Presbyterian Church (U.S.A.) v. U.S.

• Decision Date: 13 April 1989
• Docket Number: No. 86-2860,86-2860
• Citation: 870 F.2d 518
• Parties: THE PRESBYTERIAN CHURCH (U.S.A.), et al., Plaintiffs-Appellants, v. The UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 518

870 F.2d 518

THE PRESBYTERIAN CHURCH (U.S.A.), et al., Plaintiffs-Appellants, v. The UNITED STATES of America, et al., Defendants-Appellees.

No. 86-2860.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 14, 1987.

Decided March 15, 1989.

As Amended April 13, 1989.

Peter D. Baird, Lewis and Roca, Phoenix, Ariz., for plaintiffs-appellants.

Mary P. Mitchell, Trial Atty. (argued), Richard K. Willard, Asst. Atty. Gen., John J. Farley, III, and Gordon W. Daiger, Attys. (on brief), U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before NORRIS, KOZINSKI ^* and LEAVY, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

The plaintiffs in this action are Alzona Evangelical Lutheran Church, Camelback United Presbyterian Church, Southside United Presbyterian Church, Sunrise United Presbyterian Church, and their two national parent denominations, The Presbyterian Church (U.S.A.) and the American Lutheran Church (hereafter referred to collectively as "the churches"). The churches brought this action against the United States, the Department of Justice, the Immigration and Naturalization Service ("INS") and several individual INS officers, ¹ claiming that the churches' First and Fourth Amendment rights were violated when INS agents entered the churches wearing "body bugs" and surreptitiously recorded church services. The district court granted the defendants' motion to dismiss on a variety of grounds. We affirm in part and reverse in part, and remand to the district court with instructions to consider, in light of this opinion, whether the churches retain standing to pursue their claims and whether their claims are moot.

I BACKGROUND

In early 1984, the INS initiated an undercover investigation of the sanctuary movement, an effort by a loosely knit group of clergy and lay people to aid refugees from El Salvador and Guatemala. ² From approximately March 1984 to January 1985, several INS agents wearing "body bugs" infiltrated four Arizona churches. The investigations were conducted without search warrants and without probable cause to believe that the surveillance of the churches would uncover evidence of criminal activity. The agents attended and surreptitiously tape recorded several services including an ecumenical worship service offered by the Camelback and Sunrise Presbyterian Churches in Phoenix, regular Sunday morning worship services at Southside Presbyterian Church in Tucson, and Bible study classes at Alzona Lutheran Church in Phoenix. During the surveillance the agents recorded prayers, hymns, and Bible readings.

The covert surveillance of the church services was made a matter of public record during the criminal prosecution of several individuals who were involved with the sanctuary movement. After the INS surveillance of the churches was disclosed in the criminal proceedings, the four churches brought this civil rights action.

In their complaint, the churches claimed that the defendants violated the First Amendment by abridging the churches' right to free exercise of religion and their freedom of belief, speech, and association.

                They also claimed that the INS' surveillance of the churches without a warrant supported by probable cause constituted an illegal search under the Fourth Amendment.  The churches sought nominal damages against the individual INS agents involved in the surveillance, a declaratory judgment that the INS surveillance was unconstitutional, and injunctive relief prohibiting the INS from engaging in such surveillance in the future without a "prior established and compelling governmental interest."    Excerpts of Record ("E.R.") Tab 15 at 24
                

The district court granted the defendants' motion to dismiss on several grounds. First, the district court held that the churches lacked standing to raise the First Amendment claim. Next, it ruled that the churches had failed to state a claim under Fourth Amendment. ³ Finally, the court ruled that the doctrine of qualified immunity barred the churches from recovering damages against the individual INS agents named as defendants, and that sovereign immunity barred all relief against the United States, the Department of Justice and the INS.

The churches' appeal raises questions of law which we review de novo. ⁴

II FIRST AMENDMENT STANDING

In holding that the churches lacked standing to raise their First Amendment claim, the district court reasoned that the First Amendment protects "rights guaranteed to individuals not corporations" because "the churches don't go to heaven." E.R. Tab 58 at 57, 29. To the contrary, it is settled law that churches may sue to vindicate organizational interests protected by the free exercise clause of the First Amendment. See, e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). On appeal, the INS does not dispute that in appropriate circumstances churches may raise free exercise claims on their own behalf as organizations, but argues that the churches here have failed to allege that they have suffered an injury sufficient to establish standing in this case. We disagree, and hold that the injuries alleged in the complaint are an adequate foundation for standing in this case. ⁵ However, as we explain below in Part V, because we are unable to assess the likelihood that the INS will repeat its surveillance of the churches in the future, we remand to the district court for a determination of whether the churches have standing to seek prospective relief.

For the churches to bring a claim on their own behalf, they must show " ' that [they have] suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' ... and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision'...." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted). We believe the churches' allegations satisfy all three of these requirements.

First, we are persuaded that the churches have alleged actual injuries as the result of the INS' conduct. For example, they allege that as a result of the surveillance of worship services, members have The INS contends that the churches have alleged injury to individual worshippers, but have failed to allege injury to themselves as organizations. We disagree. When congregants are chilled from participating in worship activities, when they refuse to attend church services because they fear the government is spying on them and taping their every utterance, all as alleged in the complaint, we think a church suffers organizational injury because its ability to carry out its ministries has been impaired.

withdrawn from active participation in the churches, a bible study group has been canceled for lack of participation, clergy time has been diverted from regular pastoral duties, support for the churches has declined, and congregants have become reluctant to seek pastoral counseling and are less open in prayers and confessions. See Complaint paragraphs 48, 54, 60, E.R. Tab 13.

The INS replies, however, that in any event, the alleged injuries to the churches are too "speculative" and "conjectural" to satisfy the Article III case or controversy requirement. The INS contends that the alleged chilling effect on the congregants, and the resulting impact on church worship, are not cognizable injuries because they do not derive from "coercive action" by the INS. Brief of Appellees at 9. In arguing that such injuries are not constitutionally cognizable, the INS relies on Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).

In Laird, plaintiffs challenged the Army's domestic surveillance of peaceful civilian political activity. The alleged injury was a " 'chilling' effect on the exercise of their First Amendment rights" caused, not by any specific action of the Army directed against the plaintiffs, but only by "the existence and operation" of the surveillance program in general. Id. at 3, 92 S.Ct. at 2320. The plaintiffs in Laird alleged only that they could conceivably become subject to the Army's domestic surveillance program. Id. at 13, 92 S.Ct. at 2325. The Supreme Court held that the plaintiffs lacked standing because they had failed to set forth "a claim of specific present objective harm or a threat of specific future harm." Id. at 14, 92 S.Ct. at 2326.

Although Laird establishes that a litigant's allegation that it has suffered a subjective "chill" does not necessarily confer Article III standing, Laird does not control this case. The churches in this case are not claiming simply that the INS surveillance has "chilled" them from holding worship services. Rather, they claim that the INS surveillance has chilled individual congregants from attending worship services, and that this effect on the congregants has in turn interfered with the churches' ability to carry out their ministries. The alleged effect on the churches is not a mere subjective chill on their worship activities; it is a concrete, demonstrable decrease in attendance at those worship activities. The injury to the churches is " ' "distinct and palpable." ' " Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (citations omitted). Laird has no application here.

Our conclusion is supported by Meese v. Keene, 481 U.S. 465, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987). In Keene, the plaintiff, a political officeholder, sued to prevent the government from designating as "political propaganda" some films he was sponsoring. He alleged that such a designation would make the films offensive to the public, thereby hurting his reputation and...