O'Neil v. Canton Police Department ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-2062
MEREDITH O'NEIL; JESSICA SVEDINE; DEANNA CORBY; ROBERTO SILVA,
Plaintiffs, Appellants,
JENNA ROCCO; NICK ROCCO,
Plaintiffs,
v.
CANTON POLICE DEPARTMENT; TOWN OF CANTON MASSACHUSETTS; HELENA
RAFFERTY, as Chief of the Canton Police Department and in her
personal capacity; ROBERT ZEPF; MICHAEL CHIN; ANTHONY
PASCARELLI; JOSEPH SILVASY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Gelpí, Lynch, and Montecalvo,
Circuit Judges.
Marc J. Randazza, with whom Jay M. Wolman and Randazza
Legal Group, PLLC were on brief, for appellant.
Douglas I. Louison, with whom Joseph A. Mongiardo and
Louison, Costello, Condon & Pfaff, LLP were on brief, for appellee.
September 19, 2024
LYNCH, Circuit Judge. On November 7, 2023, appellants
Meredith O'Neil, Jessica Svedine, Deanna Corby, and Roberto Silva
sued various Canton, Massachusetts town and police officials
seeking declaratory and injunctive relief prohibiting the
enforcement of the Massachusetts witness intimidation statutes,
Mass. Gen. Laws ch. 268 §§ 13A and 13B, bringing both facial and
as-applied attacks under the First Amendment. The complaint
alleged that the appellants feared prosecution for their actions
during a November 5, 2023 protest and that their speech would be
chilled as to a planned protest to take place on November 12, 2023.
On the day after they filed suit, the appellants moved
for emergency relief, asking that the "[d]efendants'
unconstitutional acts . . . be immediately enjoined by temporary
restraining order, to be converted to a preliminary injunction
following a hearing thereon." Defendants opposed the motion and
the district court denied the motion two days later, for the
reasons explained below.
Appellants took this appeal on December 10, 2023 from
the denial of their emergency motion. We dismiss this appeal,
which concerns only the denial of emergency relief, as moot. When
events have transpired "to render a court opinion merely advisory,
Article III considerations require dismissal of the case." Mangual
v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003).
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I.
The background for this appeal is a separate state
criminal prosecution brought by the Commonwealth of Massachusetts
not against these appellants but against defendant Karen Read,
charging her with the murder of John O'Keefe, vehicular
manslaughter, and leaving the scene of personal injury or death.
Read's state criminal court trial took place in April 2024 and
ended in a mistrial. At that trial, Chris Albert, among other
witnesses, testified and was cross-examined. A new state court
trial, apparently on the same charges, is scheduled for January
27, 2025.1
We describe the events in chronological order. We start
with the pleadings in appellants'2 federal court complaint: on
November 5, 2023, before Read's criminal trial, the appellants and
others gathered "across the street from Chris Albert's business,
D&E Pizza" to "protest against what appear[ed] to be perjury to
them."3 The appellants held signs on November 5 with slogans such
as "Free Karen Reed [sic]" and "Justice." Four Canton police
1 Read's legal team recently filed a motion to dismiss two of
the three charges on double jeopardy grounds, which the state court
denied. Read's legal team has appealed that denial.
2 Jenna Rocco and Nick Rocco were also named as plaintiffs
and have not joined this appeal.
3 In their opening brief before this court, the appellants
further characterized their protest as being "[to] encourage[]
Albert to speak the truth, and to not bow to pressure to lie about
what actually occurred on the night of O'Keefe's death."
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officers drove by several times and then "stopped and informed the
protestors that they were not permitted to protest there, because
if the protest could be seen by Chris Albert, they would deem it
to be 'witness intimidation' and [appellants] would be arrested,"
and handed the appellants a copy of Mass. Gen. Laws ch. 268 § 13A,
which states:
Whoever, with the intent of interfering with,
obstructing, or impeding the administration of
justice, or with the intent of influencing any
judge, juror, witness, or court officer, in
the discharge of his duty, pickets or parades
in or near a building housing a court of the
commonwealth, or in or near a building or
residence occupied or used by such judge,
juror, witness, or court officer, shall be
punished by a fine of not more than five
thousand dollars or by imprisonment for not
more than one year, or both.
Nothing in this section shall interfere with
or prevent the exercise by any court of the
commonwealth of its power to punish for
contempt.
Appellants do not allege that the officers gave them a
copy of Mass. Gen. Laws ch. 268 § 13B, the other Massachusetts
witness intimidation statute that the appellants challenge. The
statute provides (in relevant part) criminal penalties for:
Whoever willfully, either directly or
indirectly . . . misleads, intimidates or
harasses another person who is a: (A) witness
or potential witness . . . with the intent to
or with reckless disregard for the fact that
it may: (1) impede, obstruct, delay, prevent
or otherwise interfere with . . . a trial or
other criminal proceeding of any type . . . or
(2) punish, harm, or otherwise retaliate
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against any such person described in this
section for such person or such person's
family member's participation in any of the
proceedings described in this section[.]
After the November 5 protests but before the allegedly
planned November 12 protest, the appellants filed the emergency
motion. The district court acted promptly and ruled on the
emergency motion on November 10, 2023, denying relief. First, the
court assumed that on the pleadings the plaintiffs had standing to
seek relief.4
The court considered "[1] the movant[s'] likelihood of
success on the merits of [their] claims; [2] whether and to what
extent the movant[s] will suffer irreparable harm if the injunction
is withheld; [3] the balance of hardships as between the parties;
and [4] the effect, if any, that an injunction (or the withholding
of one) may have on the public interest." Corp. Techs., Inc. v.
Harnett, 731 F.3d 6, 9 (1st Cir. 2013) (citing Ross-Simons of
Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996)).
The court held that the plaintiffs had not demonstrated a
4"It is not clear that [these] circumstances," the court
wrote, "show a sufficiently imminent threat of arrest as to both
§§ 13A and 13B, particularly where Plaintiffs make no allegations
regarding their individual conduct during the November 5, 2023
protest or their conduct during the planned November 12, 2023
protest." However, the court noted that "there has been no
disavowal of Defendants not to charge Plaintiffs or that their
interpretation of [the] statute is unreasonable[,]" so "at this
early juncture and on the factual record before it, the Court
assumes that Plaintiffs have met the 'extremely low' bar in this
context[.]"
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reasonable likelihood of success on the merits for any of their
claims. For the as-applied challenge, the court, citing relevant
cases, determined that "most courts have concluded that witness
intimidation statutes such as the one at issue in this case are
content-based and subject to strict scrutiny when applied to
expressive conduct, because they limit speech related to a pending
court proceeding but not speech on other subjects." The court
reasoned that the Massachusetts witness intimidation statutes
satisfied strict scrutiny in that they "serve [] compelling
interests in protecting the orderly administration of justice" and
were narrowly tailored to serve that interest "[e]ven as applied
to Plaintiffs." "As alleged," the court wrote, "Plaintiffs did
not gather in any other public location, but outside of Albert's
place of business. There is nothing in the statute, or as applied
to Plaintiffs, that would prohibit their gathering to do the same
in other locations." The court rejected the appellants' associated
retaliation claim because they had not shown likelihood of success
on the merits, in light of its conclusion that the statutes were
likely constitutional as applied.
The court then determined that the plaintiffs also had
not shown they faced a risk of irreparable harm. Appellants
represented that they decided not to move forward with a November
12 planned protest, and "they have provided no details regarding
the planned protest and why such protest would inevitably be viewed
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by law enforcement as violative of §§ 13A, 13B." The district
court noted that the "Defendants are not alleged to have issued
any prohibition on protests related to the Read prosecution or to
have halted any peaceful, non-threatening protests regarding the
Read prosecution[,]" and "it is not clear that any exercise of
free speech has been chilled where Plaintiffs have other public
forum[s] to express their views, particularly given the widespread
news coverage and public interest that has already been generated
regarding [the] same."
The district court reasoned that the "balance of harms
between the parties and the consideration of the public interest
also weigh against the injunctive relief that Plaintiffs seek."
The court held that the "interest of the Plaintiffs in obtaining
the injunctive relief weighs against the Defendants' interest in
enforcement of law in the Town, and consideration of the public
interest in ensuring the administration of justice, including
interference with witnesses."
After the denial of emergency relief, the appellants did
not protest on November 12, 2023, and from the record before us
have not protested since. On November 22, three of the four
appellants -- O'Neil, Corby, and Silva -- were charged with
violations of §§ 13A and 13B based on their November 5, 2023
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protest, and on August 2, 2024, those charges were dismissed by
the state court for lack of probable cause.5
II.
In light of intervening events, this court on August 7,
2024 ordered the parties to address in filings the issue of whether
this appeal was moot. In reply, each party filed supplemental
briefs and statements made under the pains and penalties of
perjury, as permitted by the order.6 Each appellant alleged
generally an intent to "continue protesting for [their] belief
5 Svedine was apparently not among the group of protesters
charged for the November 5 incident.
6 Because of the chronology of events those documents and
statements were not before the district court. As exhibits to
appellees' supplemental appellate briefing, Canton Police
Department documents show that O'Neil carried a sign reading "Colin
Albert was inside the house." Helena Rafferty, Canton Chief of
Police, stated that "[t]here are video recordings indicating
certain individuals from the protest did not remain across the
street and had in fact made their way in front of D&E Pizza & Subs.
Signage observed by officers also included 'Colin Albert was in
the house' and slogans recorded on audio included 'Chris Albert
killed a man.'" Chief of Police Rafferty also stated, inter alia,
that:
1. "It is not the policy or prerogative of the Canton Police
Department to charge an individual for witness intimidation under
[§ 13A or § 13B] merely because she holds a sign that says 'JUSTICE'
within eyesight of a witness."
2. "Thanks to cooperation with protest organizers, numerous
protests have been held outside the Norfolk County District
Attorney's office . . . and in front of the Canton Police
Department . . . without violation of the law."
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that Karen Read is being framed" and that "[o]nce an injunction
enters, [they] intend to protest."
This court then heard oral argument on September 11,
2024 on this appeal, including on the issues of mootness.
III.
Where "[t]he posture of the case has changed in
significant ways since the plaintiff[s] initially made [their]
motion for a preliminary injunction," the justiciability of an
interlocutory appeal from the denial of that motion is "called
into question." Matos v. Clinton Sch. Dist., 367 F.3d 68, 72 (1st
Cir. 2004). Article III limits federal court jurisdiction to
"cases" and "controversies." U.S. Const. art. III, § 2. The
intertwined doctrines of standing and mootness help define that
limitation, and courts "review[] these threshold questions de
novo." N.H. Lottery Comm'n v. Rosen, 986 F.3d 38, 49 (1st Cir.
2021) (citing Mangual, 317 F.3d at 56).
There is no question the posture of the case has now
changed in significant and material ways: Chris Albert, the alleged
object of appellants' activities, has now testified, and the Read
trial resulted in a mistrial. Significantly, the state court has
dismissed the charges against the plaintiffs under the statutes at
issue and has determined that no probable cause for violation of
the witness intimidation statutes existed on the facts of the
November 5 protest. If there are any future protests, the present
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contours of such protests are purely hypothetical. The mootness
doctrine is based in the Article III jurisdictional requirements.
Moore v. Harper, 600 U.S. 1, 14 (2023). Mootness occurs when
subsequent events unfold such that standing no longer exists. See
Mangual, 317 F.3d at 60 ("The doctrine of mootness enforces the
mandate 'that an actual controversy must be extant at all stages
of the review, not merely at the time the complaint is filed.'")
(quoting Steffel v. Thompson, 415 U.S. 452, 460 n.10 (1974)).
Mootness can be viewed as "the doctrine of standing set in a time
frame." Id. (quoting United States Parole Comm'n v. Geraghty, 445
U.S. 388, 397 (1980)).
To meet standing requirements, a plaintiff must
establish "an injury in fact caused by the defendant and
redressable by a court order." United States v. Texas, 599 U.S.
670, 676 (2023). An injury in fact must be "concrete and
particularized" and "actual or imminent," not "conjectural" or
"hypothetical." Susan B. Anthony List ("SBA List") v. Driehaus,
573 U.S. 149, 158 (2014) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992)). The witness intimidation charges as to the
November 5 activities of appellants were dismissed for lack of
probable cause, thus obviating any need for the court to enjoin
behavior related to that particular conduct. That moots any claims
for emergency relief as to those charges. See Ramirez v. Sanchez
Ramos, 438 F.3d 92, 100 (1st Cir. 2006) (holding that the "'want
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of probable cause' determination eradicated the threatened injury
. . . . No more is exigible to establish mootness."). There is
simply "no ongoing conduct left for the court to enjoin."7 Am. C.
L. Union of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 53
(1st Cir. 2013); see also Matos, 367 F.3d at 72 (holding that where
the event that the plaintiff sought to enjoin had already occurred,
"[t]his court lacks the power to turn back the clock and,
accordingly, . . . the appeal is moot.").
As to the appellants' general allegations made to this
court of an intention to protest in a manner similar to the
November 5 protest despite the fact that Chris Albert's testimony
has taken place and is a matter of record, these statements of
intention do not show any likelihood of threatened prosecution.8
To establish standing for these pre-enforcement
challenges to possible applications to the appellants of these
statutes for undefined activity, appellants have not shown a
7 Rafferty's affidavit notes that "[t]he Canton Police
Department is currently reviewing its ability to appeal [the
Stoughton District Court's findings of lack of probable cause]."
Nonetheless, the appeal before us from the emergency motion remains
moot. The emergency motion did not include a request to enjoin
ongoing prosecutions; indeed, such a motion would implicate
Younger v. Harris, which establishes that federal courts may not
"stay or enjoin pending state court proceedings" "except under
special circumstances." 401 U.S. 37, 41 (1971).
8 The appellants have also not alleged that Canton police
would enforce the witness intimidation statutes in the future in
a way that defies the state court's findings that no probable cause
existed as to the appellants' conduct at the November 5 protest.
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likelihood of arrest and prosecution, and so fail to show that
"there exists a credible threat of prosecution." SBA List, 573
U.S. at 159 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979)). Standing exists only when "the threatened enforcement
[is] sufficiently imminent."9 SBA List, 573 U.S. at 159; see also
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 402 (2013) (holding no
standing existed where alleged injury was "based on hypothetical
future harm that is not certainly impending."). The threatened
enforcement must also be sufficiently specific: the plaintiff must
allege a "live controversy" about "an actual or imminent
application of [the challenged statute] sufficient to present the
constitutional issues in 'clean-cut and concrete form.'" Renne v.
Geary, 501 U.S. 312, 320-22 (1991) (quoting Rescue Army v. Mun.
Ct. of L.A., 331 U.S. 549, 584 (1947)). "Allegations of a
subjective 'chill' are not an adequate substitute for a claim of
9 In Susan B. Anthony List v. Driehaus, the petitioners had
adequately "alleged a credible threat of enforcement" and
established standing only because (in relevant part) the
"petitioners ha[d] pleaded specific statements they intend to make
in future election cycles" that could be the subject of future
enforcement. 572 U.S. at 161. In contrast, the appellants here
have not pleaded the specific speech that could be the target of
future enforcement or the context or circumstances and allege only
a general intention to protest. Moreover, in SBA List, a state
commission charged with enforcing the challenged statute had
"already found probable cause to believe that SBA violated the
statute when it stated . . . the same sort of statement petitioners
plan to disseminate in the future." Id. at 162. Here, the state
has done the opposite and determined that no probable cause existed
for apellants' previous protest.
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specific present objective harm or a threat of specific future
harm." Blum v. Holder, 744 F.3d 790, 796 (1st Cir. 2014) (quoting
Laird v. Tatum, 408 U.S. 1, 13-14 (1972)).10
For the foregoing reasons, this appeal from the denial
of the motion for emergency relief is dismissed as moot. We remand
to the district court for such further proceedings as are
appropriate, noting that the case before the district court has
not been dismissed and that no discovery has yet taken place.
10The appellees moved to strike various exhibits that the
appellants attached to supplemental briefing before this court.
Even considering those exhibits, they are simply insufficient to
avoid mootness.
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