Hardwick v. Bowers

• Decision Date: 21 May 1985
• Docket Number: No. 83-8378,83-8378
• Citation: 760 F.2d 1202
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Michael HARDWICK, et al., Plaintiffs-Appellants, v. Michael BOWERS, et al., Defendants-Appellees.

Page 1202

760 F.2d 1202

53 USLW 2591

Michael HARDWICK, et al., Plaintiffs-Appellants, v. Michael BOWERS, et al., Defendants-Appellees.

No. 83-8378.

United States Court of Appeals, Eleventh Circuit.

May 21, 1985.

Kathleen L. Wilde, Atlanta, Ga., for plaintiffs-appellants.

George M. Weaver, Asst. Attys. Gen., Atlanta, Ga., for Bowers.

H. Allen Moye, Asst. Dist. Atty., Atlanta, Ga., for Slaton.

Marva Jones Brooks, George R. Ference, Atlanta, Ga., for Napper.

Nan D. Hunter, New York City, for ACLU.

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

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

The Atlanta Police arrested Michael Hardwick on August 3, 1982, because he had committed the crime of sodomy with a consenting male adult in the bedroom of his own home. Charges were brought as a result of the arrest and after a hearing in the Municipal Court of Atlanta Hardwick was bound over to the Superior Court. At that point the District Attorney's office decided not to present the case to the grand jury unless further evidence developed.

Hardwick then filed this suit asking the federal district court to declare unconstitutional the Georgia statute that criminalizes sodomy, O.C.G.A. Sec. 16-6-2 (1984). ¹ Hardwick alleged in his complaint that he is a practicing homosexual who regularly engages in private homosexual acts and will do so in the future. He was joined in bringing the suit by John and Mary Doe, a married couple acquainted with Hardwick. They claimed that they desired to engage in sexual activity proscribed by the statute but had been "chilled and deterred" by the existence of the statute and the recent arrest of Hardwick.

The complaint named as defendants Michael Bowers, Attorney General of Georgia; Lewis Slaton, District Attorney for Fulton County; and George Napper, Public Safety Commissioner of Atlanta. All three filed a motion to dismiss for failure to state a claim upon which relief could be granted.

The district court granted the motion. It ruled that the Does did not have standing to bring suit and that Hardwick, although he possessed standing, had no legal claim in light of the Supreme Court's summary affirmance of a three-judge district court in Doe v. Commonwealth's Attorney for the City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff'g, 403 F.Supp. 1199 (E.D.Va.1975). All three plaintiffs have appealed the dismissal.

I. STANDING

A federal court may not hear a legal claim unless it arises from a genuine case or controversy. A case or controversy requires a plaintiff with a personal stake in the outcome sufficient to assure an adversarial presentation of the case. Hence, a plaintiff must demonstrate that he or she has suffered an actual or threatened injury caused by the challenged conduct of the defendant. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir.1983). ²

The State is not currently prosecuting Hardwick or the Does under the sodomy statute. The Does have never been arrested under the statute and Hardwick cannot rely solely on his past arrest to confer upon him standing to challenge the constitutionality of the statute. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). This suit, therefore, presents an anticipatory challenge to the statute. The standing of each of the plaintiffs will depend on whether the threat of prosecution under this statute is real and immediate or "imaginary" and "speculative." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).

A court can estimate the likelihood of prosecution by examining the identity and interests of each of the parties. The interest of the State in enforcing the statute, along with past enforcement patterns, provides one indication; the interest of the plaintiff in engaging in the prohibited activity provides another. International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 818 (5th Cir.1979). ³

The interest of the State in prosecuting these plaintiffs need not take the form of a specific threat of prosecution against them individually, although such a threat will often suffice to give a plaintiff standing. Steffel v. Thompson, supra. A general threat of prosecution against an identifiable group may confer standing in some instances. For instance, in Lake Carriers' Association v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972), the Court ruled that a group of bulk cargo vessel owners had standing to challenge a state law, about to go into effect, mandating certain sewage disposal methods for cargo vessels. Even though the State had threatened no particular owner with prosecution under the statute, it announced that it would prosecute violators as soon as the statute became effective.

The past enforcement of the statute against Hardwick is especially significant in measuring the State's intentions of prosecuting him in the future. Hardwick alleges that his arrest resulted from a situation in which he regularly places himself, one that will recur often in the future. As this Court recognized in Cuidadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807, 820 (5th Cir.1980), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981), evidence of past injuries inflicted by the State raises the strong inference that future injuries will appear. A past enforcement effort often will confirm the reasonableness of a plaintiff's subjective fear of prosecution. This is particularly true in Hardwick's case if one accepts as true ⁴ his allegation that the Atlanta Police enforce the statute in a way that places all practicing homosexuals in imminent danger of arrest.

A second indicator of threatened harm to these plaintiffs comes from the nature of their interest in violating the statute. Each of them claims that their normal course of activity will lead them to violate the statute, completely apart from their desire to have it invalidated. Hardwick's status as a homosexual adds special credence to his claim. See International Society for Krishna Consciousness v. Eaves, supra, at 819. While a plaintiff hoping only to challenge a statute might overestimate his or her willingness to risk actual prosecution, a plaintiff who genuinely desires to engage in conduct regardless of its legal status presents a court with a more plausible threat of future prosecution.

In some cases, the authentic interest of the plaintiff in engaging in the prohibited conduct can establish standing even though the only threat of enforcement by the State comes from the very existence of the statute. The Supreme Court in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302-03, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979), held that a union could challenge a state law prohibiting deceptive advertising relating to farm products because the union planned to sponsor advertising campaigns in the future and the State had not disavowed any intention of enforcing the statute. The risk that the State would detect the inadvertent use of an inaccuracy in an advertisement by the union and would prosecute for that offense was a threat immediate enough to give the union standing. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (doctor who consulted with pregnant women regarding birth control in violation of law was "one of those against whom these criminal statutes directly operate"); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (teacher challenging statute prohibiting teaching of evolution). A plaintiff has a stronger claim for standing if, in addition to the authenticity of the interest, he or she is best suited to challenge a law. Atlanta Gas Light Company v. United States Department of Energy, 666 F.2d 1359, 1364 n. 7 (11th Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 78 (1982).

The past arrest of Hardwick, combined with the continuing resolve on the part of the State to enforce the sodomy statute against homosexuals and the authenticity of Hardwick's desire to engage in the proscribed activity in the future, leads us to agree with the district court that Hardwick has standing to bring this lawsuit. The issue of the Does' standing is less straightforward. They have not been arrested or threatened with arrest for sodomy. At first glance, they appear to be in the same position as several of the plaintiffs in Younger v. Harris, 401 U.S. 37, 40-42, 91 S.Ct. 746, 748-749, 27 L.Ed.2d 669 (1971), who intervened in a federal suit filed by an acquaintance who had been prosecuted by the state under a criminal syndicalism law. The intervenors, teachers, alleged that the existence of the statute and the prosecution of Harris had "inhibited" their teaching and had left them "uncertain" as to their legal rights. The Court ruled that the intervenors had no standing.

The Does argue that they do not stand in precisely the same position as the intervenors in Younger because the defendants in that case brought their appeal after the entry of final judgment in the three-judge district court. The intervenors had been given an opportunity to present evidence of a realistic probability of prosecution apart from their unsupported fears; they had presented no such evidence. The Does, on the other hand, have not had an opportunity to engage in discovery and to present evidence relating to the enforcement of this statute against married couples.

The lack of evidence related to threat of injury should in many cases lead a court to permit discovery and to make factual findings before dismissing a suit for...