Heckler's veto

[Tobias Barrington Wolff]

At 03:09 PM 10/26/2000 -0400, Mark Tushnet wrote:
>According to the statement of the facts, the demonstrator was walking
>"along the route of the Cuyahoga Falls Memorial Day Parade," and began
>demonstrating "shortly before the start of the parade." Was he therefore
>in violation of some sort of exclusive permit given the organizers of
>the parade for the use of the parade route at that time?  If the
>demonstrator was violating an exclusive permit issued pursuant to an
>otherwise proper permit system (e.g., substantially non-discretionary),
>is there a first amendment problem?  Should there be liability on the
>police officer if the officer's theory about why the demonstrator should
>not be allowed to proceed (endorsed, it seems, by the district judge)
>may have been wrong?

I think that the answer is clearly yes, there should still be
liability.  State action undertaken for an improper purpose is still
unconstitutional, even if the same result could have been reached for a
proper purpose.  (You cannot deny a government loan to an applicant because
she is black, even where she could have been denied the loan under
objective qualification criteria.)

The qualified immunity question actually makes the analysis more
interesting, though in ways not discussed by the trial court
here.  Qualified immunity is measured against an objective standard: Would
a reasonable official have understood that her action was
unconstitutional?  This at least raises the question of whether, in a
qualified immunity case, it would be a defense to say that the official's
actions (i.e. what she actually did, not what she had in mind) could
reasonably have been viewed as constitutional by an objective observer,
such that an improper purpose alone does not vitiate qualified
immunity.  The answer, however, seems to be "no" -- the inquiry concerns
whether a reasonable officer would know that the improper purpose was
itself unconstitutional, not whether the actions undertaken were otherwise
justifiable.  Thus, in the case that Eugene circulated, if what the officer
thinks that he's doing is arresting an unpopular speaker for reasons
clearly established by the Court as invalid, it is no defense, even in
qualified immunity, to show that he could legitimately have achieved the
same result with a different mindset.  Along these lines, see, e.g.,
Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997), in which the
Sixth Circuit denied qualified immunity to a police officer who arrested a
woman solely because he believed that she was a lesbian, finding that her
federal equal protection rights were violated, even though there was
probable cause and he could legitimately have arrested her had his actions
not been tainted by an improper purpose.

-- TBW