Published: September 2021

Unfortunately, the driver liability bill in Tennessee is neither new nor unique. Driver liability bills first appeared starting in 2017 after racial justice protests in Ferguson and elsewhere. These initial attempts generally had few co-sponsors and were seen as extreme. Then in August 2017, when a self-described white supremacist into a crowd of protesters in Charlottesville killing Heather Heyer, the bills were abandoned. Of the initial eight introduced, none passed.

However, since the renewed racial justice protests of 2020 a wave of similar bills has swept the country once again, and activists are raising the alarm. Legislators in 11 states have introduced 18 new bills since January 2021 that reduce or eliminate the liability of drivers who run into protesters. Three driver liability bills have been enacted in Oklahoma, Iowa, and Florida, and eight are still pending either as stand-alone bills or as part of larger legislation addressing “rioting” or obstructing traffic.

Supporters of these bills claim they are necessary to protect drivers from “rioters” who might attack passing vehicles. However, current law already provides legal protections for anyone who injures someone while acting in genuine self-defense. These new bills instead expand immunity for people who cause harm and signal support to drivers who seek out conflict with protesters. This is a real problem. Over a hundred protesters were hit by cars from Indiana to Tallahassee to Minneapolis at Black Lives Matter protests during the summer of 2020. In January 2021, an Iowa man avoided prison after intentionally driving through a group of peaceful racial justice protesters, injuring one. He told police at the time that protesters needed “an attitude adjustment.” Protesters being hit by vehicles has become such a wide-spread issue, a Wikipedia page sprang up to track the incidents.

The rhetorical and symbolic value of driver liability bills can be seen in the response on social media when they are introduced. Users, including members of law enforcement, circulate jokes, memes, and slogans about hitting protesters with vehicles. A Sheriff’s Deputy in Florida posted a meme depicting a semitruck smeared with blood with the caption “DROVE THROUGH ARIZONA/DIDN’T SEE ANY PROTESTERS.” Longtime Seattle detective Mike Brown was formally fired in February 2021 after it came to light that he had made multiple social media posts mocking and endorsing violence against racial justice protesters. Among the posts was a meme depicting a vehicle striking a person with the words “ALL LIVES SPLATTER” that Brown posted on the same day that two protesters were hit, one fatally, on Interstate 5 in Seattle.

The link between the recent wave of legislation and the Black Lives Matter movement is difficult to ignore. The tone and content these bills often directly relate to racial justice protests, and they are frequently accompanied by statements and news coverage that reference the George Floyd protests of 2020, regardless of the fact most protests were peaceful. In Iowa, House debate over protest-related legislation frequently invoked the specter of dangerous racial justice protests. Iowa’s bill, SF 342, provides civil immunity to any driver who injures someone participating in a “protest, demonstration, riot, or unlawful assembly,” engaging in “disorderly conduct,” or blocking traffic so long as the driver is exercising “due care.” In Iowa disorderly conduct is defined very broadly and includes something as simple as obstructing a sidewalk, making this bill applicable to any protester on a public street or sidewalk that is deemed to be blocking it. In Oklahoma, HB 1674 provides both civil and criminal immunity for injuring or even killing protesters while “fleeing a riot” so long as they did so “unintentionally” while “exercising due care” and under the “reasonable belief” that they needed to flee to protect themselves. An Oklahoma Senator defended the bill by citing an incident in Tulsa where several protesters were injured when a pickup truck drove through a crowd that had gathered to protest the murder of George Floyd even though the driver in that case was never charged. In both Iowa and Oklahoma, lawmakers attempted to make their bill more publicly palatable by using reasonable-sounding language like “due care” and “fleeing a riot,” but the message of encouragement to drivers who seek to do harm to protesters remains clear.

Florida has gone even farther to protect those who seek out violent conflict with protesters. In April 2021, Florida’s HB 1 was passed explicitly to reign in racial justice protest. A wide-ranging bill, HB 1 establishes new loose definitions of “riot” and “obstructing traffic” and criminalizes an array of protest-related activity. The bill was widely condemned by organizers, activists, and human rights advocates and drew international condemnation from the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. Dangerously, HB 1 created a unique new affirmative defense in civil lawsuits for anyone who injures or kills someone “acting in furtherance of a riot.” The new defense is available not only to drivers who hit protesters with their car, but anyone who commits violence against protesters if they can show by the “preponderance of the evidence” that the person was “rioting.” The passage of HB 1 has, perhaps unsurprisingly, has coincided with a broader rise in vigilantism, and protest organizers report growing fear of violence is preventing people from exercising their First Amendment rights.

From Selma to Pride marches to the Women’s March, major advances in equality and justice in the United States have come on the heels of protestors taking to the streets. Driver liability bills risk making the streets a dangerous, even deadly, place for protesters and create the perception that government is no longer willing to protect protesters in the place they have traditionally demonstrated. This country takes pride in its identity as a vibrant and active democracy where we have repeatedly chosen to prioritize and defend the freedom to assemble and speak your mind. In attacking Americans’ ability to safely “take to the streets” in response to injustice, bills like these undermine our ability to be heard and conflict with the country’s most fundamental democratic principles.

For more information contact Nick Robinson at nrobinson@icnl.org or Emilia Pierce at epierce@icnl.org.

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