Rashard Zanders v. Lori Swanson, etc. ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3221
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Rashard Zanders; Lydia Howell; *
Jill M. Waite; Communities United *
Against Police Brutality, an *
association, in behalf of its members; *
Michelle Gross; Darryl Robinson; *
Malcolm Labon; Trisha Farkarlun, *
*
Plaintiffs-Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Lori Swanson, in her official capacity *
as Attorney General of the State of *
Minnesota; Susan Segal in her official *
capacity as Minneapolis City Attorney, *
*
Defendants-Appellees, *
*
Michael O. Freeman, in his official *
capacity as Hennepin County Attorney, *
*
Defendant. *
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Submitted: June 10, 2009
Filed: July 20, 2009
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Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
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BEAM, Circuit Judge.
The district court1 dismissed Plaintiffs' pre-enforcement challenge to Minnesota
state criminal statute section 609.505 based upon lack of standing and, in the case of
Trisha Farkarlun, an application of the Younger2 abstention doctrine. Plaintiffs appeal
and we affirm.
I. BACKGROUND
Plaintiffs are comprised of various individuals and groups, all of whom allege
a fear of prosecution under Minnesota statute section 609.505, which makes it a crime
to knowingly make a false report of police misconduct. Plaintiffs are the
Communities United Against Police Brutality; one of the founders of that
organization, who is frequently contacted by the media for comment on issues
concerning allegations of police misconduct; two independent journalists who have
written and intend to write articles about civilian allegations of police misconduct; an
attorney who litigates cases that involve police misconduct; and three persons who
assert that they have been victims of misconduct by Minneapolis police officers, and
one of whom that has been charged under section 609.505.
Specifically, section 609.505, subdivision 2 provides:
Reporting police misconduct. (a) Whoever informs, or causes
information to be communicated to, a peace officer, whose
responsibilities include investigating or reporting police misconduct, that
a peace officer, as defined in section 626.84, subdivision 1, paragraph
(c), has committed an act of police misconduct, knowing that the
information is false, is guilty of a crime and may be sentenced as
follows:
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
2
Younger v. Harris, 401 U.S. 37 (1971).
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(1) up to the maximum provided for a misdemeanor if the false
information does not allege a criminal act; or
(2) up to the maximum provided for a gross misdemeanor if the
false information alleges a criminal act.
Before the district court, Plaintiffs did not allege that they intend to make
knowingly false reports of police misconduct. Nor did Plaintiffs allege or submit
evidence that any of the defendants charge and prosecute persons under section
609.505, subdivision 2, for making truthful reports (or not knowingly false reports)
of police misconduct. Plaintiffs claimed that potential prosecutions under this
Minnesota statute deprive them of their First Amendment, due process, and equal
protection rights, in violation of 42 U.S.C. § 1983. Basically, these plaintiffs allege
that Minnesota police are corrupt and will fabricate charges of knowingly making
false reports of police misconduct in retaliation for making any complaints against
police–that the statute, as written, is "too subject to abuse by police." They claim that
truthful complaints will be punished by criminal actions, thus "chilling" legitimate
reports of police misconduct.
The district court described Plaintiffs' fear as not only "speculative," but "a
house of cards that cannot withstand scrutiny." At bottom, the court held Plaintiffs
did not allege an intent to engage in the expression prohibited by the statute–that is,
knowingly making false reports of police misconduct. Further, the court held there
was no evidence that the statute is being enforced against people who are not making
knowingly false allegations of police misconduct. As to Plaintiff Farkarlun, the court
held that she did have standing to pursue her claim because she was criminally
charged under the statute and a favorable decision would certainly redress her injury.
But, the court abstained from hearing her claim pursuant to Younger v. Harris, 401
U.S. 37 (1971).
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II. DISCUSSION
The district court's dismissal of Plaintiffs' claims for lack of standing is
reviewed de novo. Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008). Its
application of the Younger abstention doctrine to Farkarlun's claim is reviewed for
abuse of discretion. Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005).
A. Standing
We must first address whether Plaintiffs have alleged a case or controversy
within the meaning of Article III of the Constitution or whether they assert only
abstract questions not currently justiciable by a federal court. Babbitt v. United Farm
Workers Nat'l Union, 442 U.S. 289, 297 (1979).
"Federal courts are not courts of general jurisdiction; they have only the
power that is authorized by Article III of the Constitution and the statutes
enacted by Congress pursuant thereto." Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986). "The limitations imposed by
Article III are usually referred to as the 'case or controversy'
requirement." Schanou v. Lancaster County Sch. Dist. No. 160, 62 F.3d
1040, 1042 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d
1430, 1435 (8th Cir. 1993) (en banc)); see also Valley Forge Christian
College v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 471 (1982) ("Article III of the Constitution limits the 'judicial
power' of the United States to the resolution of 'cases' and
'controversies.'"). This court defines "case or controversy" to require "a
definite and concrete controversy involving adverse legal interests at
every stage in the litigation." McFarlin v. Newport Special Sch. Dist.,
980 F.2d 1208, 1210 (8th Cir. 1992). "Federal courts must always
satisfy themselves that this requirement has been met before reaching the
merits of a case. Courts employ a number of doctrines to determine
justiciability such as standing, ripeness, and mootness." Schanou, 62
F.3d at 1042.
Gray v. City of Valley Park, 567 F.3d 976, 982-83 (8th Cir. 2009).
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"The difference between an abstract question and a 'case or controversy' is one
of degree, of course, and is not discernible by any precise test." Babbitt, 442 U.S. at
297. "The basic inquiry is whether the conflicting contentions of the parties present
a real, substantial controversy between parties having adverse legal interests, a dispute
definite and concrete, not hypothetical or abstract." Id. at 298 (internal quotation
omitted).
Specifically, in the First Amendment context, even though Plaintiffs are not
required to await and undergo a criminal prosecution, they must face a credible threat
of present or future prosecution under the statute for a claimed chilling effect to confer
standing to challenge the constitutionality of a statute that both provides for criminal
penalties and abridges First Amendment rights. Id.; Minn. Citizens Concerned for
Life v. FEC, 113 F.3d 129, 131 (8th Cir. 1997). We acknowledge that in this context
the "chilling effect alone may constitute injury." St. Paul Area Chamber of Commerce
v. Gaertner, 439 F.3d 481, 487 (8th Cir. 2006). Yet, the "chilling" effect of exercising
a First Amendment right must be objectively reasonable. Republican Party of Minn.
v. Klobuchar, 381 F.3d 785, 792 (8th Cir. 2004). "[A] plaintiff 'suffers Article III
injury when [he or she] must either make significant changes . . . to obey the
regulation, or risk a criminal enforcement action by disobeying the regulation.'"
Gaertner, 439 F.3d at 487 (quoting Minn. Citizens, 131 F.3d at 131). Here, however,
Plaintiffs (with the exception of Farkarlun) do not face a credible threat of
prosecution–the "risk" they face is too speculative.
Plaintiffs argue that under Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007), the district court failed to take Plaintiffs' allegations as true and rather
"substituted [its] viewpoint" in determining that their belief regarding potential
prosecution was nothing more than pure speculation and conjecture. This argument
misses the mark. Even when we fully credit Plaintiffs' subjective and sincere belief
that they could be criminally charged under this statute, their subjective belief is not
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enough to confer standing. The gravamen of Plaintiffs' claims on appeal is whether
Plaintiffs satisfy the injury-in-fact requirement for constitutional standing–that is, have
they asserted facts that affirmatively and plausibly suggest that they are indeed subject
to a credible threat of prosecution under the statute for engaging in the conduct for
which they invoke constitutional protection. Stalley v. Catholic Health Initiatives, 509
F.3d 517, 521 (8th Cir. 2007); see also Klobuchar, 381 F.3d at 792-93 (affirming a
dismissal of claims under a First Amendment facial overbreadth challenge for lack of
standing because there was no credible threat of prosecution for the conduct for which
the parties invoked constitutional protection–indeed, the conduct was not even
proscribed by the challenged statute). We agree with the district court that Plaintiffs
fail to meet their Article III burden.
It is worth repeating that the speech Plaintiffs claim is chilled by the statute–the
right to make truthful (or not knowingly false) claims of police misconduct–is not the
target of the statute's prohibition, which criminalizes the reporting of police
misconduct knowing that the information is false. Herein lies the problem, really. In
the normal course, the behavior allegedly chilled is the target or object of the
challenged statute's prohibitions and "there is ordinarily little question that the
[statute] has caused . . . injury." Minn. Citizens, 113 F.3d at 131 (quotation omitted).
Despite this difference, Plaintiffs assert that their sincere fear suffices to prove an
unconstitutional chilling effect. Plaintiffs claim that they have thoroughly described
why they are concerned about criminal prosecution, why the statute could be easily
manipulated, and the possible motives police may have to misuse the state criminal
justice system to try to protect themselves and their "buddies" from civil or criminal
prosecution. Even so, they fail in the key respect of asserting that peace officers in
fact initiate retaliatory prosecution in instances where the peace officers believe that
the allegations are truthful, or at least not knowingly false. It is too speculative for
standing purposes to allege that this statute could be manipulated or that the police
might misuse the criminal justice system for retaliatory purposes. While general
factual allegations of injury might suffice to establish standing in some instances,
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general allegations of possible or potential injury do not. Stalley, 509 F.3d at 521.
Plaintiffs have thus not "nudged their claims across the line from conceivable to
plausible." Twombly, 550 U.S. at 570.3
Additionally, the inclusion of Farkarlun does not help because while Plaintiffs
assert that Farkarlun's claim of police misconduct (rape) was truthful and she was
nevertheless prosecuted under the statute, thus affirming the plausibility of the fear
alleged by all other Plaintiffs, they once again fail to include any allegation that the
peace officer that received Farkarlun's complaint believed it to be true (or not
knowingly false) but nonetheless insisted that charges be filed or otherwise initiated
prosecution.4
3
Although not fully addressed by the district court, Plaintiffs similarly lack
standing to pursue their equal protection and due process (void for vagueness) claims
because they have not alleged an injury-in-fact for purposes of Article III. To satisfy
Article III's standing requirement, (1) there must be "injury in fact" or the threat of
"injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury must be fairly traceable to defendant's
challenged action; and (3) it must be likely (as opposed to merely speculative) that a
favorable judicial decision will prevent or redress the injury. Summers v. Earth Island
Inst., 129 S. Ct. 1142, 1149 (2009). As we have established, Plaintiffs' claims here
are too conjectural or hypothetical to support the exercise of our jurisdiction.
4
This leads us to comment on the fact that it is not the police themselves that
necessarily "prosecute" under this statute. Defendants accurately point out that an
officer's complaint charging such a "knowing" violation must be signed under oath,
and requires approval of the prosecuting attorney and a judicial finding of probable
cause. See Minn. R. Crim. P. 2.01-2.02. Accordingly, as to the individuals
responsible for exercising prosecutorial discretion and providing approval in these
instances, Plaintiffs must assert that they, too, believe allegations to be true (or at least
not knowingly false), yet nonetheless initiate prosecution.
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B. Younger Abstention
Plaintiffs also appeal the district court's abstention under the Younger doctrine.
The district court analyzed the factors supporting abstention under Younger v. Harris
and found each satisfied. The court therefore abstained from hearing Farkarlun's
claim. We agree these factors are met in this case, find no showing of bad faith or
other extraordinary circumstances, and for the reasons stated by the district court,
affirm the district court's analysis of those factors. See 8th Cir. R. 47B.
III. CONCLUSION
For the reasons stated herein, we affirm.
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