Guest Post: “Civil Suits by Public Entities to Enforce Public Laws: Some Cautionary Notes”

This summer has seen headlines about armed groups such as “Injuries reported after armed militias clash at Louisville protest” and “Armed Neighborhood Groups Form in the Absence of Police Protection”.  What can government authorities do if they conclude that these armed groups present a threat to public order?

In some instances, criminal charges could be pursued.  But can something be done proactively to prevent the opportunity for criminality to occur?  To answer that question consider what might be called a new form of ‘lawfare’ that seems to be emerging: civil remedies such as injunctive relief.

Today’s post by my friend Brian Cox, an adjunct professor of law at Cornell Law School and a visiting scholar at Queen’s Law in Ontario, unpacks this novel legal approach to armed groups.  He applauds the manifestation of the technique in the suit for injunctive relief filed by Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) following the demonstrations and violence in Charlottesville in 2017.

Brian does, however, offer some “cautionary notes” about the approach, and discusses a recent effort in New Mexico that seems to be trying to replicate ICAP’s success.  Brian’s cautions “all stem from a conceptual concern involving the conflation of public and private interests” in the New Mexico case.  He warns that unless extreme care is taken, the ‘tables could be turned’ and the new legal theory used against government authorities by the very groups they seek to restrain.

Brian focuses mainly on the conceptual issues, and the civil procedure complexities involved.  My own view is that the First and Second Amendments equities could also pose substantive challenges in certain cases.

Regardless, Brian’s essay reflects the common military process of “red teaming.”  This means thinking through how an opponent might ‘turn the tables’ on what we believe is a great idea.  (It may still be one, but we need to know the vulnerabilities).

Anyway, here’s Brian:

Civil Suits by Public Entities to Enforce Public Laws:

Some Cautionary Notes

by Brian L. Cox

The developing trend of armed private paramilitary groups taking to the streets for organized demonstrations or for patrolling public spaces to “enforce” laws of their choosing by threats, coercion, and intimidation is cause for collective concern in many communities across America.  Following the demonstrations and violence in Charlottesville in August 2017, Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) developed a legal approach intended to help prevent similar events from happening in that city in the future.

In the words of ICAP’s Mary B. McCord, the innovative approach is founded upon a “a forward-looking lawsuit seeking a court injunction preventing individuals and groups from returning to Charlottesville to engage in prohibited paramilitary activity.” 

For the civil complaint, “a number of small local businesses and neighborhood associations,” such as Champion Brewing Company, Rapture Restaurant and Nightclub, and Little High Neighborhood Association, joined as plaintiffs against groups such as the Pennsylvania Lightfoot Militia and selected individuals associated with these groups. 

Among the 18 plaintiffs that joined for the (amended) complaint, one stands out from the rest: the City of Charlottesville – the lone public entity of the group.

Nearly three years after filing the civil complaint in Virginia, ICAP has again joined with a public entity – this time the Bernalillo County District Attorney in New Mexico – to seek injunctive and declaratory relief in a civil suit against a private militia group, the so-called New Mexico Civil Guard (NMCG), and individuals associated with that group.  As ICAP describes, this latest complaint is “the nation’s first civil suit by a district attorney to protect the public from paramilitary forces.”

While the creativity and innovation of this approach of public entities joining or filing civil suits to enforce existing obligations to abide by public laws is to be commended, a number of cautionary notes involving this emerging legal method are in order. 

The cautionary notes all stem from a conceptual concern involving the conflation of public and private interests.  Before addressing specific aspects that warrant caution, it is helpful to draw from the complaint filed by the DA to trace exactly how it is that the civil suit duplicates an existing general public safety interest in articulating the injunctive relief sought.

Civil relief, public law, same interest?

At the core, the concern expressed by the DA is that the NMCG constitutes a threat to public order because the group “has unlawfully exercised and intends to continue to unlawfully exercise the power to maintain public peace reserved to peace officers.”

After providing some useful factual context, the DA contends that the injunctive relief is the only way to preserve the government’s lawful and legitimate monopoly on the use of force. As the civil complaint asserts, a clash with protesters in June “was not the first time that NMCG’s usurpation of law-enforcement authority threatened public safety in Bernalillo County or elsewhere in New Mexico, and—absent declaratory and injunctive relief—it will not be the last. (Emphasis added.)

Drawing directly from dicta reflected in the Virginia circuit court decision denying the motion by the defendants in that case to dismiss the proceeding, the Bernalillo County DA claims, “Because NMCG’s activities violate New Mexico law, the State need not ‘sit idly by and wait’ for NMCG ‘to show up and break the law and cause (or increase the risk of) harm, fear, injury, or death.’” The alternative, according to the complaint, is for “the State of New Mexico to take legal action to halt NMCG’s unlawful activity before that activity results in calamity or loss of life.”

Both the Bernalillo County DA and the dicta from the Virginia circuit court decision are correct, of course.  There is no reason for the government to “sit idly by” and wait for unauthorized militia groups “to show up and break the law.”  However, there is a solution for the government to preserve the peace “absent declaratory and injunctive relief”: enforce existing criminal law.

By failing to articulate a specific interest apart from enforcing an existing duty not to violate public law, the DA is, in effect, asking a court for a declaration that the government can exercise authority already vested in the executive.  Unlike seeking an injunction to, for example, prevent the publication of a memoir containing allegedly classified information or to cease allegedly deceptive marketing practices, there is no unique interest to be protected by the court when an existing general public safety interest is duplicated by the government to support a civil complaint.

In concept the merger may seem rather benign, but conflating the two separate interests in this manner without adequately distinguishing between the civil relief sought and the preexisting duty to comply with public criminal law has the potential for very real – and rather unpalatable – practical consequences.

Turning the tables

The most salient concern with a public entity seeking a civil remedy to (re)enforce compliance with public laws may well be the unintended consequence of opening the door for the original defendants to use the same approach as plaintiffs in a separate civil proceeding.  When a public or private entity typically sues for injunctive relief, the person or group must demonstrate with specificity the nature of the interest the person/group seeks to protect. 

This allows the court to decide, among other things, whether that interest is legitimate and whether the relief sought will protect that interest without unjustly infringing upon the interests of the defendant.

Resting a request for injunctive relief on a broad notion of general public safety interest changes that formulation.  A plaintiff is no longer required to put a specific, identifiable interest before the court to evaluate and assess. 

This is not particularly a matter of concern if only a public entity adopts this method – presumably the relevant government agency is already pursuing the public interest by promulgating or enforcing public laws even without a civil suit seeking injunctive relief.

To borrow from the case of the civil suit filed by the Bernalillo County DA, what happens when the current defendants, the so-called New Mexico Civil Guard, invoke the general public interest to seek a remedy enjoining the state from exercising executive discretion in the enforcement of certain laws? 

Political and law enforcement entities across the country have been utilizing an incredible degree of discretion during the wave of social unrest sparked by the killing of George Floyd.  This discretion is the legitimate prerogative of the executive and is founded upon an independent assessment of the public interest in relation to enforcing laws.

Do we know what the outcome will be if tomorrow the NCMG seeks an injunction against the State of New Mexico prohibiting the executive from exercising discretion in enforcing offenses such as criminal damage to property or disorderly conduct or unlawful assembly against demonstrators? 

If the NMCG is required to demonstrate a specific private interest that requires protection by the courts and by the executive in enforcing the court order, the outcome is reasonably predictable.  What if the NMCG borrows from the Bernalillo County DA’s new playbook and rests the requested relief on a general notion of public safety interest – without the need to specify a private interest that needs protection by filing for injunctive relief? 

If the Second Judicial District Court will entertain such a petition filed by the DA, on what grounds would the court refuse to consider a similar complaint for injunctive relief based on a general notion of public safety interest filed by the NMCG?  If the DA’s assessment of the general public interest is sufficient to grant the current relief sought, what makes the DA’s assessment more persuasive or essential than the NMCG’s assessment? 

Even if the court manages to navigate these issues in a manner that actually promotes the public interest, doing so will likely come at the expense of appearing to unfairly prejudice one version of the “public good” over another.  These potential unintended consequences can be avoided if a specified interest, rather than just general public safety, must be described by the DA – and evaluated by the court – in support of a request for a civil remedy such as injunctive relief.

Refusal to grant relief

One of the worst possible scenarios in a civil suit of this manner is for the court to recognize the standing of the plaintiff state but to deny the relief requested.  Using the suit filed by the Bernalillo County DA as an example, what happens if the court entertains the complaint and does not enjoin the New Mexico Civil Guard from “organizing and operating in public as a military unit independent of New Mexico’s civil authority and without having been activated by the Governor of New Mexico” or “assuming law-enforcement functions by using or projecting the ability to use organized force in response to perceived threats at protests, demonstrations, or public gatherings”?

Legal or policy practitioners and scholars will of course recognize that denying a request for relief in a civil suit does not affect the obligations of the defendants to comply with existing criminal law provisions such as impersonating a peace officer.  However, if a civil court were to deny the request for relief sought by the state, the public perception would be that the successful litigants, the NMCG, now have a court sanction to violate public law since the failed lawsuit was founded upon the general public safety interest. 

This blurring would not occur if the requested civil relief were sought by a private party and founded upon a private interest.

Double jeopardy concern

An additional concern is that separate penalties adjudged for violating existing criminal offenses and contravening a court-ordered injunction may not withstand a Fifth Amendment double jeopardy challenge under these circumstances. 

If a defendant violates a provision of the criminal code and a court order granting a request for an injunction that was based on a specified interest, adjudging a penalty for both does not raise a double jeopardy concern even if both offenses involve the same factual conduct. 

However, it is not clear that a prosecution for failing to comply with the court order does not constitute the same offense as violating the provision of the criminal code if both the criminal statute and the court-ordered injunction are founded upon the same general public safety interest.  The defendant has a pre-existing duty to comply with the criminal statute, so an injunction imposed by a civil court that is based on the same general public interest as the statute may not survive a constitutional challenge if penalties are adjudged for violating both.

The Charlottesville precedent

The creativity, insight, and innovation demonstrated by the Georgetown Law ICAP team in developing and fielding this novel legal approach is truly commendable.  The experiment was successful in Charlottesville – as Mary McCord points out, all but two defendants entered into consent decrees before the court even considered the requested injunction, while the remaining two did so after the court denied the motion to dismiss. 

The positive outcome in Charlottesville is a testament to ICAP’s innovative approach.  It is only natural, then, to seek to expand on this success and roll this approach out in other jurisdictions for similar purposes. 

However, the potential for unintended and unpalatable outcomes must be considered and accounted for before this approach is widely fielded.

To a certain degree, of course, a state entity filing for injunctive relief that is founded upon a general public safety interest in order to require a defendant to comply with provisions of the criminal code that are founded upon the same general public interest is intrinsically superfluous.  The state can enforce the existing public law in the absence of the civil relief sought – with no declaration or injunction required from a court.

If the civil suit does not bring about the desired deterrent effect, the relatively minor advantage that is achievable by following through with the request for injunctive relief may not offset the significant risk of unintended consequences invited by utilizing the approach.

The way ahead

Perhaps the best outcome now for the pending action initiated by the Bernalillo County DA is for the court not to recognize the standing of the state to seek a civil remedy that is based upon the general public safety interest.  Now that the suit has been filed, withdrawing on the basis of concern for potential unintended consequences that should have been adequately contemplated before initiating the action would likely be inadvisable (if the full extent of the potential unintended consequences were not identified and considered beforehand). 

While there is precedent for recognizing the standing of a public entity seeking injunctive relief based on an existing public safety interest since the Virginia decision did so in relation to the City of Charlottesville, such a finding is certainly not a forgone conclusion.  The court could – and perhaps should – require the DA to express a specific interest to be protected, rather than duplicating the existing general public safety interest, before recognizing the standing of the public plaintiff.

There is no doubt that the emergence of the tactic by armed paramilitary groups of engaging in organized demonstrations or counter-demonstrations constitutes a very real threat to domestic peace and security.  This threat must be addressed by adequate enforcement of public laws, and any innovative approach that contributes to that goal should be applauded and employed.

The innovation involving a public entity seeking injunctive relief in a civil proceeding based on general public safety interest to reinforce compliance with existing public law, however, is an approach that should be adopted with tremendous care.  Beyond a potential deterrent effect, the upside may be deemed to be minimal while the potential downside is considerable. 

If this innovative approach is to be considered for wider implementation, extreme caution and a full awareness of the potential for unintended consequences are advisable.  

About the author: 

Brian L. Cox is an adjunct professor of law at Cornell Law School and a visiting scholar at Queen’s Law in Ontario. Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.

Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, and Joint Firepower Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!