Two news stories of interest:
• This story illustrates the many moving pieces of § 1983 and how cases fall into the cracks. Especially at the local level in small locales, where officials wield more unchecked power. Accept that wearing the costume is constitutionally protected and not obscene.
Gamble was arrested, triggering the criminal process and Younger. Most prosecutors decline to pursue such an obviously weak case; here they added new charges (still defective under the First Amendment, but still), further barring resort to federal court. Gamble can raise the First Amendment as a (likely successful) defense. But this creates pressure (financial, legal, emotional) to pay a small fine in the state proceedings and make it all go away rather than push the First Amendment defense. Especially given the likelihood that the municipal court is as pathological as local law enforcement, such that she cannot vindicate her federal rights until an appeal.
She can pursue a § 1983 damages action if she wins in state court. But the police have a good chance to prevail on QI grounds, since it is unlikely they will find precedent involving an arrest for wearing an inflatable penis costume during a No Kings Rally. Worse, she might encounter a judge such as the one we read about in Chapter One, who believed that the arrestee's rights were sufficiently protected by avoiding liability in the state proceedings, rendering further use of § 1983 gratuitous and a waste of judicial resources.
• I will confess that I did not know about Viola Liuzzo--a white woman who marched in Selma and worked to register voters, murdered by Klan members who were acquitted by all-white state juries but convicted on federal civil rights charges. It sounds a lot like the story of Andrew Goodman, Michael Schwerner, and James Chaney in Philadelphia, Mississippi--Klan kills civil rights activists, white local juries acquit, Feds succeed on civil rights charges.
Yet the story of Goodman, Schwerner, and Chaney has been depicted in two documentaries, three movies (most famously Mississippi Burning), and a Normal Rockwell painting titled "Murder in Mississippi." Memorials have been placed throughout the country. Liuzzo is mostly a local story.
Consider the legal stories that stick in history, those that history forgets, and why the difference. The Mississippi case had unique elements: It involved local law enforcement and produced SCOTUS precedent (US v. Price) establishing conspiracy as a basis for action under color. That Liuzzo was a woman certainly affects perceptions--celebrated today as the only white woman killed during the Movemen, it no doubt rankled as "she never should have been there" in the early days of the Women's Movement. The story above adds another element--one of the people in the Klan car was an FBI informant and Hoover initially trashed Liuzzo as a drug user who was too cozy with the Black Alabamans she was working with.
