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Thursday, June 11, 2020

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Posted by Howard Wasserman on June 11, 2020 at 05:39 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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