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Response to marym625 (Reply #98)

Fri Nov 28, 2014, 10:02 AM

104. It's more complicated than you're recognizing.

 

A statute can be flat-out unconstitutional, or it can unconstitutional as applied in some instances. That it's been held unconstitutional in one context -- when it was asserted as a bar to a civil suit -- doesn't mean that it's unconstitutional in another context -- when the State is deciding what conduct can be the predicate for a criminal case.

Here's a key sentence from Flanders's analysis: "Missouri does not have to criminalize all police action that is unconstitutional."

You ask, "How can anyone think that the decision would mean a person can sue a cop for violating it but that it would legally be OK to violate it?" As the quotation from Flanders illustrates, that's the wrong question. The issue is not "Is it legally OK to violate it," because that's too vague a statement. The issue is, "Can a public official acting in violation of constitutional rights be criminally prosecuted?" The answer is a clear Sometimes.

Here's an example. The school board passes a rule that no blacks are to be hired as teachers. A well-qualified black applicant is rejected and is expressly told by the principal that it's because of race. The applicant sues. The court holds (obviously) that the school board's rule is unconstitutional. That means that it can't be used as a defense in the applicant's lawsuit. BUT does that ruling also mean that the principal and every member of the school board can be convicted of a crime and sent to prison? No, it does not.

In fact, it very frequently happens that actions taken pursuant to an unconstitutional statute are overturned on that basis but that the "perpetrators" (government officials who acted under the statute) don't get indicted. Think of all those city clerks who refused to issue same-sex marriage licenses. Even those who are still refusing, in states where the illegality of their conduct is clear, probably won't do time for it. The worst that will happen is that they'll lose their jobs.

I haven't looked at the Missouri statute in detail. In the abstract, however, I could see an argument along these lines: Certain acts by public employees are unconstitutional, and the victim can bring a civil suit. In some of the most egregious cases (as judged by the Legislature), we will also make the employee's act a crime, so that he or she can be criminally prosecuted. Those egregious cases, however, do not include a clerk's acting in accordance with the Legislature's definition of marriage, even if it's been held unconstitutional; and those egregious cases also don't include a police officer using deadly force under circumstances permitted by the Legislature, even if that statute has been held unconstitutional.

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