A Riotous Assembly

On March 31 federal district judge David Hale for the Western District of Kentucky ruled on Trump’s motion to dismiss a complaint for incitement to riot and related offenses. Judge Hale described the case, Nwanguma v. Trump, this way:

Plaintiffs Kashiya Nwanguma, Molly Shah, and Henry Brousseau attended a presidential campaign rally for Defendant Donald J. Trump with the intention of protesting. Plaintiffs allege that as they were protesting, Trump said, “Get ’em out of here,” following which several members of the audience, including Defendants Matthew Heimbach and Alvin Bamberger, physically attacked them, forcing them to leave the rally. They allege assault and battery by Heimbach and Bamberger, as well as incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign.

Alvin Bamberger, a member of the riotous assembly and one of the defendants in the case, wrote, “Trump kept saying ‘get them out, get them out’ and people in the crowd began pushing and shoving the protestors … I physically pushed a young woman down the aisle toward the exit.” And the judge quoted Melvin Heimbach—soneone in the same boat with Mr. Bamberger, “Heimbach acknowledged in a blog post that he had ‘help[ed] the crowd drive out one of the women’ who were protesting.”

The Protesters’ First Amendment Rights

As far as I can tell, the three protesters had a legal right to be at the rally—and a First Amendment right to the peaceful exercise of their free speech. (Trump’s lawyers claimed that the plaintiffs were trespassers, but apparently tickets for the rally were issued to all comers, not just to Trump supporters.)

Yup, It Was a Riot

Under Kentucky law, the good judge spelled out, a “riot” is “a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons …”

Yup, Trump Incited It

Per the judge: “The word incitement is defined as ‘[t]he act or an instance of provoking, urging on, or stirring up,’ or, in criminal law, ‘[t]he act of persuading another person to commit a crime.’” And by the way, again per the judge, if you provoked, urged on, or stirred up what would have been a riot, then you’re guilty of inciting a riot, even if the tumult turned out not to be as bad as it could have been.

Nope, You Don’t Have a First Amendment Right to Incite a Riot

The judge cited a case named Bible Believers v. Wayne County for the proposition that if you incite a crowd to violence, the incitement enjoys no constitutional protection.

Put another way—my words, not the judge;s—you don’t enjoy a free speech right to deprive other people of their right of free speech.

Fight or Flight? That is the Question (for Trump and his Lawyers)

Bear in mind that, at this stage, the judge has decided only that the complaint is weighty enough so that the case can proceed through “discovery” and trial. In many such situations, plaintiffs ultimately cannot prove what they say they intend to prove.


When you have a losing case, it’s more or less standard operating procedure to try to get the case dismissed early, based on some unpersuasive pettifoggery. Maybe the judge is gullible; maybe the judge will have some bias in your favor. Why not try? That is the thinking.

Now, having, predictably, lost the motion to dismiss, and lost it badly, a competent and ethical judge would advise Team Trump to settle for the best deal they can get, however bad that deal may be. Unethical and incompetent counsel–dealing with a client possessing wealth beyond the dreams of avarice, an insuperable belief in his own righteousness, and an unwillingness to admit wrongdoing—would urge their client to stand and fight. Waving goodbye to all thoese legal fees would be too much for them to bear.

We shall see what happens. But, for the sake of the fun to come, let’s hope that counsel turn out to be unethical and incompetent.