6 January 2021
In November 2020 Joe Biden defeated Donald Trump in the US Presidential election. Thereafter Donald Trump engaged in a prolonged campaign of lawsuits and other actions in an attempt to overturn the result and to allow him to remain in office. This culminated on 6 January 2021, where, following a speech by Donald Trump nearby, a violent mob of protestors attacked and ransacked the US Capitol Building in Washington DC, apparently in an attempt to frustrate or delay the counting of the Electoral College votes, which was the final procedural step in the 2020 Presidential election process.
The bipartisan US House of Representatives Select January 6th Committee issued a final report detailing these events, which can be found here: https://www.govinfo.gov/app/details/GPO-J6-REPORT/.
Colorado Supreme Court's Judgment
The Fourteenth Amendment to the US Constitution was part of a series of amendments the US adopted following the American Civil War. Section 3 of the Fourteenth Amendment reads:
No person shall be a Senator or Representative in Congress,or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
In 2023 a number of electors petitioned the Colorado Secretary of State to have Trump removed from the 2024 Colorado Republican Primary, arguing that he was disqualified from the Presidency as a result of his having "engaged in insurrection" following the 2020 Presidential Election. The Colorado Supreme Court had to resolve a number of procedural and other legal questions which are beyond the scope of this article. The court concluded that Trump should be disqualified.
As to the meaning of the term 'insurrection', the judgment was short, taking up only six of the 128 pages. The court held as follows:
- There is a spectrum of conduct that moves from riot, to insurrection to rebellion.
- It was not necessary for the court to include in its judgment an 'all encompassing' definition of 'insurrection'.
- Any definition of insurrection would include at least "concerted and public use of force or threat of force by a group of people to hinder or prevent the US government from taking the actions necessary to accomplish a peaceful transfer of power in this country."
- The participants should "act in a concerted way, [but] need not be highly organised".
In applying that definition to the events of 6 January 2021, the court found:
- A large number of armed protestors forcibly entered the Capitol Building.
- Actual and threatened force was used by those protestors.
- The protestors' use of force was concerted and had a unity of purpose, in that they wished to inflict violence against members of Congress and Mike Pence.
- Upon entering the Capitol Building, the protestors attempted to and did enter the chambers of the House and Senate, for the purposes of preventing the certification of the 2020 Presidential election.
The court also considered the meaning of "Engaged in" and concluded that President Trump had 'engaged in' an insurrection, by his actions leading up to 6 January 2021 and on the day itself.
The full judgment can be read on the Colorado Supreme Court's website here: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf.
'Insurrection' under English law
English law emphasises that political violence concepts such as 'insurrection', when considered in the context of commercial policies of insurance, should be given the meaning that would be ascribed to them by commercial parties, rather than giving focus to the meaning of the terms as a matter of international law.
Two English cases have grappled directly with the term 'insurrection'.
The first is Spinney's v Royal Insurance [1980] 1 Lloyd's Rep. 406. In that case, the insureds were businesses in Beirut, Lebanon. The businesses were damaged by the widespread political strife in Lebanon in late 1975 / early 1976. The relevant insurance policies excluded a number of political violence perils, including insurrection and rebellion. The court found that rebellion meant "organised resistance to the ruler or government of one's country" and that insurrection was an "incipient or limited rebellion", such that participants in an insurrection may be less organised than those in a rebellion. The court further found that both insurrection and rebellion required "action against the government with a view to supplanting it". The court concluded that the events in Lebanon at the relevant time did not amount to a rebellion or insurrection, given none of the factions involved in the political strife had attempted to change Lebanon's government by acts of violence.
The second case is National Oil Co of Zimbabwe v Sturge [1991] 2 Lloyd's Rep 281. In that case, the insured suffered loss following the Mozambique National Resistance ("Renamo'') blowing up a pipeline and causing damage to an oil tank farm in Mozambique. The court defined insurrection and rebellion as "an organised and violent internal uprising in a country with, as a main purpose, the object of trying to overthrow or supplant the government of that country, though 'insurrection' denotes a lesser degree of organisation and size than 'rebellion'." The court concluded that the Renamo actions amounted to an insurrection, given the Renamo movement involved at least thousands of people, did intend to overthrow the incumbent government and used violent actions to pursue that goal.
A third case worth mentioning is Curtis & Sons v Mathews [1919] 1 K.B. 425. This case concerned losses sustained during the 1916 Easter Rising in Dublin. The insured propery was located near the Dublin General Post Office, which was hit by a shell fired by British government forces and which caught fire. The fire subsequently spread to the insured property. The policy in question excluded losses caused by "war, bombardment, military or usurped power, or by aerial craft (hostile or otherwise), including bombs, shelled, and/or missiles dropped or thrown therefrom, or discharged thereat, and fire and/or explosion directly caused by any of the foregoing." The court recounted that the rising involved 200 men and that there were five days armed confrontation between those men and the British forces, including the use of artillery. The court found that the events were more than "mere riot", but were "civil strife amounting to warfare waged between military and usurped powers and involving bombardment". The court distinguished between 'civil commotion' and 'usurped power' by stating that, for matters crossing that line, the involved parties should "be some action by some more or less organized body with more or less authorative leaders". While the term 'insurrection' is not specifically considered, nevertheless this case provides interesting and useful guidance on when events cross the line away from civil commotion and into political violence. It is also very likely that, given the court found that the events amounted to warfare, the court would (had it been asked) have considered the events amounted or surpassed 'insurrection'.
Analysis
There are similarities between the definition of insurrection in the Anderson case and in English law. In both it includes violent acts by a group of people, not necessarily in a highly organised group, but nevertheless acting in a concerted manner. The implication of Anderson moreover was that an insurrection need not include a huge proportion of the population – it is reported that around 2,000 people entered the Capitol on that day. That number is similar to the numbers of Renamo participants recounted in National Oil and is far more than the 200 participants in the events set out in Curtis. There is also agreement that insurrection is similar to, but lesser than, rebellion.
However, while the English cases suggest the intention of the group should be to overthrow or supplant the existing government, in Anderson the court held that it was sufficient for the group to intend to prevent the transfer of power. That may be more of a semantic distinction than a substantive one, as it could very plausibly be argued that preventing the transfer of power is effectively supplanting the government of the US, notwithstanding that Mr Biden had not yet assumed the Presidency.
On the basis of the facts found by the Colorado Supreme Court in Anderson, it is likely that a court or tribunal applying English law would similarly find that those events amounted to an 'insurrection'.
We note that foreign cases can be used by English courts in attempting to answer questions of English law, save that those cases do not bind English courts. We suspect that, given the English law on the meaning of 'insurrection' is relatively well explored and the political sensitivies around Donald Trump and the events of 6 January 2021, English courts could sensibly avoid referencing Anderson in any case while still reaching a view that would sit comfortably with it.
Finally, and for completeness, we note that the US Supreme Court is hearing an appeal of the Anderson judgment.
