More on Lafayette Square Lawsuits

The district court dismissed some, but not all, of the claims arising from the clearing of Lafayette Square in June 2020. Despite news reports, the case is not over.

The plaintiffs have standing to proceed against federal defendants for injunctive relief over continued restrictions on access to Lafayette Square. And their claims against local law enforcement officials for First Amendment violations were well-pleaded and not barred by qualified immunity. The latter point is surprising and perhaps not long for this world. The court defined the rights at issue (restriction on speech, retaliation for disfavored message) at a high level of generality, without demanding prior case law or a prior similar context. This contrasted with a demand for an identical prior case in according qualified immunity on Fourth Amendment claims.

The piece getting the most attention is the rejection of the Bivens claims against Donald Trump, Bill Barr, Mark Esper, and other high-level federal officials, in addition to the federal officers on the ground. But the outcome of those claims was obvious before the lawsuit was filed. Courts have read SCOTUS's recent cases to all-but preclude Bivens actions, especially for new rights (SCOTUS has never allowed a Bivens action in a First Amendment case) in a situation remotely touching on national security and presidential security, which has become a buzzword for rejecting Bivens. I look at this case less as a bad decision than as a decision faithfully applying impossible SCOTUS rules.

We are nearing the point that plaintiffs will be unable to seek damages for constitutional violations unless Congress acts. Unfortunately, Congress either cannot or will not act.