[Eugene Volokh] Florida's Lawsuit Against FEMA Over Discrimination Against Trump Supporters

You can read the Complaint (filed yesterday) in Moody v. Criswell (S.D. Fla.); there are all sorts of interesting federal civil rights litigation and federal courts issues, such as parens patriae, the scope of § 1985(3) liability, the intracorporate conspiracy doctrine, and more. And of course the case raises the factual question of whether the discrimination was the work of a rogue employee (as FEMA seems to argue) or was endorsed by higher ups (as the employee has claimed, and as Florida is asserting). An excerpt from the Complaint:

"[A]void homes advertising Trump." This was the directive that Defendant Marn'i Washington gave to federal relief workers responding to Hurricanes Helene and Milton in Lake Placid, Florida.

While the Federal Emergency Management Agency (FEMA) has fired Defendant Washington and called her behavior "reprehensible," Defendant Washington insists that she is a "patsy" and that FEMA made her a "scapegoat." Defendant Washington says that similar conduct occurred in North Carolina and throughout areas affected by Hurricanes Helene and Milton. And she represents that senior FEMA officials claiming not to know that the agency was discriminating against Trump supporters are promoting a "lie."

While the facts will continue to come out over the weeks and months, it is already clear that Defendant Washington conspired with senior FEMA officials, as well as those carrying out her orders, to violate the civil rights of Florida citizens.  This conspiracy is actionable under 42 U.S.C. § 1985, which creates a cause of action for "[c]onspiracy to interfere with civil rights." See Smith v. Meese, 821 F.2d 1484, 1492 n.5 (11th Cir. 1987) (suggesting that "selectively enforc[ing] a law" by "prosecuting only Republicans" would violate § 1985 (quotations omitted)); accord Lyes v. City of Riviera Beach, 166 F.3d 1332, 1338 (11th Cir. 1999) (en banc) (discussing legislative history suggesting that "actionable conspiracies" under § 1985 "would include those against a person because he was a Democrat" (quotations omitted)); United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825, 836 (1983) (suggesting that § 1985(3) "was intended to" protect "Republicans" because Republicans "championed the[] cause" of Black Americans after the Civil War).

Florida Attorney General Ashley Moody sues Defendants under § 1985(3). See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (recognizing a State's ability to sue in a parens patriae capacity based on discrimination against its residents); Abrams v. 11 Cornwell Co., 695 F.2d 34, 38–40 (2d Cir. 1982) (applying Alfred L. Snapp to a claim under § 1985(3)), vacated in part on other grounds, 718 F.2d 22, 25 (2d Cir. 1983).

General Moody seeks nominal damages, punitive damages, and a declaration that Defendants conspired to interfere with the civil rights of Florida citizens.

I'm not an expert on the federal statutory questions here (or on the parens patriae doctrine), and I'm too slammed right now to research further, so I thought I'd just pass along the Complaint, which sets forth the state's argument; I'll also pass along any motion to dismiss when and if that's filed.

The one thing I can say substantively is that, even if FEMA employees had faced hostility from some conservative or pro-Trump householders, that can't justify an "avoid homes advertising Trump" directive—just as the misconduct of some Jews or Catholics couldn't justify an "avoid homes displaying mezuzahs or crucifixes" directive, or the hostility of some Black Lives Matter supporters to the police couldn't justify the police denying services to homes displaying Black Lives Matter flags.

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