Mimesis Law
20 September 2020

We Don’t Like What You Say, So We Want to Make You Pay

November 11, 2016 (Fault Lines) – On July 7, 2016, Micah Johnson killed five police officers in Dallas, Texas, as they protected a peaceful march protesting police killings of blacks. Exactly four months later, Washington, D.C. attorney Larry Klayman filed a federal lawsuit in the Northern District of Texas alleging that the officers deaths were incited by Louis Farrakhan, Al Sharpton, Rashad Turner,[1] Opal Tometi, Patrisse Cullors, Alicia Garza, Deray McKesson, Johnetta Elzie, Malik Shabazz, and George Soros. along with the Nation of Islam, the Black Lives Matters (BLM) movement, National Action Network, and the New Black Panthers Party. The suit was filed on behalf of Enrique Zamarripa, the father of one of the slain officers.

This lawsuit is ill-advised, from both a legal standpoint and from a First Amendment standpoint. You see, as far as I can tell, none of the defendants were present in Dallas on or just before the shootings, nor did any of the defendants or defendant groups have anything to do with the protest march. Certainly there is no evidence that I’m aware of that any of them had any contact at all with Micah Johnson. The protest was organized by two Dallas pastors, Rev. Dr. Jeff Hood and Minister Dominique Alexander.[2] The group behind it was the Next Generation Action Network (NGAN), a Dallas area group that is unaffiliated with any of the defendants.

The lawsuit is apparently attempting to follow the strategy begun with Morris Dees and the Southern Poverty Law Center, which has successfully sued several groups for damages following racially charged deaths. Dees successfully sued several branches of the Ku Klux Klan (KKK), winning large judgments, and a lawsuit against Tom Metzger of the White Aryan Resistance (WAR) after the death of Mulugeta Seraw, an Ethiopian college student. Metzger, who defended himself, lost his house and is still making payments on the $12.5 million dollar judgment.

So a bunch of the cops over at PoliceOne are all for the lawsuit. Typically, their comments reflect the view that BLM is a terrorist organization and needs to be shut down. Those comments include:

Any officer should sue an attacker whenever they are injured. Use the system against these racist pigs. Why not, if ya cant beat them, bankrupt them.

They are racists. They are anarchists. They are a new type of KKK. They will be dealt with in court. Just like that white supremist Tom Metzger was succesfully sued, BLM will go down in flames. [sic]

F*** the racist black lives matter about 24% of them that are rapists murderers and robbers truly don’t matter.

I personally don’t think that the lawsuit stands a snowball’s chance in hell of succeeding, for several reasons. First, the reason Dees has been successful in suing the KKK and other groups is that those groups have typically been directly involved with the individuals who committed the acts of violence. Lets look at Metzger again. Dees had a witness whp showed a direct link in a conspiracy between the murderers and Metzger, who said that he took a load of baseball bats to the forming groups, in order to:

[C]arry out Tom and John Metzgers’ goals of harming blacks and Jews.

The jury found that a conspiracy existed, that there were direct efforts by the Metzgers to establish a hate-group to intentionally harm minorities even though the Metzgers were nowhere close to Portland and the killing. David Mazzella, a WAR vice president who the Metzgers sent around the country to organize groups and recruit new members, testified that he met with the skinheads just a few hours before they killed Seraw.

This is fairly clear-cut tort law. If you engage in a conspiracy to hurt or kill someone, you’re liable. It’s different from mere speech, and that’s what the cops are not understanding. All of the defendants have spoken out against police violence. Farrakhan has been particularly vocal, to the point that some believe that he’s advocating violence against police officers with statements like:

I’m calling on all the soldiers that fight for America, come home and let’s unite and fight for our lives that the federal government refuses to fight for us. Then we must fight for ourselves.

The complaint filed in the court doesn’t really show that Sharpton or the others made any overt calls for violence, but that doesn’t really matter. A person can make a call for violence and still have it be protected speech. You see, the courts will use a two-prong test, called the Brandenburg test from Brandenburg v. Ohio in 1969, to determine if the speech calls for “imminent lawless action” and is therefore unprotected.

The test itself is fairly simple. First, does the speech call for immediate lawless action, or does it call for action more vaguely, sometime in the future, or conditioned on other acts or situations? Unless it calls for immediate lawless action, right now, the speech is protected. The second prong is also simple. The speech must be likely to produce such immediate lawless action. This is real easy to determine—if there was no violence or rioting immediately following the speech, then the speech wasn’t likely to produce immediate lawless action, and the speech is protected. To my simple eyes, it is clear that the speech of Farrakhan is protected, and his was the worst of the bunch.

The second major problem with the lawsuit is that Klayman is exposing Zamarripa to significant risk of being liable for the defendants’ legal fees. You see, although the case is filed in federal court, it is filed under diversity jurisdiction because all of the defendants live in other states. That means that the judge will apply Texas substantive law to the case, while following federal procedural law. One of the Texas laws that may be applicable is the Texas anti-SLAPP[3] act.

A defendant can raise an anti-SLAPP defense within 60 days and must show by a preponderance of the evidence that the lawsuit is based on communication by the defendant related to “a matter of public concern.” Once that is done, discovery is stayed, and the burden shifts to Zamarripa to show “by clear and specific evidence” that he can present a prima facie case for every cause of action in the complaint. This is weighted heavily in the defendants’ favor, because discovery stops and the plaintiff has to show cause why some specific discovery is needed. The court then has thirty days to make a decision.

There is an exception in the anti-SLAPP act for wrongful death causes of action, but in Texas, the death has to be by the defendant’s “wrongful act, neglect, carelessness, unskillfulness, or default.”[4] Klayman hasn’t alleged any direct act or agency relationship that would fall under a wrongful death cause of action. Klayman is also alleging intentional infliction of emotional distress, but under Texas law, to be liable, the defendants must have been the intended or primary consequence of the defendant’s conduct, and the conduct must have been “extreme and outrageous.”[5]

I think that they can win on the anti-SLAPP, and if they do, Zamarripa will be on the hook for attorney fees, which could run well over $100,000 based on the number of defendants. Zamarripa has just lost his son, he’s grieving, and the last thing that he needs is to be hit with attorney fees. But even if they don’t win on the anti-SLAPP defense, I don’t see any way that the case survives a 12(b)(6) motion to dismiss for failure to state a claim.

The complaint itself is all over the place. It barely talks about the Dallas shooting, but it lists all sorts of other shootings of police, and is factually wrong in several spots. For example, Klayman stated in the complaint that:

Similarly, on September 1, 2015, only a few days after the murder of Goforth, Police Officer Joseph Gliniewicz was shot and killed in Fox Lake, Illinois, prompting a manhunt for his two killers still underway at this writing.

There’s only a couple of problems with that. First, Gliniewicz wasn’t murdered, he committed suicide when his embezzlement of police Explorer funds was about to be discovered. Second, there is not still a manhunt for his killers underway. Instead his wife Melodie Gliniewicz has been indicted on nine counts of misusing charitable funds, money laundering, and conspiracy.

One of the reasons that I don’t believe that this will be successful is his history in court. Klayman has filed a number of high-profile suits that are ultimately unsuccessful, against the Clintons repeatedly, against Facebook, against Rachel Maddow, a birther-lawsuit against Barack Obama. He’s also formed a “citizen” grand jury that purported to indict Obama for various crimes, and then “convicted” him of those offenses. He’s requested that Homeland Security begin deportation proceedings against Obama. He’s just not credible, and there is no reason to think that this will be successful.

But the problem, the danger here, is that we have people calling for speech to be outlawed because someone in power doesn’t like the speech. In this case it’s the police. I can think of all sorts of scenarios where others, governors, presidents and the like, would want to punish unpopular speech too.

We don’t need to let that happen.

[1] One of the founders of BLM in St. Paul, MN.

[2] Dr. Hood is a white pastor with a Doctorate of Ministry from Texas Christian University. Alexander is a black ordained minister, local civil rights activist, and founder of NGAN.

[3] Strategic Lawsuit Against Public Participation, in Texas it is codified as Chapter 27, Tex. Civ. Prac. & Rem. Code.

[4] § 71.002, Tex. Civ. Prac. & Rem. Code.

[5] Durckel v. St. Joseph Hosp., 78 S.W.3d 576, 586 (Tex. App.-Houston [14th Dist.] 2002, no pet.).

6 Comments on this post.

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  • Jim Tyre
    11 November 2016 at 10:50 am - Reply

    One of the reasons that I don’t believe that this will be successful is his history in court. Klayman has filed a number of high-profile suits that are ultimately unsuccessful, against the Clintons repeatedly, against Facebook, against Rachel Maddow, a birther-lawsuit against Barack Obama.

    Klayman is an interesting person, according to some definitions of interesting. To the delight of many, he succeeded in the District Court in getting a Preliminary Injunction against NSA’s section 215 bulk telephony collection program. But the victory was short-lived, the Court of Appeals reversed.

  • TheHawk296
    11 November 2016 at 12:27 pm - Reply

    Klayman had better go back to whatever third rate law school he graduated from, and check his wallet before he does. Same for some of the moron cops who posted on PoliceOne. (Some popo who post on PoliceOne must be very proud of their ignorance, in general as well as of the law as they show it off so well.)

    Texas has some pretty tough Anti-SLAPP statues and he may wind up paying 3X the court costs, attoney fees, etc. This happened to a school teacher who sued a Houston based activist named Quannell X and a Houston area cop who sued someone who posted a FaceBook review of their citizen’s encounter with him.

    I know the case was filed in a Texas federal court, but federal judges don’t like their time wasted either.

    • Greg Prickett
      11 November 2016 at 1:15 pm - Reply

      He got his law degree from Emory (#22, USNWR rankings), so he went to a Tier I school. His academic credentials are fine, he’s just got a burr under his saddle about the Democrats and liberals.

      • Anon
        11 November 2016 at 8:29 pm - Reply

        That’s a bit misleading. He went to Emory in the 70s — long before the rankings blitz — when Emory was not as well regarded. Of course, that’s beside the point given he worked for the DOJ, which implies a good level of competence as an attorney and as student.

        “So a bunch of the cops over at PoliceOne are all for the lawsuit….Those comments include….”
        Only madness lies there. It’s like an off-road strip club on a Tuesday afternoon — you’ll always regret poking your head inside. Generally, anyway.

  • MrBill
    11 November 2016 at 4:00 pm - Reply

    Klayman is a klown.

  • Bob Hope
    12 March 2017 at 6:57 pm - Reply

    Fundamental flaw in this analysis is pretending that the SPLC suits represented a valid rule by which to judge such cases. Dees used a politically sympathetic judicial apparatus to hunt and punish political enemies who made the mistake of being extremely unsympathetic to the public and therefore divorced from public outrage as a recourse for miscarriages of justice.

    Without those embarassing verdicts, we wouldn’t even have to entertain whether Klayman’s latest suit has legs.