Gov. Chris Christie’s problems may go beyond the political. Under existing criminal and civil law, he may well be liable for the damage caused by the lane closures on the George Washington Bridge.
Under legal theories of causation, a person who sets in motion a chain of events that result in harm may be responsible for causing that harm, even if he or she did not intend to do so.
For example, if a jokester calls 911 and falsely misdirects the police, he may be responsible for deaths caused by the police racing to the false crime or accident scene, even if his intention was merely to be a nuisance and not to cause physical harm. These kinds of “indirect causation” cases are grist for the mill of law school classes.
In my recently published autobiography, "Taking the Stand," I recount several such cases that I have litigated and taught. I’m sure that “the Christie case” will become a staple of law professors’ “hypotheticals” unless it becomes an actual case, which is a distinct possibility.
Every jurisdiction has criminal statutes that cover reckless or grossly negligent conduct that produces unintended criminal results. Most also have civil liability rules that go further than the criminal laws. These are often hotly contested cases, because causation is sometimes difficult to prove, but convictions in civil liability have resulted at least in some instances.
The two crucial issues are, first, did the closing of the lanes cause the resulting harm? In one instance, an old woman apparently died after EMTs had difficulty reaching her. She may have died anyway, but perhaps if the EMTs got to her in time, they could have saved her life. We know for sure that children were late to school as a direct result of the lane closings. This too is a harm, though not one that necessarily has criminal implications.
Further investigation will undoubtedly disclose more harms attributable to the lane closings — missed business and medical appointments — and only time will tell whether any of these harms are criminal in nature or whether they give rise to civil liability.
One element of causation is foreseeability: Would a reasonable person ordering the closing of lanes on the busiest bridge in the world reasonably foresee that it could cause delays in emergency responders getting to sick people, or in young children being able to get to school on time?
Surely those responsible for traffic would foresee such consequences. Would a governor, who is in charge of the entire state, reasonably foresee that an act of political revenge might well cause innocent people to suffer? That issue would be left to a jury. And jurors understand what it means to be stuck in traffic as they watch ambulances try to reach patients or hospitals.
The second crucial issue is whether Gov. Christie himself ordered, approved, or knew of the lane closures. It seems crystal clear that at some point during the resulting traffic jam, he had to know. The email correspondence that has already been made public surely suggests that those sending the email believed they were carrying out an approved policy of political revenge. Did the governor have a legal responsibility to end the lane closings as soon as he learned of them? He probably did.
Governor Christie, in his rambling press conference, categorically denied any knowledge of the emails or of the fact that the lane closings were politically motivated. He claims that he was told they were part of a traffic study. Of course, he would be told that. They probably were part of a traffic study, but that doesn’t mean that the traffic study was not a cover for political revenge.
We now know that the decision to focus the traffic study in that place and at that time was designed to achieve political revenge. The real question is, Why were the Christie staffers who arranged for this study motivated to do so? Was it because Christie had made it clear that he wanted revenge against the mayor who refused to support him?
As King Henry II rhetorically asked his knights, “Will no one rid me of this troublesome priest?” Understanding the implication of this question, the knights killed Thomas Becket, while affording their king’s plausible deniability.
The criminal law calls this “willful blindness.” If it can be proved that Christie willfully kept himself from knowing what was going on in order to give himself deniability, that would be the functional equivalent of “knowing.” Even if he didn’t know, he might be civilly responsible for the actions of his subordinates under the principle of “respondeat superior” — namely that superiors are responsible for acts done by subordinates within the scope of their responsibility.
Nor will any claim of executive or governmental immunity wash in this case, since actions taken for political revenge are deemed to be “ultra vires” — that is, outside the scope of legitimate governmental authority and thus not subject to governmental immunity.
Finally, Gov. Christie cannot count on any home court advantage if he is brought to trial. Since the George Washington Bridge spans New Jersey and New York, an investigation, lawsuit, or prosecution can be conducted in New York, by New York Authorities — and New York jurors — who would not be subject to the control of, or threat of retaliation by, the New Jersey governor.
So my suggestion to Chris Christie is, in addition to trying to put out the political fires that are now consuming your potential presidential candidacy, get yourself a good lawyer who will advise you on the worst-case scenarios, which include both criminal and civil responsibility. Your underlings have already retained lawyers, and one of whom — on advice of counsel — has refused to answer questions on the ground of “self-incrimination.”
In the end, the worse-case scenarios may not come to pass, but you ought to be prepared to face them, whether or not your political career survives.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. His latest book is an autobiography, "Taking the Stand." Read more reports from Alan M. Dershowitz — Click Here Now.
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