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“Trump Train” Texas Attack Lawsuits

Overview

Protect Democracy joined forces with the Texas Civil Rights Project and Willkie Farr & Gallagher LLP to file two lawsuits in order to help deter voter intimidation and political violence in future elections. 

The cases were filed on behalf of four plaintiffs who were engaged in a Biden-Harris Campaign bus tour in October 2020 when they were ambushed by a convoy of Trump supporters on a stretch of I-35 between San Antonio and Austin, Texas. One complaint, Cervini v. Cisneros, was filed against individual drivers of the so-called “Trump Train” who conspired to harass and intimidate those aboard the campaign bus. A second complaint, Cervini v. Stapp, was filed against law enforcement officials who turned a blind eye to the attack — despite pleas for help — and failed to provide the bus a police escort. 

The plaintiffs requested a court order declaring the convoy ambush a violation of the Ku Klux Klan Act of 1871 — a law Congress passed to deter political violence and voter intimidation, particularly toward Black Americans. The Klan Act also includes provisions making it illegal for law enforcement to negligently fail to take steps to prevent an impending conspiracy to engage in political violence when they have knowledge of it. 

Voter intimidation is nothing new in the U.S., which has a long history of Black votes being suppressed through intimidation and brutal violence. However, there has been an increase in the use of intimidation tactics and threats of violence to silence political adversaries. The attack on the Biden-Harris bus was part of a trend of increased political violence incidents during the 2020 election cycle which culminated in the insurrection and violent assault on Congress on January 6, 2021.

John Paredes, Counsel at Protect Democracy said:

“Political violence is toxic to the foundations of our democracy. To have a functioning democracy, elections must be won based on the strength of a party’s ideas at the ballot box, not the strength of their militias in the streets.”

FAQs

What happened on I-35 in Texas?

 

On October 30, 2020, the last day of early voting for the presidential election in Texas, a stretch of Texas’ main highway between San Antonio and Austin became the scene of violent and extreme intimidation. As a bus of Biden-Harris campaign staffers, surrogates, and contractors headed to a tour stop in central Texas, a self-proclaimed “Trump Train” — dozens of Trump supporters in at least 40 vehicles — surrounded the bus, came within inches of it, forced it to slow down to a crawl on a busy interstate, and, as one of the drivers later bragged, “slamm[ed]” into a staffer’s follow car. 

“It felt like back in the day, like when minorities were on Greyhounds and they would run us out of town,” said Tim Holloway, who was driving the bus that day. “It took me back there. It’s like we’ve made no progress.”

Afraid for their lives, the occupants of the bus and accompanying campaign vehicles called for assistance from law enforcement, and both San Antonio and New Braunfels provided a police  escort to bring the bus safely to the next jurisdiction. But when the bus reached San Marcos, despite having received notice in advance, the San Marcos law enforcement failed to protect the Biden bus and the terrified passengers inside. It was in San Marcos that the Trump Train drivers engaged in some of their most aggressive stunts, playing a madcap game of highway “chicken” with the bus and, around the city line between San Marcos and Kyle, colliding with the staffer’s car.

Why are we suing?

 

We filed this lawsuit because everyone should be able to engage in peaceful political activity free from fear, intimidation, or threats of violence. Everyone on the Biden campaign bus was doing what good citizens of any political party should do — engaging in the electoral process. That is our right as Americans.

Members of the so-called “Trump Train” surrounded the Biden bus on the highway in an attempt to scare the occupants and prevent them from campaigning in peace — and that day, it worked. The Biden campaign cancelled all remaining campaign stops once the Trump Train intercepted it on I-35. We brought this case to deter people from engaging in that kind of voter intimidation and harassment.

Political violence is unacceptable and needs to stop. The U.S. has a long history of voter intimidation and political violence, especially toward Black Americans. This isn’t a new phenomenon. But in recent years, political violence has been on the rise again. Especially after the January 6 insurrection, it’s worrying to think about the violence that could take place in 2022 and 2024. We all have a right to participate in our democracy and choose our leaders. Political violence and voter intimidation takes away that fundamental right, and that’s unacceptable.

Whom are we suing?

 

We filed two separate lawsuits in the U.S. District Court for the Western District of Texas. The first lawsuit, Cervini v. Cisneros, was filed against individuals who conspired to harass and intimidate the occupants of the Biden-Harris campaign bus. The second lawsuit, Cervini v. Stapp, was filed against law enforcement officials who failed to intervene to stop the conspiracy. 

Who are the plaintiffs?

 

Eric Cervini was in a campaign vehicle ahead of the Biden-Harris bus during the incident and warned San Marcos law enforcement, to no avail, that the bus required help. A historian by profession, Eric has volunteered for every presidential election since 2008. Eric was slated to help with campaign events logistics and to oversee logistics for an event in Austin. The October 30 attack barred him from engaging in his planned political volunteering. Throughout the incident, he was afraid for the lives of the bus passengers, and he received serious online harassment in the days following the attack. 

Wendy Davis was serving as a surrogate for the Biden-Harris campaign and was present on the bus when the Trump Train harassed its occupants. The October 30 attack barred her from campaigning for herself and for Joe Biden and Kamala Harris when the Biden-Harris campaign decided to cancel scheduled events due to safety concerns. The former Texas state senator and 2020 congressional candidate remarked that the bus incident was further evidence of a rising temperature in American politics, and that she had never experienced this kind of intimidation before in all the many campaigns she’d run and opposed. After the October 30 attack, Davis considered speaking out about her experience but did not immediately come forward because she feared for her safety.

David Gins was serving as the Director of State Operations for Texas for the Biden-Harris campaign and was on the bus when it was ambushed. He called 911 while the bus was being threatened by the Trump Train and spent much of the ordeal trying to obtain assistance from various law enforcement agencies. Following the incident, he experienced persistent anxiety and its resulting various physical manifestations. In early 2021, he volunteered to work in President Biden’s inauguration, but backed out due to anxiety stemming from the bus incident.

Tim Holloway was hired to drive the Biden-Harris bus from campaign stop through campaign stop throughout central Texas. He was at the wheel when the Trump Train approached and managed to get the vehicle and its passengers to safety after at least 90 minutes of harassment on I-35. The native of Southeast Washington, DC, had been running a successful business driving buses for entertainers for almost 15 years until the Trump Train attack on October 30, 2020. He has been unable to drive a bus since and has switched careers as a result. 

What is the Ku Klux Klan Act?

 

After the Civil War, Black men finally won the right to vote, but the intent of that legislative change was not realized in the South. White supremacists in the Ku Klux Klan targeted Black would-be voters with violence and terror to deter them from exercising their newly won right to vote. Congress passed the Klan Act to prevent and punish these violent intimidation tactics.

The Klan Act provides a right to sue “if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy.” In other words: it’s illegal to get together with your buddies and make a plan to scare people away from voting or campaigning. 

For nearly 100 years, the Klan Act has remained mostly unused. Now, exactly 150 years after its passage, we’re dusting it off and using it to fight the same sort of problems that voters faced in 1871. The vote is every American’s sacred choice and constitutional right, and we will fight to ensure that individuals who utilize violent tactics to take that choice away are held accountable.

For a PDF of our primer on the Ku Klux Klan Act of 1871, click here.

How does the Klan Act apply to this case?

 

The voter intimidation that took place in Texas was a textbook violation of the Klan Act, specifically the Act’s support-or-advocacy clauses. The support-or-advocacy clauses (found at 42 U.S.C. § 1985(3)) make it unlawful to conspire to intimidate or injure U.S. citizens for providing “support or advocacy” — including speeches, donations, and votes — in favor of federal candidates for office. 

The first complaint (Cervini v. Cisneros) alleges that the defendants teamed up and conspired to use multi-ton pickup trucks on the highway to intimidate and obstruct occupants of the Biden campaign bus from providing “support or advocacy” — here, delivering speeches — on behalf of a presidential candidate.

A second complaint against the police (Cervini v. Stapp) alleges a violation of 42 U.S.C. § 1986. Section 1986 makes it illegal to have knowledge of an unlawful conspiracy to violate the Klan Act’s support-or-advocacy clauses and not take actions to help prevent the conspiracy from succeeding. In short, the provision requires all Americans who have the power to do so — public officials and private citizens alike — to take reasonable steps to help protect their fellow citizens from illegal conspiracies to deny them their civil rights. 

The police in San Marcos had advance warning and contemporaneous notice of the attack on the Biden campaign bus, and yet — unlike many of their colleagues in Texas law enforcement — failed to take sufficient action to protect the bus and its occupants from being terrorized by pickup trucks on I-35. Unsurprisingly, many of the worst incidents of intimidation happened in and immediately adjacent to San Marcos as the Trump convoy — free from any moderating influence provided by a police escort — was emboldened to try their utmost to violently intimidate and harass the Biden campaign bus occupants. Section 1986 makes the members of the San Marcos police who neglected to protect the bus liable to its occupants for failing to protect their civil rights.

About the Klan Act

For a PDF of our primer on the Ku Klux Klan Act of 1871, click here.

Frustrated by the federal government’s persistent inability to put a stop to white supremacist terrorism by the Ku Klux Klan, Congress passed the Ku Klux Klan Act of 1871 to put an end to the Klan’s reign of terror. The bill used nearly all of Congress’s constitutional powers to enact a comprehensive strategy to respond to the Klan’s coordinated political violence and intimidation.

  • Section 1. (now codified at 42 U.S.C. § 1983) Possibly the single most important statutory provision in modern American civil rights law, this section allowed individuals to sue in federal court when state and local officials violate federal law.
  • Section 2. This section banned a host of private conspiracies in which the Klan engaged — such as insurrection, witness intimidation, and voter intimidation — that interfered with newly emancipated Americans’ civil rights. This section includes the statutory provision, 42 U.S.C. § 1985(3), being used by the plaintiffs in Cervini v. Cisneros.
  • Sections 3-4. This section gave the president the power to call on the Army, Navy, and militia against any local rebellions and suspend habeas corpus.
  • Section 5. This section allowed federal judges to keep Klan conspirators off juries.
  • Section 6. (now codified at 42 U.S.C. § 1986) This section required everyone — public servants and private citizens alike — that knew about an illegal conspiracy to interfere with civil rights banned by Section 2 of the Klan Act to take actions to prevent the illegal conspiracy, and made them liable in court for a negligent or intentional failure not to. This section is being used by the plaintiffs in Cervini v. Stapp.

This provision was specifically designed to ensure that Southern law enforcement officers would help protect all Americans from political violence. An exchange during the House’s consideration of the provision between Representative Shellabarger of Ohio (who introduced the Klan Act in the House), Representative Willard, and Representative Bingham (the principal framer of the Fourteenth Amendment) is demonstrative:

Mr. Willard: I desire to ask the gentleman a question just there.

Mr. Shellabarger: Very well; I will hear the gentleman.

Mr. Willard: I understand that under the provisions of [42 U.S.C. § 1986], if an individual receives the notice we frequently read of being sent to these Union men that he must leave the district or be killed or whipped . . . if he should go to the sheriff of the county or to his neighbors and give information of that, and ask them to protect him, they would be liable.

Mr. Shellabarger: They would be liable.

Mr. Bingham: So they ought to be.

The Klan Act Falls into Obscurity

After the bill’s passage, President Grant and the Department of Justice set out to break the power of the Klan in the South, and they largely succeeded. Attorney General Amos Ackerman oversaw the arrest and conviction of hundreds of Klansmen, and by 1872-73 the Klan had been effectively crushed. (Racist white supremacist terrorism would continue throughout the South, however). It wasn’t until the Klan’s 1915 re-establishment by William J. Simmons that the Klan would reemerge as a powerful force in American politics.

 With the end of Reconstruction, Klan Act litigation precipitously declined — a trend that accelerated further after the Supreme Court found some (but not all) portions of the Klan Act’s criminal enforcement provisions unconstitutional, and Congress repealed at least one other. With the exception of Section 1 of the Klan Act (aka 42 U.S.C. § 1983), the remaining provisions of the Klan Act largely faded into obscurity for over a century.

Klan Act litigation was quite rare from 1880-2016. That’s not to say that the provision was never used. Civil rights lawyers occasionally invoked the provision to protect voter registration and demand protection from the Klan and the American Nazi Party. In the 1960s, a Freedom Rider used it against FBI agents for failing to protect him in the face of known risks of white supremacist violence in Alabama.

A Recent Resurgence in Klan Act Lawsuits

With the increase in political violence and voter intimidation during the Trump era, civil rights lawyers are again dusting off provisions of the Klan Act to stop organized political intimidation and violence. Members of Congress and injured Capitol Police officers have filed Klan Act suits against the alleged perpetrators of the January 6 attacks. Victims of the “Unite the Right” rally in Charlottesville have used the Act to sue neo-Nazis. Virginians falsely accused of voter fraud used the Act to sue a former member of the Pence-Kobach “voter fraud” commission and his non-profit for voter intimidation. And Lafayette Square protesters, led by Black Lives Matter, are bringing Klan Act claims against senior government officials for tear-gassing a peaceful protest. 

The two lawsuits being filed in response to the attack on the Biden-Harris campaign bus are the latest example of how the Klan Act can be utilized to deter voter intimidation and political violence — and safeguard our democracy.

For a PDF of our primer on the Ku Klux Klan Act of 1871, click here.

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