By Joseph M. Hanneman
Former President Donald Trump has filed a motion in federal court to dismiss the $30 million wrongful-death lawsuit brought by the former girlfriend of U.S. Capitol Police Officer Brian Sicknick, who died of a stroke on Jan. 7, 2021.
Sandra Garza, Sicknick’s former girlfriend and the representative of his estate, filed suit in January against Trump and Jan. 6 defendants Julian Khater and George Tanios. She is seeking at least $10 million in compensatory damages, plus unspecified punitive damages from each defendant.
Garza’s suit claims Trump incited a riot at the U.S. Capitol on Jan. 6, 2021, through his speech at the Ellipse. The alleged incitement gave supporters like Khater and Tanios the motivation to attack the Capitol and deploy chemical irritants against Officer Sicknick, the lawsuit contends.
In his motion to dismiss, Trump attorney Jesse Binnall rapped the suit for false allegations, claiming Trump enjoyed absolute immunity as president and his purely political speech is protected by the First Amendment.
“Unfortunately for the plaintiff, the First Amendment forbids courts to regulate the content of political speech,” Binnall wrote in a 46-page memorandum of law filed in U.S. District Court in Washington.
“Moreover, it is the content of the speech itself—not the effect on or subsequent actions of the listeners—that determines whether such speech is constitutionally protected.”
Death From Natural Causes
Sicknick’s death on Jan. 7 was attributed by the D.C. medical examiner to natural causes. Stories circulated in legacy media falsely claimed that Sicknick had died after being struck in the head with a fire extinguisher.
Although Sicknick was exposed to pepper spray on the afternoon of Jan. 6, there was no indication it was a contributing factor in his death, according to the autopsy report.
Khater was sentenced to 80 months in prison on two counts of assaulting, resisting, or impeding certain officers with a dangerous weapon. He was convicted of discharging a canister of pepper spray at the police line on the west front of the Capitol, striking Sicknick.
Tanios was sentenced to time served on a charge of entering and remaining in a restricted building or grounds, and disorderly or disruptive conduct in a restricted building or grounds. Prosecutors said Tanios supplied the pepper spray that Khater used on the police line.
The Garza lawsuit claims Trump called for “express violence” on Jan. 6, but the plaintiff “fails to allege any actual words spoken by President Trump to justify that legal conclusion,” Binnall wrote. “Instead, plaintiff offers garden-variety and well-worn metaphors about political fighting as a substitute.”
Binnall cited recently resurfaced Twitter posts from the former president that called for peace at the Capitol. At 2:38 p.m. on Jan. 6, Trump posted on Twitter, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
At 3:13 p.m., Trump wrote, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order–respect the Law and our great men and women in Blue. Thank you!”
“These tweets were consistent with a major theme of President Trump’s speech on the Ellipse—that the attendees were there to ‘peacefully and patriotically make [their] voices heard,’” Binnall wrote.
“Indeed, in addition to being constitutionally immune from liability, President Trump’s statements and tweets make it clear that he acted completely legally and appropriately.”
Absolute Immunity
Binnall wrote that courts have long held that presidents are “absolutely immune” from civil liability for actions within the “outer perimeter” of their official duties.
“Plaintiff’s claims boil down to an assertion that President Trump should be civilly liable for various alleged torts based on his use of the presidential bully pulpit on a matter of public concern,” Binnall wrote, “something well within the traditional scope of a president’s duties—and her claims are therefore barred by absolute immunity.”
In another civil lawsuit, [James] Blassingame et al. v. Donald Trump, a federal court did not accept Trump’s claim of absolute immunity. Trump has appealed that ruling to the U.S. Court of Appeals for the District of Columbia.
Binnall said the allegations of conspiracy and aiding and abetting a riot must be judged on Trump’s conduct, “not the crowd’s reaction to it,” for “the measure of the speaker is not the conduct of his audience.”
“As president, it was President Trump’s duty to ensure that the laws are faithfully executed, and he had plausible concerns about the legality and integrity of the November election results,” Binnall wrote.
“Allegations of election interference were more than welcome by politicians and the media in 2000, 2004, and 2016, when they were being voiced by Democrats Maxine Waters, Jerrold Nadler, Barbara Lee, Stacy Abrams, and Hillary Clinton.”
The lawsuit cited commentary on the pro-Trump website TheDonald.win as evidence Trump’s post-election words were an incitement to violence. It quoted remarks from accounts named “Buttfart88,” “Evil Guy,” and “UncontrollableQeef” as evidence Trump’s supporters saw his remarks as a call for violence in D.C. on Jan. 6.
“This is as preposterous a legal position as are the online names used by these purported supporters,” Binnall wrote.
As Sicknick’s former girlfriend, Garza has no standing to bring a claim under the District of Columbia’s Wrongful Death Act, Trump’s motion said.
No Standing
“Plaintiff has not even alleged that she is the spouse, domestic partner, or next of kin of Officer Sicknick,” Binnall wrote. “Thus, she is not eligible to receive compensation under this statute.”
“In an interview with WUSA9, Ms. Garza admitted that she and Officer Sicknick separated six months before January 6, 2021, because she wanted to get married and he did not,” Binnall wrote. “This is direct evidence from plaintiff that she was not a spouse or domestic partner of Officer Sicknick, nor did they hold themselves out to be married or domestic partners.”
Garza’s lawsuit has numerous deficiencies and should be dismissed with prejudice, the former president’s attorney said.
“As a matter of law, the plaintiff has made no plausible allegations to overcome presidential immunity, nor has she made any plausible allegations that she has standing to bring these claims, that her claims are not time-barred, or that the president aided and abetted any wrongful activity, or that the president or his words are responsible for Officer Sicknick’s death.”
