The Right to Defy Criminal Demands: Nuisance

Just finished a draft of my manuscript. The right to defy criminal demandsArticle, so I decided to serialize it here. Since there is still time to make changes, I would love to get your feedback and suggestions. Here you can find previous posts and any new posts.

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Landowners can create an actionable nuisance by creating nuisances for their neighbors, if they foreseeably are “significant.”[ly] harm[s]” the neighbors’ “use and enjoyment of land,” and its actions are “unreasonable”—i.e., if (to quote the Restatement (Second) of Torts),

  • The gravity of harm [inflicted on neighbors]It is not worth the cost of actor’s actions,
  • the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible….

The question is … whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. It is important to consider not just the individual harmed’s interests but also the actors and the entire community. Determining unreasonableness is essentially a weigh­ing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards.

A business’s conduct can lead to criminal activity by patrons or other third parties.

This definition is broad enough to encompass situations where Danielle’s business (or she herself) is known to be targeted for violence—perhaps she has already been attacked, either once or more often—and neighbors are afraid they’ll get caught in the crossfire. This is exactly what happened in Governors Ridge Office Park Association v. McBrayerA neighbor sued the owner of an abortion clinic for nuisance partly because he was a nuisance to his neighbors

[McBrayer]Conscientiously brought with [him]There is a significant risk of property and physical injury. [neighbors], [and]This fear led to the concern that Dr. McBrayer’s clinic might again be bombed, as well as their safety and security. Activities such the May 2012 arson fire-bombing at the Park Clinic operated by [McBrayer].

An award was made to the neighbors by a jury of $1.5million. A jury awarded $1.5 million to neighbors.[t]The threat to Jewish communities in Australia and around the globe is very real. Operation Rescue, an anti-abortion group, praised this move as a way to fight abortion clinics in general.

This case is important because it gives other office park associations a template to follow when abortion businesses move in and cause disruptions…. Office parks with abortion businesses should be notified to file a lawsuit for any nuisance caused.

These are (the abortion clinics) cause the nuisance, Operation Rescue was arguing—not the protesters (such as Operation Rescue members) who come to protest, or the arsonists who try to or threaten to burn down the clinic and thus endanger its neighbors. And while the Operation Rescue statement of course didn’t urge violent attacks or threats, the logic of the decision created an incentive for such attacks or threats—after all, the office parks’ suit for the “nuisance [the clinics]Cause” is largely dependent on criminal behavior on the part the violent fringe of the anti-abortion movements.[1]

The Georgia Court of Appeals retracted the verdict, citing in part a right of defiance:[2]

We would hold that legal abortion clinics can’t operate within a commercial office space zoned for medical practice without causing a nuisance. This is what it looks like [amici curiae]As you correctly pointed out, this holding could expose many legal businesses to nuisance liability because some people find them controversial or will object to their existence.

Criminals as well as legal protestors caused chaos around many businesses and institutions such gun shops, chick-fil-A restaurants and Chick-Fil-A stores. Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise.[3]

It is possible to combine this rule with other rules in negligence law by implicitly holding that refusal to comply with criminals’ demands is not per se “unreasonable”, to paraphrase the Restatement.

In respect to certain types of intentional invasion, there has been a crystallization of legal opinion as to gravity and utility, with the result that the invasions are held to be reasonable or unreasonable as a matter of law…. [Thus,]A series of court decisions could establish a rule that some types of interference in residential land uses are unreasonable invasions if they’re caused by public mortuaries, public garages or another type of business entity.

[1]The legal system attempts to reduce such incentivizing behavior by other means, such as criminally penalizing the threats or attacks (though it’s important to note that anonymous threats are difficult to find and punish), or increasing the sentences for these types of behaviour when they are intended to prevent certain activities. However, I believe the legal system must still avoid encouraging such behavior.

[2] The court also concluded that, under Georgia law, nuisance liability for the misbehavior of third parties may require a showing of “control” over those parties, and thus be limited to misbehavior by people who are or have been the business’s patrons—not by the business’s enemies.

[3]I filed the cited amicus brief together with local counsel Darren Summerville on behalf of several law professors and a First Amendment advocacy organization.