Bischoff v. Osceola County Florida, No. 99-2354

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: MARCUS
• Citation: 222 F.3d 874
• Parties: (11th Cir. 2000) Cheryl BISCHOFF, Vicky Stites, Plaintiffs-Appellants, v. OSCEOLA COUNTY, FLORIDA, a Political Subdivision of the State of Florida, Charles Croft, Sheriff, in his official capacity, Defendants-Appellees.
• Docket Number: No. 99-2354
• Decision Date: 14 August 2000

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222 F.3d 874 (11th Cir. 2000) Cheryl BISCHOFF, Vicky Stites, Plaintiffs-Appellants,
v.
OSCEOLA COUNTY, FLORIDA, a Political Subdivision of the State of Florida, Charles Croft, Sheriff, in his official capacity, Defendants-Appellees. No. 99-2354. United States Court of Appeals,
Eleventh Circuit. Aug. 14, 2000.

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Appeal from the United States District Court for the Middle District of Florida.(No. 98-00583-CV-ORL-18C), G. Kendall Sharp, Judge.

Before EDMONDSON and MARCUS, Circuit Judges, and HANCOCK^*, District Judge.

MARCUS, Circuit Judge:

In this appeal, we address whether a federal district court, having raised sua sponte a question about the Plaintiffs' standing, may dismiss a complaint determining that the Plaintiffs lack standing simply by making a credibility determination based on the contents of squarely

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conflicting affidavits without taking oral testimony at an evidentiary hearing.

Plaintiffs Cheryl Bischoff and Vicky Stites filed this action alleging that certain Florida traffic control laws are unconstitutional on their face and as applied. Presented with cross-motions for summary judgment on the merits, the district court ruled sua sponte that Plaintiffs' as applied challenge failed for lack of standing because the Plaintiffs were not threatened with arrest and therefore sustained no injury in fact. In so ruling, however, the court resolved central factual disputes and made witness credibility choices on issues material to standing just by relying on its reading of warring affidavits. Because we conclude that in this situation the district court was required to conduct an evidentiary hearing before resolving the disputed factual issues, and could not make credibility determinations based solely on the contents of a plainly conflicting paper record, we are constrained to reverse the dismissal of this action and remand to the district court to either hold an evidentiary hearing on the question of standing or to consider the merits of Plaintiffs' as applied challenge as raised in the parties' cross motions for summary judgment.

I.

The core facts of this case are straightforward and squarely in dispute. On December 29, 1997, Plaintiffs Bischoff and Stites, along with other religious activists representing a variety of organizations, participated in a demonstration to protest what they perceived to be Walt Disney World's support of homosexuality. The demonstration occurred along the narrow, grassy islands that border the heavily-trafficked intersection of Irlo Bronson Memorial Highway and Old Vineland Road in Osceola County, Florida. The activists carried signs and handbills expressing their criticism of Walt Disney World's policies regarding homosexuals. When motorists stopped at traffic lights, some of the activists distributed their handbills to them.

The demonstration drew the attention of the Osceola County Sheriff's Department. The officers complained to the activists that the demonstration was backing up traffic. They warned the demonstrators not to impede the flow of traffic and to "stay off the roadway or they would be arrested." Three demonstrators, Phillip Benham, Matthew Bowman, and Seth Marschke, were arrested.¹ The officers

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stated in affidavits that these three activists were arrested because they entered the roadway and impeded the flow of traffic. While Bischoff and Stites concede that Bowman and Marschke entered the shoulder of the intersection before being arrested, they claim that Bowman and Marschke did not enter the traffic lanes, and that Benham simply stood on the grassy median and did not distribute handbills at all. Plaintiffs deny that any of the men impeded the flow of traffic.

Plaintiffs state in their affidavits² that they were engaged in the same handbilling activities as Bowman and Marschke, that they were specifically threatened with arrest, and that, following the arrest of Benham, Bowman, and Marschke, they and the remaining activists were told to stop distributing handbills and to abandon the intersection. Plaintiffs say they would like to return to the intersection to distribute handbills but have not done so for fear they will be arrested.

On May 18, 1998, Bischoff and Stites filed a Complaint against Osceola County, Florida alleging that Florida Uniform Traffic Control Law chapters 316.2055 and 316.2045 were unconstitutional both as applied and on their face. Plaintiffs sought declaratory and injunctive relief to prevent Osceola County from applying the laws to prevent their handbilling activities. On June 9, 1998, Osceola County filed a motion to dismiss on the grounds that the Complaint failed to state a cause of action against it because it had no connection to or power over the enactment or enforcement of the statutes at issue. In response to Osceola County's motion to dismiss, Plaintiffs filed an Amended Complaint on July 8, 1998. The Amended Complaint added Osceola County Sheriff Charles Croft, acting in his official capacity, as a Defendant in the action. Plaintiffs again alleged that the challenged statutes were unconstitutional both as applied and on their face and sought declaratory and injunctive relief. Soon thereafter, Sheriff Croft filed a motion to dismiss, or in the alternative for summary judgment. On July 30, 1998, Osceola County also filed a motion to dismiss. Plaintiffs, in turn, filed a cross motion for summary judgment.

On February 2, 1999, in response to the cross motions for summary judgment, the district court denied Plaintiffs' motion for summary judgment and dismissed the action. First, the court held that Plaintiffs "lack standing to challenge the statutes as applied because they cannot establish that they suffered an actual or threatened injury sufficient to ensure that the court would not be rendering an advisory opinion."³ Order at 6. Next, apparently finding that Plaintiffs did have standing to bring their facial challenge, the court denied Plaintiffs' overbreadth claim on the merits. The court held that Plaintiffs' facial challenge failed because the statutes were not substantially overbroad but were "merely traffic laws that regulate conduct in a neutral manner." Order at 11.

II.

As an initial matter, we emphasize that the district court correctly reached out and considered the question of standing sua sponte. As the Supreme Court made clear in United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995), "[t]he question of standing is not

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subject to waiver .... 'The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines.' " Id. at 742, 115 S.Ct. at 2435 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990)) (internal quotation marks omitted); see also University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir.1999) (noting that "it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking"); Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir.1995) (explaining that " '[b]efore rendering a decision ... every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based; and this obligation on the court to examine its own jurisdiction continues at each stage of the proceedings, even if no party raises the jurisdictional issue and both parties are prepared to concede it' ") (quoting Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 759 (11th Cir.1991)); Alabama v. United States Envtl. Protection Agency, 871 F.2d 1548, 1554 (11th Cir.1989) (noting that "[s]tanding is a jurisdictional prerequisite to suit in federal court") (citing Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 475-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

The party invoking federal jurisdiction bears the burden of proving standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Moreover, each element of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. Therefore, when standing becomes an issue on a motion to dismiss, general factual allegations of injury resulting from the defendant's conduct may be sufficient to show standing. However, when standing is raised at the summary judgment stage, the plaintiff can no longer rest on "mere allegations." See id. at 561, 112 S.Ct. at 2137. Instead, the plaintiff must " 'set forth' by affidavit or other evidence 'specific facts,' ... which for purposes of the summary judgment motion will be taken to be true." Id. See also Wilson v. State Bar of Georgia, 132 F.3d 1422, 1427 (11th Cir.1998); Church v. Huntsville, 30 F.3d 1332, 1336 (11th Cir.1994); Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.1993). In Haase v. Sessions, 835 F.2d 902 (D.C.Cir.1987), the D.C. Court of Appeals nicely summarized the various procedural methods by which a district court may come to address standing. According to the court:

[A] defendant's challenge to a plaintiff's standing can take two forms: a motion to dismiss, which is based exclusively on plaintiff's pleadings, and a motion for summary judgment, in which evidence, not pleadings, pertinent to standing are evaluated by the district court. In both instances, disputed facts must be construed in the light most favorable to plaintiff. In addition to these two party-initiated motions, the court on its own initiative may undertake evidentiary hearings, even in the context of a motion to...