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Thursday, October 28, 2021

S.B. 8 and Section 1983

Forgive me if someone else has already offered the following thought.

If someone tries to enforce S.B. 8 as that statute contemplates, wouldn't that person be subject to a Section 1983 action? They are acting under color of law to deprive someone of a constitutional right, at least in circumstances that are covered by Casey.

Posted by Gerard Magliocca on October 28, 2021 at 01:24 PM | Permalink


Please see my piece in the SMU Law Review Forum making this argument.

Posted by: Anthony Colangelo | Nov 3, 2021 7:11:47 PM

thank you so much.

Posted by: جراند شيروكي 2022 | Oct 30, 2021 2:55:35 PM

thanks a lot.

Posted by: جمس سييرا 2022 | Oct 30, 2021 2:54:54 PM


Posted by: Online tuition in UAE | Oct 29, 2021 8:13:04 AM

“They are acting under color of law to deprive someone of a constitutional right, at least in circumstances that are covered by Casey.”

The Texas Law is unconstitutional because you have been alive, moving, growing, and responding to your environment from the moment of your conception, which is not the same moment your heartbeat could be heard. Our inherent Unalienable Right to Life is Endowed to us from God, at the moment we were created and brought into being; you became you at your conception.

All of us, having been created, at the moment of our conception, equal in Dignity while being complementary as a beloved son or daughter, having equal human Dignity, have been Endowed by God with our inherent Unalienable Right to Life, the securing and protection upon which our inherent Unalienable Right to Liberty and The Pursuit Of Happiness depends, and thus from the moment of our conception, possessing equal human Dignity, are equal before the Law

Posted by: Nancy | Oct 29, 2021 7:35:43 AM

Regarding The Law, which serves for The Common Good:


Posted by: Nancy | Oct 29, 2021 7:07:01 AM

PC: Yes, a state court. No one has done it (yet) probably because no one thought of using this tool in this way.

Posted by: Howard Wasserman | Oct 29, 2021 5:52:57 AM

Matthew: Anthony Colangelo has a short piece on SMU Law Review Online making this argument.

Posted by: Howard Wasserman | Oct 29, 2021 5:38:37 AM

Gomez is an attorney who was removed from his local federal district for how he engaged with colleagues and in his SB8 complaint moved the court to declare SB8 invalid. Stilley is in his 12th year of a 15-year sentence for tax crimes and used his complaint to chastise Braid for refusing to "repent" on request. The Project is the named plaintiff for one person who was afraid to use his name. He also tried to intervene (incorrectly) in Gomez's lawsuit because he was mad that "any person" includes people who do not agree with his views on reproductive freedom and he does not like how other people have availed themselves of a universal right to sue. Regardless of anyone's views or why anyone is suing, the word fits.

Also, if, as you say, they are just trying to "determine the constitutionality of the Texas SB8 in whole or in part," they won't mind doing it as defendants in a federal § 1983 action.

Posted by: Howard Wasserman | Oct 29, 2021 5:37:54 AM

Schmekel. yiddish for dick. · schmekeled. A state of inebriation reached when alcohol consumption is steadily and carefully maintained at extremely high levels

Schmuck, or shmuck; a pejorative term meaning one who is stupid or foolish, or an obnoxious, contemptible or detestable person. The word came into the English language from Yiddish (Yiddish: שמאָק‎, shmok), where it has similar pejorative meanings, but where its literal meaning is a vulgar term for a penis.

That duly added to the lofty legal discourse lexicon, the correct party names in the Alan Braid matter are as follows:

(1) Felipe M Gomez, (2) Oscar Stilley, and (3) The Texas Heartbeat Project.

Also, in addition to the puerile name calling, it is quite remarkable that eminent law professors with long paper/PDF trails would devote their considerable intellectual prowess to devising a novel color-o-law theory of liability to bankrupt their pro-life colleagues (if any are left) for filing an amicus brief i/s/o of the pro-life side in abortion litigation - or worse -- for bringing a test case to determine the constitutionality of the Texas SB8 in whole or in part. Not to mention that the abortion providers are desparate for one and that the doings of the "schmucks" appear to be worthy enough to merit at least one instalment of a series of scholarly pieces.

Here for a cutsy sequel: Rattenfänger von San Antone and the Three Schmucks.

And then there is the matter of setting up a sham lawsuit between colluding friendlies by way of ivory tower guidance to the Abortion-Right-Über-Alles litigators.

-- Where have all the ethics gone?

Posted by: Kibitzer | Oct 29, 2021 3:47:37 AM

With due respect, I believe that your description of the defendants in the Baird lawsuit is incorrect. I believe the accurate noun is schmekel.

Posted by: Paul | Oct 29, 2021 1:32:03 AM

I've had a different thought regarding this. Given that no injury is required and the penalty is not tethered at all to any purported injury, this seems purely punitive and not at all compensatory. Does that make this a criminal statute, even if called civil, such that all the rights attach.

I've actually had this thought for a while. What distinguisheds a criminal from a civil law? If we give added protection to criminal laws there must be a legal distinction between them. It doesn't appear that the possibility of incarceration would be the dividing line, especially when debtor's prison was a thing so even a high fine could/would lead to imprisonment. Can legislature just make the decision on their own, that would seem to thwart the whole idea of added procedural rights. Is it societal vs individual/insular? Maybe but the only real way to determine which aspect is being sought is by the remedy available which leads to my theory. My best answer is that the primary purpose of the "remedy" is punitive rather than compensatory. Obviously there can be a compensatory aspect in criminal remedies, e.g. restitution, and obviously in some circumstances in civil cases punitive damages are available and indeed where the "big bucks" come from. But at it's hart civil claims are about compensation for a wrong done to some individual or insular group while criminal law is about a punitive remedy for societal harm. This law seems to fall in the latter

Posted by: Matthew S Estrin | Oct 28, 2021 11:45:02 PM

“If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment.”- Roe v. Wade, 410 U.S. 113 (1973)

When did each of you become the son or daughter of your parents, and if you believe you were not you from the moment of your conception, tell us who you were, and how it came to be that at some point of time in your life, you were not you and simultaneously, you were not a human person. At what point in time in your life was this suggestion of non personhood established?

Posted by: Nancy | Oct 28, 2021 11:16:24 PM

Correct, similar to most tort or contract claims.

Note that this theory is already in play in multiple cases. Both WWH v. Jackson and US v. Texas include allegations that potential SB8 plaintiffs are state actors under a traditional public function test. And Alan Braid's lawsuit against the plaintiffs in the three filed suits includes similar allegations.

Posted by: Howard Wasserman | Oct 28, 2021 10:10:53 PM

So do you think the same of public nuisance actions? I get that they fail at least one of your three conditions (injury -- at least I assume so).

Posted by: Asher Steinberg | Oct 28, 2021 9:38:22 PM

An ordinary civil plaintiff does not act under color and so cannot be sued under § 1983. Rocky and I argue that SB8 plaintiffs act under color because they perform a traditional-and-exclusive public function, given 3 unique features of SB8: private enforcement is exclusive, SB8 plaintiffs need not have suffered an injury, and the law protects the public as a whole rather than private rights. Anthony Colangelo (SMU) argues that the law is functionally a punitive statute and enforcing punitive (i.e. criminal) statutes is a traditional-and-exclusive public function.

This is the theory underlying the Illinois lawsuit by Alan Braid against the three shmucks who have filed lawsuits.

There are Younger problems that arise, but I think they can be resolved.

Posted by: Howard Wasserman | Oct 28, 2021 7:32:13 PM

One may read hereby for example, about private entity, liable(or not of course) for first amendment, in Prager University v. Google (Northern district of California):


Posted by: El roam | Oct 28, 2021 7:10:47 PM

Good question. But, such person, is not formally a federal or state agent. Also, such person, can deal only with one thing, and it is, suing who ever he is entitled to sue under S.B 8. He can't do further nothing apparently beyond suing. Yet, one may argue, that in order to sue, he needs to investigate sometimes. And then what, if constitutional principles are violated by investigation ? finally, he is in the shoes, or carrying out, traditional duty of the state. Like in free speech. Private entity is liable for breaching free speech rights, if it is fulfilling traditional duty of the state.

Real mess indeed, it seems right now....

But, good one.....

Posted by: El roam | Oct 28, 2021 4:54:57 PM

many (most?) state statutes recognized as being unconstitutional remain on the books. Can states revive enforcement of these statutes simply by adopting an SB8-style scheme? If yes, why hasn't it been tried until now?

Posted by: pc | Oct 28, 2021 3:39:58 PM

Yeah, I think your co-blogger Howard has offered just that thought on this blog and in forthcoming articles at some length.

That's a good point by Ben, in my view.

Posted by: Asher Steinberg | Oct 28, 2021 3:02:50 PM

I'm no expert on § 1983, but is it really so novel for a state to provide a statutory cause of action whose application violates the defendant's constitutional rights, at least under certain facts? For example, most states have enacted right of publicity statutes. Defendants often defend ROP suits by arguing successfully that application of the statute on the facts of the case is barred by the First Amendment. See, e.g., De Havilland v. FX Networks, 21 Cal.App.5th 845 (2018). But does that mean that a plaintiff suing under a state ROP statute where there's a valid First Amendment defense is "acting under color of law to deprive someone of a constitutional right" for purposes of § 1983?

(I acknowledge SB8 is unusual in that it doesn't require that the plaintiff actually be injured by the violation of the law, but I don't think that's relevant to this particular point.)

Posted by: Ben Sheffner | Oct 28, 2021 2:51:40 PM

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