Section 1983 of the United States Code, also known as the Civil Rights Act of 1871 (“the KKK Act”) provides recourse for individuals deprived of their civil rights by state actors. The KKK Act was created to protect blacks from post-Civil War Democrats by allowing them to sue state and local government officials as well as those acting under state authority for violating their constitutional rights.
As was reported in the Daily News, federal Judge Morrison England ruled that plaintiffs Gabe Rench and Sean and Rachel Bohnet were wrongfully arrested during the September 2020 Christ Church psalm sing in Moscow. England agreed that the civil rights case could proceed against the city of Moscow as well as against former City Supervisor Gary Riedner, City Attorney Mia Bautista, City Prosecutor Elizabeth Warner, and Moscow Chief of Police James Fry.
Mayor Bill Lambert’s “Emergency Powers Ordinance” of March 20, 2020, had the following explicit exemption clause: “the following activities shall be exempt from the scope of such order: Any and all expressive and associative activity that is protected by the United States and Idaho Constitutions, including speech, press, assembly, and/or religious activity.”
I spent last week reading all the depositions. They are available online: tinyurl.com/jnmr2ya9
In her deposition, Bautista, who wrote the ordinance, argued that the words “every person in the City of Moscow” somehow trumped the exceptions clause. Judge England didn’t buy that for one minute. He wrote, “Somehow, every single City official involved overlooked the exclusionary language included in the Ordinance.” His use of the word “overlooked” was clearly sardonic. The language of the ordinance is so clear that the city officials are at best woefully ignorant, and at worst willfully malicious.
The city argued that their code was being misinterpreted. Judge England responded, “The City’s Code could not be more clear … those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the constitutionality of what the City thought it’s Code said is irrelevant.”
Further, “Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code’s application, and Plaintiffs are so far reasonable in their damages requests.”
Fortunately, our laws are in writing. It does not matter what our officials think or wish the law said, what matters is what the law actually says. This ordinance had an exception for First Amendment rights. Christ Church was obeying the ordinance. The city violated their civil rights.
The events following the arrest make me believe that the city knew they screwed up. In a three-page letter of dismissal to Judge Marshall, Bautista twice asked for the charges against the plaintiffs to be dismissed “based on a technicality.” The technicality being that they were exempt?
Until those Christ Church arrests, not a single citation nor arrest was made for violating the Moscow ordinance. During the George Floyd/BLM/anti-Trump protests in Moscow during the summer of 2020, no one was social distancing and no one was cited nor arrested. Can you spot the difference?
When Moscow City officials got wind of the psalm sing on Sept. 23, they cleared out the city hall parking lot early that day, painted circles 6 feet apart on the ground, and had police standing by. But the ordinance expressly said that masks and distancing didn’t apply to the Christ Church event.
I believe the ordinance’s exemption clause was intended by Bautista to protect anti-Trump/ BLM protesters that summer. But when Christ Church protested, Moscow’s progressives pressured Lambert and other city leaders into arresting them.
I believe the arrests were premeditated and planned, but we may never know because the city argued that the discussions between Lambert, Riedner, Bautista, and Fry right before the arrests are protected by attorney-client privilege.
The city of Moscow made three illegal arrests in violation of the Civil Rights Act of 1871. Our country has a history of arresting people for being Black. Moscow has a history of arresting people for being Christ Church.
Bautista, Riedner, and Fry cost themselves and the Moscow taxpayers a great deal of money. I hope it was worth it. Stickergate is next.
Courtney served 20 years as a nuclear engineering officer aboard submarines and 15 years as a graduate school instructor. A political independent, he spends his time playing with his seven grandchildren in Moscow. He is a member of Christ Church.
