Not long after I got into law school, I decided I should read something about the law. Someone suggested “The Nature of the Judicial Process,” by Judge Benjamin Cardozo. According to that book, judges legislate “interstitially,” meaning they fill in the gaps. It is how the common law operates.
The law of torts is a required first-year course, and I soon learned that a tort is a “civil wrong” for which the law provides a remedy. I also learned that Cardozo, along with Learned Hand and a few others, filled in many legislative gaps and laid much of the groundwork for modern tort law. Ask anyone who has gone to law school to name a Cardozo opinion, and you will get an immediate response. The “Palsgraf” case.
In 1924, Mrs. Palsgraf was standing on a platform waiting for the train to Rockaway Beach when another train started to pull away from the station. A last-minute passenger carrying a package ran toward the moving train, and a railroad employee helped him get on. The man dropped the package, which exploded, causing a coin-operated scale on the platform to tip over and injure Mrs. Palsgraf. The jury found the railroad employee negligent and awarded damages of $6,000 (more than $88,000 today).
The case ended up in New York’s highest court, where Judge Cardozo accepted the jury’s finding of negligence, but went on to “legislate.” “Negligence in the air, so to speak, will not do,” he wrote, adding that “the risk reasonably to be perceived defines the duty to be obeyed.” In other words, the railroad’s negligence was not the “proximate cause” of Mrs. Palsgraf’s injuries. It could not have foreseen such a string of events.
The dissenting opinion argued that once there is negligence, the careless party should be held responsible for whatever harm results. “Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.”
Many courts have adopted Cardozo’s view, requiring “foreseeability,” while others have taken the broader view. In either case, the general principle is that “negligence in the air” is not enough, which leads to the interesting question of whether Donald Trump committed a tort on Jan. 6, 2021.
We may find out in a case brought on March 30 by Capitol Police officers James Blassingame and Sidney Hemby. In their federal complaint, they allege that Trump “committed torts” when he “inflamed, encouraged, incited, directed, and aided and abetted” the insurrectionist mob, then failed to take “timely action” to curtail the violence.
The complaint goes back to such earlier statements as Trump’s refusal to give an unequivocal “yes” at a presidential debate when Fox News’s Chris Wallace asked whether he would urge his supporters to “stay calm” and not engage in “civil unrest” after the election, and his “Stand back and stand by” instructions to the Proud Boys. The complaint also quotes from Trump numerous post-election tweets, including “people are not going to stand for having this election stolen from them,” and “big protest in D.C. on January 6th. Be there, will be wild!”
While Officers Blassingame and Hemby were at their assigned Capitol positions, Trump gave his noontime speech at the Ellipse, exhorting the crowd to “fight like hell” to “stop the steal.” “We will not take it anymore. When you catch somebody in a fraud, you’re allowed to go by very different rules.”
While trying to protect the Capitol, Officer Hemby was “crushed against the doors” and “attacked relentlessly,” while Officer Blassingame was slammed against a stone column and struck all over his body. Meanwhile, Trump rejected House Minority Leader McCarthy’s urgent phone call to do something and said, “I guess these people are more upset about the election than you are.” Later in the afternoon, he released a video calling them off, while telling the insurrectionists, “We love you. You’re very special.”
This is a civil case, so the criminal requirement of proving guilt “beyond a reasonable doubt” does not apply. The civil requirement for proving proximate cause is “a preponderance of the evidence,” and the jurors will have to consider whether Trump’s conduct and words were “more likely than not” responsible in part for the officers’ physical and emotional injuries.
There are other Jan. 6 cases pending against Trump, including one brought by Rep. Eric Swalwell claiming civil rights and other violations. Various civil and criminal investigations are underway in New York, Georgia and the District of Columbia.
But none of these has quite the immediacy and appeal of the Blassingame/Hemby case, which boils down to a straightforward, garden-variety lawsuit that anyone can understand. These officers suffered real injuries, and the question is whether Donald Trump should have understood that words have consequences and, to paraphrase Judge Cardozo, “perceived the risk.” Did his words at the Ellipse create a risk that these government officers would be placed in harm’s way?
Rep. Liz Cheney says Trump “lit the flame” for the attack on the Capitol, and “everything that followed was his doing.” Senate Minority Leader Mitch McConnell believes Trump is “practically and morally responsible.” And former House Speaker John Boehner writes in his new book that Trump “incited that bloody insurrection.”
I know better than to predict what a jury will do, but Trump is fortunate these Republicans will not be on the jury.