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Nwanguma v. Trump

United States District Court, W.D. Kentucky, Louisville Division

March 31, 2017

KASHIYA NWANGUMA, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court

         Plaintiffs Kashiya Nwanguma, Molly Shah, and Henry Brousseau attended a presidential campaign rally for Defendant Donald J. Trump with the intention of protesting. Plaintiffs allege that as they were protesting, Trump said, “Get 'em out of here, ” following which several members of the audience, including Defendants Matthew Heimbach and Alvin Bamberger, physically attacked them, forcing them to leave the rally. They allege assault and battery by Heimbach and Bamberger, as well as incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign, Donald J. Trump for President, Inc. (the “Trump Defendants”). (Docket No. 1) The Trump Defendants have filed a motion to dismiss for failure to state a claim (D.N. 9), as has Bamberger (D.N. 10); Heimbach, proceeding pro se, has moved to strike certain allegations from the complaint (D.N. 11). At this early stage of the case, the Court finds most of Plaintiffs' claims to be sufficient. Accordingly, for the reasons discussed below, the Trump Defendants' and Bamberger's motions will be granted in part and denied in part, while Heimbach's motion will be denied.

         I. BACKGROUND

         The following facts are set out in the complaint and must be accepted as true for purposes of the present motions. See Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012); Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 821 (6th Cir. 1953).

         On March 1, 2016, Trump held a campaign rally at the Kentucky International Convention Center in Louisville, Kentucky. (D.N. 1-1, PageID # 10; see id., PageID # 8) Nwanguma, Shah, and Brousseau each attended the rally for the purpose of “peacefully protesting Trump.” (Id., PageID # 11-13) As they were protesting, Trump said, “Get 'em out of here.” (Id., PageID # 10) Heimbach, Bamberger, and other audience members then physically attacked Plaintiffs. Nwanguma, who is African-American, was shoved first by Heimbach and then by Bamberger, who also struck her. (Id., PageID # 12) Shah was likewise shoved by Heimbach and other audience members. (Id., PageID # 13) Brousseau, a seventeen-year-old high school student, was punched in the stomach by an unknown defendant believed to be a member of the Traditionalist Worker Party, a white nationalist group Heimbach was representing at the rally. (Id., PageID # 7-9, 12-14) Plaintiffs allege that as they were being attacked, Trump said, “Don't hurt 'em. If I say ‘go get 'em, ' I get in trouble with the press . . . .” (Id., PageID # 10)

         In a letter to the Korean War Veterans Association, whose uniform he wore at the rally, Bamberger described the incident as follows: “Trump kept saying ‘get them out, get them out' and people in the crowd began pushing and shoving the protestors . . . I physically pushed a young woman down the aisle toward the exit . . . .” (D.N. 1-1, PageID # 15 ¶ 76 (first omission in original) (quoting letter to KWVA)) Heimbach acknowledged in a blog post that he had “help[ed] the crowd drive out one of the women” who were protesting. (Id., PageID # 14 ¶ 70) Videos recorded at the rally captured Heimbach and Bamberger's actions. (Id., PageID # 11 ¶ 46)

         Plaintiffs allege assault and battery by Heimbach, Bamberger, and the Unknown Defendant, and they seek to hold the Trump Defendants vicariously liable for those torts. (Id., PageID # 18-21) In addition, Plaintiffs accuse the Trump Defendants of incitement to riot (id., PageID # 19) and negligence, gross negligence, and recklessness (id., PageID # 21-22). They seek compensatory and punitive damages. (Id., PageID # 22)

         II. ANALYSIS

         A. Motions to Dismiss

         To survive a motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Factual allegations are essential; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and the Court need not accept such statements as true. Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679.

         1. Trump Defendants

         The Trump Defendants seek dismissal of Counts III, IV, and V of the complaint, which allege incitement, agency/vicarious liability, and negligence, gross negligence, and recklessness. (See D.N. 1-1, PageID # 19-22) The Court will address each claim in turn.

         a. Incitement to Riot

         The Trump Defendants oppose Plaintiffs' incitement claim on several grounds. First, they assert that it is not plausible that Trump was addressing audience members or intended for violence to ensue when he gave the direction to remove protestors. (D.N. 9-1, PageID # 54-55) They further contend that this claim is deficient because Plaintiffs do not allege that a riot actually occurred. (Id., PageID # 55-56) Finally, the Trump Defendants argue that Trump's statement (“get 'em out of here”) is protected by the First Amendment. (Id., PageID # 56-61) None of their contentions requires dismissal at this stage of the proceedings.

         i. Plausibility

         According to the Trump Defendants, Plaintiffs' incitement claim is implausible because there is an “obvious alternative explanation” for the meaning of Trump's words, namely that he intended for professional security personnel to remove the protestors. (D.N. 9-1, PageID # 54 (quoting Iqbal, 556 U.S. at 682)) With this argument, the Trump Defendants effectively seek to impose a probability standard on Plaintiffs' complaint. (See Id. (asserting that “‘given [this] more likely explanation[n], ' Plaintiffs' allegations ‘do not plausibly establish' a claim for incitement” (alterations in original) (quoting Iqbal, 556 U.S. at 381))) The Sixth Circuit has rejected this approach, finding it to be inconsistent with Twombly and Iqbal. See Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 458 (6th Cir. 2011) (“Twombly insists that pleadings be plausible, not probable.” (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556)). “Often, defendants' conduct has several plausible explanations. Ferreting out the most likely reason for the defendants' actions is not appropriate at the pleadings stage.” Id. Simply put, the plausibility of the Trump Defendants' explanation for Trump's statement “does not render all other [explanations] implausible.” Id.

         Plaintiffs allege numerous facts supporting an inference that Trump's order to “get 'em out of here” was directed at audience members. The complaint describes multiple occasions before and after the Louisville rally when Trump allegedly made comments endorsing or encouraging violence against protestors. (See D.N. 1-1, PageID # 16-17) And Bamberger's letter, quoted in the complaint, confirms that he and others “began pushing and shoving the protestors” upon Trump's order that the protestors be removed. (Id., PageID # 15 ¶ 76) Moreover, after audience members took matters into their own hands, Trump allegedly stated, “Don't hurt 'em. If I say ‘go get 'em, ' I get in trouble with the press.” (Id., PageID # 10) Presumably, if he had intended for protestors to be escorted out by security personnel, Trump would have instructed the intervening audience members to stop what they were doing, rather than offering guidance on how to go about it. (See D.N. 1-1, PageID # 16 (alleging that Trump “watched as his supporters physically removed and accosted Plaintiffs at the Rally”)) In sum, the Court finds that the Trump Defendants have not identified an “obvious alternative explanation” for Trump's statement warranting dismissal of the incitement claim. Iqbal, 556 U.S. at 662.

         ii. Occurrence of a Riot

         Next, the Trump Defendants assert that the incitement claim fails because it does not allege that there actually was a riot. (D.N. 9-1, PageID # 55-56) Plaintiffs bring their incitement claim pursuant to Ky. Rev. Stat. §§ 525.010 and 525.040. (D.N. 1-1, PageID # 19) The latter provides that “[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create or engage in a riot.”[1] § 525.040(1). “Riot” is defined as “a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.” § 525.010(5). The incitement statute does not require that a riot actually occur, nor do the Trump Defendants cite any case establishing such a requirement. Nevertheless, they argue that the complaint fails to allege that five or more persons were involved in Plaintiffs' mistreatment or that there was in fact “tumultuous and violent conduct” at the rally.[2] (D.N. 9-1, PageID # 56)

         The word incitement is defined as “[t]he act or an instance of provoking, urging on, or stirring up, ” or, in criminal law, “[t]he act of persuading another person to commit a crime.” Black's Law Dictionary (10th ed. 2014). Beyond this definition, Black's includes the following explanation:

An inciter is one who counsels, commands or advises the commission of a crime. It will be observed that this definition is much the same as that of an accessory before the fact. What, then, is the difference between the two? It is that in incitement the crime has not (or has not necessarily) been committed, whereas a party cannot be an accessory in crime unless the crime has been committed. An accessory before the fact is party to consummated mischief; an inciter is guilty only of an inchoate crime.

Id. (emphasis added) (quoting Glanville Williams, Criminal Law: The General Part 612 (2d ed. 1961)). Thus, no riot need have occurred in order for Trump to ...


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