Peta, Ethical Treatment of Animals v. Rasmussen

• Decision Date: 07 August 2002
• Docket Number: No. 01-4135.,01-4135.
• Citation: 298 F.3d 1198
• Parties: PeTA, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, a Virginia non-profit corporation; Sean Diener; Barry N. Platis, Plaintiffs-Appellants, v. Todd RASMUSSEN, Lt., Granite District Police; Lori Gardner, Principal, Eisenhower Jr. High School; Steven Ronnenkamp, Superintendent, Granite School District; Jerry Nielson, Chief, Granite District Police; Aaron Kennard, Salt Lake County Sheriff, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

298 F.3d 1198

PeTA, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, a Virginia non-profit corporation; Sean Diener; Barry N. Platis, Plaintiffs-Appellants, v. Todd RASMUSSEN, Lt., Granite District Police; Lori Gardner, Principal, Eisenhower Jr. High School; Steven Ronnenkamp, Superintendent, Granite

School District; Jerry Nielson, Chief, Granite District Police; Aaron Kennard, Salt Lake County Sheriff, Defendants-Appellees.

No. 01-4135.

United States Court of Appeals, Tenth Circuit.

August 7, 2002.

Brian M. Barnard (James L. Harris, Jr., with him on the briefs), Utah Legal Clinic, Salt Lake City, UT, appearing for Appellants.

Peggy E. Stone, Assistant Utah Attorney General (Mark Shurtleff, Utah Attorney General, with her on the brief), Office of the Attorney General, Salt Lake City, UT, appearing for Appellees.

Before TACHA, Chief Judge, HENRY, and BRISCOE, Circuit Judges.

TACHA, Chief Circuit Judge.

A police officer stopped a demonstration held by People for the Ethical Treatment of Animals ("PeTA") on a sidewalk across the street from a junior high school by threatening the protesters with arrest under Utah Code section 76-8-710. PeTA brought suit against a number of police officers and school officials under 42 U.S.C. § 1983, challenging the constitutionality of the statute on First Amendment and other grounds and seeking monetary declaratory, and injunctive relief. The United States District Court for the District of Utah granted the defendants' motions for summary judgment, finding the statute constitutional on its face and as applied. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and DISMISS in part, REVERSE in part, and REMAND.

I. Background

PeTA members held demonstrations for animal rights on a public sidewalk across the street from Eisenhower Junior High School ("Eisenhower") on January 6, 13, and 20, 1999. They chose to protest at this school because its flagpole displayed a flag from McDonald's, one of the school's sponsors. The school principal, Lori Gardner, had rejected PeTA's earlier request to remove the flag. On January 6, 1999, the protests lasted from noon to 1:00 p.m. About twelve protesters were present, including two who were arrested for trying to remove the McDonald's flag from the flagpole. PeTA does not challenge the defendants' response to the January 6 protest, which is the only one that occurred during school hours.

At the January 13 demonstration, which began five minutes before classes ended, about fifteen PeTA members picketed and handed out literature, leaflets, flyers, and stickers. They also collected signatures on a petition to remove the McDonald's flag. The police responded with a show of force involving a police helicopter, several police cars, and about fourteen police officers. There is no claim regarding the January 13 protest.

On January 19, the school removed the flag at McDonald's request.

Unaware of the flag's removal, five or six PeTA protesters staged a third protest on January 20. This protest also began shortly before classes ended. Five Eisenhower students staged a counter-protest representing a group they had created and called META — Meat Eaters who are Thankful for Animals. META members handed out a flyer to PeTA members and others. Before the PeTA protest began, Officer Todd Rasmussen of the Granite School District Police had researched the Utah statutes and found that section 76-8-710 prohibits disruptions to classes or students on or near school grounds. He had spoken to a Salt Lake County prosecutor, Mike Christensen, who advised him that the statute applied to PeTA's actions, as Rasmussen described them. At Eisenhower, Rasmussen obtained principal Gardner's consent, then approached PeTA members to stop the protest. He stated, "If you don't leave now, we will arrest you," and recited Utah code section 76-8-710. In response to Rasmussen's threat, the PeTA protestors left within ten minutes.

The statute upon which Rasmussen relied states:

Any person who comes into any school building or upon any school ground, or street, sidewalk, or public way adjacent to any school building or ground and whose presence or acts interfere with the peaceful conduct of the activities of any school or disrupt the school or its pupils or school activities, and who remains there, or who re-enters or comes upon the place within 72 hours, after being asked to leave by the chief administrative official of that school or his representative or agent is guilty of an offense and shall be punished as provided in Section 76-8-717.

Utah Code Ann. § 76-8-710. However, this provision is contained in Chapter 8, Part 7 of the Utah Criminal Code, which is entitled "Colleges and Universities." For purposes of Part 7, a "school" is "any private institution of higher education or any state institution of higher education." Id. § 76-8-701. The definition does not refer to a junior high school. Id.

The protests were not noisy, but some students allegedly were distracted, stayed late, missed their rides, or sought to interact with the protesters. The school received a number of calls from parents and the media and made announcements to students requesting that they maintain proper behavior. In addition, about twenty students from other high schools came to Eisenhower to protest on a separate day.

On January 27, PeTA held a news conference in the same location as the earlier protests, announcing the filing of this lawsuit. Plaintiffs PeTA and members Sean Diener and Barry Platis¹ (collectively referred to as "PeTA") brought a section 1983 lawsuit against various named and unnamed members of the police department and school district officials, seeking declaratory, injunctive, and monetary relief. They alleged violations of their rights to free speech and equal protection. The defendants asserted qualified immunity as an affirmative defense.

PeTA moved for partial summary judgment, seeking a declaratory judgment that the statute is unconstitutional on its face, and the defendants filed a cross-motion for summary judgment. The United States District Court for the District of Utah found the statute constitutional on its face. PeTA then moved for partial summary judgment against defendants Rasmussen and Gardner, challenging their application of the Utah statute to PeTA. Defendants cross-moved for summary judgment on all remaining issues. The court granted defendants' motion and dismissed all remaining claims. The court did not reach the issue of qualified immunity. PeTA appeals only its First Amendment claims against Rasmussen and Gardner, which are based on the events of January 20.

II. Discussion

A. Standing

Although the question of plaintiffs' standing was not addressed below, standing is a jurisdictional issue, and we are obligated to raise the issue sua sponte to ensure that there is an Article III case or controversy. Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1280 (10th Cir.2002). In response to a show cause order from this court, defendants assert on appeal that plaintiffs lack standing because the Utah statute does not apply to junior high schools.

To establish Article III standing, the plaintiff must show injury in fact, a causal relationship between the injury and the defendants' challenged acts, and a likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). PeTA, as the party invoking federal jurisdiction, bears the burden of establishing the elements of standing. Id. at 561, 112 S.Ct. 2130.

PeTA's standing for retrospective relief may be based on past injuries, whereas its claims for prospective relief require a continuing injury. Horstkoetter v. Dep't of Pub. Safety, 159 F.3d 1265, 1277 (10th Cir.1998). As the Supreme Court has explained, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). If, while the litigation is pending, an event occurs that heals the injury, plaintiffs lose their standing for claims for prospective relief² and the claims become moot. Horstkoetter, 159 F.3d at 1277.

PeTA suffered an injury in fact to its constitutionally protected right to free speech when the defendants threatened the protesters with arrest if they did not cease their demonstration. Defendants' actions had a causal relationship to PeTA's alleged injury, and an award of damages would redress PeTA's injury. Thus, PeTA has standing to assert its claim for retrospective relief.

PeTA does not have standing to assert its claims for prospective relief, as it does not have a "good chance of being likewise injured in the future." Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991). The defendants admit that they misinterpreted section 76-8-710, which applies only to institutions of higher education and not to junior high schools. PeTA has not indicated an intention to stage protests at institutions of higher education, nor do they allege that these defendants would be likely to enforce the statute against them if they did so. Thus, PeTA does not suffer a continuing injury, and it lacks standing to seek prospective relief. Cf. Faustin v. City and County of Denver, 268 F.3d 942, 948 (10th Cir.2001) (finding it unlikely that an ordinance would be applied to the plaintiff in the future after the city prosecutor determined that the law at issue did not apply).

Nor does PeTA have standing to challenge whether the statute is constitutional on its face. While the rules for standing are less stringent for a facial challenge to a statute, a plaintiff must still satisfy the injury-in-fact requirement. Phelps v. Hamilton, 122 F.3d 1309, 1326. The challenged statute does not apply to the protests PeTA has conducted and has expressed an intention to conduct in the...