The Right to Defy Criminal Demands: Nuisance

I've just finished up a rough draft of my The Right to Defy Criminal Demands article, and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You can also see previous posts (and any future posts, as they come up), here.

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A landowner creates an actionable private "nuisance" for neighbors if it foreseeably "significant[ly] harm[s]" the neighbors' "use and enjoyment of land," and its actions are "unreasonable"—i.e., if (to quote the Restatement (Second) of Torts),

• the gravity of the harm [inflicted on neighbors] outweighs the utility of the actor's conduct, or
• the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible….

The question is … whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. Consideration must be given not only to the interests of the person harmed but also for the interests of the actor and to the interests of the community as a whole. Determining unreasonableness is essentially a weigh­ing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards.

And a business can be a nuisance because its conduct foreseeably leads to criminal behavior by third parties, such as its patrons.

This definition is broad enough to encompass situations where Danielle's business (or she herself) is known to be targeted for violence—perhaps she has already been attacked, either once or more often—and neighbors are afraid they'll get caught in the crossfire. Indeed, this is what happened in Governors Ridge Office Park Association v. McBrayer, where neighbors sued an abortion clinic owner for nuisance, partly on the grounds that

[McBrayer] knowingly brought with [him] a substantial risk of physical harm and property damage to [neighbors], [and] instilled a fear that a clinic of Dr. McBrayer might be bombed again, and their physical safety, lives and buildings might be threatened by activities such as the arson fire-bombing in May 2012 of the clinic in the Park operated by [McBrayer].

A jury awarded neighbors $1.5 million. (For an overseas zoning law analog, consider the Australian decision upholding a refusal to allow a building permit for a synagogue because it could be a terrorist target, given "[t]he threat situation with respect to Jewish communities around the world and Australia.") And the anti-abortion activist group Operation Rescue hailed this as a means for fighting abortion clinics more generally:

This case is important because it gives other office park associations a template to follow when abortion businesses move in and cause disruptions…. We urge office parks where abortion businesses are located to sue for nuisance they cause.

They (the abortion clinics) cause the nuisance, Operation Rescue was arguing—not the protesters (such as Operation Rescue members) who come to protest, or the arsonists who try to or threaten to burn down the clinic and thus endanger its neighbors. And while the Operation Rescue statement of course didn't urge violent attacks or threats, the logic of the decision created an incentive for such attacks or threats—after all, the office parks' suit for the "nuisance [the clinics] cause" relies in large part on the presence of such criminal conduct on the part of the anti-abortion movement's violent fringe.[1]

But the Georgia Court of Appeals reversed the verdict, relying in part on something like a right to defy:[2]

If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere. As [amici curiae] correctly point out, such a holding could be used to expose a broad array of legal businesses and institutions to nuisance liability due to the fact that some find them controversial and some will protest their very existence.

Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-Fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few. Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise.[3]

One way of fitting this with similar rules in negligence law is as an implicit holding that refusing to go along with criminals' demands is per se not "unreasonable"; to quote the Restatement,

In respect to certain types of intentional invasion, there has been a crystallization of legal opinion as to gravity and utility, with the result that the invasions are held to be reasonable or unreasonable as a matter of law…. [Thus,] a series of judicial decisions may establish a rule of law to the effect that certain types of interference with residential uses of land in strictly residential districts constitute unreasonable invasions when the interferences are caused by public garages, mortuaries or some other particular type of business enterprise.

[1] To be sure, the legal system does try to diminish such incentives in other ways, for instance by criminally punishing the attacks or threats (though note that anonymous threats can be very hard to track down and therefore punish), or by enhancing the sentence for such behavior when it is aimed at preventing certain important activities. But I think the legal system should still try to avoid increasing such incentives.

[2] The court also concluded that, under Georgia law, nuisance liability for the misbehavior of third parties may require a showing of "control" over those parties, and thus be limited to misbehavior by people who are or have been the business's patrons—not by the business's enemies.

[3] The cited amicus brief was filed by me, together with local counsel Darren Summerville, on behalf of various law professors, a First Amendment advocacy group, and a Second Amendment advocacy group.