Jones v. Schneiderman

• Decision Date: 31 March 2015
• Docket Number: No. 11–CV–8215 KMW.,11–CV–8215 KMW.
• Citation: 101 F.Supp.3d 283
• Parties: Jon JONES, et al., Plaintiffs, v. Eric T. SCHNEIDERMAN, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

101 F.Supp.3d 283

Jon JONES, et al., Plaintiffs,

v.Eric T. SCHNEIDERMAN, et al., Defendants.

No. 11–CV–8215 KMW.

United States District Court, S.D. New York.

Signed March 31, 2015.

Barry Evan Friedman, New York University School of Law, New York, NY, for Plaintiffs.

John Michael Schwartz, Jane R. Goldberg, Joshua Benjamin Pepper, State of New York Office of the Attorney General, New York, NY, for Defendants.

Jamie A. Levitt, Morrison & Foerster LLP, New York, NY, for Plaintiffs/Defendants.

OPINION & ORDER

KIMBA M. WOOD, District Judge:

After extensive discovery, Plaintiffs and Defendants have cross-filed motions for summary judgment on Plaintiffs' as-applied void-for-vagueness challenges to New York's combative sport ban, N.Y. Unconsolidated Laws § 8905–a(the “Ban”), and a related restriction on liquor licensees, N.Y. Alcohol & Beverage Control Law § 106(6–c)(a)(the “Liquor Law”). For the reasons that follow, the Court DENIES Plaintiffs' motion and GRANTS Defendants' motion as to all remaining claims.¹

I. Background

The factual background of this case is explained at length in Jones v. Schneiderman,974 F.Supp.2d 322 (S.D.N.Y.2013)(“Jones II”). Briefly, in 1997, New York enacted the Ban, which criminalizes conduct that “materially aids” or “profits from” a “combative sport.”²N.Y. Unconsol. Laws § 8905–a(1)–(3). The statute defines “combative sport” as any “professional match or exhibition” other than “boxing, sparring, wrestling, and martial arts” in which contestants deliver blows to their opponents. Id.§ 8905–a(1). The Ban does not further define “boxing,” “sparring” or “wrestling,” but it defines “martial arts” as follows “any professional match or exhibition sanctioned by” one of several organizations listed in the statute (the “exempt organizations”). Id.The Ban authorizes the New York State Athletic Commission (“NYSAC”) to establish a process for adding and removing exempt organizations from the statute's list. Id.

The New York State Office of the Attorney General (“OAG”), a defendant in this action, has the authority to prosecute violations of the Ban's criminal provisions. (SeeDeclaration of Stephen Maher (“Maher Decl.”) ¶¶ 3–4 [ECF No. 95]; Deposition of Stephen Maher (“Maher Dep.”) at 23:6–21 [ECF No. 89 Ex. 7] ). The NYSAC lacks such prosecutorial authority, although it may refer potential statutory violations to the OAG for investigation. (SeeMaher Dep. at 23:6–14; 93:24–94:16). The NYSAC is also compelled by the Ban not to approve licenses for combative sport events. Unconsol. Laws § 8905–a(2).

The OAG has never prosecuted anyone under the Ban. (SeeMaher Decl. ¶ 6). Over the past two decades, however, New York officials—primarily from the NYSAC—have at times indicated that the Ban prohibits the performance of certain types of mixed martial arts (“MMA”), a fighting sport that permits contestants to combine techniques from several distinct martial disciplines. In that respect, New York stands apart from its sister states, all of which expressly permit MMA, and nearly all of which formally regulate the sport through their athletic commissions. (SeeDeclaration of Ike Lawrence Epstein (“Epstein Decl.”) ¶ 13 [ECF No. 90]; Jon Lane, “MMA in New York—The Latest” [ECF No. 89, Ex. 28] ).

The Liquor Law is a companion provision to the Ban. It prohibits “retail licensee[s] for on-premises consumption” from hosting combative sport events that the Ban outlaws. N.Y. Alco. Bev. Cont. Law § 106(6–c)(a). The New York State Liquor Authority (“NYSLA”) has the power to enforce that prohibition by “instituting a proceeding to suspend, cancel or revoke the license of the violator.” Id.§ 106(6–c)(c); see also id.§ 17(3) (defining enforcement power of the NYSLA).

Plaintiffs are MMA fighters, promoters, trainers, gym owners, and fans who claim that the Ban and the Liquor Law unconstitutionally constrain MMA-related activity in New York. They initially made four types of constitutional arguments (1) that the Ban discriminates against MMA without a rational basis, violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) that the Ban discriminates against interstate commerce, violating the Commerce Clause; (3) that both statutes impermissibly prohibit expressive conduct and protected speech contained in live MMA performances, violating the First and Fourteenth Amendments; and (4) that both statutes are impermissibly vague, both facially and as applied in various respects to Plaintiffs, violating the Due Process Clause of the Fourteenth Amendment. (SeeFirst Am. Compl. [ECF No. 34] ).

The Court previously dismissed the first three constitutional arguments, holding that the Ban has a rational basis and does not discriminate against interstate commerce, and that neither statute prohibits protected speech or expressive conduct. See Jones II,974 F.Supp.2d at 332–39, 347–53 & nn. 13–14; Jones v. Schneiderman,888 F.Supp.2d 421, 424–31 (S.D.N.Y.2012). The Court also dismissed Plaintiffs' facial vagueness challenges to both statutes, as well as certain types of as-applied vagueness challenges. Jones II,974 F.Supp.2d at 339–47. But the Court declined to dismiss Plaintiffs' as-applied vagueness challenges to the Ban and the Liquor Law “to the extent they relate to” Plaintiffs' involvement with three types of MMA: (1) professional MMA sanctioned by an exempt organization (“sanctioned professional MMA”); professional MMA held on tribal land; and (3) amateur MMA. Id.at 341.³

The parties have now conducted discovery and cross-filed for summary judgment. (SeePl. Summ. J. Mot. [ECF No. 86]; Def. Summ. J. Mot. [ECF No. 92] ). Plaintiffs contend that the Ban and the Liquor Law are unconstitutionally vague as applied to their involvement with sanctioned professional MMA, professional MMA held on tribal land, and amateur MMA. Defendants argue that Plaintiffs lack standing to bring those challenges, because they have not established an injury in fact caused by the actual or prospective application of either statute to their involvement with the three types of MMA at issue. Defendants also contend that the statutes would not be unconstitutionally vague in any such application.

As explained below, Plaintiffs have failed to establish standing to bring their as-applied vagueness claims.

II. Legal Standard

“Whether a claimant has standing is the threshold question in every federal case, determining the power of the court to entertain the suit.” Worley v. Giuliani,8 Fed.Appx. 131, 133 (2d Cir.2001)(internal quotation marks omitted). The “ ‘irreducible constitutional minimum of standing contains three elements' ”:

(1) “the plaintiff must have suffered an injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the injury and the conduct complained of”; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Nat'l Org. for Marriage, Inc. v. Walsh,714 F.3d 682, 688 (2d Cir.2013)(quoting Lujan v. Defenders of Wildlife,504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). If a plaintiff lacks standing, “there is no case or controversy over which a federal court may exercise jurisdiction.” In re Direxion Shares ETF Trust,279 F.R.D. 221, 237 (S.D.N.Y.2012)(Forrest, J.).

The meaning of “imminent,” for standing purposes, is “somewhat elastic.” Clapper v. Amnesty Int'l USA,––– U.S. ––––, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013). Generally, “ ‘threatened injury must be certainly impendingto constitute injury in fact,’ and ... ‘[a]llegations of possiblefuture injury’ are not sufficient.” Id.(quoting Whitmore v. Arkansas,495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). But the Supreme Court has not “uniformly require[d] plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, [the Court has] found standing based on a ‘substantial risk’ that the harm will occur[.]” Id.at 1150 n. 5. The Supreme Court has not explained precisely “when such a standard might apply.” Hedges v. Obama,724 F.3d 170, 196 (2d Cir.2013), cert. denied,––– U.S. ––––, 134 S.Ct. 1936, 188 L.Ed.2d 960 (2014). In an abundance of caution, the Court will consider how both imminence standards—“certainly impending” and “substantial risk”—apply here.⁴⁵

The concept of an imminent injury warrants further elaboration specific to the claims in this case. In general, the threat of a criminal prosecution based on a plaintiff's prospective conduct may create an injury in fact, where the threat qualifies as “imminent.” In such cases, the plaintiff may challenge the constitutionality of the underlying criminal statute immediately, without risking arrest by performing the prospective conduct at issue. See MedImmune,549 U.S. at 128–29, 127 S.Ct. 764(“[W]here threatened action by governmentis concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.”).

Of course, a prosecution can be imminent only if the plaintiff has “concrete plans” to perform, in the near future, the conduct that officials would consider illegal. Lujan,504 U.S. at 564, 112 S.Ct. 2130. Where a plaintiff avers mere “ ‘some day’ intentions” to commit an act, without “any specification of whenthe some day will be,” id.,any harm that might flow from that future act—including the enforcement of an unconstitutional statute against it—is necessarily conjectural rather than imminent. See id.; see also Hassan v. United States,441 Fed.Appx. 10, 11–12 (2d Cir.2011)(“That [the plaintiff] mightmount a run for the presidency...