PROF. JOHN BANZHAF: SUE THE ST. LOUIS RIOTERS.
Because the threat of arrest and small fines obviously isn’t discouraging a growing number who engage in criminal activities as a way of protesting, Banzhaf suggests that all those adversely affected should sue for civil damages under a variety of legal theories, some of which have already been successful.
As he said in the National Law Journal, unless we finally confront the growing problem of very disruptive, expensive, and harmful riots by those who disagree with verdicts, things will only get worse. . . .
There are many reasons why the criminal law has often actually encouraged – rather than discouraged – criminal rioters, says Banzhaf.
Rioters who violate criminal laws know that their chances of actually being arrested are small, as more police forces yield the streets to their blockades, “die ins,” chaining themselves to things, and other similar tactics – with police often afraid to make arrests, or recognizing a new “right” to have them “let off steam,” or simply because of sympathy with their cause.
Even the few rioters who may be arrested usually face only a token fine; a small price to pay, they often think, for getting even more publicity for their cause.
Indeed, if they refuse to pay the fine and are prosecuted in court, they can often turn the trial into a major media event to focus even more public attention on their grievances.
The arrests themselves can also be publicized, with cell-phone stills or videos posted on the Internet to gain sympathy, and to increase their status and street cred.
Potential rioters who may be willing to risk small criminal fines may be deterred by the likelihood of much larger civil judgments, potentially also including punitive damages since the torts are “intentional,” and especially those which might result from class actions.
This is true even for rioters with few assets, since the possibility of a large civil judgment – with potential garnishments and other collection techniques – is something many young people would be concerned about.
Civil damages actions are also much easier to win than criminal prosecutions, notes Banzhaf, since there are fewer elements to establish, and a much lower standard of proof to be met.
Civil actions would also open the door to pre-trial legal discovery, including those aimed at verifying concerns expressed in various media that those with even deeper pockets are involved in the planning, funding, and/or execution of these criminal disruptions.
That last is the real point, I think. And this analysis is also applicable to campus rioters.