A question for the courts: did Trump incite violence?

Protester pushed Trump rally Louisville Kashiya Nwanguma sot_00000000
Protester pushed Trump rally Louisville Kashiya Nwanguma sot_00000000


    Protester pushed at Trump rally


Protester pushed at Trump rally 01:00

Story highlights

  • Danny Cevallos says Trump's words at a Kentucky rally don't prove that he was attempting to instigate violence
  • It won't be easy for the plaintiffs to bring the case to trial, or if they do, to win substantial damages, Cevallos writes

Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and an attorney practicing in the areas of personal injury, wrongful conviction, and criminal defense in New York, Pennsylvania, and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Did candidate Donald Trump incite violence at a rally last year? A federal judge in Kentucky has allowed a lawsuit to proceed against Trump's campaign and two of his supporters, arising from an alleged assault against three protesters at a Kentucky rally last year.

Defendants Matthew Heimbach and Alvin Bamberger, two audience members at the rally, were accused of physically attacking the plaintiffs. Heimbach cofounded the white nationalist Traditionalist Worker Party, and is "considered by many to be the face of a new generation of white nationalists," according to the Southern Poverty Law Center.
Bamberger, who wore a Korean War Veterans Association uniform at the rally, later conceded in a letter that he "pushed a young woman down the aisle toward the exit," according to the court order.
    The plaintiffs, Kashiya Nwanguma, Molly Shah and Henry Brousseau, allege that during their protest, Trump said, "Get 'em out of here," and then several members of the audience physically attacked them. They allege incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign. The Trump defendants have filed a motion to dismiss, arguing plaintiffs have failed to state a claim against them.
    US District Judge David Hale denied most of the Trump defendants' motions to dismiss, but did dismiss one of the plaintiffs' claims.
    It's a win for the plaintiffs -- but a win that plaintiffs limped to, when they should have won handily.
    All these plaintiffs had to do to survive the Trump campaign's motion to dismiss was allege facts in their complaint that make out a plausible claim. That's it. This essentially means that as long as plaintiffs tell a story that, if true, would result in a defendant being liable on that claim, then the defendants won't be able to get it thrown out.
    Defendants like those from Trump's campaign aren't expected to win these motions -- the rules are admittedly slanted against them. The safest move for a judge is to allow the claims to proceed at this stage. But should the campaign have been the rare defendant that is able to persuade a judge to completely toss out a plaintiff's case before it even gets started?
    Yes. Possibly.
    In a way, the Trump defendants are already winners here because they convinced the judge to toss one claim: vicarious liability. That means the plaintiffs failed to allege the assaults were committed on Trump's behalf and subject to his control. This is a win for two reasons: first, the odds were against the defendants to start with; and second, without this connection it's difficult to hold Trump automatically liable for what others did at the rally.
    Next, even the harshest Trump critics have to concede that Trump's words, "Get 'em out of here," don't explicitly request audience violence. At worst, these words only implicitly encourage violence. But the plaintiff alleged it, and that's good enough for the case to proceed.
    There's also the possibility that Trump is being held to a different standard. Performers have been kicking out audience members with impunity since the invention of heckling. Comedian Amy Schumer has thrown "mother***ers" out of her show for heckling -- after democratically asking the audience to clap if they wanted the guy tossed. The Foo Fighters' Dave Grohl has stopped mid-song to order a rowdy concertgoer to "get the f*** out".
    How disruptive were these Kentucky plaintiffs before the alleged melee at the Trump rally? It's hard to say. They admit to "peacefully protesting" -- but what is that? The Trump defendants insist the plaintiffs were vocal and pushing and shoving their way toward the stage.
    Like Trump, comedians and rock stars are cheered wildly when they kick someone out of the venue -- and it's rarely considered inciting violence when others do it.
    Should political events be safer than rock concerts? Probably, but they're not. Remember when famed journalist Dan Rather got sucker-punched by security guards on live network television at the '68 Democratic National Convention? Politics aren't that different from rock shows.
    Like others before him, it's possible that Trump was requesting security assistance to kick out attendees he deemed rowdy. But the plaintiff's version is possible too, so the lawsuit survives, for now.
    At trial, the plaintiff will actually have the burden to prove that Trump incited a riot, meaning he intentionally provoked a public disturbance involving five or more persons, which turned violent and created a grave danger of damage or injury. They could also prove he was just negligent: that he was duty-bound to provide a safe environment to the plaintiffs; the security provided was inadequate; and that there was a causal connection between Trump's words and plaintiffs' injuries.
    Ultimately, even if the plaintiffs can meet this burden and prove their case at trial, this is still a weak case for another, more important reason: the plaintiffs appear to have minimal damages from the face of their complaint.
    Molly Shah says she experienced "pain and difficulty sleeping" for several days after the rally. Plaintiff Brousseau claims "anxiety and nightmares." Without minimizing their experience and alleged injuries, if one of the defendants was not named Trump, this is not a case that would interest many plaintiffs' lawyers in investing.
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    Liability is not a sure thing in this case, and, from the face of the complaint, there were vague, minimal damages. For example, even if plaintiffs win their negligence claim at trial, a jury could award just a few dollars in damages -- nightmares can certainly be compensable, but they have substantially less value than a traumatic brain injury or a shattered femur.
    The plaintiffs were the heavy favorites in this early round of the case; Trump and the other defendants were the underdogs. It was still a close call. It's important to remember that just because a case is allowed to proceed, doesn't mean it's going to ultimately win. And, in all likelihood, this case isn't going to win. In fact, it probably will never even go to trial.
    If it does, the plaintiffs may expend a lot of money and resources on a case and not recover much. The only real leverage plaintiffs have at this point is the possibility of dragging the President of the United States into the discovery process. That doesn't turn a longshot case into a winner, but it raises all the stakes.