The National Police Association Files Brief Supporting the City of Detroit Establishing That the First Amendment Does Not Protect Against Unlawful Activity

Posted by James Bopp, Jr. | Dec 11, 2020 | 0 Comments

12/11/2020, the National Police Association (NPA) filed a friend of the court brief asking the Eastern District of Michigan to deny Detroit Will Breathe and other Plaintiffs' Motion to Dismiss the City's counter-claim.

On August 31, 2020, Detroit Will Breathe and other individuals filed a complaint against the City of Detroit and others, following the civil unrest and protests throughout the summer. In response to the many unlawful and illegal activities that took place during some of these protests,
the City responded with its own counter-claim on September 25, 2020. In their counter-claim, the City argued that Plaintiffs conspired to engage in unlawful activities. This unlawful conspiracy led to a number of injuries and damages including: physical injuries; pain, suffering, and emotional distress; property damage; loss of business opportunities; etc.

NPA's brief argues that the First Amendment does not protect against legal liability for one's own unlawful conduct. The brief clarifies that NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1964), upon which Plaintiffs rely, involved a lawful boycott, in which some, but not all, persons engaged in violent activity. The Supreme Court held that those not engaged in illegal acts could not be held liable for others' illegal acts based on their speech, unless the person engaged in lawful activity authorized the illegal acts or incited violence themselves. In this case, the First Amendment does not protect a person from damages for their own unlawful activities. Claiborne recognized protection for peaceful, lawful activities, but Plaintiffs' actions were unlawful and led to foreseeable damages and injuries.

The brief also argues that the conduct at issue here was unlawful and that the injuries and damages resulting from the civil conspiracy were reasonably foreseeable.

Finally, the brief argues that police officers need protection from unlawful activity that poses a risk of serious harm to them. The violent and illegal activities associated with the Detroit protests and similar protests across the United States created a reasonably foreseeable risk of harm. Allowing liability for such unlawful conduct protects police officers, the public, and the rule of law.

James Bopp, Jr. of The Bopp Law Firm, P.C. and lead counsel for NPA on the brief, says: “The First Amendment only protects speech and assembly that is peaceful and lawful. It does not allow individuals to shield their unlawful and illegal conduct from liability under the First Amendment. Allowing a contrary rule would harm police officers and the public by allowing any unlawful and/or violent activity to take place as long as the persons involved are also chanting slogans.”

View the amicus brief here.

About the Author

James Bopp, Jr.

Practice Areas: First Amendment Law, Campaign-Finance Law, Constitutional Law, Election Law, Civil Litigation, Appellate Practice, and United States Supreme Court Practice.


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