Am. Fed'n of Labor v. City of Miami, 09–14992.

Citation637 F.3d 1178
Decision Date05 April 2011
Docket NumberNo. 09–14992.,09–14992.
PartiesAMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Florida Alliance of Retired Americans, Thea Lee, Deborah Dion, Michael Cavanaugh, Stewart Acuff, Plaintiffs–Appellants,v.CITY OF MIAMI, FL, John Timoney, in his individual capacity, Frank Fernandez, in his individual capacity, Thomas Cannon, in his individual capacity, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

OPINION TEXT STARTS HERE

Jonathan Clifford Moore, Beldock Levine & Hoffman, LLP, New York, NY, Roy D. Wasson, Annabel Castle Majewski, Wasson & Associates, Miami, FL, for PlaintiffsAppellants.John A. Greco, Miami, FL, Ronald Jay Cohen, Ronald J. Cohen, P.A., Hialeah, FL, for DefendantsAppellees.Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, KRAVITCH and SILER,* Circuit Judges.

KRAVITCH, Circuit Judge:

The American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), the Florida Alliance of Retired Americans (FLARA), and several employees of the AFL–CIO sued the City of Miami and several of its police officers under 42 U.S.C. § 1983. The plaintiffs sought damages, as well as declaratory and injunctive relief. The district court held that the plaintiffs lacked standing to pursue their claims for declaratory and injunctive relief and dismissed those claims, as well as claims that the defendants had violated their Fourteenth Amendment rights. The district court later rendered summary judgment in favor of the defendants on the remaining claims. The plaintiffs appealed. After a thorough review of the record and oral argument, we conclude that the plaintiffs have failed to present genuine issues of material fact on essential elements of their claims, that their claims for declaratory and injunctive relief are moot, and that their claims for violation of their Fourteenth Amendment rights were properly dismissed. Accordingly, we affirm the judgment of the district court.

I.

In November 2003, Miami hosted a meeting of ministers, leaders, and diplomats who were negotiating an agreement to establish the Free Trade Area of the Americas (FTAA). A number of organizations and individuals also came to Miami to protest the FTAA. Among the protestors and organizations were the plaintiffs in this case: the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), the Florida Alliance of Retired Americans (FLARA), and several employees of the AFL–CIO: Stewart Acuff, Michael Cavanaugh, Deborah Dion, and Thea Lee.

To protest the FTAA, the AFL–CIO planned a number of events, ranging from galas and forums to marches and rallies. The AFL–CIO also contacted organizations who were likewise opposed to the FTAA to solicit their support and encourage their participation in the AFL–CIO's activities in Miami. Throughout the planning, the AFL–CIO negotiated with the City of Miami and the Miami Police Department (MPD) to secure the proper permits for its events, to discuss possible routes for its planned march, and to ensure cooperation between the police and protestors. On this last point, the AFL–CIO repeatedly affirmed its commitment to conduct lawful and peaceful demonstrations. But both the AFL–CIO and the MPD recognized that some protestors might not be as committed to lawful, peaceful protests as the AFL–CIO. The AFL–CIO reached out to some groups who were planning acts of civil disobedience and asked them not to disrupt the AFL–CIO's planned activities. The police prepared as well, by enlisting the aid of other law-enforcement agencies in South Florida and training to deal with large crowds of protestors. But despite extensive planning by the City of Miami, the MPD, the AFL–CIO, FLARA, and many other protestors, what most had hoped would be peaceful protests did not turn out as planned.

Thursday, November 20, 2003, was expected to be the high point of the AFL–CIO's protests against the FTAA but it quickly turned into the protest's nadir. The organization's rally at the Bayfront Park Amphitheater was fraught with problems. The AFL–CIO had coordinated with FLARA to bus in a number of retired Floridians to attend the rally. Because the police diverted traffic on Biscayne Boulevard, many of the busloads of retirees were dropped off far from the amphitheater. A few other buses were directed by the Florida Highway Patrol to turn around and, as a result, never arrived. The AFL–CIO also held a protest march on Thursday. But the march did not follow the planned route; it did not pass the hotel where the ministers were convened.

But these incidents were relatively mild compared with some of the other mishaps that day. For example, police officers drew guns on AFL–CIO employees Deborah Dion and Michael Cavanaugh, while the two staffers were trying to leave the amphitheater. Also, a number of protestors were confined in the amphitheater during the afternoon while police, in full riot gear, marched down Biscayne Boulevard attempting to disperse a crowd of protestors. Thea Lee, another AFL–CIO employee, was caught up in that crowd and she was exposed to a pepper-based chemical irritant.

As a result of these incidents, the plaintiffs sued the City of Miami and several members of the MPD, John Timoney, then the chief of police, Frank Fernandez, then a deputy chief of police, and Thomas Cannon, then a police major. The plaintiffs contend that the defendants deprived them of their constitutional rights under color of state law. See 42 U.S.C. § 1983. The plaintiffs surmise that these deprivations occurred because the City of Miami was hostile towards their anti-FTAA viewpoint, and sought to quell dissent over the proposal because the FTAA would benefit Miami economically.

In Counts 1, 6, and 11 of the complaint, the plaintiffs allege that the City of Miami adopted municipal policies that directly caused violations of their First, Fourth, and Fourteenth Amendment rights. Similarly, in Counts 3 and 8, the plaintiffs contend that the City of Miami is liable because Timoney, an official policy maker, adopted municipal policies that directly caused violations of their First and Fourth Amendment rights. In Count 5, the plaintiffs seek to hold the City of Miami liable for failing to train its employees, which caused the plaintiffs' First, Fourth, and Fourteenth Amendment rights to be violated. In Count 10, the plaintiffs allege that Timoney, Fernandez, and Cannon conspired together to violate their civil rights. In Counts 12 and 13, the plaintiffs contend that Timoney, Fernandez, and Cannon failed to intervene to prevent violations of their First and Fourth Amendment rights. In Count 15, Thea Lee alleges that Timoney, Fernandez, and Cannon ordered their subordinates to act in a manner that violated her Fourth Amendment rights. The district court rendered summary judgment in favor of the defendants on these claims.

In Count 16, the plaintiffs sought to hold Timoney, Fernandez, and Cannon liable for violating their Fourteenth Amendment rights. That count was dismissed by the district court because it concluded that the officers were entitled to qualified immunity. The AFL–CIO also sought declaratory and injunctive relief against the City of Miami to prevent future use of the operational plan developed by the MPD for the FTAA meeting. The district court dismissed that count because it concluded that the AFL–CIO lacked standing.

The plaintiffs' issues on appeal fall into two broad categories. The first category concerns whether summary judgment was inappropriate because there were genuine issues of material fact. The second is whether the district court erred in granting the defendants' motion to dismiss. Because an issue within the second category presents a jurisdictional question, we address it and the other issues regarding the motion to dismiss first. We then turn to the plaintiffs' remaining claims to determine whether summary judgment was appropriate.

II.

We review an order granting a motion to dismiss de novo. Amnesty Int'l, USA v. Battle, 559 F.3d 1170, 1176 (11th Cir.2009). And we accept as true all of the plaintiffs' well-pleaded allegations. Id.

A. Claims for declaratory and injunctive relief

In its complaint, the AFL–CIO asked for declaratory and injunctive relief against the City of Miami and the MPD to prevent them from using the operational plan that was employed during the FTAA meeting. To support its claim for injunctive relief, the AFL–CIO alleged that it

continues to be present and express its views in connection with meetings and forums similar to the FTAA summit that will occur throughout the United States, and which are likely to recur in South Florida; and [the] AFL–CIO expects and intends to sponsor[,] participate[, or both] in public assemblies and demonstrations in South Florida and elsewhere during the months leading up to the November 2008 elections.

The district court granted the defendants' motion to dismiss the AFL–CIO's claim for injunctive relief, because it concluded that the AFL–CIO lacked standing as it had failed to allege a real and immediate threat of future injury. See Elend v. Basham, 471 F.3d 1199, 1207 (11th Cir.2006) ([A] prayer for injunctive and declaratory relief requires an assessment ... of whether the plaintiff has sufficiently shown a real and immediate threat of future harm.”). Before we can consider whether the district court erred in dismissing this claim, we must first determine whether we have subject-matter jurisdiction.

“On every writ of error or appeal, the first and fundamental question is that of jurisdiction....” Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900). Article III of the Constitution limits the judicial power, and consequently our jurisdiction, to cases and controversies. One requirement for jurisdiction is that an actual controversy exist throughout the entire litigation....

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