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Friday, July 13, 2018

Two interesting civil rights puzzles (Updated)

No connection, other than being news stories while on a driving vacation.

1) A Cook County Parks District police officer resigned when video emerged of a drunk man harassing a woman renting a covered picnic area, while the officer watched and did nothing, despite requests from the woman. The drunk man, who was arrested when other officers arrived, was screaming about the woman not being American and should not have worn a Puerto Rico t-shirt in America.

The fun puzzle is imagining the woman's lawsuit against the officer (putting aside that she suffered minimal or nominal damages and a lawsuit may not be worth the candle). Under DeShaney, the officer cannot be liable under due process for failing to act to stop the drunk man or otherwise protect the woman. She would have to bring her claim either under equal protection, that the officer failed to act because she is Puerto Rican, or free speech, that the officer failed to act because he disagreed with the message on her t-shirt or, perhaps, because he agreed with and wanted to support the drunk man's anti-Puerto Rico speech directed against her.

Update: Erica Goldberg argues that much of what the drunk man did was pure speech, so the officer would have violated his First Amendment rights had he intervened sooner. I interpreted the video as being more in-your-face and threatening (and thus less purely protected expression), giving the officer leeway to step-in sooner than he did. But I see Erica's point that this can be read as obnoxious counter-speech.

2) Democratic-controlled states, anticipating overruling of Roe/Casey, are moving to update and enact protective abortion laws. Many progressive states still have on the books the restrictive abortion laws from the early 1970s that became unenforceable following Roe.

This shows the downstream effects of the reality of constitutional litigation. Roe declared invalid Texas' blanket ban and enjoined Texas from enforcing that law; it not remove the law from the Texas code. It also did not repeal the laws of any other state (nor did it enjoin other states from enforcing their laws, although most states declined to enforce, knowing they would lose when courts applied Roe. That's the idea of judicial departmentalism).

Those laws remained on the books, unenforced, a vestige of a past constitutional regime and a past policy position. States lack any incentive to go through their books and remove or update those laws, assuming that the past constitutional regime does not return and the laws remain unenforceable. Facing the return of that regime of no federal constitutional protection for terminating a pregnancy, meaning plenary legislative authority on the subject, states must legislate their preferred abortion policies. For states wanting to maintain liberal reproductive freedom, that means combing the books and eliminating old laws that no longer reflect current policies.

Posted by Howard Wasserman on July 13, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


"Of all of the cases I read in law school, DeShaney was, without the slightest question, the most astounding to me as a (then) nonlawyer."

Yeah, Stump v. Sparkman is surely up there, though.

Posted by: Without a spark | Jul 14, 2018 9:46:10 AM

"States lack any incentive to go through their books and remove or update those laws, assuming that the past constitutional regime does not return and the laws remain unenforceable."

Little incentive might be a better phrasing. If politicians cared about maintaining the statues on the book as a good guide to the law or wanted to prepare against changes on the SC they would have incentive to get rid of laws that they did not agree with, even if they are not enforced. If their only concern is winning the next election I agree that their is no such incentive.

Posted by: Jr | Jul 14, 2018 5:06:49 AM

I don’t see what’s so cruel about it. It’s not like if the courts had found that the police had a duty that would me they would actually go do it. Police officers routinely violate their constitutional duties. When a 1983 case is lost it has zero impact on police officers. They pay 0% of the judgments, they are almost never disciplined, much less fired. If DeShaney had gone the other way DeShaney‘s mother would have gotten a check which would have made precious little difference in DeShaney quality of life given how severely disabled he was.

Our (non)regulation of police behavior, where we as a society allow them to do anything or nothing as they see fit, is the the vast gaping wound of a problem. DeShaney is at worst a tiny footnote to that problem.

Posted by: Brad | Jul 13, 2018 8:14:50 PM

Of all of the cases I read in law school, DeShaney was, without the slightest question, the most astounding to me as a (then) nonlawyer. It struck me not just as a case which was not right, but one which could not possibly be right in anything vaguely resembling a civilized society. (Which, as the past couple of years have made clear, the United States is not.)

Posted by: Paul Thomas | Jul 13, 2018 7:07:41 PM

True but DeShaney was a cruel and evil decision. In its own way it is far worse than Buck vs Bell. Say what you want about Buck, at least Holmes was mirroring the prejudices of his time. DeShaney has no such cultural trope to fall back upon; it was motivated by sadism, nothing more and nothing less.

Posted by: James | Jul 13, 2018 1:02:36 PM

By the way , one may read here , about repealing of laws ( Generally speaking ) here :



Posted by: El roam | Jul 13, 2018 12:49:13 PM

And of course , the right way , is to repeal an act , by another act ( repealing it ) . A judge can order to do it and so . But , one may claim , that a ruling is sufficient . Needs a hell of thinking , although theoretical issue . Thanks

Posted by: El roam | Jul 13, 2018 12:14:51 PM

Interesting and very unfortunate , but it is not so clear , what is the statutory duty of such officer ?? Generally speaking ( conceptually ) he is assigned to department of the forest preserves of Cook county . Now , if he was on duty in course of the event , it is not sufficient :

For one must state , the specific duty had to be carried out by him. That is to say , whether it is within the scope of such kind of police officer , and if indeed : whether such event as described , at first place , bears any criminal aspect , or any violation of any regulation of the state or county or whatever . No one has mentioned such thing in that related article ( but disciplinary proceedings to come , but , without further mentioning nothing concerning any specific statutory duty ) .

P.S : The issue of repealing laws , that stay written or theoretically valid on books , doesn't matter at all . For if a judge repeals it , no matter . Can't be enacted actually , can't be effective . It is sufficient !! The rest is theoretical , although not totally meaningless .


Posted by: El roam | Jul 13, 2018 12:03:59 PM

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