Bourgeois v. Peters

• Decision Date: 15 October 2004
• Docket Number: No. 02-16886.,02-16886.
• Citation: 387 F.3d 1303
• Parties: Roy L. BOURGEOIS, Jeff Winder, Becky Johnson, Eric Lecompte, School of the Americas Watch, Plaintiffs-Appellants, v. Bobby PETERS, Willie L. Dozier, Consolidated Government of Columbus, Georgia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

387 F.3d 1303

Roy L. BOURGEOIS, Jeff Winder, Becky Johnson, Eric Lecompte, School of the Americas Watch, Plaintiffs-Appellants, v. Bobby PETERS, Willie L. Dozier, Consolidated Government of Columbus, Georgia, Defendants-Appellees.

No. 02-16886.

United States Court of Appeals, Eleventh Circuit.

October 15, 2004.

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Gerald R. Weber, American Civil Liberties Union Foundation, Atlanta, GA, William P. Quigley, Loyola University Law Clinic, New Orleans, LA, for Plaintiffs-Appellants.

James C. Clark, Jr., Page, Scrantom, Sprouse, Tucker & Ford, P.C., Clifton C. Fay, Jaimie Briggs DeLoach, Columbus, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, BIRCH and GOODWIN^*, Circuit Judges.

TJOFLAT, Circuit Judge:

The plaintiffs in this case are an organization called "School of the Americas Watch" ("SAW") and several of its members, including SAW's founder, Rev. Roy Bourgeois. The group engages in various forms of nonviolent protest, seeking to pressure the federal government to cut funding to the Western Hemisphere Institute for Security Cooperation, better known as the "School of the Americas" (SOA). The SOA is run by the United States Army and housed at Fort Benning, Georgia. It trains military leaders from other countries throughout the Western Hemisphere in combat and various counterinsurgency techniques. SAW contends that the SOA bolsters military dictatorships by training their leaders how to kill, to torture, and otherwise to suppress their citizens.

As part of its ongoing efforts to shut down the SOA, the SAW engages in an annual protest each November on property open to the public immediately outside of Fort Benning. Approximately 15,000 people attend the demonstration each year. Throughout the thirteen-year history of these protests, no weapons have ever been found at the protest site, and no protestor has ever been arrested for an act of violence. Each year, however, a small number of protestors violate 18 U.S.C. § 1382 by entering onto Fort Benning and attempting to march to the SOA,¹ which is actually located a few miles inside the base.

In November 2002, a week before that year's protest, the City of Columbus ("the City") instituted a policy requiring everyone wishing to participate in the protest to submit to a magnetometer (essentially, a metal detector) search at a checkpoint "a couple of long city blocks" away from the SAW protest site. If the magnetometer indicated the presence of metal as a protester was walking through it, police would physically search that individual's person and belongings. The police estimated that protestors "would probably have to arrive ... an hour and a half, maybe 2 hours, ahead of time" to get through the metal detector checkpoints to the protest site.

The City contends that its decision to conduct mass searches was based on several factors. First, the Department of Homeland Security threat assessment level was "elevated," indicating a "significant" risk of attack. Second, protestors in previous years had demonstrated a history of "lawlessness" because many of them engaged in frenzied dancing, did not immediately disburse at the end of the scheduled protest, and "formed a `global village' from large debris." In addition, some of them ignited a smoke bomb, and a few entered onto Fort Benning in a peaceful march to the SOA. Finally, SAW had invited several "affinity groups"—in particular, the Anarchists—to attend the protest that had allegedly instigated violence at other, unrelated protests such as the one that led to a riot in Seattle during a 1999 meeting of the World Trade Organization.²

SAW immediately sought a temporary restraining order and preliminary injunction from the United States District Court for the Middle District of Georgia,³ alleging that the searches violated protestors' First and Fourth Amendment rights. Two days later, the court held a hearing on preliminary relief, which the parties agreed to consolidate with the trial on the merits. The court refused to enter an injunction and instead dismissed the complaint. As a result, the City conducted the magnetometer searches as planned. SAW appeals the denial of a permanent injunction against the magnetometer searches. While this appeal was pending, in November 2003, SAW again held a protest, and the City again conducted magnetometer searches.

We conclude that these searches violate the First and Fourth Amendments to the Constitution. Part I of this opinion explains why this case falls within the exception to the mootness doctrine for issues that are "capable of repetition, yet evading review." Part II discusses how the City of Columbus search policy contravenes the Fourth Amendment, while Part III sets forth the reasons why the searches violate the First Amendment. Part IV briefly concludes.

I.

Before reaching the merits of this matter, we must first determine whether we may exercise jurisdiction over it. Because Article III of the Constitution limits the jurisdiction of federal courts to "cases and controversies," Nat'l Adver. Co. v. City of Ft. Lauderdale, 934 F.2d 283, 285-86 (11th Cir.1991), we cannot entertain this appeal unless an actual dispute continues to exist between the parties. If the matter has become moot, we must vacate the district court's ruling and dismiss the case. See De La Teja v. United States, 321 F.3d 1357, 1364 (11th Cir.2003) ("[W]hen an issue in a case becomes moot on appeal, the court not only must dismiss as to the mooted issue, but also vacate the portion of the district court's order that addresses it."). The City points out that the original complaint sought an injunction against mass searches at SAW's 2002 protest. Because that protest occurred over two years ago, they argue, this matter is moot. The point is well-taken. "Past injury from alleged unconstitutional conduct does not in itself show a present case or controversy regarding injunctive relief, if unaccompanied by current adverse effects." Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir.1984).

There is an exception to this general rule, however. We may entertain a moot case if it arises from a situation that is "capable of repetition, yet evading review." Alabama Disabilities Advocacy Program v. J.S. Tarwater Devel., 97 F.3d 492, 496 n. 1 (11th Cir.1996) ("[E]ven if the appeal would otherwise be moot, this case is an appropriate one to decide on the merits because the challenged action is capable of repetition, yet evading review."). This standard is satisfied where "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam). As a final requirement, if there exists some alternative vehicle through which a particular policy may effectively be subject to a complete round of judicial review, then courts will not generally employ this exception to the mootness doctrine. See Sierra Club v. EPA, 315 F.3d 1295, 1303 n. 11 (11th Cir.2002) ("The lawfulness of the Extension Policy can be reviewed in any challenge to EPA's approval of [permanent air quality standards]. Thus, even if the allegedly improper reliance on the Extension Policy [in promulgating interim quality standards] could be repeated, it would not evade review, and the exception to the mootness doctrine does not apply."). The mass searches at issue in this case satisfy all three prongs of this test.

First, the time between the City's decision to institute magnetometer searches at an SAW protest in a given year and the protest itself is too short to allow full consideration by the district court, this court, and possibly the Supreme Court. In 2002, the City announced that it was mandating magnetometer searches barely two weeks before the protest; a two week period is clearly insufficient to allow meaningful judicial review. Even if SAW were to file a preemptive suit for an injunction a full year prior to its next rally, that period of time could well prove insufficient for a complete round of judicial review. The instant appeal, for example, has been pending in this court close to a year.

We have never definitively stated the amount of time the federal judiciary must have to adjudicate a dispute that would constitute sufficient opportunity for review. Among the time periods that we have held to be insufficient for full judicial review of a dispute are twenty-four hours,⁴ an "[e]lection period[]" of unspecified length,⁵ and four months.⁶ Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), sets a useful benchmark in this area; the Supreme Court there held that a 266-day pregnancy is insufficient time to allow for full appellate review. See Dow Jones & Co. v. Kaye, 256 F.3d 1251, 1257 (11th Cir.2001). Guided by these precedents, as well as our experience with appellate dockets, we conclude that one year is an insufficient amount of time for a district court, circuit court of appeals, and Supreme Court to adjudicate the typical case. Consequently, if this issue arises again regarding a future protest, it is likely to evade review because the protest will occur before the parties have a final ruling on the merits from a court of last resort.

SAW also satisfies the second prong of the "capable of repetition yet evading review" test because it has a "reasonable expectation" that the City will continue to implement mass, warrantless, suspicionless magnetometer searches at SAW protests in future years. Christian Coalition v. Cole, 355 F.3d 1288, 1291 (11th Cir.2004) ("Only when the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated are federal courts precluded from deciding the case on mootness...