The Long Tail of Liability For MAGA Republicans

Posted on | March 19, 2024 | Comments Off on The Long Tail of Liability For MAGA Republicans

Mike Magee

If legal scholars are right that “forseeability” and “special relationships” are the toxic mix most common in “long liability tails”, then MAGA Republicans should expect a rocky decade ahead. Trump acolytes in federal and state executive, legislative and judicial branches are massively exposed on at least two fronts.

Led by Christian White Nationalists who succeeded in overturning Roe v. Wade via the Dobbs decision, party elites already know they face trouble at the ballot box. But that’s the least of it.

As former Supreme Court Justice Stephen G. Breyer recently wrote in his new book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, the Dobbs decision was “stunningly naïve in saying it was returning the question of abortion to the political process…The Dobbs majority’s hope, that legislatures and not courts will decide the abortion question, will not be realized…There are too many questions…Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”

Allowing ultra-conservative state legislators to play doctor with women’s lives in the balance not only endangers them, but also captures compliant hospitals and doctors in spiraling decades long liability as women predictably suffer and die needlessly. As the initial flurry over IVF and Alabama’s “extra-uterine children” embryos clearly illustrates, “God’s will” is unlikely to hold sway in court once the Puritan fever breaks. And until enough Red state ballot initiatives neuter Dobbs, hospital CEO’s and medical staff will find being continuously subpoenaed to be emotionally, physically and financially demanding.

And that’s not all. If “foreseeability” and “special relationship” are the two linchpins here, one could easily argue that characters like Bill Barr, Mike Esper, John Bolton and others in Trump’s inner circle [let alone Jan.6 co-conspirators like Congressmen Andy Biggs (R-AZ), Matt Gaetz (R-FL), Louie Gohmert (R-TX), Paul Gosar (R-AZ), Jim Jordan (R-OH), and Scott Perry (R-PA)] could easily fall within the orbit of “The Tarasoff Rule” for failing to protect us as citizens and our democracy from the criminal behavior of Donald Trump.

“The Tarasoff Rule” is named for Tatiana Tarasoff, a student at University of California who was murdered by a graduate student in 1969. The details of the case are quite simple. On June 5, 1969, University of California at Berkeley graduate student, Prosenjit Poddar, arrived distraught and angry at the office of mental health professional, Dr. Lawrence Moore. Poddar had become infatuated with student Tatiana Tarasoff, and was enraged when she rejected him. Over the next 14 weeks, Poddar was seen seven times by Dr. Moore, and during the final visit on August 20, 1969, confided that he intended to kill Tatiana. He was diagnosed then and there as having a “paranoid schizophrenic reaction,” and police were notified to execute a mandatory psychiatric hospital admission.

Poddar was taken into custody, but soon after released after he promised to avoid further contact with Tatiana. Two months later, on October 27, 1969, he entered her home “while she was alone in her home, shot her with a pellet gun, chased her into the street with a kitchen knife, and stabbed her seventeen times, causing her death.”

Poddar pleaded “guilty by reason of insanity” and was convicted of second-degree murder, which was reduced to manslaughter on appeal. The California Supreme Court concluded even this was too harsh and reversed the conviction. He was freed and he quickly returned to India.

Tatiana’s parents sued, and ultimately the California Court of Appeal reversed itself and found Dr. Moore liable. In making that decision seven years after the crime, on July 1, 1976, the California Supreme Court considered these five factors among others:

Foreseeability of harm to Plaintiff;
The degree of certainty that Plaintiff suffered injury;
The closeness of the connection between Defendent’s conduct and the injury suffered by Plaintiff;
The moral blame attached to Defendent’s conduct;
The policy of preventing future harm.

Since 1976, and the California Supreme Court ruling in Tarasoff v. Regents of the University of California, the “duty to protect” has been added to “the duty to warn” for professionals in support relationships. These are two subtly different sides of the same coin.

“The duty to warn” requires that “the mental health professional…make a good-faith effort to contact the identified target of a client’s serious threats of harm, and/or notify law enforcement.”

“The duty to protect”, while encouraging notifying law enforcement and “warning a potential victim,” also considers positively active patient interventions such as “intensifying outpatient treatment, hospitalization, and modification of medication treatment.”

It can be difficult to impossible to determine the dangerousness of a mental unstable individual with 100% certainty. Mental health professionals, in making their assessments, consider a patient’s appearance and general behavior, speech, mood and affect, thought process and content, sensorium and cognition, perceptions and motor activity, and general judgement.

But MAGA allies from Trump’s Cabinet, Congressional allies, and Trump appointed Justices on state and federal levels will have a difficult time convincing courts over the next decade that they didn’t know what was going on. Trump has a way of broadcasting the evidence against himself, and entangling his loyalist supporters in the process.

As for Trump’s current Republican enablers, a potentially “foreseeable” troubled future is in the process of rising to greet them. Disentangling at this point, from Dobbs or “Trump Legal,” will be complicated and prohibitively expensive. But, best get on with it.

As Tarasoff v. Regents of the University of California, which extended from 1969 to 1976 so well illustrated, the tail of liability (and ultimately justice), is a long tail indeed.