The Volokh Conspiracy
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Federal Civil Rights Claim Over "Trump Train" / Biden Campaign Bus Incident Can Go Forward
A federal statute imposes liability for conspiracies "to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner" for the election of federal candidates, or for "injur[ing] any citizen in person or property on account of such support or advocacy."
From Cervini v. Cisneros, decided March 23 by Judge Robert Pitman (W.D. Tex.), but just noted in a Westlaw Bulletin, which is how I learned about it:
This case arises out of an incident alleged to have occurred during the 2021 presidential election campaign period. Plaintiffs assert that on October 30, 2020, they were traveling on I-35 between San Antonio and Austin, Texas in a Biden-Harris campaign tour bus. At that time, they allege, "dozens of individuals in at least forty vehicles" participated in a "Trump Train" to show support for presidential candidate Donald Trump by surrounding the campaign bus on the highway. Plaintiffs state that for at least ninety minutes, the Trump Train forced the campaign bus to slow down to a crawl on the highway, that cars came within inches of the campaign bus, and that one Trump Train vehicle slammed into a Biden campaign staffer's car, causing Plaintiffs to fear for their lives and suffer emotional trauma.
Plaintiffs state that Cisneros, Ceh, the Mesaros defendants, Park, and other Jane and John Does coordinated to wait for and surround the campaign bus. They assert that Cisneros side-swiped another Biden campaign staffer's vehicle, rapidly decelerated in front of the campaign bus, drove within feet of the rear of the bus, and appeared at the campaign bus's next stop. Plaintiffs state that Ceh drove within inches of the campaign bus and likewise appeared at the next campaign stop. Plaintiffs assert the Mesaros defendants abruptly cut in front of the bus and, after Cisneros purportedly hit the staffer's car, pulled over to film the staffer's attempts to leave the roadway. Finally, Plaintiffs allege that Park assisted another Trump Train vehicle in boxing the campaign bus in. Plaintiffs assert that all Defendants posted on their social media in support of the Trump Train either before, during, or following the alleged incident.
The court allowed the plaintiffs' claim to go forward under 42 U.S.C. § 1985(3), which provides:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, [1] for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if [2] two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators….
The court reasoned:
Many of the parties' disagreements at this stage arise from the question of whether § 1985(3) requires the Plaintiffs to plead that the conspiracy against them stemmed from race-based animus. Park argues that the Supreme Court has steadily adopted more limited views of the types of conduct § 1985(3) was intended to protect against, and that the Court has held that claims brought under § 1985(3) must allege a conspiracy "aimed at" the denial of equal protection based upon discriminatory animus … (citing Bray v. Alexandria Women's Health Clinic (1993))…. Plaintiffs agree that this requirement applies to the first portion of § 1985(3) but assert that it does not apply to the second part of the statute, which is the portion of the statute under which they assert their cause of action….
[I]n Kush v. Rutledge, the Supreme Court discussed whether another provision of the Ku Klux Klan Act, § 1985(2), is subjected to the … requirement that the pleadings include allegations of racial animus. The Court concluded that the Ku Klux Klan Act could be divided into five classes of prohibited conspiracies: one proscribed by § 1985(1), two proscribed by § 1985(2), and two proscribed by § 1985(3). The Court stated that of the five categories, three of them—specifically, § 1985(1), the first section of § 1985(2), and the second section of § 1985(3)—the federal elections provision at issue in the present case—relate to institutions and processes of the federal government and "contain no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws." The other two provisions—the second portion of § 1985(2) and the first portion of § 1985(3)—address primarily state concerns and require that the conspirators' actions be "motivated by an intent to deprive their victims of the equal protection of the laws." …
[N]either the Supreme Court nor the Fifth Circuit have addressed this question [about whether there is a discriminatory animus requirement as to the second part of the statute] head-on. Park, the Mesaros defendants, and Plaintiffs each cite Bray v. Alexandria Women's Health Clinic in support of their arguments. In Bray, the Supreme Court reaffirmed that "the language of § 1985(3) requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Bray v. Alexandria Women's Health Clinic (1993)…. [But] Bray left open the question of whether a plaintiff must plead racial animus to state a claim under the second half of § 1985(3)….
The same issues befall the out-of-circuit cases cited by the Mesaros defendants—none of the cases cited deals with the election advocacy portion of § 1985(3). Indeed, the only out-of-circuit case this Court could identify as addressing this issue head-on found that the portion of § 1985(3) at issue here does not require a pleading of racial animus:
The Court in Kush went on to note that [Griffin v. Breckinridge (1971)] was a case under § 1985(3) where the purpose of the alleged conspiracy was to deprive the victim of equal protection of the laws. Hence the limitation in Griffin requiring "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action" did not apply in Kush, brought under § 1985(2) and involving conspiracy to intimidate witnesses in federal court … Griffin involved beating blacks with clubs, blackjacks, and pipes because one of them was thought to be a civil rights worker; it was clearly an equal protection claim. Kush, on the other hand, was a case relating to "institutions and processes of the Federal Government[,]" where by clear dictum category (e) relating to elections would likewise be classified along with category (b) and not be subject to the racial or other invidious discrimination requirement applicable to equal protection claims.
Gill v. Farm Bureau Life Ins. Co. of Missouri (8th Cir. 1990). For these reasons, this Court finds that a claim under the election advocacy portion of § 1985(3) does not require Plaintiffs to plead racial or other class-based animus and thus denies Park and the Mesaros defendants' claims that Plaintiffs' complaint should be dismissed on that basis….
[Defendant] Park … alleges that Plaintiffs broadly failed to allege that Park conspired to prevent interstate travel or obstruct elections. The Court disagrees. Plaintiffs alleged that, through local "Trump Train" groups in New Braunfels and San Antonio, Park (along with other Defendants) coordinated to wait for the campaign bus. Plaintiffs assert that such coordination resulted in all Defendants participating in dangerous or reckless driving on the highway, and specifically that Park assisted another Trump Train vehicle in boxing the campaign bus in, and stated "If my husband sees me he's going to kill me for driving like this!" They further assert that all Defendants, including Park, posted on their social media in support of the Trump Train either before, during, or immediately following the alleged incident. Based on these allegations, the Court finds that Plaintiffs have stated "a claim to relief that is plausible on its face." …
]Finally, Park argues that the complaint should be dismissed because the Ku Klux Klan Act did not create an independent, substantive right to sue, and because Plaintiffs failed to allege that Park colluded with state actors. However, the Fifth Circuit has previously stated that § 1985(3) was created to allow plaintiffs to recover damages for interference with their election-related rights and is a "specific remedy for interference by private individuals," unlike a claim based on the Fourteenth Amendment, which requires state action. Section 1985(3) can reach "private conspiracies to deprive others of legal rights." …
