273 F. Supp. 3d 719
W.D. Ky.2017Background
- At a March 1, 2016 Trump campaign rally in Louisville, three protestors (Nwanguma, Shah, Brousseau) allege they were peacefully protesting when Trump said “Get ’em out of here.”
- After that statement, audience members including Matthew Heimbach and Alvin Bamberger allegedly shoved and struck the protestors; videos and contemporaneous statements are cited.
- Plaintiffs sued for assault and battery (against the individuals), and for incitement to riot, negligence (including gross negligence/recklessness), and vicarious liability against Donald J. Trump and the campaign; they sought compensatory and punitive damages.
- The Trump defendants moved to dismiss Counts III (incitement), IV (vicarious liability/agency), and V (negligence); Bamberger moved to dismiss; Heimbach (pro se) moved to strike portions of the complaint.
- The Court denied dismissal of the incitement and negligence claims, granted dismissal as to the vicarious-agency claim (Count IV), denied most of Bamberger’s dismissal motion (except punitive-damages-as-a-separate-count and claims by two plaintiffs against him), and denied Heimbach’s motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Incitement to riot (Brandenburg standard) | Trump’s command "get ’em out" implicitly encouraged violence, intended violence, and violence was likely/imminent; prior conduct and contemporaneous injuries support plausibility | Statement was non-violent, could have meant security removal, protected by the First Amendment, and no actual "riot" occurred | Claim plausibly pleaded; dismissal denied (speech can be unprotected incitement; plaintiffs alleged encouragement, intent, and likelihood/imminence plus resulting violence) |
| Vicarious liability/agency | Heimbach and Bamberger acted as Trump’s agents; campaign liable for their conduct | No alleged right of control by Trump over crowd members; conclusory agency allegations insufficient | Agency/vicarious-liability claim dismissed for failure to plead the principal’s right to control the actors |
| Negligence (including gross negligence/recklessness) | Trump/campaign negligently or recklessly encouraged audience members (including known hate-group members) to remove protestors, making the harm foreseeable; direct causal link alleged | No duty to protestors, inadequate proximate causation, assumption of risk, and First Amendment bar to negligence for speech | Negligence claim plausibly pleaded; duty and foreseeability adequately alleged given allegations of prior incidents, presence of extremist group members, and that Trump directed crowd rather than security |
| Motion to strike (Heimbach) | Strike impertinent, immaterial, or scandalous allegations (background, white-nationalist references, racial slurs, police-report allegations) | Plaintiffs say these provide context, background, and support for punitive damages and claims | Motion denied; challenged allegations are relevant context/background and may bear on intent, foreseeability, and punitive damages |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading-standards: plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading-standards: factual allegations required beyond conclusions)
- Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452 (6th Cir. 2011) (plausibility requires plausible, not probable, explanations at pleading stage)
- Bible Believers v. Wayne Cty., 805 F.3d 228 (6th Cir. 2015) (Brandenburg analysis and limits on First Amendment protection for incitement)
- Brandenburg v. Ohio, 395 U.S. 444 (establishes test for incitement: advocacy, intent, imminence/likelihood)
- Hess v. Indiana, 414 U.S. 105 (speech that lacks advocacy of action cannot be punished as incitement)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (context on advocacy and protected/unprotected speech)
- James v. Meow Media, Inc., 300 F.3d 683 (6th Cir.) (speech constituting incitement is unprotected; negligence claims tied to unprotected violent speech may proceed)