Donald Trump’s political rallies have a history of violence. At a Las Vegas rally on December 14, 2015, Trump supporters were heard screaming “light the motherf***er on fire” at a black protester as he was escorted from the rally. Reporters were attacked at rallies by Trump campaign staff on February 29, 2016 and March 8, 2016. On March 2, 2016, a black woman was repeatedly shoved as she left a rally after Trump yelled to his supporters to get her out of the building. On November 21, 2015, six rally attendees tackled, punched and kicked a Black Lives Matter protester. These are just a few of the reported incidents of assault on protestors at Trump rallies.
Trump’s campaign started playing an advisement over loudspeaker at the beginning of their events that their rallies are intended to be peaceful rallies and telling rally-goers to neither touch nor harm protesters. In February of this year, reporters noted that the crowd laughed when this advisement was played.
Many of the above incidents have resulted in police investigation as well as criminal and civil charges being pressed against the rally-goers who actually assaulted these protestors and reporters. However, Trump himself has tacitly and explicitly approved of the use of violence in removing protestors or reporters from his rallies. Trump’s campaign also funds all of his events, repeatedly calling his rallies private events. These facts can be enough to form the basis of either civil liability for the violent acts of Trump’s rally-goers or criminal liability through an argument of incitement to violence. So can Trump be held liable on either of these theories?
Civil Liability For Criminal Acts of Third Parties
There is generally no liability for the criminal acts of other people and no duty to protect others from the acts of third parties. However, there are exceptions where a special relationship exists. If such a relationship exists, a party has a duty to take reasonable steps to protect against foreseeable criminal acts of third parties. Failure to take these reasonable steps opens the party up to liability.
So does Trump have such a special relationship with protesters at his rallies? The exact nature of what constitutes a special relationship for liability purposes varies a fair bit depending on state law. A common form of these special relationships arises between a possessor of land who holds it open to the public and those who enter in response to this invitation. Thus, the question is whether Trump, by personally financing his events and holding them open to the public, is treating all who attend his rallies as invitees.
Case law does not conclusively rule on this issue, and state law varies enough that it is difficult to make a real determination as to whether Trump has created a relationship that could lead to liability. However, if a person open their business to the public, anyone who enters is an invitee. This includes customers and patrons. Thus, there is a real argument to be made that Trump, who personally pays to rent his venues and allows any of the public to enter, has created a special relationship with every person at his rallies.
If Trump has made such a special relationship, the question becomes whether these assaults are foreseeable. Foreseeability in these cases boils down to whether Trump knew about a history of frequent, similar criminal activity. Trump rallies have had numerous assaults, as illustrated above. Trump certainly has reason to foresee the potential for further assaults against protesters at his rallies.
Finally, in order to be liable, there must be reasonable steps that Trump could take to prevent violence, but failed to. Trump has issued an announcement advising his rally-goers not to attack protesters. However, numerous assaults have occurred since this advisement was introduced—proving it ineffective. What’s more, providing adequate warning is only part of the reasonable steps one must take. While the exact nature of reasonable steps varies state to state, where a duty exists one must take steps to secure common areas against foreseeable criminal acts that are likely to occur.
This means that Trump must provide security sufficient to prevent protesters from being assaulted. This is something he has not done up to this point, instead focusing on using his security to remove protestors. One clear reasonable step Trump could take in preventing violence is not endorsing it at his rallies, such as when he told his crowd on February 1, 2016 “if you see somebody getting ready to throw a tomato, knock the crap out of ’em, would you? Seriously. Okay? Just knock the hell — I promise you, I will pay for the legal fees. I promise. I promise.”
The issue with holding Trump civilly liable for the criminal acts of his rally-goers is determining whether he has created a special relationship with those who attend his rallies. As it stands, it is very hard to determine whether such a relationship exists. If such a special relationship exists though, there is a very real possibility that Trump himself may be vulnerable to a lawsuit.
Inciting Rally-Goers To Imminent Lawless Action
The second potential source of liability for Trump would exist if he has actively incited his rally-goers to imminent lawless action. The Supreme Court established a test for unprotected speech, ruling that speech is unprotected where it incites a person to immediate violence or illegality. Most states have statutes that could hold Trump criminally liable if he is found guilty of inciting violence.
However, in order to be criminally liable for incitement, Trump would need to actively advocate immediate illegal action. While Trump has gone on record with numerous comments that imply his support of his rally-goers violent actions, he has yet to cross the line of suggesting immediate violent action. If Trump were to say “punch that protester in the face for me” that would likely constitute incitement. However, simply fostering an environment conducive to violence does not mean his language incites immediate violence. A situation could arise where Trump, following his current trend of behavior, may find himself criminally liable. However, it is unlikely that Trump could be prosecuted for anything he has said up to this point.