at the same time to pressure a bank to take some action) and the plaintiff suffers harm (including disruption and/or delay) as a result of that agreement.
Another very powerful legal tool which has been recognized and utilized in many situations is the prime facie tort. It is generally defined as the “infliction of intentional harm, resulting in damages, without excuse or justification, by an act or series of acts which would otherwise be lawful.”
In other words, in addition to all of the other possible civil actions, once a jury found that protestors knew that their actions would harm other students, and that any of the actions (including but not limited to those which violate the law) were not justifiable, it can issue a verdict holding each and every protestor who participated legal liable for all damages to all students who were adversely affected (and therefore make up the “class” in the class action).
Banzhaf notes that his prior articles and other legal analysis inspired civil lawsuits against “cause” lawbreakers, and that similar suits have sometimes led to very large damage awards which shocked the criminal protestors.
Prosecutorial discretion won’t help them here.
