In early November, the Eighth Circuit Court of Appeals upheld a preliminary universal injunction preventing the enforcement of Arkansas’ anti-begging law. This decision was issued the same day we posted our first blog post on universal injunctions and the plan was for the second post to explore universal injunctions against states in an in-depth manner. How fortuitous!
This decision gives us a chance to explore universal statewide injunctions in a concrete manner. The debate over their propriety has generally taken place in the abstract and has been centered on numerous complex legal theories. While those theories and ideas are important, it is also necessary to approach this debate with an understanding of what impact banning universal injunctions would have in the “real world.”
In the first post I gave a detailed discussion about what universal injunctions are. Briefly, a universal injunction is simply a court order that prevents the government from enforcing a law against anyone, not just the named plaintiffs. It is all about the parties. Sometimes a universal injunction is a nationwide injunction, as when a court enjoins the federal government from enforcing a law anywhere. But you can have universal injunctions against states and cities too. In either scenario a court is telling the government not to enforce a law against the plaintiffs, or others.
The statute at the center of the Eighth Circuit case is an anti-loitering law. The problem? It identified “loiterers” based on their speech. Specifically, the law prohibits “asking for anything as charity or a gift” in a harassing manner, but does not likewise prohibit petitioning, protesting, or advocating in the same manner. Thus, it creates a crime based not only on the manner of speech, but also the content of the person’s speech.
Because the law discriminates based on the content of the speech, the law can be upheld only if it survives “strict scrutiny.” This is the most demanding level of judicial scrutiny; to survive strict scrutiny the state bears the burden of proving that the law is narrowly tailored to serve a compelling state interest. That means that, to even have a chance of the law surviving, the government must show that there is some factual and evidence-based reason for distinguishing speakers based on the content of their speech, and that no less restrictive regulation of speech would achieve the compelling state interest. This is a tall order, and it is one the government rarely meets.
Here, two people who want to ask for charity in Arkansas challenged the law as a violation of their First Amendment right to free speech. As part of their lawsuit they asked that the court enter a preliminary injunction preventing enforcement of the law while their case went forward. The district court obliged and entered an injunction not just preventing Arkansas from enforcing the law against the plaintiffs, but preventing Arkansas from enforcing the law against anyone. In other words, the district court issued a universal injunction against the law.
Arkansas appealed. The State asserted many problems with the decision, but most relevant for our purposes is that they challenged the scope of the injunctive order. The state argued that the district court lacked the power to provide relief beyond those who challenged the law in court.
All three Eighth Circuit judges on the appellate panel agreed with the district court that the law was likely unconstitutional and that the plaintiffs were entitled to an injunction. But the court split over whether the scope of the remedy was proper. Two judges upheld the universal injunction. The third judge dissented, arguing that the court lacked the power to protect non-parties in a non-class action lawsuit. The dissent focused on whether judges had the power to issue injunctions protecting nonparties in situations such as this at the time of the founding, and tied that to Supreme Court precedent that says the equitable remedies federal courts have today (such as injunctions) are the same as what chancery courts had in 1789. Both Professor Samul Bray and Professor Mila Sohoni have written extensively about this topic, so we will not focus much on that now.
The majority brought up a fantastic point about the strangeness of Arkansas’ position—a position that most who argue against universal injunctions hold. Arkansas contended that people had to sue the government individually, or pursue a statewide class action, to gain protection from unconstitutional laws. What this means is that the two people who sued would get protection but no one else would. The two who sued would be free to ask for charity on the street in a “harassing” manner, but no other person could do the same unless they too lawyered-up and challenged the law in court. The majority concluded that this “just cannot be the law.”
If we follow Arkansas’ argument to the extreme, they could lose every single time, but they can still go along enforcing the law against people who did not sue. This is like saying that Arkansas, or any state, has the power to enforce unconstitutional laws against anyone who does not challenge their ability to do so. Under this view, the default is that the government has the right to enforce unconstitutional laws as opposed to the people having a right to not have unconstitutional laws enforced against them. Does that sound like a system of government based on a written constitution? I think not.
But outside this more philosophical issue, there are substantive legal reasons for granting a universal injunction against the state. In cases such as this there are two main substantive legal concerns that warrant consideration: the fact that injunctions are supposed to provide complete relief to the plaintiffs, and the Equal Protection Clause of the Fourteenth Amendment. To be sure, there are certainly other legal considerations. But both the requirement that injunctions provide full relief and the Equal Protection Clause are especially poignant in cases like the one recently decided by the Eighth Circuit.
In California v. Yamasaki, the Supreme Court held that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” But what is necessary to provide complete relief? Take the case challenging the Arkansas law. What would happen if the court limited the injunction to only the plaintiffs, as the state requested?
In that situation an injunction would be issued which prevents any police officer in Arkansas from citing and arresting the two plaintiffs for violating this law. But how is every officer to know exactly who those two plaintiffs are? Is every officer in the state supposed to dedicate time to ensuring that they know about them and what they look like? That does not seem to be an efficient use of the officers’ time or resources. Especially when considering the compounding possibility of additional suits challenging this law and when considering that it is unlikely that this is the only Arkansas law against which an injunction preventing enforcement has been issued.
Imagine if there were 10, 15, 20 separate cases, each challenging the law. Each with two plaintiffs, which would mean there would be a max of 40 plaintiffs (I promise, there will be no more math here). Assuming that the court rules the same way (this is not a radical expectation as the law is clearly unconstitutional), then the police would have to know, by sight, numerous people to ensure that they do not violate an injunctive order preventing enforcement of the anti-begging statute. So if the police still want to enforce the law, they would only have two choices.
They would either have to make sure all the officers knew which persons had won court battles and could not have the law enforced against them. Or, they could simply enforce the law against everyone and just drop the charges against those protected by injunctive orders. I can guess which choice most departments would make, especially considering the many other duties of officers which likely have a higher priority—like enforcing laws against actually dangerous people. But even if they decided to try to memorize the faces of all those who had protective orders, no one is perfect. Someone who has been granted an injunction would likely get harassed or charged. And then the officers would be in jeopardy of acting in contempt of court, because arresting a previously successful plaintiff would violate their injunction.
This situation does not seem like persons entitled to relief would receive the full protection to which they are entitled. Yet if there were an injunction preventing the state from enforcing the law against anyone it seems much more likely that complete relief would be attainable. That is not to say that an injunction going only to the plaintiffs can never achieve complete relief, but that in some factual situations the best way to ensure complete relief is by issuing a universal injunction. I do not dispute the Supreme Court’s holding that injunctions be no more expansive than necessary to provide complete relief. That said, it is clear from the above example that a universal injunction will sometimes be necessary to do just that. But what situations will require such broad relief will only be knowable if the court delves into the facts of each case.
Asking courts to address the factual situations that come before them should not be controversial. It is certainly not the case that a court should always issue a universal injunction or that universal injunctions are always proper. Yet there are situations in which they are necessary to ensure fairness and complete relief. An engaged judiciary should be able to analyze the facts before it and make a determination based on the situation whether such broad relief is appropriate.
Together with being necessary in some cases to ensure complete relief, universal injunctions may also be necessary at times to fulfill the requirements of the Equal Protection Clause of the Fourteenth Amendment. I will not try to fully explore this issue here, but just outline the contours of how the Equal Protection Clause interacts with the universal injunction debate. (Professor Michael Morley has given the most in-depth treatment of the issue in a 2016 law journal article.)
As a refresher, the Fourteenth Amendment requires that “No State shall . . . deny to any person within its jurisdiction the equal protection of the law.” Take again the Arkansas law at issue in the Eighth Circuit case. Arkansas’ argument was that it wanted to keep enforcing the law against other people in the state. The law clearly violates the First Amendment. It discriminates against certain speech based solely on the content of that speech and there does not seem to be any compelling state interest at issue.
The situation would then be that two people are protected from having their fundamental right to free speech violated but the state could enforce the law against anyone else and violate their rights. This raises equal protection concerns. The key is, when someone challenges a law like this, the court has a chance to ensure that a state does not “deny any person within its jurisdiction the equal protection of the laws.” This is especially true when the state admits that it will keep enforcing the law against those who have yet to sue. Thus, some will be treated differently under the law for one reason, and one reason only: they have yet to hire a lawyer and go to court. That seems antithetical to the plain language of the Equal Protection Clause.
The debate over “statewide” injunctions has not been as contentious as that surrounding their nationwide counterpart. The statewide variety of universal injunctions have generally been issued without much consideration or elaboration and they are not seen to be nearly as political as nationwide ones. That said, they are an important part of litigation and in ensuring that the states are kept with the bounds set by the federal constitution, and their own state constitution.
I am sure that the decision from the Eighth Circuit is only the first of many which will explore the proper scope of injunctions where the state is the defendant. Different concerns and considerations will be present in cases involving states rather than the federal government. That said, there are some considerations that will always remain the same. We will explore these other considerations in future posts from a judicial engagement perspective.
Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.