Seals v. McBee

• Decision Date: 03 August 2018
• Docket Number: No. 17-30667,17-30667
• Citation: Seals v. McBee, 898 F.3d 587 (5th Cir. 2018)
• Parties: Travis SEALS; Ali Bergeron, Plaintiffs–Appellees, v. Brandon MCBEE; et al., Defendants, Jeff Landry, Attorney General, State of Louisiana, Intervenor–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

898 F.3d 587

Travis SEALS; Ali Bergeron, Plaintiffs–Appellees,

v.Brandon MCBEE; et al., Defendants,Jeff Landry, Attorney General, State of Louisiana, Intervenor–Appellant.

No. 17-30667

United States Court of Appeals, Fifth Circuit.

FILED August 3, 2018

Kearney Soniat Loughlin, Loughlin & Loughlin, New Orleans, LA, for Plaintiffs–Appellees.

Colin Andrew Clark, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Intervenor–Appellant.

Cullen John Dupuy, Esq., Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Amici CuriaeJASON ARD, WILLIAM DURKIN.

Before SMITH, WIENER, and WILLETT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Louisiana Revised Statutes § 14:122 criminalizes "the use of violence, force, or threats" on any public officer or employee with the intent to influence the officer’s conduct in relation to his position.Travis Seals threatened police when arrested; he facially challenges Section 14:122 as unconstitutionally overbroad in violation of the First Amendment.The district court agreed with Seals.Because the meaning of "threat" is broad enough to sweep in threats to take lawful, peaceful actions—such as threats to sue a police officer or challenge an incumbent officeholder— Section 14:122 is unconstitutionally overbroad.We affirm the judgment invalidating it.

I.

In December 2014, Seals and Ali Bergeron were arrested for conduct not specifically reflected in the record.Any charge was ultimately dismissed or refused by the district attorney ("DA").It appears that a neighbor accused Seals and Bergeron of aggravated assault, and the police responded.According to Seals, he was pepper-sprayed and verbally objected to the arrest, threatening "to make lawful complaints" about the officers’ conduct.According to the officers, Seals violently resisted and "repeatedly made threats of physical harm."¹Ultimately, those disputes are immaterial.

Seals and Bergeron filed a complaint against the arresting officer—Brandon McBee—in September 2016, claiming malicious prosecution, conspiracy, and a First Amendment violation.The district court permitted Louisiana to intervene to defend the constitutionality of Section 14:122.Plaintiffs then moved for partial summary judgment on their First Amendment claim, alleging that Section 14:122 is facially invalid as overbroad and content-based.Louisiana cross-moved for summary judgment, replying that plaintiffs lack standing to challenge Section 14:122 because they seek only injunctive relief but face no threat of future injury because no charges have yet been brought.And even with standing, Louisiana insists that Section 14:122 prohibits only unprotected speech, such as true threats or extortion.

The district court held a hearing to sort through standing.Plaintiffs admitted that the DA had stated he had no intention of charging them at that time.But plaintiffs maintained the DA could still prosecute Seals.Louisiana reiterated that the DA has not brought charges but has never disputed that Seals made threats, was arrested, and could be prosecuted under Section 14:122 until four years after the arrest, which is December 2019.²

The district court granted plaintiffs’ motion, finding standing and declaring Section 14:122 overbroad as applying to constitutionally protected threats.The court enjoined Louisiana from enforcing Section 14:122 ’s prohibition on "threats."Louisiana, through its attorney general, appeals.

II.

The core case-or-controversy requirement of Article III establishes an "irreducible constitutional minimum of standing."³Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).Plaintiffs must demonstrate that (1)they have suffered an "injury in fact," which is a "an invasion of a legally protected interest" that is "concrete and particularized" rather than "conjectural or hypothetical,"(2) there is a "causal connection between the injury and the conduct complained of" such that the injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court," and (3) the injury likely will "be redressed by a favorable decision."Id.(cleaned up).

Moreover, because plaintiffs seek injunctive relief, they must show that "there is a real and immediate threat of repeated injury."City of L.A. v. Lyons , 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675(1983)(quotingO’Shea v. Littleton , 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674(1974) ).Past injury alone is insufficient; plaintiffs must establish a "real or immediate threat that [they] will be wronged again."Id. at 111, 103 S.Ct. 1660.

Finally, "each element of Article III standing ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof,’ " with the same evidentiary requirements of that stage of litigation.Bennett v. Spear , 520 U.S. 154, 167–68, 117 S.Ct. 1154, 137 L.Ed.2d 281(1997)(quotingDefs. of Wildlife , 504 U.S. at 561, 112 S.Ct. 2130 ).Thus, at the summary judgment stage, plaintiffs must " ‘set forth’ by affidavit or other evidence ‘specific facts’ to survive a motion for summary judgment."Id.(quotingFED. R. CIV. P. 56(e) ).⁴

Plaintiffs repeatedly assert that the requirements of standing are relaxed in the First Amendment context.That is true, but only as relating to the various court-imposed prudential requirements of standing.SeeSec. of State of Md. v. Joseph H. Munson Co. , 467 U.S. 947, 954–58, 104 S.Ct. 2839, 81 L.Ed.2d 786(1984).They still must show that they satisfy the core Article III requirements of injury, causation, and redressability.Seeid.;Miss. State Dem. Party v. Barbour , 529 F.3d 538, 545–48(5th Cir.2008)(dismissinga First Amendment claim for lack of standing because there was no threat of future injury).

Seals was arrested in connection with making some form of threats to the police—thus he appears to have violated Section 14:122.Louisiana concedes that Seals was so arrested and is legally subject to prosecution until December 2019.And both parties agree that "a credible threat of prosecution" is sufficient for standing.⁵Plaintiffs"should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."⁶

Louisiana contends, however, that there is no threat of future injury because—as plaintiffs admit—the D.A. has not charged Seals and has expressly disavowed bringing such charges.⁷Thus, the state urges there is no threat of future prosecution.⁸

Whether the government disavows prosecution is a factor in finding a credible threat of prosecution.⁹Yet that is only one factor among many—for example, in Humanitarian Law Project , 561 U.S. at 15–16, 130 S.Ct. 2705, the Court found standing because there was a history of enforcement, and the government would not disavow prosecution.¹⁰And in United Farm Workers , 442 U.S. at 302, 99 S.Ct. 2301, after asking whether the parties were "sufficiently adverse,"the Court found standing because, even though the plaintiffs had not yet violated the statute and the statute had never been applied, the government would not disavow prosecution if plaintiffs engaged in their intended course of action.Id.Significantly, in neither case had a plaintiff been arrested in connection with violating the statute.After all, "we[do] not require ... that the plaintiff bet the farm, so to speak."MedImmune , 549 U.S. at 129, 127 S.Ct. 764.

Seals’s position mirrors that of the plaintiffs in United Farm Workers .He already bet the farm.And when he violated Section 14:122, he was arrested.Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution.¹¹Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued.Viewed alongside a review of Louisiana caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement.Because the scales are at least as balanced as in United Farm Workers , Seals, too, has standing to challenge Section 14:122.

This conclusion reflects the fundamental purpose of standing: "to ensure ... the federal courts are devoted to those disputes in which the parties have a concrete stake."Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610(2000).Seals plainly has a concrete stake in this litigation because the DA can change his mind and prosecute him.Plaintiffs"should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."¹²We apply that principle here: Seals is not required to live under the specter of prosecution for violating a potentially unconstitutional law with nothing more than a non-committal promise as protection.¹³

III.

We turn to whether Section 14:122 violates the First Amendment.To show overbreadth, plaintiffs must establish that Section 14:122 encompasses a substantial number of unconstitutional applications "judged in relation to the statute’s plainly legitimate sweep."¹⁴The "first step in overbreadth analysis is to construe the challenged statute."Stevens , 559 U.S. at 474, 130 S.Ct. 1577(quotingUnited States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650(2008) ).Only after that can we decide whether its unconstitutional applications are substantial and render the law unconstitutional.Id.

A.

The parties dispute the reach of Section 14:122.We start with the text.The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty."(Emphasis added.)On its face, the statute is extremely broad.The definition of "threat" generally encompasses...