This week's Selah Town Hall Meeting brought to mind a simple number that all Selah taxpayers should remember when they pay out a huge civil rights settlement in their chalk art case.
The number is “1983.” It is the section of the Civil Rights Act of 1871 that allows you to sue the government for violating your Constitutional rights. Section 1983 is meat-and-potatoes for civil rights lawyers confronting the misuse of ordinances and laws by local, state or federal officials.
After all the self-justification and vehement denials issued at Selah’s town hall meeting, the mental gridlock boils down to one of two problems: either Selah’s legal counselors haven’t been paying attention to a nearly identical case which Ferry County lost badly (and subsequently now faces a Section 1983 civil rights lawsuit), or they simply don’t understand the meaning of "the rule of law."
They may be convinced they can hoodwink a judge into focusing on the differences between the cases rather than the similarities. So, let’s review the similarities and differences, just so they’re clear:
Similarities between Ferry County case and Selah's cases
Ferry County removed a chalk message on the sidewalk outside a government building.
Ferry County charged the defendant with malicious mischief under Washington State law, using the same law Selah is threatening to use against chalk artists.
A state judge dismissed the charge, noting that writing on a public sidewalk is not property damage under the Washington malicious mischief statute.
The defendant is now suing Ferry County in federal court for violation of her First Amendment rights and for malicious prosecution. A similar suit is headed Selah's way. Selah hasn't prosecuted anybody, but they clearly have stifled free expression. The federal judge in the civil rights case recently noted:
Public fora, which include places like streets and parks, “have immemorially been held in trust for the use of the public, and . . . have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.” Haugue v. CIO, 307 U.S. 496, 515 (1939); see also Frisby v. Schultz, 487 U.S. 474, 480 (1988) (Public streets and walkways are the “archetype of a traditional public forum.”).
Individual local officials are named as defendants, and the federal court has so far rejected attempts by Ferry County to dismiss the case. The federal judge’s ruling hints at the fact that a major issue on the table is whether Ferry County chose to selectively apply its law because of the chalk writer’s message.
As in Selah, Ferry County officials left messy fingerprints (comments related to the topic) everywhere that they disliked the message left by the chalk artist. Those comments will be their undoing in the civil rights case. Their own words elsewhere prove their action was based on disliking the content of the chalk message, not in evenhandedly applying the law.
The plaintiff claims Ferry County allowed other chalk art messages, just as is claimed in the Selah case. If the chalk artist can provide even one example, she will blow Ferry County’s case out of the water. It seems likely somebody in Selah has video or a photo of other chalk art that survived the city’s street sweepers and pressure washers.
Differences between Ferry County case and Selah's cases
Location of the cases.
Spelling of defendants’ names.
Selah claims spray chalk causes permanent damage, unlike stick chalk. This distinction without a difference fails after the plaintiff shows how Selah work crews removed it - with the potentially lethal force of an industrial pressure washer.
Selah plans to use a section of Washington’s malicious mischief law that Ferry County failed to use. Unfortunately for Selah, the federal judge already blew that argument up in rejecting the motion to dismiss the civil rights claim. (This point really belongs in the SIMILARITIES column. Selah’s legal counselors aren’t paying attention to the remarkable similarities between these two cases.)
Selah is going to lose any case (even if they don’t prosecute anybody, by removing the chalk writing because of its content, they have violated the writer's First Amendment rights) related to this sad incident, just like Ferry County lost their prosecution case and is now facing an uphill battle in a Section 1983 civil rights case.
To all the Selah folks who vocally claimed during the town hall that this entire issue is about upholding the law: you are right, and your city is on the wrong side of the law. If you will look at it with an open mind, learning what the law really says, you have it within your power to stop the damage you are allowing to your town’s reputation.
Please stop this before it costs you money and reputation.
When the rest of the nation hears the name “Selah,” they should think of Washington State in 2020, not Alabama in 1960.