When courts declare laws unconstitutional, the sound of pages being torn out of statutory compilations is rarely heard. Rather, these laws often remain “on the books,” sometimes for decades, because legislatures fail to repeal them.
In these circumstances, difficult questions can arise when civil rights plaintiffs sue over subsequent enforcement of unconstitutional, unrepealed statutes. When suits seek damages against government officials personally, the officials can argue they should not be liable for simply enforcing legal provisions they saw in official statutory compilations. And when suits seek relief against municipalities or other local governments, those defendants can argue they should not be held responsible because it is their duty to enforce state laws unless they are repealed or until a court enjoins the specific government entities from further enforcement.
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