A federal judge has authorized an appeal that could scuttle a lawsuit over violence at a Trump campaign rally, putting the case on hold and averting the possibility that President Donald Trump could be forced into a deposition in the case in the near future.
The three protesters who brought the suit against Trump over their treatment at the March 2016 rally in Louisville were also seeking access to the president’s tax returns, but that effort will now be stalled while a federal appeals court deals with broader legal issues in the case.
U.S. District Court Judge David Hale issued an opinion Wednesday granting a request from Trump’s legal team to appeal an earlier ruling by Hale declining to throw out the case.
Trump’s lawyers contend that when he responded to the protest by declaring, "Get ’em out of here!" Trump’s statement was protected by the First Amendment because it could not be seen as advocating violence.
However, the protesters’ lawyers say Trump’s proclamation from the stage has to be judged by his intent and by the circumstances at the time, which could influence how people in the crowd perceived it. (Trump later added : "‘Don’t hurt ’em. If I say ‘go get ’em,’ I get in trouble with the press.”)
Hale sided with the protesters on the point. In his ruling Wednesday, he stood by his position. "Context matters," he wrote. "The exclamation ‘shoot!’ might constitute incitement if directed to a crowd of angry armed individuals, but shouted by a basketball fan or muttered in disappointment, it has no violent connotations. In short, the mere absence of overtly violent language in Trump’s statement does not appear fatal to Plaintiffs’ incitement claim."
But, after further deliberation, the judge agreed to certify the issue for appeal to the Cincinnati-based 6th U.S. Circuit Court of Appeals. Trump’s attorneys had already asked the 6th Circuit to step in but could not file a typical appeal because they did not have Hale’s permission. The appeals court has taken no action on the request.
Now, Trump’s lawyers can file a formal appeal, which is likely to keep the litigation frozen for months, if not a year or more.
Hale also reversed course Wednesday on one aspect of his prior ruling. He is now throwing out a claim for negligence over the way security at the event was handled. The judge said the suit offered no allegations of how security was deficient, beyond the claim about Trump’s public statement.
Attorneys for both sides in the case did not immediately respond to requests for comment Wednesday.