On March 1, 2016, Kashiya Nwanguma, Molly Shaw and Henry Brousseau entered a Donald Trump rally at Kentucky International Convention Center in Louisville. While the vast majority of people who attended Mr. Trump’s rally were there to support him, a small minority came to heckle Trump and his supporters, cause disruptions and protest peacefully.
Nwanguma, Shaw and Brousseau attended the rally with the intention of conducting a peaceful, albeit lewd protest. Nwanguma, for instance, held up a sign depicting Mr. Trump’s face on a pig’s body while Shaw and Brousseau stood in solidarity with her. The disruption was severe enough to distract Mr. Trump from his position on the dais – prompting the Republican candidate to command his security guards to “get them out of here.” Trump explicitly stated, however, that his staff were not to “hurt them.”
Mr. Trump’s plea fell on deaf ears. Upon hearing Trump’s expulsion order, Matthew Heimbach and Alvin Bamberger, two private citizens and rally attendees with no employment relationship to the Trump campaign, took it upon themselves to remove Nwanguma, Shaw and Brousseau from the rally by shoving, pushing, assaulting and shouting at them. Shaw experienced pain and difficulty sleeping for several days after the rally and Brousseau was forced to cope with anxiety and nightmares. Two months later, the trio filed a suit in the United States District Court for the Western District of Kentucky claiming that (1) Trump had incited a riot in violation of Kentucky law and (2) that Heimbach and Bamberger’s actions amounted to assault and battery. Only the second claim has merit. This case is particularly important because sitting presidents should not be forced to devote scarce resources and time to vexatious and wasteful lawsuits that were filed before their term. Rightful ire directed towards Trump should not prompt liberals to weaken the presidency as an institution with imprudent suits.
Mr. Trump did not incite a riot. Kentucky law makes it a crime to incite several persons in an uprising. In Kentucky, the legal definition of a riot is “a public disturbance involving an assemblage of five or more persons who, by tumultuous and violent conduct, create great danger of damage or injury.” Two key elements of this offense are wanting here. First, only two individuals, Heimbach and Bamberger, were engaging in violence. Two does not make five. Second, the rally was not overwhelmed with tumultuous and violent commotion.
Even assuming that Mr. Trump’s actions did violate Kentucky’s riot statute, however, he cannot be subject to criminal sanctions because he was giving a political speech, which is protected First Amendment activity. Political campaigns have a First Amendment right to hold rallies that exclude individuals with views at odds with the campaign’s positions. Nwanguma and her peers disrupted the rally with a grotesque sign and security subsequently determined that they were trespassers on the Trump campaign’s property. Kentucky law permits landowners to “use that degree of force necessary … under the circumstances to eject an unwelcome trespasser from [a] premise.” The Supreme Court has held that the state may not “proscribe advocacy of the use of force … except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” Federal courts in Kentucky require that speech (1) explicitly or implicitly intend to encourage the use of violence and (2) be likely to result in violence in order to meet this standard. The first condition, intent, has not been met – indeed, Trump instructed his security guards, not Heimbach and Bamberger, to “not hurt” anyone.
But, Trump’s security forces did not eject the three protesters – Heimbach and Bamberger did. While the president may not be liable for any damages, these two present different issues.
Matthew Heimbach and Alvin Bamberger are not choir boys. Heimbach is a member of the Traditionalist Worker Party, recognized as a hate group by the Southern Poverty Law Center, whose goal is to terminate racial integration and inter-racial marriages. He has publicly stated that he wants to “make Jews around the world quake in their boots” and was banned from entering the United Kingdom last year because the conservative government feared that he would foster “hatred” and “inter-community violence” in the country. Both men shouted “n#%!@*” and other racially profane remarks at the protesters before repeatedly striking them. After the rally, Heimbach, displaying his brilliant criminal mastermind, proudly proclaimed on social media that “there’s some viral footage of several heated moments in Louisville. One features yours truly helping the crowd drive out one of the [protesting] women.” Bamberger also confessed that he “physically pushed [Nwanguma] down the aisle toward the exit.” He, however, expressed that it was an “action [he] sincerely regretted.”
Contrition is nice. Sticks and stones, though, do break bones. Under Kentucky law, an aggressor may be forced to pay his victim civil damages for battery and assault if he engages in “unlawful touching” “intend[ed] to cause harmful contact.” Heimbach and Bamberger both admit that they placed their hands on their three protesters and the event’s circumstances make clear that they intended to harm the trio. Heimbach and Bamberger are hosed.
Contact Habib Olapade at holapade ‘at’ stanford.edu.