This week, the District of Columbia filed a lawsuit against the Proud Boys and the Oath Keepers organizations, as well as 31 individually-named defendants, alleging that they “worked together to plot, publicize, recruit for, and finance [a] planned attack” on the Capitol on Jan. 6.
The purpose of the suit is obvious enough – the D.C. Attorney General wants to shut down two organizations who he accuses of promoting domestic terrorism, and he plans to do it by bankrupting them.
This is not a novel strategy – it’s one that was popularized by the Southern Poverty Law Center in the 1980s when they began filing civil suits for monetary damages against the Ku Klux Klan on behalf of victims of Klan violence.
Karl Racine – D.C.’s Attorney General – was undoubtedly inspired by a jury’s award last month of $25 million in punitive damages to nine victims who were injured during the “Unite the Right” rally in Charlottesville in 2017 . That case raised similar claims, and the defendants there included five organizations, each of whom were found liable for $1 million.
But D.C.’s lawsuit against the Proud Boys and Oath Keepers has added a new and disturbing twist – it was brought by the government.
The lawsuit should be dismissed for a variety of reasons, but most of all because the District of Columbia lacked standing to bring it in the first place.
The complaint raises five separate claims against the defendants, all of whom are alleged to have acted in concert to commit these offenses:
Count I: 42 U.S.C. § 1985(1)Count II: 42 U.S.C. § 1986Count III: AssaultCount IV: BatteryCount V: Intentional Infliction of Emotional Distress
All but one of the individual defendants in this action are being criminally prosecuted for their actions at the Capitol on Jan. 6 (the one exception being Enrique Tarrio, the Proud Boys national Chairman, who was arrested on Jan. 4, and therefore was not at the Capitol on Jan. 6 – I wrote about his case here).
The civil complaint – all 84 mind-numbing pages of it –merely regurgitates the criminal allegations against each of them, strings them together, and asserts in a vague and generalized way that these defendants must have been acting in concert. There are no coherent facts from which a conspiracy among the all of the defendants – including between the national organizations of the Proud Boys and Oath Keepers – can reasonably be inferred.
That shouldn’t come as a surprise – after all, the FBI has admitted that it has not found much evidence that anyone coordinated the Capitol Hill riot.
Because the law favors quality over quantity, the complaint’s conclusory allegations of conspiracy are legally insufficient.
Other possible grounds for dismissal of the claims exist, too – such as the intra-corporate conspiracy doctrine and questions about whether the national Proud Boys International, LLC and the Oath Keepers organizations can be held vicariously liable for the conduct of the individually-named defendants or small cells of them – many of whom are alleged only to be members of local chapters. Moreover, some of the defendants are not even alleged to belong to either organization, but are simply accused of being “affiliates” of them – whatever that means.
While there are many grounds upon which this action can and should be challenged, the principle of Occam’s razor counsels that the most straightforward ground for dismissal is best: the plaintiff here lacks standing.
The complaint’s two statutory claims – 42 U.S.C. §§ 1985 and 1986 – should be dismissed because the plaintiff in this case, the District of Columbia, is not authorized to bring such claims.
42 U.S.C. § 1985(1) creates a civil cause of action for conspiracies:
… to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any … place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof ….
By extension, 42 U.S.C. § 1986 provides a remedy against those who, having knowledge of a conspiracy that would be actionable under Section 1985, failed to prevent the commission of the wrongs listed in that statute.
The plain wording of Section 1985 creates a cause of action for “persons” or “officers of the United States” against whom two or more people conspire to injure or prevent from doing their official duties.
And, according to the complaint, the persons and officers who were prevented from discharging official duties and accepting office were Senators, Members of the House, President Biden and Vice-President Harris.
Not only does the D.C. Attorney General not qualify to assert the rights of those individuals, but even if he did, the unambiguous statutory language of Section 1985(1) does not allow the District of Columbia – which obviously is neither a person nor an officer – to be a plaintiff in such a claim.
And since the District of Columbia is statutorily foreclosed from bringing a Section 1985 claim, it similarly can’t bring one under Section 1986.
In contrast, a jury last month awarded nine victims more than $25 million in punitive damages in a lawsuit filed by against white nationalists who participated in the 2017 “Unite the Right” rally in Charlottesville.
The complaint’s common law claims also suffer from the same incurable flaw – the District of Columbia lacks standing to bring them.
Article III, Section 2, clause 1 of the U.S. Constitution provides that federal courts only have jurisdiction to hear actual “cases and controversies.”
In order to invoke the federal court’s jurisdiction, a plaintiff must demonstrate that: (1) he has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant; (2) the injury is fairly traceable to the challenged conduct; and (3) it is likely to be redressed if the requested relief is granted.
The first requirement – known as “injury-in-fact” – requires that the plaintiff show that it has experienced an injury that is “distinct and palpable,” not merely abstract or conjectural (such as “damage to our democracy”).
But in its complaint, the District of Columbia has not alleged any of that. Obviously, a municipality cannot be assaulted, battered or inflicted with emotional distress. And while the Capitol building was vandalized, the complaint includes no claim for property damage.
Obviously realizing as much, the D.C. Attorney General has asserted that the case is being brought to redress actual injuries suffered by D.C. employees – officers of the Metropolitan Police Department.
As a general rule, however, one may not claim standing in federal court to vindicate the rights of third parties. Nevertheless, the Supreme Court has recognized a narrow exception to this rule if the litigant can demonstrate that he has suffered a concrete injury, that he has a close relation to the third party, and that there exists some hindrance to the third party’s ability to protect its own interests.
On this last point, the U.S. Supreme Court, in Singleton v. Wulff, cautioned that “federal courts must hesitate before resolving a controversy … on the basis of the rights of third persons not parties to the litigation …. [T]he courts should not adjudicate such rights unnecessarily, and it may be that the holders of those rights . . . do not wish to assert them.”
Here, the District of Columbia has advanced no reason why the Metropolitan Police Department police officers could not have brought this action themselves. This fact eliminates its standing to sue and divests the federal courts of jurisdiction to entertain this action.
Nor can the District of Columbia gain standing under the doctrine of parens patriae, which allows a state (here, a federal district) to bring suit on behalf of its citizens under certain circumstances. According to the Supreme Court, to be entitled to parens patriae standing, a governmental sovereign must “articulate an interest apart from the interests of particular private parties” in order to protect its residents’ general health and economic well-being. The high court explained that a “substantial” proportion of the population of the State “must be adversely affected by the challenged behavior,” and therefore “more must be alleged than injury to an identifiable group of individual residents.”
But the causes of action based on the assault, battery and intentional infliction of emotional distress only apply to a limited group of Metropolitan Police Department officers – those claims have nothing to do with the general physical and economic welfare of all of the District of Columbia’s residents.
While blue state Attorneys General certainly have used civil lawsuits to attack their political opponents – just take a look at New York State Attorney General Letitia James’ action against the NRA – they traditionally have done so under their statutory authority to regulate charities and police fraud.
This lawsuit breaks new ground.
However distasteful the rhetoric and behavior of the Proud Boys and Oath Keepers may be, the D.C. government here, in order to put those organizations out of existence, has brought civil claims for monetary damages against them that it is not empowered by statute or common law to enforce.
And such an unrestrained government is a danger to us all.
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