Gerber v. Herskovitz

• Decision Date: 15 September 2021
• Docket Number: No. 20-1870,20-1870
• Citation: 14 F.4th 500
• Parties: Marvin GERBER; Miriam Brysk, Plaintiffs-Appellants, v. Henry HERSKOVITZ; Gloria Harb; Tom Saffold; Ruby List; Chris Mark; Deir Yassin Remembered, Inc. ; Jewish Witnesses for Peace and Friends; City of Ann Arbor, Michigan ; Christopher M. Taylor, Derek Delacourt, Stephen K. Postema, and Kristen D. Larcom, in their official and individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

14 F.4th 500

Marvin GERBER; Miriam Brysk, Plaintiffs-Appellants,

v.Henry HERSKOVITZ; Gloria Harb; Tom Saffold; Ruby List; Chris Mark; Deir Yassin Remembered, Inc. ; Jewish Witnesses for Peace and Friends; City of Ann Arbor, Michigan ; Christopher M. Taylor, Derek Delacourt, Stephen K. Postema, and Kristen D. Larcom, in their official and individual capacities, Defendants-Appellees.

No. 20-1870

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2021

Decided and Filed: September 15, 2021

Rehearing En Banc Denied November 2, 2021

ARGUED: Marc M. Susselman, Canton, Michigan, for Appellants. John A. Shea, Ann Arbor, Michigan, for Appellees Henry Herskovitz, Jewish Witnesses for Peace and Friends, Ruby List, Chris Mark, and Tom Saffold. Timothy S. Wilhelm, CITY OF ANN ARBOR, Ann Arbor, Michigan, for City of Ann Arbor Appellees. ON BRIEF: Marc M. Susselman, Canton, Michigan, Ziporah Reich, THE LAWFARE PROJECT, New York, New York, for Appellants. John A. Shea, Ann Arbor, Michigan, Cynthia Heenan, CONSTITUTIONAL LITIGATION ASSOC., P.C., Detroit, Michigan, for Appellees Henry Herskovitz, Jewish Witnesses for Peace and Friends, Ruby List, Chris Mark, and Tom Saffold. Timothy S. Wilhelm, CITY OF ANN ARBOR, Ann Arbor, Michigan, for City of Ann Arbor Appellees. Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Amici Curiae.

Before: SUTTON, Chief Judge; CLAY and McKEAGUE, Circuit Judges.

SUTTON, C.J., delivered the opinion of the court in which McKEAGUE, J., joined, and CLAY, J., joined in the result. CLAY, J. (pp. 512-23), delivered a separate concurring opinion.

SUTTON, Chief Judge.

Anti-Israel protesters have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan, every week going back to 2003, over 935 weeks in total. Understandably frustrated with this pattern, members of the congregation sued the protesters and the city. The district court granted the defendants’ motions to dismiss for lack of standing. We disagree on that point, as the plaintiffs have alleged a concrete and particularized harm to a legally protected interest. But the reality that they have standing to bring these claims does not entitle them to relief. The key obstacle is the robust protections that the First Amendment affords to nonviolent protests on matters of public concern. We affirm the district court's dismissal on that basis.

I.

Every Saturday morning since September 2003, protesters have picketed the Beth Israel Synagogue. Their group typically comprises six to twelve people, and they display signs on the grassy sections by the sidewalk in front of the synagogue and across the street from it. The signs carry inflammatory messages, with statements such as "Resist Jewish Power," "Jewish Power Corrupts," "Stop Funding Israel," "End the Palestinian Holocaust," and "No More Holocaust Movies." R.11 at 2–3. The protests apparently target the members of the Beth Israel Congregation, as they coincide with the arrival of the congregants to their worship service on Saturday morning. The congregants and their children can see the signs as they enter their worship service. But the protesters have never prevented them from entering their house of worship, have never trespassed on synagogue property, and have never disrupted their services.

The signs, the congregants allege, inflict extreme emotional distress on members of the synagogue. Marvin Gerber, for example, sometimes forgoes attending services or visits a different synagogue to avoid the signs. Dr. Miriam Brysk, a Holocaust survivor, feels extreme emotional distress when she sees the signs.

The protesters have not applied for or obtained a permit to engage in these activities. City employees have insisted that they cannot curtail the protesters’ conduct because the First Amendment protects it. Ann Arbor police at times have been present at the protests and in those instances have not interfered with the protesters’ activities. Counsel for Gerber and Dr. Brysk contacted city employees and claimed that the protests violated provisions of the municipal code regarding the placement of objects in public thoroughfares. But these communications did not go anywhere.

Fed up, Gerber and Dr. Brysk, referred to as the congregants from now on, filed a lawsuit in federal court against the protesters, the city of Ann Arbor, and various city officials. They brought thirteen federal claims and several state claims. As for the federal claims, the congregants alleged that the protests (and the city's failure to enforce a city sign ordinance against the protesters) violated various federal laws as well as the congregants’ substantive due process and free exercise rights. The congregants also claimed that the city violated their First Amendment right to petition the government when it instructed the congregants’ lawyer not to discuss the sign ordinance with city officials other than the city attorney. The congregants asked for damages and an injunction prohibiting the protests or, in the alternative, one imposing time, place, and manner restrictions on the protests so that they did not take place near the synagogue during services, among other forms of relief.

The protesters and city moved to dismiss the complaint for lack of jurisdiction under Civil Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). The district court granted the 12(b)(1) motion, holding that the congregants lacked standing because their claims of emotional distress did not establish a concrete injury. The district court separately declined to exercise supplemental jurisdiction over the state claims and dismissed them without prejudice. The congregants appealed.

II.

We first take up the district court's standing ruling. The U.S. Constitution empowers the federal courts to decide "Controversies" and "all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States." U.S. Const. art. III, § 2. Consistent with the case-and-controversy requirement, several justiciability doctrines limit the judicial power, the most prominent being standing. To have standing, a plaintiff must allege (1) an injury in fact (2) that's traceable to the defendant's conduct and (3) that the courts can redress. Lujan v. Defs. of Wildlife , 504 U.S. 555, 559–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The standing inquiry is not a merits inquiry. A merits defect deprives a court of subject matter jurisdiction only if the claim is utterly frivolous. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

The congregants readily satisfy the second and third prongs of the standing inquiry. As to traceability, a defendant's actions must have a "causal connection" to the plaintiff's injury. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. The congregants have alleged that the protesters’ conduct and their conspiracy with city employees not to enforce the city's ordinances foreseeably caused members of the congregation extreme emotional distress. That creates the requisite causal link. As to redressability, it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130 (quotation omitted). If the district court awarded damages or enjoined the Saturday morning protests, that relief would redress the congregants’ alleged injuries.

The key question is whether the congregants’ allegation—that the protesters caused them extreme emotional distress—establishes a cognizable injury in fact. To satisfy this imperative, the claimant must establish the " ‘invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). To qualify as particularized, an injury "must affect the plaintiff in a personal and individual way," Lujan , 504 U.S. at 560 n.1, 112 S.Ct. 2130, not in a general manner that affects the entire citizenry, Lance v. Coffman , 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007). The parties all agree that this injury is particularized. So do we. The protesters directed their picketing at the synagogue goers based on the time and location of their demonstrations, and the picketing indeed affected them in a "personal and individual way." Lujan , 504 U.S. at 560 n.1, 112 S.Ct. 2130.

But is this particularized injury concrete? A "concrete" injury is one that "actually exist[s]." Spokeo , 136 S. Ct. at 1548. In the case of an intangible injury like this one, the claimant must establish "a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Id. at 1549 ; see TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2204, 210 L.Ed.2d 568 (2021). Emotional distress fits that bill. "Distress," including "mental suffering or emotional anguish," forms "a personal injury familiar to the law." Carey v. Piphus , 435 U.S. 247, 263, 264 n.20, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). It carries a "close relationship" to a traditional harm. Spokeo , 136 S. Ct. at 1549. And it has "been part of our common-law tradition for centuries." Buchholz v. Meyer Njus Tanick, PA , 946 F.3d 855, 873 (6th Cir. 2020) (Murphy, J., concurring in part) (citing Joseph Henry Beale, Collection of Cases on the Measure of Damages 337–63 (1895); Arthur G. Sedgwick, Elements of Damages: A Handbook for the Use of Students and Practitioners 98–105 (1896)).

Any other conclusion would deprive a federal court sitting in diversity of authority to hear any state law intentional infliction of emotional distress claim. That would be news to a lot of people, including many parties who have won and lost such claims on the merits in federal court over the years.

The congregants’ allegations in the end come comfortably within...