Could Occupy Wall Street protesters be sued for Black Friday tactic?

Some Occupy Wall Street protesters have talked of staging sit-ins at big retail stories on Black Friday. One prominent lawyer suggests that could backfire, legally.

If cities and universities really want to get tough with illegal actions by Occupy Wall Street protesters they have another tool at their disposal other than evictions and pepper spray.  

They can also bring lawsuits seeking damages, says John Banzhaf, a legal expert who teaches a class called “Torts R Us.”

Yes, Occupy protesters contemplating illegally squatting in “publicly traded” stores  such as Neiman Marcus and Wal-Mart on Black Friday, might want to check to see if the stores are litigious before sitting down in front of a pallet of children’s toys. If the store owner is so inclined, lawsuits seeking damages could be in order.

Yes, a lawsuit seeking thousands of dollars could be filed, says Mr. Banzhaf, who has been called “a legal flamethrower” and teaches at George Washington University Law School.

“It could be a deterrent,” he says. “No one wants to have a huge judgment hanging over one’s head, you can be asked embarrassing questions in court – no one wants to go through that.”

He says the lawsuits can be aimed at a group, if they are organized, or even an individual who can be sued for the total amount of damages. If the damages are intentional, he says, a court could impose punitive damages as well. “Punitive damages are usually more than ordinary damages and that would act like a deterrent as well,” he says.

Banzhaf says he doesn’t know of any lawsuits brought against protesters so far, but he thinks they could eventually happen.

“It will only take one lawyer who gets stuck in an illegal demonstration and suffers a business loss,” says Banzhaf. “Or, perhaps some people can’t get into an office because protesters are blocking the way [and] decide they want to do something about it.”

Banzhaf, who says he is a big proponent of First Amendment rights, says the lawsuits would only deal with illegal activities. “At a university, you have a right to sit-in, to write, to walk around – but not to block people from coming into classrooms.”

Michael Ratner, president of the Center for Constitutional Rights, thinks Banzhaf’s idea is “a real stretch.”

Mr. Ratner, who has acted as a legal observer for the Occupy movement, says civil disobedience has been a hallmark of protest in the country practically since the Revolutionary War. During the civil rights era, Americans sat in at Woolworth’s lunch counters to protest discrimination. Animal rights activists have been known to participate in civil disobedience.

“I would consider this a misuse of a lawyer’s time and a misunderstanding of protest in this country,” says Ratner.

The civil rights lawyer says it might not be so easy assessing blame. For example, during the Occupy Wall Street events, protesters were involved in an illegal march across the Brooklyn Bridge. The NYPD ended up arresting 700 people. But, it took seven hours, which tied up traffic. “It would have been less disruptive to allow the protest,” says Ratner. “Who should be responsible for cops who did something stupid?”

In yet another example, he says suppose a drunk driver has an accident and ties up a highway. As a result someone misses a plane. “Can I sue him for damages?” asks Ratner. “No, it’s too speculative, it’s not foreseeable,” he replies.

Lawyers have derided Banzhaf’s lawsuits before, only to find their clients paying significant settlements.

Some of his law students sued McDonald’s over whether the company’s claim that it only used pure vegetable oil on its French fries was true. He recalls the company called the lawsuit “frivolous.” But, McDonald’s it turns out pre-cooked the fries in beef oil and ended up settling the suit for $12.5 million.

Some of Banzhaf’s biggest victories have been against tobacco companies. He encouraged smokers to sue such companies as Philip Morris and Brown and Williamson. “Some leading experts said they would never get to court,” he recalls. “But, there have been judgments of hundreds of millions of dollars.”

And he suggested states attorneys general should sue the tobacco companies. “They said the idea was crazy, lunacy,” he recalls.

The states ultimately won a billion dollar settlement and the lawyers who represented the states made millions.

What would Banzhaf do if he got stuck on a bridge in an illegal protest?

“I would be the first one in line to file a class action suit,” he says. “I would find out who was arrested and then we would have a good test of this theory. But, I’m sure I would win.”