Trump-Inspired Defense in County Fair Attack Sets Dangerous Precedent

A Superior, Montana resident was recently charged with felony assault on a minor. According to charging documents filed in Mineral County District Court, Curt Brockway was attending the rodeo. Before the event started, and while the national anthem was playing, Brockway noticed a teenager with his hat on. Brockway apparently asked the boy to remove his hat, claiming that it was disrespectful to wear it during the anthem. The boy allegedly responded by saying “(expletive) you.” As a result, Brockway “grabbed the boy by the throat, lifted him into the air and slammed the boy on the ground.”

Unbelievably, as a defense, Brockway claims that he was compromised by a traumatic brain injury and that he believed that he was acting on an order from President Donald Trump. According to Brockway’s lawyer, “Brockway’s military background has been central to his identity since suffering the injury to his frontal lobe, which controls cognitive functions like judgement and problem solving. Couple that injury with the president’s calls to weed out those who have protested the national anthem or criticized the nation, and Brockway is no longer thinking for himself but responding to a presidential order.”

Not only is this defense ridiculous, it can create a dangerous precedent. In this case, Brockway is asking to be “excused” or “forgiven” for violently attacking a boy because of something that the boy said to him? This is not a situation where the child attacked Brockway or tried to physically assault him. Rather, the teen said something “rude” or “offensive” to Brockway, who decided to violently slam him on the ground.

Brockway’s attempt to blame the president’s rhetoric is absolutely misguided and wrong. According to Brockway’s attorney, “His commander in chief is telling people that if they kneel, they should be fired, or if they burn a flag, they should be punished. He certainly didn’t understand it was a crime.”

His brain injury aside, there are several problems with this argument. First, the president has not encouraged anyone to go out and hurt another person (i.e., Trump has not incited violence). Brockway’s attorney admits this, but attempts to pivot:  “Trump never necessarily says go hurt somebody, but the message is absolutely clear.”  The attorney’s interpretation is incorrect.  The president’s suggestion that one should be “fired” or “punished” in no way encourages the type of conduct in which Brockway apparently admits to have engaged.

Second, Brockway’s suggestion that his client did not understand that his conduct constituted a crime is, simply, unbelievable. If believed, it can create a dangerous precedent. While Brockway will undergo a mental health evaluation to further define his current mental state, it is hard to imagine how he would think that his conduct was lawful. Would the same argument hold if he had mortally wounded the child by other means? More importantly, will this defense allow others who engage in such conduct to blame the president as a defense and to use him as a scapegoat to avoid culpability? At least one court has rejected a lawsuit against several protesters who sued President Trump for allegedly inciting his supporters to assault them. As reported in The Washington Post:

In Nwanguma v. Trump, three protesters sued the president, alleging that he had incited his supporters to assault them at a rally in Louisville in March 2016, during the presidential campaign. Trump pointed at the protesters and said, “Get ’em out of here,” five times, as they were attacked in his clear line of sight. Trump supporters pushed and shoved the protesters and punched high school student Henry Brousseau in the stomach. One of the attackers, Matthew Heimbach, a leader of the white supremacist Traditionalist Workers Party, pleaded guilty to disorderly conduct and indicated in his written statement to the court that Trump was “deputizing the crowd” to physically remove the protesters. Last month, the U.S. Court of Appeals for the 6th Circuit dismissed the case on the grounds that Trump’s exhortations to “Get ’em out of here” did not specifically advocate the crime of assault, and the judgment noted that he had added, “Don’t hurt ’em.”

In Brockway’s case, Trump wasn’t there to encourage his action, nor was anything said that could justify his conduct or incite him to act in such a manner. As a matter of fact, the Supreme Court ruled in Brandenburg v. Ohio that conviction for incitement required a very high bar. In that case, a KKK leader (Brandenburg) encouraged generalized violence against black Americans. During a televised statement, he requested a march on Congress and warned “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” The Supreme Court reversed his conviction and stated that, for purposes of incitement, a speaker had to directly advocate a crime and the offense had to be imminent and likely to occur. This “test” was later applied by the Supreme Court in NAACP v. Claiborne. Therefore, it is unlikely that Brockway could even argue that Trump incited him to act in such a manner.

Brockway’s case is a sad one. He served his country and suffered a devastating injury as a result of an automobile accident. However, his defense that the president’s rhetoric “made him do it” or that the president “told him to do it” could result in dangerous precedent and should be rejected.

Elad Hakim is a political writer and commentator and an attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications.