Pro-Violence Political Groups’ “Negligent Selection” Liability for Criminal Actions by Members Engaged in Group Activities

Edwards v. Gruver (Ky. Ct. App. Oct. 14, 2011) (2-1 vote) involves an especially vile group — a KKK organization. But the principle potentially extends considerably more broadly, to justify imposing massive liability on a wide range of political groups whose ideologies in some situations encourage violence, and whose members indeed act violently while advocating on behalf of the group: potentially, extremist animal rights groups, extremist anti-abortion groups, extremist anti-capitalist or anarchist groups, perhaps unions that engage in harsh rhetoric against employers or supposed “scabs” (though maybe such claims against unions would be preempted by federal labor law), and so on.

Here are the facts in a nutshell: Ronald Edwards founded the Imperial Klans of America, and urged members to go out to recruit prospective new members. Four such members — Jarred Hensley, Andrew Watkins, Joshua Cowles, and Matthew Roberts — went to a fair to recruit, and there met and badly beat up Jordan Gruver, because he was part Hispanic. Gruver sued the attackers for assault, but also sued Edwards for “negligent selection” and “negligent supervision” of the four recruiters. The jury “returned a verdict in favor of Gruver in excess of $2.5 million. Of that amount, over $1.5 million was in compensatory damages against Hensley and Edwards, with Edwards’ being found responsible for twenty percent of the amount, and $1 million in punitive damages for which Edwards was found solely responsible.” UPDATE: Edwards was apparently not found to have intentionally orchestrated the attack, or conspired in the attack — the jury just concluded that his negligence in selecting and supervisors his recruiters contributed to the attack.

Negligent selection, which is the non-employment equivalent of negligent hiring, and negligent supervision are both special cases of negligence law; the theory is that when A works or volunteers for organization or individual D and injures P, and D had reason to think A might act this way but failed to take reasonable steps to prevent this (by not using A or by properly monitoring him), D was acting negligently and P could sue D for that negligence. This often arises, for instance, when an employer hires someone with a criminal record (e.g., for burglary or sexual assault) to go into customers’ homes (e.g., to clean them, to do door-to-door sales, and so on), and the employee then commits a crime against the customer; the claim is that the employer acted unreasonably in hiring the person, given that person’s criminal history.

This is not the “respondeat superior” theory under which an employer is strictly liable for the tortious actions of its employees acting within their scope of employment. Rather, it’s based on negligence (not strict liability) but extends even to actions outside the scope of employment, for instance because the actions are motivated by the employee’s own greed, lust, or anger and not by a desire to serve the employer.

The (to my knowledge) novel factor in this case is that the defendant is a political group leader held liable for the actions of his activists, and the group’s politics served as an important aspect of the plaintiff’s claim. (The facts also contained evidence that defendant had specifically solicited identified acts of violence in other contexts, and didn’t just preach the propriety of violence in the abstract; but as a legal matter, such facts wouldn’t generally be required for negligent hiring/selection/supervision cases, as the block quote below suggests.) So it seems to me likely, but not certain, that the theory could likewise apply to other groups whose activists, especially ones who have criminal records, commit crimes — whether violent crimes or property crimes — and whose ideologies can be seen as egging people on to violence. Perhaps this is legally sound and perhaps it isn’t, but in this post I just wanted to flag the issue so that others can follow it. Here is an extended excerpt of the case:

Three of Gruver’s four assailants had criminal convictions for violent offenses prior to joining IKA. Hensley, one of the IKA recruiters who assaulted Gruver, testified that he already had been convicted of “a few assaults, aggravated menacing charge, and illegal use of a firearm” when he joined IKA in 2001. Cowles joined IKA the very month he was released from prison after serving two and a half years for wanton endangerment. Roberts, too, had a criminal record before joining IKA; he had been convicted on independent indictments for robbery, burglary, and theft. Edwards was aware of the criminal history of each of these men when they joined. His position, however, was that, “you know, everybody deserves a second chance.” …

Substantial evidence supported each of the elements of Gruver’s claim for negligent selection …

[“]Foreseeable risks are determined in part on what the defendant knew at the time of the alleged negligence. The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have.[“] … There was abundant evidence regarding what Edwards knew at the time he committed the tort Gruver alleged.

Edwards knew better than anyone that his organization was based on hatred of certain specific groups. He knew what types of persons were attracted to his organization, and he knew their proclivities generally. He specifically knew the violent tendencies of Gruver’s assailants. He knew that his selection of these assailants as recruiters would cause them to interact with the targets of the organization’s hate-based mission and even with members of the law enforcement community. Edwards’ standing order to recruiters to contact him “when” they were arrested is certainly sufficient evidence upon which a jury could infer that Edwards did not expect recruiters to obey his other order to “stay legal.” Rather, the order to call him upon being arrested raises a reasonable inference that Edwards actually anticipated just what occurred in this case. If Edwards could not foresee Gruver’s assault, it was because he chose not to.

When the acknowledged mission of an organization is to hate groups and individuals based on their appearance or heritage or behavior, its leaders face a daunting but necessary task to see that individuals they select to proselytize for the organization refrain from going beyond the constitutional protections of hate speech to the implementation of violence as a means of spreading the organization’s message. Despite the difficult nature of that task, the risk of physical harm to others is not only obvious and foreseeable, it is also potentially great. We conclude that Edwards had a duty to take reasonable care when selecting his recruiters so as to prevent foreseeable acts from occurring. Edwards breached that duty by selecting unfit individuals to recruit members among the general public where, in a multicultural society, they were sure to interact with the individuals they hate — one of them was Gruver.

We also have no difficulty finding substantial evidence of causation. Cowles effectively testified that, but for their selection as IKA recruiters, the four of them would not have been together at the fair where Gruver was assaulted….

Furthermore, the jury was persuaded that Edwards was responsible for the assailants’ actions at the fair. In a separate jury instruction, Instruction No. 6, the jury was asked:

Do you believe from the evidence that Ron Edwards induced or encouraged the violent actions of Jarred Hensley, Andrew Watkins, or other Klansmen, and that Ron Edwards’ inducement or encouragement was a substantial factor in causing injuries and damages to Jordan Gruver?

Nine of the jurors responded affirmatively. Edwards did not challenge that instruction, and he did not appeal the jury’s finding under it. Even if he had, there was substantial evidence supporting the finding….