The Volokh Conspiracy

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Antiabortion protesters sue UC professor who stole their sign and pushed and scratched one of them


You may recall the incident, in which UC Santa Barbara Professor Mireille Miller-Young stole antiabortion protesters' sign, and pushed and scratched one of them. She later pleaded no contest to theft, vandalism, and battery.

Now the protesters are suing Miller-Young—and the UC system as her employer—for

  1. violating Cal. Civil Code § 52.1, which bars people, "whether or not acting under color of law," from "interfer[ing or attempting to ] by threats, intimidation, or coercion … with the exercise or enjoyment … of [] rights";
  2. violating Cal Civil Code § 51.7, which protects people from "any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, … or because another person perceives them to have one or more of those characteristics; and
  3. battery.

Note that § 51.7 has been interpreted as covering discrimination based on "personal beliefs," such as being a Holocaust revisionist—and expressing these opinions—or being a member of the John Birch Society or the ACLU. It thus seems likely that expressing antiabortion views, including using images of aborted fetuses, would likewise be covered.

Whether the university is liable under a "respondeat superior" theory as the professor's employer, by the way, is complicated. "California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests," and "assaults that were not committed to further the employer's interests have been considered outgrowths of employment if they originated in a work-related dispute." How exactly these principles would play out in this case is hard to tell for sure; if you're interested, read this case and the cases it cites, and also this excerpt from Flores v. Autozone West, Inc. (Cal. Ct. App. 2008):

This appeal stems from a summary judgment entered in favor of Autozone West, Inc. Autozone successfully asserted below that it could not be held liable for the damages caused by its employee's physical assault of a customer at an Autozone store after the customer had spoken to him in an arguably insulting manner. According to Autozone, the employee's conduct was outside the scope of his employment as a matter of law, because it "was not 'fairly attributable to work-related events or conditions.'" We disagree. In our view, the evidence in this case supports the reasonable inference that the altercation was attributable to work-related events; hence the trial court's decision to dispose of the case by summary judgment was improper….

The [] question … is whether an employee's physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment. Our Supreme Court has suggested it may well be: "Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to 'physical act[s] of aggression.""In bringing [] together,' work [] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup…. These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment."'"

Although the courts in [the quoted ] were addressing the risk of violence between coworkers, rather than between an employee and customer, we cannot draw a meaningful distinction between the two scenarios. The workplace stresses and strains which might cause an employee to erupt in anger are not dependent upon whether the person who happens to be standing in the line of fire is a coworker or a retail customer. In either scenario, as the foregoing authorities establish, "flare-ups [] frustrations" are commonplace for employees during the course of their work.

An interesting question: Can the UC successfully argue that university professors are much less likely to react violently to offensive speech, and that therefore such an attack is less "commonplace" and "predictable" in universities than in car parts and accessories stores? (Of course, it's fortunately not terribly commonplace in either place, but Flores suggests that the threshold is not set very high.)