Kenny v. Wilson

• Decision Date: 15 March 2018
• Docket Number: No. 17-1367,17-1367
• Citation: 885 F.3d 280
• Parties: Niya KENNY, on behalf of herself and all others similarly situated; Taurean Nesmith, on behalf of himself and all others similarly situated; Girls Rock Charleston Inc, on behalf of themselves and all others similarly situated; D.S., by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated; S.P., by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated, Plaintiffs–Appellants, v. Alan WILSON, in his official capacity as Attorney General of South Carolina, on behalf of himself and others similarly situated ; J. ALTON CANNON, JR., in his official capacity as the Sheriff of Charleston County, SC; on behalf of himself and others similarly situated ; Gregory G. Mullen, in his official capacity as the Chief of the Police Department of the City of Charleston, SC; on behalf of himself and others similarly situated ; Eddie Driggers, Jr., in his official capacity as the Chief of the Police Department of the City of North Charleston, SC; on behalf of himself and others similarly situated ; Carl Ritchie, in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself and others similarly situated ; Leon Lott, in his official capacity as the Sheriff of Richland County, SC; on behalf of himself and others similarly situated ; W.H. Holbrook, in his official capacity as the Chief of the Police Department of the City of Columbia, SC; on behalf of himself and others similarly situated ; Steve Loftis, in his official capacity as the Sheriff of Greenville County, SC; on behalf of himself and others similarly situated ; Ken Miller, in his official capacity as the Chief of the Police Department of the City of Greenville, SC; on behalf of himself and others similarly situated ; Lance Crowe, in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; on behalf of himself and others similarly situated ; Michael D. Hanshaw, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of himself and others similarly situated ; M. Bryan Turner, in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; on behalf of himself and others similarly situated ; Dan Reynolds, in his official capacity as the Chief of the Police Department of the City of Greer, SC; on behalf of himself and others similarly situated ; A. Keith Morton, in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of himself and others similarly situated, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

885 F.3d 280

Niya KENNY, on behalf of herself and all others similarly situated; Taurean Nesmith, on behalf of himself and all others similarly situated; Girls Rock Charleston Inc, on behalf of themselves and all others similarly situated; D.S., by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated; S.P., by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated, Plaintiffs–Appellants,

v.Alan WILSON, in his official capacity as Attorney General of South Carolina, on behalf of himself and others similarly situated ; J. ALTON CANNON, JR., in his official capacity as the Sheriff of Charleston County, SC; on behalf of himself and others similarly situated ; Gregory G. Mullen, in his official capacity as the Chief of the Police Department of the City of Charleston, SC; on behalf of himself and others similarly situated ; Eddie Driggers, Jr., in his official capacity as the Chief of the Police Department of the City of North Charleston, SC; on behalf of himself and others similarly situated ; Carl Ritchie, in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself and others similarly situated ; Leon Lott, in his official capacity as the Sheriff of Richland County, SC; on behalf of himself and others similarly situated ; W.H. Holbrook, in his official capacity as the Chief of the Police Department of the City of Columbia, SC; on behalf of himself and others similarly situated ; Steve Loftis, in his official capacity as the Sheriff of Greenville County, SC; on behalf of himself and others similarly situated ; Ken Miller, in his official capacity as the Chief of the Police Department of the City of Greenville, SC; on behalf of himself and others similarly situated ; Lance Crowe, in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; on behalf of himself and others similarly situated ; Michael D. Hanshaw, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of himself and others similarly situated ; M. Bryan Turner, in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; on behalf of himself and others similarly situated ; Dan Reynolds, in his official capacity as the Chief of the Police Department of the City of Greer, SC; on behalf of himself and others similarly situated ; A. Keith Morton, in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of himself and others similarly situated, Defendants–Appellees.

No. 17-1367

United States Court of Appeals, Fourth Circuit.

Argued: December 6, 2017

Decided: March 15, 2018

ARGUED: Sarah Hinger, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York, for Appellants. James Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina for Appellees Alan Wilson, M. Bryan Turner, and A. Keith Morton; Sandra J. Senn, SENN LEGAL, LLC, Charleston, South Carolina, for Appellees J. Alton Cannon, Jr., Gregory G. Mullen, and Eddie Driggers, Jr., ON BRIEF: Dennis D. Parker, Lenora M. Lapidus, Galen L. Sherwin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York; Susan K. Dunn, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA, Charleston, South Carolina, for Appellants. Alan Wilson, Attorney General, Robert D. Cook, Solicitor General, Columbia, South Carolina, for Appellees Alan Wilson, M. Bryan Turner, Lance Crowe, A. Keith Morton and Michael D. Hanshaw. W. Michael Hemlepp, Jr., CITY OF COLUMBIA ATTORNEY'S OFFICE, Columbia, South Carolina, for Appellee W.H. Holbrook. Anne R. Culbreath, WILLSON JONES CARTER AND BAXLEY, Greenville, South Carolina, for Appellee Steve Loftis. Michael S. Pitts, Logan M. Wells, CITY OF GREENVILLE, OFFICE OF THE CITY ATTORNEY, Greenville, South Carolina, for Appellee Ken Miller. Andrew F. Lindemann, DAVIDSON AND LINDEMANN PA, Columbia, South Carolina, for Appellee Carl Ritchie. Robert D. Garfield, Steven R. Spreeuwers, DAVIDSON and LINDEMANN PA, Columbia, South Carolina, for Appellee Leon Lott.

Before DUNCAN and DIAZ, Circuit Judges, and Paula XINIS, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Xinis joined.

DIAZ, Circuit Judge:

In this case, a group of former and current South Carolina students and a nonprofit organization filed suit under 42 U.S.C. § 1983 challenging S.C. Code Ann. § 16-17-420 (the "Disturbing Schools Law") and S.C. Code Ann. § 16-17-530 (the "Disorderly Conduct Law") as unconstitutionally vague. The district court dismissed the complaint for lack of standing. It reasoned that plaintiffs' fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact.

But at least some of the named plaintiffs do not rely on conjecture or speculation, but rather, on the fact that they attend school where they were previously arrested and criminally charged under the two South Carolina statutes, and they don't know which of their actions at school will be interpreted to violate the statutes in the future. Further, plaintiffs allege that the two laws chill their exercise of free expression, forcing them to refrain from exercising their constitutional rights or to do so at the risk of arrest and prosecution. In our view, that is sufficient to plead both a future and ongoing injury in fact. We therefore vacate the district court's judgment and remand for further proceedings.

I.

Before turning to the merits, we set out the relevant statutes. We then describe the plaintiffs involved, the allegations of the complaint, and the basis for the district court's decision.

A.

The Disturbing Schools Law, which all plaintiffs challenge, states:

(A) It shall be unlawful:

(1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or

(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.

S.C. Code Ann. § 16-17-420(A).¹

The Disorderly Conduct Law, which two plaintiffs (D.S. and S.P.) challenge on behalf of a class of elementary and secondary public school students, states:

Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church ... shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.

S.C. Code Ann. § 16-17-530.

B.

Plaintiffs include four individuals and one organization—minors D.S. and S.P., Niya Kenny, Taurean Nesmith, and Girls Rock Charleston. D.S. and S.P. represent the proposed class of elementary and secondary public school students in South Carolina. Girls Rock is suing on behalf of its members and itself.

D.S. and S.P. are high school students. D.S. (who is black and has learning disabilities) was charged with violating the Disturbing Schools Law "after becoming involved in a physical altercation which she did not initiate and in which she was the only person who sustained an injury, a lump on her head." Compl. ¶ 101. S.P. (who is white and suffers from mood and conduct disabilities) was charged with violating the Disorderly Conduct Law after she cursed at a student who had been teasing her and refused to leave the library with the principal as instructed.

Kenny and Nesmith are young adults who were previously arrested and charged with violating the Disturbing Schools Law when they expressed concerns about police conduct. When Kenny (who is black) was in high school, she saw a school resource officer pull a female student from her desk, drag her on the floor, and handcuff her. Kenny "attempted to document the incident and called out for someone to do something to stop the violent treatment of her classmate." Compl. ¶ 84. In response, Kenny was arrested and charged with violating the Disturbing Schools Law. The experience left Kenny scared and humiliated, and she withdrew from high school. She later obtained her G.E.D.

Nesmith (who is also black) attends Benedict College. He alleges that a campus police officer arrested him on suspicion of violating both statutes after he complained that the officer was engaged in racial profiling and questioned the officer's request that he produce identification.

Girls Rock is a nonprofit organization that "provides mentorship, music and arts education, and leadership development to young people in Charleston, South Carolina." Compl. ¶ 22. Girls Rock "operates an afterschool program serving at-risk youth" and is "guided by core principles that include challenging criminalization." Compl. ¶ 22. The complaint describes two members of Girls Rock—K.B. and D.D.

K.B. is Latina and was charged with violating the Disturbing Schools Law at age thirteen after she arrived late to gym class and loudly protested when she was asked to leave and go to the "tardy sweep" room. Compl. ¶ 94. K.B. was sentenced to probation and referred to Girls Rock. When K.B. returned to school, she was placed in a program called "Twilight," through which "she was provided no more than three hours of computer-based education per day." Compl. ¶ 95. The Twilight program "did not provide access to the courses necessary to obtain a high school diploma." Compl. ¶...