The $100 million lawsuit filed by leaders of the far-right militant group the Proud Boys is legally unsound — but it has an excellent chance of success.
The plaintiffs — Henry “Enrique” Tarrio and four others — had been found guilty of seditious conspiracy and other crimes arising from their roles in the Jan. 6 attack on the Capitol that interfered with the transition of power following Joe Biden’s victory over Donald Trump in the 2020 election.
Tarrio and the other plaintiffs are essentially re-arguing defenses they made at their trials.
The lawsuit’s excellent chance of a successful outcome for Tarrio and his co-defendants-turned-co-plaintiffs rests entirely on the current Justice Department’s will to defend itself, which seems non-existent judging by DOJ’s recent capitulation in the wrongful death case brought by the estate of Ashli Babbitt, a Trump supporter shot and killed while trying to breach the House Speaker’s Lobby on Jan. 6.
The Babbitt case appeared weak. An investigation by the U.S. Capitol Police found that the officer had acted lawfully in shooting Babbitt, and a joint investigation by the D.C. police department and DOJ found no evidence that the officer had done anything other than act in self-defense of himself and members of Congress — who were actively being evacuated in the face of the Capitol attack at the time Babbitt climbed over a barricade and through a broken glass window to get into the Speaker’s Lobby.
The U.S. Attorney’s Office for D.C. and the DOJ’s Civil Rights Section jointly decided no criminal charges against the officer were warranted. Nevertheless, the Trump DOJ paid Babbitt’s estate $5 million to settle.
The Proud Boys case looks even weaker. Tarrio and the other plaintiffs are essentially re-arguing defenses they made at their trials: Their constitutional rights were violated under various theories, including due process, the right to a speedy trial and claims of unreasonable search and seizures.
But one problem for them is these defenses were all rejected at trial and they were convicted and sentenced for their crimes. Bringing a civil suit for a wrongful prosecution in which the defendant(s) were convicted would be nearly impossible without that conviction being overturned on appeal.
The other problem is that their case is brought primarily upon the so-called Bivens doctrine, which has fallen extremely out of favor with the courts. The doctrine arose from a 1971 Supreme Court case allowing plaintiff Webster Bivens to seek damages against federal agents for violating his Fourth Amendment rights in an illegal search and arrest.
But since 1971, the Supreme Court has repeatedly denied Bivens as a remedy and federal trial courts — and appeals courts — have dismissed hundreds of lawsuits based on Bivens, which had led to the conclusion that the Bivens remedy is nearly dead. Professor Dennis Fan, a former DOJ civil attorney, told The Hill that it’s “essentially impossible” to bring a Bivens claim these days.
The other basis for the Proud Boys’ suit relies on the Federal Torts Claim Act to recover under a liability theory of malicious prosecution — a liability that Rupa Bhattacharyya, former director of DOJ’s Torts Branch, describes as “really, really low.”
The Trump administration could be creating reparations packages for Jan. 6 rioters. But likely outweighing all the legal hurdles for the Proud Boys’ lawsuit are Trump’s pardons of Tarrio and commutations of sentences for his co-plaintiffs. The pardons — not just of the Proud Boys but also of 1,600 defendants charged in the Jan. 6 attack — immeasurably complicate DOJ’s potential defense against the lawsuit. The pardon and commutation language used by Trump states that it is ending “a grave national injustice” — and during the signing ceremony, Trump described the Jan. 6 defendants as “hostages” and said: “What they’ve done to these people is outrageous. There’s rarely been anything like it in the history of our country.” Tarrio also has written of his conversation with Trump at Mar-a-Lago where Trump told him that he was sorry for what President Joe Biden had done to Jan. 6 defendants and told him, “I love you guys.” Both the language in the pardon and commutations and Trump’s characterizations and apologies make a settlement nearly the only outcome. Indeed, a trial of the claims could result in the absurdity of Trump and other Trump administration officials testifying against DOJ’s defense of its actions — in essence the administration testifying against itself. Nor would a judge be inclined to reject such a settlement. While theoretically a judge may refuse to accept a settlement, those instances typically involve cases that give a judge more authority over settlements. for example class actions like the Purdue Pharma opioid settlement case, in which the judge objected to a provision that would have protected the Sackler family from litigation. A settlement would have big financial consequences for taxpayers. The damage caused by the Jan. 6 attack is estimated by Congress’ audit arm to be $2.7 billion, of which only $3 million was to be repaid in the form of restitution by Jan. 6 defendants. Whatever restitution was owed is wiped clean by the pardons and commutations, and the DOJ has already supported giving a refund to the defendants of any money already paid. It would also likely cause a flood of similar lawsuits from perhaps all of the 1,600 pardoned/commuted Jan. 6 defendants — which could add millions, maybe even hundreds of millions, to the tab. Such an income stream fits well with Trump’s idea of creating a “compensation fund” for pardoned Jan 6 rioters even as it would — in the words of history professor Allan J. Lichtman — send a “horrendous message” that would legitimize “violent insurrections.” Lichtman compared the settlements process to “white supremacists during the Jim Crow era recasting Confederates who fought in the Civil War as ‘noble.’” Essentially, the Trump administration could be creating reparations packages for Jan. 6 rioters.
Shan Wu
Shan Wu is a legal analyst and former federal prosecutor who served as counsel to then-Attorney General Janet Reno. 
