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Tuesday, August 15, 2017

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


Joe, I don't think you know what loaded language is; reference to a fact pattern that actually happened isn't. I can understand why you want to pretend otherwise though.

Posted by: Curmudgeonly Ex-Clerk | Aug 20, 2017 7:11:51 PM

"Underlying the proposal is a moral judgment that the law should not place drivers in the position of Reginald Denny"

Strip loaded language, toss some in.

The thing about the immunity is that it is such a broad rule for what is a "misdemeanor" that involves such things like "interfering" with street traffic. That sounds like it includes relatively minor things and in response if someone is killed, you get immunity?

"Unintentionally" would include not taking due care while driving and hitting someone. You did not "intentionally" hit the person. But, a bit more minimum care, even if you were aware let's say kids normally play in the streets etc., might have prevented someone dying.

This sort of strict liability is dubious as a moral rule in general, I think, it is more so here. There should be more nuance here. The fact "unlawful" protests might be violent is duly noted. They might also be perfectly peaceful -- non-violence resistance is common thing, and it includes blocking places, including streets. If people won't have the ability to get civil damages for negligent drivers, there might be more problems, not less. This is so particularly since along the edges, intent might not be able to be shown.

Posted by: Joe | Aug 18, 2017 6:11:34 PM

Stripped of its loaded language ("killbox"), Greg Shill's comment is not very persuasive. That someone who unlawfully obstructs a public roadway risks adverse consequences is undeniable. There's no moral judgment there; it's just a fact - playing in the street is dangerous. However streets may have been used in the past, in the present they serve as thoroughfares for large, fast motor vehicles.

But that's not the only risk underlying proposed immunity for drivers. Unlawful street protests may become violent (and may be more prone to be so than protests run and attended by the kind of law-abiding folk who seek permits and use cordoned off areas or routes). Underlying the proposal is a moral judgment that the law should not place drivers in the position of Reginald Denny. This seems like a valid consideration even if immunity is a bad idea on a whole (and I am not sure it is).

Posted by: Curmudgeonly Ex-Clerk | Aug 16, 2017 10:26:10 AM

Fox News apparently had posted a video of various drivers driving their cars through crowds of protesters. http://money.cnn.com/2017/08/15/media/daily-caller-fox-news-video-car-crashing-liberal-protesters/index.html

Posted by: Matthew Bruckner | Aug 16, 2017 8:41:22 AM

The traffic law is no more or less constitutional than a law that allowed people to murder racial minorities - and only racial minorities - with impunity. That's the proper analogy, not hate crime laws or the Son of Sam law.

Posted by: Doug | Aug 15, 2017 9:35:38 PM

I wonder if the immunity of drivers, at least as long as they aren't drunk, will shift when self cars become a significant fraction of cars. My guess is that part of the reason killer drivers get away with so much is that many of the people in the slice of society that gets to decide things can imagine themselves hitting a pedestrian while they couldn't imagine, say getting into a domestic dispute and shooting their partner.

Posted by: brad | Aug 15, 2017 7:44:15 PM

I don't have much to add to the FIrst Amendment angle, but I want to foreground the physical space in which these confrontations are taking place.

First, it's not an accident that so many race-laced confrontations have occurred in streets. Streets are a leading venue for games of dominance in our society, including but not only between law enforcement and members of vulnerable groups (e.g., Michael Brown, who was killed after an officer berated him for walking in the street). Usually these games play out in non-expressive ways (in the sense in which we think of that term). This goes beyond extreme examples (Ferguson, "road rage") and deserves vastly more attention, but most people, including most liberals, have a blind spot because their baseline assumption is that streets are for motor vehicles (a historically false assumption even after the invention of the automobile, see Peter Norton's Fighting Traffic (https://www.amazon.com/Fighting-Traffic-American-Inside-Technology/dp/0262516128), but that's for another day).

Second, because most people today - across the political spectrum - take as self-evident that streets are for motor vehicles only, it's not much of a leap for advocates of these laws to claim that people who are in the streets ("obstructing" them) are automatically in the wrong and should suffer the eminently foreseeable consequences. Many see the odiousness of such laws in the expressive context, but as Matt alludes to, a similar rule already prevails de facto in everyday life. We accept this uncritically.

Absent a showing of specific intent to do harm, killing people with your car is a tolerated activity in modern society, and is rarely punished or redressed as a matter of either criminal or tort law. Matt cites a good example. Those interested may wish to check out the Freakonomics episode The Perfect Crime, about the ability to kill pedestrians in New York City recklessly and yet face trivial to no consequences (http://freakonomics.com/podcast/the-perfect-crime-a-new-freakonomics-radio-podcast/). The harm caused by automotive supremacy is general, but especially pronounced as it concerns members of vulnerable groups, even outside the context of law enforcement and expression (see https://www.unlv.edu/news/release/pedestrian-bias-study).

I don't think it's possible to understand the recent efforts to explicitly authorize a privately administered automotive death penalty without understanding the predicate idea, that public ways are a killbox you enter at your peril (and ideally while protected by two tons of steel). The former is rightly attracting condemnation at the moment, but it is premised on the latter, which remains the unchallenged consensus even if it is rarely stated explicitly.

Finally, I will add that no, I am not suggesting that people should just start walking around willy-nilly in streets that are engineered for cars. But where such activity is so common as to pose a practical problem, for example in some college towns and dense urban cores, the solution should be found in reengineering the street, not targeting people walking in streets with cars or legal punishment.

Posted by: Greg Shill | Aug 15, 2017 7:23:11 PM

This post was about the possible pardon of Joe Arpaio and the proposed Florida laws. If you would like to criticize me for something I did not write, find another forum to do it.

Posted by: Howard Wasserman | Aug 15, 2017 6:52:11 PM

HW: The Son of Sam law did not merely treat expressive conduct less favorably than other conduct, it singled out lawful expressive conduct for sanction because of its content. This bill, on the other hand, along with hate crime laws and terrorism laws, punishes otherwise UNlawful activity more severely depending on the offender's motivation or intent.

Posted by: biff | Aug 15, 2017 1:53:30 PM

Regarding the second matter ...

I understand the concern about singling out protests but the 1A speaks of "peaceful" assembly and a law that regulations the manner of a protest to ensure that it remains as such might be acceptable. The law might be gratutious and open to abuse though.

The second part sort of goes against that -- we should be overall if anything more concerned about protecting public protests from negligence since it is of special constitutional significance.

I understand how in certain cases a driver might be less liable if they injured a person that is breaking traffic laws in that fashion. It is like injuring a person for crossing against the light or something. But, total immunity seems overboard especially since "interfere" etc. can cover a lot of ground.

Posted by: Joe | Aug 15, 2017 12:56:15 PM

I don't support hate-crimes laws. But accepting their constitutionality, this law seems different. The Supreme Court upheld hate-crimes laws on the ground that motive ("because of the victim's race") was no different than mens rea, which historically has been part of determining criminal liability.

But this criminalizes or accords less legal protection to expressive conduct, not based on state of mind but because of the activity. The analogy that came to mind was New York's Son of Sam Law, which required prisoners to surrender funds gained from speech about their crimes, but not other funds related to crimes. The law treated expressive conduct less favorably than other conduct raising similar concerns, which made it not narrowly tailored.

Posted by: Howard Wasserman | Aug 15, 2017 12:45:26 PM

The proposed law would be no more offensive to the First Amendment than hate crime laws. If you support the latter, this too should be constitutionally acceptable.

Posted by: Phil | Aug 15, 2017 12:21:24 PM

IMO, injuring or even killing people with your car is generally acceptable in this country [or at least often faces little or no sanction, especially as compared with injuries caused by weapons other than a car]. e.g., http://www.nydailynews.com/new-york/nyc-crime/truck-driver-kills-flees-face-no-charges-article-1.3407350

Posted by: Matthew Bruckner | Aug 15, 2017 11:43:52 AM

I find it unbelievably disturbing that we even have to have a discussion about either issue.

Posted by: Rick Bales | Aug 15, 2017 10:43:06 AM

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