Jamal v. Kane

• Decision Date: 06 March 2015
• Docket Number: 1:15–CV–45.,Civil Action Nos. 1:14–CV–2148
• Citation: 96 F.Supp.3d 447
• Parties: Mumia Abu JAMAL, et al., Plaintiffs v. Kathleen KANE, Attorney General of Pennsylvania, et al., Defendants. Prison Legal News, et al., Plaintiffs v. Kathleen Kane, Attorney General of Pennsylvania, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

96 F.Supp.3d 447

Mumia Abu JAMAL, et al., Plaintiffs

v.Kathleen KANE, Attorney General of Pennsylvania, et al., Defendants.

Prison Legal News, et al., Plaintiffs

v.Kathleen Kane, Attorney General of Pennsylvania, et al., Defendants.

Civil Action Nos. 1:14–CV–2148

1:15–CV–45.

United States District Court, M.D. Pennsylvania.

Signed March 6, 2015.

Ashley K. Henderson, Deneekie Grant, Amistad Law Project, Philadelphia, PA, Bret D. Grote, Dustin McDaniel, Jules Lobel, Pittsburgh, PA, David Shapiro, Northwestern Univ. School of Law, David M. Shapiro, Chicago, IL, for Mumia Abu Jamal, et al.

Amy B. Ginensky, Eli Segal, Pepper Hamilton LLP, Seth F. Kreimer, Philadelphia, PA, Lance T. Weber, Sabarish P. Neelakanta, Lake Worth, FL, Sara J. Rose, American Civil Liberties Foundation of Pennsylvania, Witold J. Walczak, American Civil Liberties Union of PA, Pittsburgh, PA, Thomas B. Schmidt, III, Tucker R. Hull, Pepper Hamilton LLP, Harrisburg, PA, for Prison Legal News, et al.

Kenneth L. Joel, M. Abbegael Giunta, Office of Attorney General, Harrisburg, PA, Bryan C. Hughes, Michael R. Scalera, Philadelphia District Attorney's Office, Philadelphia, PA, for Defendants.

MEMORANDUM

CHRISTOPHER C. CONNER, Chief Judge.

Presently before the court are two challenges to the Revictimization Act, 18 Pa.Stat. § 11.1304, a 2014 amendment to Pennsylvania's Crime Victims Act, 18 Pa.Stat. §§ 11.101 et seq. Plaintiff's attack the constitutionality of Section 11.1304, which authorizes the Commonwealth's Attorney General, district attorneys, and “victims” of personal injury crimes to bring a civil action seeking injunctive and other relief whenever an “offender” engages in any “conduct which perpetuates the continuing effect of the crime on the victim.” 18 Pa.Stat. § 11.1304(a) -(b). At the parties' joint request, the court consolidated the above-captioned matters for purposes of resolving various pending motions.

Both plaintiff groups seek preliminary and permanent injunctive relief in addition to a declaratory judgment that the Act is unconstitutional, both facially and as applied to plaintiffs, in violation of the First Amendment to the United States Constitution. Defendants oppose plaintiffs' requests and further move to dismiss both actions for want of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendant R. Seth Williams, District Attorney for Philadelphia County, separately asserts that plaintiffs fail to state a viable claim under Rule 12(b)(6). In this opinion, the court will address defendants'? threshold jurisdictional challenges. See Tolan v. United States, 176 F.R.D. 507, 509 (E.D.Pa.1998) ( “[T]he court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot.”) (citing In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D.Pa.1993), aff'd 39 F.3d 61 (3d Cir.1994) ).

I. Background¹

On October 21, 2014, on a street corner in Philadelphia, Pennsylvania, then-Governor Tom Corbett signed the Revictimization Act, 18 Pa.Stat. § 11.1304, into law. The Act provides, in full:

(a) ACTION.—In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonably attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

(b) REDRESS ON BEHALF OF VICTIM.—The district attorney of the county in which a personal injury crime took place or the Attorney General, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.

(c) INJUNCTIVE RELIEF.—Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.

(d) DEFINITION.—As used in this section, the term “conduct which perpetuates the continuing effect of the crime on the victim” includes conduct which causes a temporary or permanent state of mental anguish.

18 Pa.Stat. § 11.1304. Neither the Revictimization Act itself nor any other provision of the Crime Victims Act defines the term “offender.” See id. The Crime Victims Act defines “victim” to include: a direct victim (defined as “[a]n individual against whom a crime has been committed or attempted ....”); a parent or legal guardian of a child victim; a minor child who is a material witness to homicide, aggravated assault, or rape committed or attempted against a member of the child's family; and a family member of a homicide victim. Id. § 11.103. The term “family member” is further defined to include anyone related to the victim within the third degree of consanguinity, anyone maintaining a common-law relationship with the victim, and any resident of a victim's household, as well as “stepbrothers or stepsisters, stepchildren, stepparents or a fiancé.”Id.

The Act's sponsor, State Representative Mike Vereb, introduced the legislation on October 2, 2014, three days after Goddard College—a small liberal arts college in Vermont and plaintiff Mumia Abu–Jamal's alma mater —announced its selection of Abu–Jamal as its commencement speaker. (See PLN Doc. 1 ¶¶ 22, 25; Abu–Jamal Doc. 12 ¶¶ 16, 22–23).² Representative Vereb thereafter circulated a memorandum soliciting co-sponsors for the legislation, stating:

A convicted murderer is still traumatizing the victim's family and it needs to stop. We need to ensure this doesn't happen to any other victim or their family ....

Officer Faulkner's wife Maureen was left a widow by Abu–Jamal. But not only did Maureen lose her husband and the life she hoped to lead with him, Maureen also since has been revictimized again and again by Abu–Jamal's ongoing acts. It is time to put a stop to this, not only for Maureen, but for all victims of personal crimes.

(PLN Doc. 1 ¶ 26). On October 6, 2014, the House Judiciary Committee convened to discuss the Revictimization Act. (See id. ¶ 28). In opening remarks, the Committee Chairman opined that the Act would help eliminate the “extreme distress” suffered by victims and their families, and admonished the College for its “unworthy” and “despicable” decision to “allow a cold-blooded murderer to engage in this conduct.” (Id. ¶ 29). Committee Counsel explained that the Act vests broad discretion in courts presiding over such cases, positing that it may even permit a court “to stop a third party who is the vessel of [offender] conduct or speech from delivering it or publishing that information.” (Id. ¶¶ 32–33). Encouraging the legislature to pass the Act, Governor Corbett explained that it would “prevent convicted violent felons from every day revictimizing families and other injured parties by using public venues to promote themselves and their own agenda truly at the emotional expense of the victims and of the public.” (Id. ¶ 35).

The Act unanimously passed the State House of Representatives on October 15, 2014, less than two weeks after its introduction. (See id. ¶ 38). The following day, the Senate passed the Act by a 37–11 vote. (Id. ¶ 39). At an October 21 bill-signing ceremony near the intersection where Abu–Jamal's crime of conviction occurred, Governor Corbett championed the Act's ability to enjoin offenders whose speech continues to distress victims. The Governor noted that the Act “is not about any one single criminal,” but that it was certainly “inspired by the excesses and hypocrisy of one particular killer,” (see Doc. 19–7, Ex. 4 at 1), ostensibly Abu–Jamal. The law took effect immediately. See 2014 Pa. Laws 150, § 2.

On November 10, 2014, twenty days after the Act became law, the Abu–Jamal plaintiffs filed a complaint pursuant to 42 U.S.C. § 1983, asserting that the legislation is an unconstitutional restriction of speech in violation of the First Amendment. (See Abu–Jamal Doc. 1). Plaintiffs filed an amended complaint, joining several additional plaintiffs to the litigation, shortly thereafter. (Abu–Jamal Doc. 12). Plaintiffs in Abu–Jamal are a group of five incarcerated individuals who engage in written and oral human rights advocacy; a California nonprofit organization that broadcasts prisoner recordings online; a Philadelphia nonprofit that advocates on behalf of prisoners; and an unincorporated network of educators who advocate for Abu–Jamal's release. (See Abu–Jamal Doc. 12 ¶¶ 6–13). Together, the Abu–Jamal plaintiffs assert that the Act is void for vagueness and overbreadth, and is further an impermissible content-based regulation of speech. They seek declaratory judgment and permanent injunctive relief, in addition to the preliminary injunctive relief sought by motion filed January 8, 2015. (See Abu–Jamal Doc. 18).

Also on January 8, 2015, plaintiffs in Prison Legal News simultaneously filed a verified complaint and motion for a preliminary injunction. (See PLN Docs. 1–2). The Prison Legal News plaintiff group comprises various entities and individuals who rely on and publish speech by individuals such as plaintiffs in Abu–Jamal, in addition to five individuals formerly incarcerated for personal injury crimes in Pennsylvania who now engage in a variety of advocacy activities. (See PLN Doc. 1 ¶¶ 27–150). In addition to the vagueness, overbreadth, and content-based arguments raised by the Abu–Jamal plaintiffs, the Prison Legal News complaint challenges the Act as an unlawful prior restraint of speech. (See id. ¶¶ 169–74).

The court consolidated the actions for purposes of resolving the motions for injunctive relief and defendants' anticipated Rule 12 filings. (See Abu–Jamal Docs. 23, 29; PLN Docs. 10, 21). On January 23, 2015, the Attorney General and District Attorney Williams...