Once upon a time, last month, there were two cities. In each of these two cities, there were people who were upset about something they believed was a terrible injustice. Some of these people gathered on the public sidewalks to protest this injustice. In each city there were also policemen who tried to keep the people from gathering. They made up new rules and interpretations of laws and threatened to arrest people if they didn’t do what the police said. There followed two lawsuits in front of two judges—with two strikingly different results.
One city is Ferguson, Missouri, where the shooting of Michael Brown on August 9 was followed by widespread rioting, including significant damage to property as well as dangerous clashes between protesters and police. A few days after the first riots, the police began taking a prophylactic approach to the civil unrest by enforcing the state’s failure-to-disperse law very broadly. Some police employed a “five second rule,” under which people who remained stationary on the public sidewalk for more than five seconds would be arrested or threatened with arrest. Other officers enforced the dispersal law in various ways, but the overall purpose was to prevent people from congregating on the sidewalks.
The ACLU brought a lawsuit challenging this unconstitutional practice, taking for its plaintiff one of its own employees. On October 6, after hearing testimony from citizens ordered to keep moving on public sidewalks and threatened with arrest if they failed to comply, a federal district court enjoined the defendants “from enforcing or threatening to enforce any rule, policy or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest or order to move individuals who are violating no statute or regulation and who are peaceably standing, marching or assembling on public sidewalks in Ferguson, Missouri.” The court emphasized that the police were not prevented from breaking up gatherings that actually threatened the public peace, but they could not automatically deem any gathering on the public sidewalk to pose such a threat. Badda bing, badda boom, constitutional violations cease.
The other city is Jackson, home of Mississippi’s only abortion clinic. For years, citizens have gathered on the public sidewalk and right-of-way outside the clinic to peacefully pray, picket, sing, read from the Bible, distribute literature, and speak to women entering the clinic and other passersby. Eight years ago, some of these individuals sued the Jackson Police Department because of police misconduct, including arresting and threatening to arrest people under a noise ordinance that had been already been declared unconstitutional and misapplying other laws for the purpose of harassing pro-life speakers. The case was resolved in 2008 with the entry of a consent decree by which the City agreed to take certain unconstitutional laws off its books, provide special First Amendment training to its officers, and otherwise respect the free speech rights of the plaintiffs and others.
Unfortunately, within a couple of years of signing the consent decree, the Jackson police returned to their old habits. Though deprived by the consent decree of the sign and noise ordinances, the police began enforcing state laws against obstruction and disturbing the peace according to their own whimsical interpretations. For example, the police arrest and threaten to arrest picketers if they let their signs touch the ground. Held one inch above the ground or resting on their shoes, a sign is not an obstruction, but if it touches the ground, that is obstructing the public right-of-way, a misdemeanor. Over time, the police have also arbitrarily decided where on public property people may and may not stand. On the sidewalk that runs in front of the abortion clinic, picketers are automatically an obstruction; on the right of way farther away from the clinic, they are not.
To be clear, no one is contending that the pro-life speakers are interfering with patients’ access to the abortion clinic. Most patients drive into the clinic’s on-site parking lot and walk into the clinic without ever setting foot on the public sidewalk. Rather, the police are enforcing laws against obstruction on a sidewalk that is hardly used except by the pro-lifers themselves.
Naively believing, in the light of the consent decree, that the police misbehavior was the result of some lack of communication with higher-ups, the plaintiffs and their attorneys tried for over a year to meet with police and city officials before finally filing a lawsuit for violation of their constitutional free speech and due process rights.
In September, a hearing on the plaintiffs’ motion for preliminary injunction was held. Over the course of five days, federal district judge Carleton Reeves heard testimony and saw photos and video concerning the arrests and threats of arrest for obstruction, disturbing the peace, and other amorphous offenses the police declined to specify.
On October 27, Judge Reeves denied the motion for a preliminary injunction. In a 17-page ruling from the bench, Judge Reeves never mentioned the conduct that formed the crux of the plaintiffs’ case, i.e., the police officers’ misapplication of obstruction and other laws to interfere with the exercise of free speech rights. Rather, the ruling erects one procedural hurdle after another to avoid having to address that conduct.
For example, the court set the bar for obtaining preliminary injunctive relief so high as to be virtually unattainable. Judge Reeves described the necessary showing with words and phrases such as “drastic,” “high burden,” “strength of its case so particularly great and the risk of incurable harm so particularly unbearable,” and, seven times, “extraordinary.”
The city also managed to convince the court that there was no evidence that the violations of civil rights plaintiffs testified to were the result of a city policy. Under federal law, injunctive relief may not issue against a city unless a plaintiff can show that the constitutional violations were the result of a custom or policy of the city. Despite the fact that numerous Jackson officials were repeatedly put on notice of the police misbehavior for at least a year before this suit was filed, the judge did not see any evidence of a city policy underlying the officers’ actions. Moreover, in this very proceeding, the city argued that the officers’ actions were both appropriate and necessary, but even this did not, in the judge’s mind, establish the existence of a city policy.
The judge also faulted the plaintiffs for not having proved that a certain unpaved area adjacent to the abortion clinic was public property—despite the fact that police officers were arresting and threatening to arrest the plaintiffs and others for allegedly obstructing a public right-of-way while standing in this area. Additionally, while focusing on the supposedly unknown status of this one area, the judge ignored the violations that were committed on the public sidewalk itself.
And on and on.
To recap: in Ferguson, against a backdrop of rioting and volatile civil unrest, a federal judge ordered the police to respect the rights of protesters to gather on public sidewalks unless and until such gatherings threatened to become violent. In Jackson, where the police department has a history of violating the rights of pro-life speakers, a federal judge allowed the police to continue their ad hoc and arbitrary enforcement of obstruction laws to prevent citizens from peacefully picketing and praying on the public sidewalk outside an abortion clinic.
Two cities, two very similar constitutional violations, two very different results. Why is that? You be the judge.
Life Legal Defense Foundation, in conjunction with local attorney Steve Thornton, filed suit on behalf of pro-life sidewalk counselors in Jackson, Mississippi, in July of 2014 (Pro-Life Mississippi et al., v. Vance, et al., No. 3:14cv568.). Life Legal has appealed the denial of the preliminary injunction to the Fifth Circuit Court of Appeals.
© 2014 by National Review, Inc. Reprinted by permission.
[This article was originally published by National Review Online on Nov. 19, 2014. The original article may be viewed on NRO’s web site.]