The Volokh Conspiracy
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Conspiracy Lawsuit Against National Students for Justice in Palestine Parent Organization Can Go Forward
From yesterday's opinion by Judge Andrew Carter (S.D.N.Y.) in Horowitz v. AJP Educ. Found., Inc., the plaintiff's allegations:
Horowitz is a documentarian and civil rights activist. AMP [American Muslims for Palestine] is a 501(c)(3) nonprofit corporation …. Defendant NSJP [National Students for Justice in Palestine] is an unincorporated association … that was created and is operated by AMP.
AMP was founded for the direct purpose of serving certain political aims in the United States. Defendant NSJP is AMP's on-campus brand, a project created to manage and control a network of chapter and affiliate organizations across hundreds of campuses on behalf of AMP so that they can be used to serve its political aims.
In April 2024, AMP and NSJP began a largescale operation coordinating, guiding, and commanding NSJP's network of on campus chapter to engage in protests by building encampments to participate in civil disobedience with the goal of making certain political demands. For example, on April 24, 2024, AMP's Executive Director, Osama Abuirshaid, visited the Columbia to the encampment. Abuirshaid made a fiery speech to the encampment protestors and declared to the NSJP protestors that there was a "war" on them in America. He also stated that there was a war against their First Amendment rights, and that police were repressing them.
Abuirshaid shouted that AMP and the protestors were "going to continue to fight" until they achieved their political goals. Abuirshaid's visit to NSJP's Columbia chapters and affiliates and their encampment coincided with the creation of the encampment at CUNY the following day—which the Columbia chapters assisted with….
On April 25, 2024, over 200 members of NSJP's chapters and affiliates at CUNY gathered to set up an encampment in a public square at CUNY's campus at the City College of New York ("CCNY"). In the late afternoon on April 26, 2024, Plaintiff Horowitz entered CCNY's campus to film a video. He approached the encampment with an American flag. After swarming from the encampment to surround Horowitz, the mob immediately ripped the American flag from Horowitz hands, smashed it on the ground, and began beating him. The attack occurred during the middle of the day, in broad daylight, in full view of the surrounding campus, the encampment, and hundreds of onlookers. The mob's members kicked, punched, and headbutted Horowitz, aiming strikes at his throat, spleen, and kidney.
While beating Horowitz, the mob dragged him to the ground and shoved him down nearby stairs. After being shoved down the stairs, Horowitz got up and ran back to retrieve his flag. As Horowitz went for the flag, the mob grabbed him again and continued beating him. The mob then pushed Horowitz off the ledge of a nearby retaining wall. Horowitz got up and ran back to the flag again. Again, he was grabbed, punched, kicked, and headbutted by the mob.
After this third round of mobbing occurred, officers from CUNY's campus police and the NYPD arrived and detained Horowitz, but they did not detain anyone from the mob. The police bodily removed Horowitz him from the scene in a tight armlock. As a result of the mob's attack, Horowitz suffered bruises and wounds, primarily to his torso, and had to go to an urgent care facility for examination. Horowitz also had to attend physical therapy for his arm and shoulder which were injured during the attack, which continues to this day….
Horowitz sued, and the court held that plaintiff had adequately alleged facts that would hold defendants liable for civil conspiracy (of course, at this stage these are just allegations):
To state a claim for civil conspiracy, "a plaintiff must demonstrate the primary tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties' intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury." …
[1.] Here, the Complaint alleges the existence of an agreement between AMP and the co-conspirators that attacked Plaintiff. Specifically, the Complaint alleges that AMP organized and supported the very encampment Plaintiff was attacked at, and that on November 24-25, 2023, AMP hosted its "Campus Activism Track" program ("CAT"), an intensive training bootcamp for its campus organizations "designed to help student organizers navigate activism on their college campuses" and "provide [students] with the tools and resources [they] need to strengthen pro-Palestinian presence on [their] campus." In addition, the Complaint alleges that AMP encouraged the use of violence in defense of the encampments. Accepting these allegations as true, they support a finding of a corrupt agreement.
[2.] [The overt act] element requires that "there have been at least one overt act by one of the conspirators in furtherance of the unlawful plan." The allegations in the Complaint satisfy this element because Plaintiff has alleged that AMP's co-conspirators attacked him in defense of their encampments in furtherance of their plan to take over college campuses….
[3.] The allegations in the Complaint satisfy the [intentional participation] requirement because they allege that AMP intentionally participated in the common plan to defend the encampments. Plaintiff alleges that AMP not only issued directives to the encampments, but it also provided funding, training resources, and social media support. The Complaint also alleges that AMP's Executive Director Osama Abuirshaid visited the Columbia encampment and gave a speech during which he encouraged protestors at the encampments to "fight."
[4.] This element is satisfied here, through Plaintiff's allegations that he "suffered bruises and wounds, primarily to his torso, and had to go to an urgent care facility for examination," and "physical therapy for his arm and shoulder which were injured during the attack, which continues to this day."
Viewed in the light most favorable to the Plaintiff, the allegations in the Complaint are sufficient to make out a prima facie case of conspiracy. Having established a prima facie case for conspiracy, the Court now considers whether it has personal jurisdiction over AMP. "To establish jurisdiction under § 302(a)," a plaintiff must not only allege a prima facie case of conspiracy, "but also must show a sufficient relationship between the defendant and the conspiracy to warrant the inference that the defendant was a member of the conspiracy." "[C]ourts have required plaintiffs to show that: (a) the defendant had an awareness of the effects in New York of its activity; (b) the activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators; and (c) the co-conspirators acting in New York acted 'at the direction or under the control,' or 'at the request of or on behalf of' the out-of-state defendant." The Court addressees each in turn below.
[a.] AMP had an awareness of the Effects in New York of its Activity
This element is satisfied here, where the Complaint alleges that AMP's AMP's Executive Director, Osama Abuirshaid, went to Columbia's encampment on April 24, 2024 made a fiery speech to the encampment protestors to galvanize them and encourage them in their violent, illegal activities and defend them with the false narrative that they were being persecuted for engaging in protected speech. Abuirshaid declared to the NSJP protestors that there was a "war" on them in America and against their First Amendment rights, and that police were repressing them. Abuirshaid shouted that AMP and the protestors at the encampment were "going to continue to fight" until they achieved their goal.
[b.] The activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators
This element is met through Plaintiff 's allegation that AMP and NSJP accomplished their objective to encourage violence at protests, as well as in developing and disseminating the Day of Resistance Toolkit, Student Toolkit, and Solidarity Toolkit: hundreds of SJP chapters and affiliates on hundreds of campuses commenced protest campaigns in accord with NSJP's orders and toolkit materials, including "Day of Resistance" protests on October 12, 2023, and "Student Week of Resistance" protests during October 18-25, 2023.
[c.] AMP's Co-conspirators acting in New York Acted at the direction or under the control, or at the request of or on behalf of AMP
The Complaint alleges enough to satisfy this element through its allegations that AMP assisted with the CUNY Encampment's creation for violent and unlawful purposes, and that The Columbia NSJP chapter that AMP supported and directed in establishing the CUNY encampment was notoriously and consistently violent and unlawful.
But the court held the defendants didn't plausibly allege facts that would support a separate aiding and abetting theory:
[T]o state a claim for aiding and abetting assault and battery, New York state law requires "(1) a wrongful act producing an injury; (2) the defendant's awareness of a role as a part of an overall illegal or tortious activity at the time he provides the assistance; and (3) the defendant's knowing and substantial assistance in the principal violation."
With respect to the knowledge requirement, the Second Circuit, which is binding on this Court, has repeatedly held that "[a]ctual knowledge, not constructive knowledge (meaning that someone should have known something), is required." The Second Circuit has distinguished "actual knowledge" from "constructive knowledge." Constructive knowledge is "knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." …
Plaintiff contends that there is another standard that could also apply here: "foreseeable risk." Under this standard, a "defendant may be liable for aiding and abetting a wrongful enterprise's tortious act where the defendant has systemically supported the enterprise and the act was a foreseeable risk of the enterprise's wrongful conduct the defendant supported, regardless of whether the defendant knew about or directly assisted the act." In support of this position, Plaintiff points to two cases: Twitter v. Taamneh (2023) and Halberstam v. Welch (D.C. Cir. 1983). Neither case dealt with a claim of aiding and abetting under New York state law. Instead, both cases discussed federal statutes. Therefore, in asking the Court to apply the foreseeable risk standard set forth in these cases, Plaintiff essentially asks the Court to depart from decades of Second Circuit authority requiring actual knowledge—the Court declines to do so….
The Complaint is bereft of any allegations that would support a finding that AMP had actual knowledge of the assault and battery. At best, the Complaint showed "red flags," that is, they show that AMP was involved in or directed activities which it should have known could lead to Plaintiff's assault and battery.
Therefore, at best, Plaintiff has alleged AMP's constructive knowledge of the assault and battery. For the reasons outlined above, such knowledge is insufficient to support a claim for aiding and abetting assault and battery….
The Court will afford Plaintiff the opportunity to amend his Complaint to attempt to cure its deficiencies, if he wishes to do so. Rule 15(a)(2) states "the court should freely give leave when justice so requires." The Supreme Court has instructed that "this mandate is to be heeded." However, it is ultimately "within the sound discretion of the court whether to grant leave to amend."
While the Court is skeptical that Plaintiff could amend the already voluminous Complaint to survive a motion to dismiss, it will not foreclose him from trying. Plaintiff's amended Complaint, should he choose to file one, is due by April 10, 2026. We will remind Plaintiff's attorney that Rule 8 requires a short and plain statement. While we understand how important this Complaint is to the parties, the Court sees no reason for the Complaint to be more than 75 pages.
The court also held that it had subject matter jurisdiction, because Horowitz had adequately alleged that he suffered $75K or more in damages (the jurisdictional threshold) and the parties were citizens of different states. And the court held that it had personal jurisdiction over AMP, because they were alleged to have committed a tort in New York through an agent.
Jacob William Roth and Josiah Contarino (Contarino Roth LLC) represent plaintiff.
