Alternative Routes — Creative Approaches to Fight Anti-Israel Shutdown Protests

By Rafael Hoffman

“Yesterday, over 100,000 people flooded the streets of NYC and shut it down for Gaza. We marched from Brooklyn Museum to Barclays, took over the Brooklyn Bridge and ended in Union Square. ‘Israel Bombs! USA pays! How many kids did you kill today?’” read a social media post by Within our Lifetime.

In cities where heavy traffic has become an unwelcome way of life, an unwelcome way of life, more gridlock is not smiled upon. All the more so when the cause is intentional.

In early January, pro-Palestinian protesters in New York blocked access to the Brooklyn, Manhattan, and Williamsburg bridges as well as to the Holland Tunnel. Demonstrators demanding a ceasefire in Gaza sat on entrance ramps and other approaches, tying themselves together or to roadside objects with zip ties and other tools, grinding traffic to a crawl.

The incident was hardly isolated.

A week prior, thousands of travelers were stymied by protesters who obstructed roadways leading to Kennedy Airport on the same day that others did the same at Los Angeles International Airport. In addition to creating a nuisance for air travelers, and potentially causing missed flights, in New York, the demonstration brought traffic on the Van Wyck Expressway to a complete standstill. In Los Angeles, police said demonstrators went beyond obstruction, throwing an officer to the ground and attacking drivers in their stalled vehicles.

Gaza ceasefire protesters successfully shut down Grand Central Station twice.

One march that caused more than inconvenience targeted Memorial Sloan Kettering Cancer Center on Manhattan’s Upper East Side. As protesters chanted “MSK, shame on you, you support genocide too,” guards were forced to block main entrances, diverting patients, family, and staff to use circuitous routes to get into the building. The cancer hospital was targeted, organizers said, for accepting funding from a donor that criticized Harvard University over a controversial letter by student organizations blaming Israel for Hamas’ October 7 attack.

The phenomenon has not ceased.

On February 1, Gaza ceasefire demonstrators successfully closed several key streets and highway exits in downtown Washington, D.C. On February 7, protesters blocked the streets around a factory in Chicago. That business’ “crime,” the demonstrators claimed, was making parts for the U.S. military which could potentially end up in Israeli hands.

Organizers make no secret of their intentions. In most high-profile instances, these demonstrations were planned under the banner of “shut it down for Palestine,” an umbrella of anti-Israel and radical left groups supporting the disruptive protests.

In advance of the marches that closed New York City bridges, groups advertised their plan to “Flood Brooklyn for Gaza,” listing locations for protesters to meet and celebrate their success.

The radical anti-Israel organization called Within Our Liftime celebrated the January 1 airport shutdown: “VICTORY! Port Authority has effectively shut down all entrances to JFK for people w/o a boarding pass. AirTrain service is closed, and cars cannot get into the terminal without proof of ticket. Airport is swarming with law enforcement and organizers were removed from Terminal 4.”

Police responded to protests and, in many instances, arrests took place. After the demonstration that closed New York bridges and tunnels, some 325 were taken into custody. Eighty people have been charged in San Francisco for shutting down the city’s San Francisco-Oakland Bay Bridge for hours. Yet, many more faced no consequences and few of those arrested faced more than misdemeanor charges, carrying no jail time.

A Wall Street Journal opinion piece drew attention to the message protest organizers were getting.

“Law enforcement didn’t say a word to the demonstrators all day and carried out no arrests,” said an Antifa website about a protest in Washington state that closed an Amazon distribution center for two hours.

Amid growing frustration about the havoc Gaza protesters caused and an apparent inability to stop them, some sought creative ways to fight back against these ideologically-driven nuisances.

Tort Power

A creative approach to fighting back against disruptive protesters being bandied about suggests bringing tort claims against demonstrators.

Torts comprise a large body of civil law aimed at winning compensation for injury or harm done by another party. While torts are brought on a constant basis, this would be a new application.

“There isn’t a lot of precedent and the reason for that is, in the past, police would have stopped protesters and arrested people and prosecutors would be prosecuting, but that’s happening less these days,” said Ted Frank, an attorney at the Hamilton Lincoln Law Institute.

Mr. Frank took up the cause of attempting to hit protesters with torts and is presently screening potential plaintiffs who have been trapped in traffic, prevented from reaching workplaces, and the like.

“We need serious plaintiffs with standing, who are not afraid of incurring the wrath of left-wing protesters,” he said.

Claims would likely fall under two categories of tort law, the first known as “false imprisonment.” Despite the images of cells and dungeons that the term conjures up, its meaning is illegally retaining another person or restricting him to a certain location. Those supporting such claims argue that being trapped on the highway in one’s car comfortably fits into this definition.

“These scenarios have never been brought, but they are classic examples of false imprisonment,” said Michael Krauss, Professor Emeritus of Law at George Mason University’s Antonin Scalia Law School. “The very first case I taught my students about false imprisonment was about someone who wanted to go from point A to point B and was prevented from doing so by a group that made a parade on the road.”

In some instances, people negatively impacted by protester “shutdowns” could also advance a public nuisance tort, which generally covers denying rights the public holds. These claims are amplified if plaintiffs can show lost income or other monetary damages.

“The original case of a public nuisance tort is someone putting a log on the public road blocking a buggy driver from getting through. That’s exactly what is going on in these protests, so there’s nothing novel about the concept,” said Professor Krauss. 

Depending on the details of cases, some additional tort categories could come into play. If protesters directly prevent drivers from operating their cars, that could constitute Trespass to Chattel, which is defined as stopping someone from using their personal property. If demonstrators touched or physically harmed plaintiffs, they could face a battery tort.

Torts would be brought against individual protesters. While some high-profile figures that have taken up the anti-Israel cause possess sizable assets, the chief goal of these suits would be to subpoena communications between participants to show willful plans to impede the public. The ultimate goal is to sue groups like Palestine Youth Movement, Students for Justice in Palestine, Jewish Voices for Peace, and the Democratic Socialists of America, which took active roles in organizing shutdowns.

“These would not be lucrative claims; non-profits do not have much money,” said Mr. Frank. “The idea would be to get an injunction against organizing these things. Then, if they go ahead and do it again, you’re talking about criminal contempt, and judges don’t like it when people ignore what the court told them to do.”

In instances where organizers are established enough to hold insurance policies, insurers would also likely respond to torts by telling their client to desist from such behavior or lose protection. That might only apply to a small number of involved groups.

“An organization with no assets doesn’t need liability insurance,” said Professor Krauss. “Courts will be receptive, but will these suits actually be filed? Will they be worthwhile if there’s no money and the recovery is theoretical? Very often, these organizations have no corporate structure and no bank account to access. Courts are less likely to go after donors that didn’t plan these events.” 

Mr. Frank posited that the scale of protests betrays a level of infrastructure that should be threatened by torts.

“These protests didn’t arise spontaneously; this isn’t 30 people meeting up in a Starbucks. There was communication, and people buying yellow vests and PVC pipes,” he said. “These organizations are not fly-by-night, some have offices and if JVP or anybody else is threatened with bankruptcy, I think they would reconsider what they’re doing.”

In some instances, finding funding sources liable might be a challenge. Students for Justice in Palestine’s financial sponsor is a New York-based group called WESPAC. While WESPAC, which funnels donations to a host of radical causes, is virulently anti-Israel, finding a direct line between them and organizing shutdowns might prove difficult.

The problem is not a new one for tort law, which is limited in its ability to dissuade insolvent offenders. There are, however, several instances where probing attorneys have been able to strike at non-profit organizations such as a recovery that took place against a Ku Klux Klan chapter which had incorporated itself and owned a building.

Mr. Frank said the very fact that he and others are considering advancing suits is a sign of the times in America’s cities.

“This shouldn’t be necessary. The police should be doing their job, but that’s clearly not happening, so that’s where civil litigation can come in,” he said. “Some of these organizations think they’re above the law and that the cause of making Israel surrender to Hamas justifies whatever they do. I don’t care if they’re pro-Palestinian protesters or George Floyd protesters or Donald Trump election protesters — they shouldn’t be able to do these things with impunity.”

Opening a Federal Roadblock

As Gaza protest shutdowns make national headlines, a group of Republican Congressmen proposed another idea to combat the phenomenon, making intentional roadblocking a federal crime. Doing so is presently a violation of laws in cities and states, but that leaves enforcement up to local police and prosecutors. Federalizing these crimes would allow the Department of Justice to step in and prosecute charges, or theoretically, for federal law enforcement to make arrests.

“Folks have every right to protest and express their opinion, but they have no right to block roads and disrupt people’s lives as I’ve seen in my district and in D.C.,” said North Carolina Congressman Chuck Edwards.

The Safe and Open Streets Act was sponsored by Mr. Edwards and two other North Carolina congressmen in the House of Representatives, and in the Senate by Senator Thom Tillis, who is also of North Carolina, as well as by Tennessee Senator Marsha Blackburn.

Sponsors said their legislation is a “direct response to radical tactics of pro-Palestinian protesters who have intentionally blocked roads and highways across the country.” In a statement introducing the bill, they noted a November protest in Durham that shut down a major highway during rush hour, with no arrests made.

“I think there’s a lack of political will,” said Mr. Edwards. “I don’t believe we have any municipalities taking this issue as seriously as it needs to be taken and that puts others at risk. Making it a federal crime highlights the problem and intensifies the fact that these protesters don’t own the street.”

In a busy and chaotic Congressional session, the bill does not seem to have good prospects for a vote, let alone passage, and its lack of Democratic sponsors makes it unlikely that it would be taken up in the Senate.

Yet, Mr. Edwards said public frustration could push the measure forward.

“My approach is to get policy written and look for an opening to get it passed,” he said. “There are a lot of people on both sides of the aisle who are tired of what these protesters are doing.”

Run Amok

To many critics of pro-Palestinian shutdowns, these disruptions represent the fruits of moves Democratic-controlled cities made in recent years to liberalize their criminal justice systems.

“It’s the result of political decisions in 2020 not to be proactive towards BLM protesters,” said Mr. Frank. “That carried over and now these protesters know that no one is going to bring serious charges against them.”

Many of these moves predate the anti-police rioting that broke out after the death of George Floyd, such as New York’s 2019 discovery reform laws, which made it more difficult for city and state prosecutors to bring cases to court.

The sharp decline in prosecutions was not only a result of legal changes, but of the elections of far-left prosecutors like New York’s Alvin Bragg, Los Angeles’ George Gascón, and Chicago’s Kim Foxx, who ran on promises to stop pressing charges on a long list of crimes. In cases like those facing disruptive protesters, if any charges are even brought, these prosecutors often downgrade them to minor violations which carry no penalties.

“No one is saying protesters that block a road should go to prison for years, but the 10 or 15 days that they would have served in the past discouraged a lot of people from doing these types of things. Now, that friction is gone,” said Nicole Gelinas, senior fellow at the Manhattan Institute. 

Last September, New York City’s police department agreed to several changes in how they handle protests, including a ban on “kettling,” or cordoning off demonstrators with barricades and lines of officers. It was one of several items in a settlement to end a lawsuit by New York State Attorney General Leticia James, the Legal Aid Society, and the state’s branch of the ACLU, against city police for actions during the riots of 2020. 

Many feel eliminating the kettling option is one of several reasons why, even with the advance notice organizers give of their plans to shut down public thoroughfares, police have largely failed to thwart their plans.

“If protesters are planning to block a bridge, the police could have kettled them in to prevent them from doing that,” said Mrs. Gelinas. “Now, the police have much less ability to keep protesters in one place and prevent them from engaging in illegal activities.”

New York City officials initially welcomed the settlement, calling it an approach that balanced rights to peaceful protest with public safety. Yet, as pro-Palestinian protestors began closing roads and bridges, Mayor Eric Adams voiced regrets over the agreement, saying it has been “exploited” by protesters, and that the city had been forced into the settlement by its attorneys. He said, “The decision that came out of that agreement, I thought it put us on a very troubling direction. And now you’re seeing it. You see 1,000 people go to Grand Central station, decided they want to just close down Grand Central station or they want to sit in the street in front of Times Square. We’re seeing the byproduct of that.”

As large cities enforce fewer laws that affect residents’ quality of life, some citizens turn to suing municipalities. Last year, a group of residents and business owners won a suit against the city of Phoenix over its refusal to clear an illegal homeless encampment that was a source of crime and unsanitary conditions. The city of Seattle was ordered to pay $3.65 million to a group that sued over the damages caused by allowing protesters in 2020 to occupy what they declared an “autonomous zone.”

Yet, such suits are difficult to advance, as laws give municipalities a large degree of immunity to determine how their laws should be enforced and set a high bar for plaintiffs to prove they suffered injury.

“There’s no shortcut here. The city and state have to determine that they want to enforce the law, or else we’ll all live in a permanent state of low-grade chaos,” said Mrs. Gelinas. “The more these things go on, the more citizens will take matters into their own hands. We don’t want that, but the city is inviting vigilante justice. When it happens, people will yell and scream, but now is the time to prevent it.”