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Assaults at Trump Rallies: Can Criminal or Civil Lawsuits be Brought against Trump?

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. Trump 3

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.  

Big Brother Is Watching: Why Apple’s Stance Against the FBI Is a Big Deal

“If you want to keep a secret, you must also hide it from yourself.” – George Orwell, 1984

On December 2, 2015, two armed gunmen killed 14 people and seriously injured 22 more. They tore through the city of San Bernardino, CA and left behind a terrified and confused community. They also left behind digital information, stored in a locked phone.

On February 16, 2016, the Federal Bureau of Investigation (FBI) was granted an order by a federal court to ask Apple, Inc. to provide “reasonable technical assistance” to investigators. In essence, the FBI wanted Apple’s help to unlock the phone.

Immediately, the CEO of apple, Tim Cook, publicly stated that the company will not follow with the order. He cited that it would threaten the security of their customers, as well as have profound legal implications that will be far reaching.  Phone Lock

To the FBI and the government, the phone can hold important information that would be key to preventing future attacks. Who should prevail? How can the FBI compel Apple to help them? Why is this court order so troubling? Where will the legal system go from here?

How Did an Act from 1789 Become Front and Center?

The FBI’s order was granted under the All Writs Act of 1789 (AWA). The Act seems old and obscure, but despite how old it is, the Act itself is not complicated. It is like a catch-all provision that will enforce government orders if a judge considers it necessary. It aids the government action if it is the only tool available.

There are four requirements for the use of the Writ:

  • There are no alternatives;
  • The writ is not used to create jurisdiction for the government;
  • It is necessary or appropriate to help the government; and
  • The writ does not violate the general principles of the law.

It essentially boils down to one key question: is this writ necessary? A lot like an injunction, the judge will decide whether to grant the Writ. The judge has the power to grant or deny the Writ based on their independent judgment.

This means that a different judge presented with an almost identical motion can deny the writ. On February 29, 2016 a judge in New York denied the FBI and Drug Enforcement Administration (DEA) a writ under the AWA. The judge determined that the necessity of the writ did not overcome the fact that Apple must give aid against their will. The judge also warned of what may happen if the writ is granted. How it can produce “impermissibly absurd results.”

What Are the Results and Why Are They Absurd?

There is a lot of discussion about what will happen if Apple will is forced to help the FBI. The technological implications seem to show that the government will have a way to break into password protected phones. They could break into phones of the average person without needing to use the AWA. To those who support Apple, George Orwell’s 1984 is coming to life.

The American legal system is based on several ideologies. Other nations create laws that binds the government to a promise, such as government paid healthcare. In contrast, the United States creates laws that limits the government. In general, the government will not interfere with practice of religion, speech, and ownership of property. Above all, the American legal system promises citizens freedom from their government.

Most importantly, the government cannot force its citizens into “slavery” or “involuntary servitude.” It is clear from Apple’s statements to the public that they do not want to comply with the Writ. The judge in New York stated that a writ under the AWA would “compel Apple – a private party with no alleged involvement…to perform work for the government against its will.” The judge ruled that the law does not allow that result.

The nation already has fears of government wiretapping. Now, to forcing a private business to work for the government seems to result in “the perfect storm.” If the government succeeds and Apple must follow the Writ, then an important precedent will be set. Judges may look the current case to decide whether to grant an AWA Writ for future cases.

A Future Our Founding Fathers Couldn’t Foresee

While there are many technological reasons why enforcing the Writ could be dangerous, there are legal reasons as well. Would Apple be pushed into involuntary servitude if the Writ is enforced? Does the Writ violate the general principles of the law?

Here, the intent of the Founding Fathers cannot be easily discerned.We live in a world where our lives leave a digital trail and not a paper one. The details of our lives is often accessible through one device. Our expectation of privacy used to be limited to our home. But now it is no longer clear where that expectation begins or ends.

Drones and Privacy Law

The word “drones” has taken on several different meanings in American culture. They have become a common phenomenon at outdoor festivals and public gatherings. The Obama administration has used them for targeted strikes in foreign countries. They were recently one of the most popular gifts this past Christmas. Real estate agents, indie filmmakers, and other professionals utilize them for their businesses. Finally, drones can be used by Peeping Toms to spy on their neighbors.

This last use has many people concerned. An invasion of privacy is the intrusion on a person’s right to be alone, and most US citizens have concerns about any form of unwarranted privacy invasion.

There have already been several reports of individuals shooting down their neighbor’s drones because they appeared to be hovering and recording private conversations. In Los Angeles, a marketing company even tried to use drones to capture cellular location data. A call for privacy regulations on drones, regardless if they are used for commercial purposes or not, seems inevitable.

Federal Laws on Drones

Currently, there are no federal laws regulating the use of drones and privacy. The Federal Aviation Administration (FAA) recently imposed some regulations as to the drones’ use in general. For example, drone pilots can no longer fly drones out of sight range. Users are also now required to register their drones with the FAA. Drones are also only permitted during daylight; night flights are no longer allowed.

Businesses are trying to persuade the FAA to change these regulations for specific commercial uses. The regulation regarding line of sight for the pilot in particular would make a business based on drone use very difficult. For example, Amazon, which was interested in using drones to delivery packages to customers, would not be able to deploy this service for anyone outside of a very small radius. Drone

But even with all of these regulations, the FAA acknowledges that they had no intention of drafting regulation for privacy and possible First Amendment protections. Instead, they chose to relegate the task of developing a privacy policy to the permitted test sites scattered throughout the United States. These test sites are predominantly found at research centers and university campuses. The FAA has now made it the sites’ responsibility to determine how they will handle any data they collect.

State Regulations on Drones

This doesn’t answer the questions about privacy for the rest of the United States. Since there are no federal regulations, many states have chosen to enact their own laws regarding the use of drones and privacy. In 2015, 45 states considered bills about drone regulation, 20 states passed legislation about drones, and 5 states adopted resolutions related to drones. However, these laws run the gamut and are extremely varied, from making recordings of private conversations without permission illegal, to making the use of drones during hunting illegal.

Other Constitutional Concerns

The Fourth Amendment and its case law delineates what is considered a reasonable expectation of privacy for lawful searches and seizures. Currently, if law enforcement were to fly a helicopter in public airspace and found illegal activity such as a marijuana grow in your backyard, this observation is not beyond a person’s reasonable expectation of privacy. Given current drone technology, so long as they fly in public airspace (which they are required to do by the FAA), then anything they record for law enforcement may also fall under the same reasoning.

In contrast, many journalists have concerns that heavy regulations placed on where drones can record video can infringe on their First Amendment rights. Journalists and other media news outlets want to use drones to fly into areas to record news events live, such as building fires and other dangerous situations. However, some journalists, such as paparazzi, would like to use drones to record videos of celebrities.

In California, the recording of a private conversation without permission is illegal, and is reiterated in laws specifically geared toward the use of drones. Has the appropriate balance been struck between the use of drones by the media for news reporting and the invasion of privacy?

The Future of Drones in Privacy Law

Since states have drafted drone privacy laws to cover the major concerns of a particular region, this leaves major holes in privacy regulation that vary from state to state. Some privacy advocates are demanding some standard federal regulations for basic coverage of privacy fundamentals. This would ensure that there is at least a basic set of rules that all states can agree upon and can restrict further if they choose.

However, other privacy advocates argue that there is a high risk that free speech be impinged upon if federal law isn’t drafted properly. These advocates argue that we should instead wait to see what state laws pass Constitutional muster and actually improve privacy regulation first. Once relatively successful laws are found via the states, then the federal government can draft legislation that is proven Constitutional.


D.C. Council Wants to Pay Criminals to Keep the Peace

The D.C. Council has preliminarily approved a bill that will essentially pay criminals not to commit crimes. Sounds crazy, right? Not the first of its kind, the plan is modeled after one that’s been successful in Richmond, California, which had a 76% drop in gun-related homicides since the program began in 2008.

The Neighborhood Engagement Achieves Results Amendment Act of 2016 (NEAR) proposes a number of new laws, but of particular interest is the section that would create the Office of Neighborhood Safety and Engagement (ONSE). Council member Kenyan McDuffle, the creator of the bill, believes the act will combat crime (albeit in an unconventional way) by addressing crime before it occurs, rather than after.

Each of the 50 yearly recruits will participate in mental and/or behavioral health counseling designed to discourage violent criminal activity. If successfully followed, the participants of the ONSE program will be awarded a stipend for good behavior or, in other words, not committing crime. Paying Criminals

Most of the program specifics are left out of the bill and will be up to the head of the department to create. If the program director wants to imitate the Richmond model, NEAR participants will be required to create and execute a “life-plan.” The plan mimics a mentorship designed to move them away from a life of violent crime, where, in addition to receiving a stipend of up to $9,000 per year, the participants can travel outside of the state on “horizon-building educational excursions.”

Why Can’t We All Get a Piece of the Pie?

Although being a criminal offender is not a specific distinction within the bill, that’s the general intended direction of recruits. In 2015, the homicide rate in Washington D.C. rose 54% compared to the previous year. McDuffle believes the bill “will address the root cause of violent crime in an effective and sustainable way.”

The ONSE will be in charge of identifying, recruiting, and engaging high-risk individuals that may participate or be a victim of violent criminal activity—targeting heavily gun-related teenage and young adult offenders. The ONSE will rely on data obtained from the local police department to decide who qualifies.

Taxpayers Will Bear the Cost

The NEAR plan will cost an estimated $4.9 million over the 4-year plan; $1.6 million of that total will go towards participant stipends. The rest is designated to program salaries, supplies, materials, and program travel.

The key difference between the Richmond model and the NEAR plan is where the stipend funds come from. Although the director may fundraise money for the program, the current plan is to set aside public money. You read that right—public money means taxpayer money. The Richmond program is city-funded, but relies entirely on donors for the stipends and not taxpayers.

Taxpayers pay an estimated $400,000 for the average homicide in the U.S. compared to a mere $70,000 it would cost to pay the stipends. This seems minimal in comparison, but even so, D.C.’s Chief Financial Officer has stated funds are not sufficient within their budget to implement the bill.

Legal Implications Are Not Likely an Issue

Some may want to argue against using tax money to fund the program. That argument isn’t anything new, as many have tried it before in different arenas. Ultimately, the tax arguments fail because Congress has the power to tax and spend for the general welfare.  The purpose of the bill is to stop crime before it happens, ultimately benefitting the general welfare and safety of the citizens–meaning it would survive any tax-based challenges because it serves a legitimate purpose.

The Richmond plan appears to be successful, but many argue the 76% drop in gun-related crime could be to other contributing factors. Those skeptical of the plan’s success say no real data has been provided that proves the drop in crime is owed to the pay-for-peace plan.  Others argue the program served its purpose and gave the participants something to focus their attention on and keep them out of trouble.  Although it’s highly unfair that us every day law-abiding citizens don’t get a chance to make a few extra bucks and go on life-changing trips, when you only consider the latter argument in favor of the bill, it seems like a decent idea.

Even considering the social benefits that may arise out of the bill, the idea of paying criminals to keep the peace doesn’t sit well with most. The bill will face a final vote on March 1 and, if passed, will head to the mayor and Congress.

Would You Confess To a Crime You Didn’t Commit?

A Michigan State University (MSU) study has proven sleep deprivation can be a contributing factor leading to false confessions.

“But…I would never confess to something I didn’t do.”

That’s a common belief in our society, but roughly 17% of police interrogations occur during normal sleep hours and that’s important when you consider sleep deprivation can lead to a false confession.

The study consisted of 88 students that were required to do various computer tasks, while being repeatedly informed not to press the “Escape” key–doing so would erase all study data. After the first sets of tasks were completed, the students returned a week later to the school’s sleep lab to complete even more tasks.  Again, they were all told not press “Escape.”

Half the group could sleep for 8 hours, while the other half were required to remain awake throughout the night. The next morning, each student was accused of pressing the “Escape” key.

When repeatedly asked to sign a statement admitting their guilt, here were the results:

  • Of the sleep deprived group:
    • 22 falsely agreed to sign the statement admitting their guilt
    • When asked a second time, the total number increased to 30 false confessions
  • Of the well-rested group:
    • 8 falsely agreed to sign the statement admitting their guilt
    • When asked a second time, the total number increased to 16 false confessions

That equates to 50% of the sleep-deprived students falsely confessed compared to a mere 18% of the well-rested students.

Sleep Deprivation as an Interview Tactic

Although the 14th Amendment prohibits physical and/or psychological coercion, all other kinds of interview tactics are allowed during an interrogation.  Officers can use lying, trickery, and any other type of non-coercive methods to obtain a confession.  Even if an officer has no specific intention to deprive a suspect of sleep, it can be a common result of normal interview tactics. Police Interrogation

The “Reid Technique” is one common way officers will try to elicit a confession. This good cop/bad cop technique involves:

  • Isolation. Keeping you alone, away from family and friends.
  • Maximization. Presenting theories of guilt supported by evidence (sometimes completely fabricated evidence) and a constant refusal to accept claims of innocence.
  • Minimization. Persuading the suspect that good things will come if they confess, including but not limited to, promises of a lesser sentence or a chance to go home.

None of the above may sound facially unreasonable, but this tactic can go on for hours, which can easily lead to sleep deprivation, whether intended or not.

Lack of Sleep Causes Poor Judgment

Forcing suspects to endure hours of interrogation on severe lack of sleep can adversely affect the brain and cognitive functions—which makes it more understandable why one might confess to a crime they didn’t commit. Common affects of sleep deprivation include, but are not limited to, fatigue, irritability, difficulty concentrating, problems with reading and speaking clearly, poor judgment, disorientation, and visual misperceptions.

These effects can be detrimental to the suspect and are prevalent here in the U.S. Take, for example, Damon Thibodeaux who falsely confessed to the murder and rape of his younger cousin after being interrogated for a brutal 9 hours.  The confession came at 4:00 in the morning while Damon had already been awake for 35 hours.  He quickly recanted his confession, but it was too late.  After spending 15 years in prison, DNA proved he had in fact not committed the crime.  While there were many factors that lead to his false confession, sleep deprivation was easily a contributing factor.

The United Kingdom understands the importance sleep has on a person’s ability to reason clearly, as they strictly prohibit police interrogation on anyone that has not had at least 8 hours of sleep within the previous 24 hours. The MSU study may lead to an adoption of similar laws here in the U.S, but we aren’t quite there yet.

Miranda Rights Offer Protection

“You have the right to remain silent, you have the right to an attorney…”

If you’ve ever watched a crime show, you’ve heard it. It’s an inherent right against self-incrimination, but for some reason, more than 80% of people taken into custody waive their Miranda Rights.

The MSU study found you’re nearly 4.5 times more likely to falsely confess if you’ve been sleep deprived. This is one more reason it’s crucial to invoke your 5th Amendment right and ask for an attorney immediately.  Doing so allows an attorney to ensure proper interrogation tactics (i.e. no interrogation while sleep deprived) are followed.