On March 31, 2016, U.S. citizens who had engaged in peaceful protest filed this lawsuit in Jefferson Circuit Court (State Court, Kentucky). The case was later moved to the District Court of the United States, Western District of Kentucky. Plaintiffs sued then-Presidential Candidate, Donald J. Trump, and two individual participants at Trump's rally. The plaintiffs brought claims alleging assault and battery and incitement to riot. They alleged that these claims attached to Trump through agency and vicarious liability, and that he had acted negligently for a failure to provide better security.

Specifically, the plaintiff's complaint explained that they had attended a presidential campaign rally for Donald J. Trump with the intention of peaceful protest. As Plaintiffs were protesting, Trump allegedly said “Get ‘em out of here,” following which the individual defendants physically attacked the Plaintiffs until they were forced to leave the rally. Trump also allegedly said “Don’t hurt ‘em. If I say ‘go get em,’ I get in trouble with the press, […]” Plaintiffs sought compensatory damages (for physical injury, humiliation, emotional distress, mental anguish), punitive damages, and pre-judgment and post-judgment interest and recovery of their costs.

On May 20, 2016, Trump and one of the individual defendants moved to dismiss for failure to state a claim, which Judge David J. Hale granted in part and denied in part on March 31, 2017. The Court denied Defendants’ motion to dismiss for counts on incitement-to-riot and negligence but granted Defendant Trump’s motion to dismiss on counts of vicarious liability, as the plaintiff’s allegations were insufficient to state a plausible claim that these individual defendants had acted as agents of the Trump defendants. The individual defendant's motion to dismiss a claim for punitive damages was granted as well.

To this, Defendants moved for interlocutory appeal or, alternatively, for the judge in the district court to reconsider the earlier order. Judge Hale granted this motion on August 9, 2017. Here the Court revisited its earlier decision and reversed its prior ruling as to the defendants' negligence, leaving only the count of incitement-to-riot standing. The Court’s rationale was that the negligent-speech theory was incompatible with the First Amendment. It further found that negligence was an inappropriate vehicle for Plaintiff’s allegations in that they failed to establish that the security provided at the rally was inadequate to prevent violence, and that the purported negligence of ordering audience members to remove protestors was subsumed by Plaintiff’s incitement-to-riot claim. This remaining question of “Does the First Amendment protect Donald J. Trump’s […] statement “Get ‘em out of here,” or may the statement be found to constitute incitement of a riot?” was promptly certified for immediate appeal. Defendant Trump also moved for a writ of mandamus, but this was dismissed as moot.

On September 12, 2018, the United States Court of Appeals for the Sixth Circuit dismissed Plaintiff’s final claim of incitement to riot. The Court found that the district court failed to identify which allegations supported a plausible finding that Trump had incited tumultuous and violent conduct posing grave danger of personal injury (this conduct was a necessary element of Kentucky’s statutory definition of a riot), especially when considering Trump’s later statement of “Don’t hurt ‘em.” The Court thus concluded that Plaintiffs had not satisfied their burden of “rendering all other [explanations] implausible, and that Plaintiff needed more than to allege a mere probability or possibility that Defendants acted unlawfully. The Court also referred to First Amendment Protection, finding that the reaction of listeners did not alter the otherwise protected nature of speech and that Defendant Trump’s speech did not include a word encouraging violence that would have transformed it into unprotected speech.

This case is now closed.

Joshua Matz - 05/26/2017
Jennifer Huseby - 10/17/2018


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