In re: Donald Trump
874 F.3d 948
| 6th Cir. | 2017Background
- At a March 1, 2016 campaign rally in Louisville, then-candidate Donald J. Trump said “Get ’em out of here,” followed by “Don’t hurt ’em—if I say go ‘get ’em,’ I get in trouble with the press.” Allegedly in response, three protesters were assaulted.
- The three assaulted protesters sued in Kentucky state court alleging, among other things, incitement to riot under Kentucky law; Trump removed the case to federal court.
- The district court denied in part Trump’s motion to dismiss, finding the complaint plausibly alleged incitement to riot under KY Rev. Stat. §§ 525.040 and 467.070; the court later reconsidered and dismissed the negligence claim.
- The district court certified its interlocutory order for appeal under 28 U.S.C. § 1292(b); Trump petitioned this court for permission to appeal and also filed a mandamus petition (later rendered moot).
- The Sixth Circuit granted leave to appeal under § 1292(b), explaining the order presents controlling legal questions (sufficiency of the complaint and First Amendment/Brandenburg applicability), there is substantial ground for difference of opinion, and interlocutory review may materially advance termination of the litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interlocutory appeal is appropriate under 28 U.S.C. § 1292(b) | Certification appropriate because the order involves controlling legal questions and review will materially advance litigation | Denied interlocutory review would leave novel, significant claims against the President to proceed without appellate guidance | Court granted permission to appeal, finding §1292(b) criteria and prudential factors satisfied |
| Whether the complaint plausibly alleges incitement to riot under Kentucky law | Complaint alleges Trump’s statements foreseeably led to assaults, stating a facially valid incitement claim | Trump argues the statements do not rise to incitement and are protected speech | Court treated sufficiency of the complaint as a controlling question of law warranting appellate review (merits to be considered on appeal) |
| Whether the First Amendment (Brandenburg standard) bars the state-law incitement claim | Plaintiffs contend Brandenburg may not preclude a state-law incitement claim as pled | Trump contends Brandenburg’s imminent lawless action standard applies and precludes the claim | Court held application of Brandenburg is a controlling legal question presenting substantial grounds for difference of opinion and suitable for interlocutory review |
| Whether prudential/extraordinary factors support interlocutory review | Plaintiffs argued normal course should proceed; discovery disputes could be resolved later | Trump emphasized exceptional practical and political consequences, expansive discovery (taxes, medical records, deposition) and public-policy concerns | Court found case sufficiently exceptional and prudentially appropriate to permit interlocutory appeal |
Key Cases Cited
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (establishes First Amendment imminent lawless action test for incitement)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (discusses public-policy considerations and qualified immunity for public officials)
- In re City of Memphis, 293 F.3d 345 (6th Cir. 2002) (discusses §1292(b) factors and effect on interlocutory review)
- Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir. 2011) (sufficiency of a complaint is a question of law)
- Nw. Ohio Adm’rs, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018 (6th Cir. 2001) (example of granting interlocutory review after certification)
- In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169 (6th Cir. 1992) (controlling questions that can materially affect case outcome justify review)
- Reese v. BP Exploration, Inc., 643 F.3d 681 (9th Cir. 2011) (substantial ground for difference of opinion standard explained)
- Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) (jurisdiction under §1292(b) applies to the certified order, not the specific question phrased by the district court)
- Linton v. Shell Oil Co., 563 F.3d 556 (5th Cir. 2009) (section 1292(b) authorizes certification of orders for interlocutory appeal, not certification of questions)