[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUGUST 14, 2000 THOMAS K. KAHN No. 99-2354 CLERK ________________________
D. C. Docket No. 98-CV-00583-CV-ORL-18C
CHERYL BISCHOFF, VICKY STITES, Plaintiffs-Appellants,
versus
OSCEOLA COUNTY, FLORIDA, a Political Subdivision of the State of Florida, CHARLES CROFT, Sheriff, in his official capacity, Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida _________________________ (August 14, 2000)
Before EDMONDSON and MARCUS, Circuit Judges, and HANCOCK*, District Judge.
MARCUS, Circuit Judge:
* Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation. In this appeal, we address whether a federal district court, having raised sua
sponte a question about the Plaintiffs’ standing, may dismiss a complaint
determining that the Plaintiffs lack standing simply by making a credibility
determination based on the contents of squarely conflicting affidavits without
taking oral testimony at an evidentiary hearing.
Plaintiffs Cheryl Bischoff and Vicky Stites filed this action alleging that
certain Florida traffic control laws are unconstitutional on their face and as applied.
Presented with cross-motions for summary judgment on the merits, the district
court ruled sua sponte that Plaintiffs’ as applied challenge failed for lack of
standing because the Plaintiffs were not threatened with arrest and therefore
sustained no injury in fact. In so ruling, however, the court resolved central factual
disputes and made witness credibility choices on issues material to standing just by
relying on its reading of warring affidavits. Because we conclude that in this
situation the district court was required to conduct an evidentiary hearing before
resolving the disputed factual issues, and could not make credibility determinations
based solely on the contents of a plainly conflicting paper record, we are
constrained to reverse the dismissal of this action and remand to the district court
to either hold an evidentiary hearing on the question of standing or to consider the
2 merits of Plaintiffs’ as applied challenge as raised in the parties’ cross motions for
summary judgment.
I.
The core facts of this case are straightforward and squarely in dispute. On
December 29, 1997, Plaintiffs Bischoff and Stites, along with other religious
activists representing a variety of organizations, participated in a demonstration to
protest what they perceived to be Walt Disney World’s support of homosexuality.
The demonstration occurred along the narrow, grassy islands that border the
heavily-trafficked intersection of Irlo Bronson Memorial Highway and Old
Vineland Road in Osceola County, Florida. The activists carried signs and
handbills expressing their criticism of Walt Disney World’s policies regarding
homosexuals. When motorists stopped at traffic lights, some of the activists
distributed their handbills to them.
The demonstration drew the attention of the Osceola County Sheriff’s
Department. The officers complained to the activists that the demonstration was
backing up traffic. They warned the demonstrators not to impede the flow of
traffic and to “stay off the roadway or they would be arrested.” Three
demonstrators, Phillip Benham, Matthew Bowman, and Seth Marschke, were
3 arrested.1 The officers stated in affidavits that these three activists were arrested
because they entered the roadway and impeded the flow of traffic. While Bischoff
1 Benham, Bowman, and Marschke were charged with violating chapters 316.2045 and 316.2055 of the Florida Uniform Traffic Control Law. The relevant provisions of chapter 316.2045 are as follows:
(1) It is unlawful for any person or persons willfully to obstruct the free, convenient, and normal use of any public street, highway, or road by impeding, hindering, stifling, retarding, or restraining traffic or passage thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon; and any person or persons who violate the provisions of this subsection, upon conviction, shall be cited for a pedestrian violation, punishable as provided in chapter 318.
(2) It is unlawful, without proper authorization or a lawful permit, for any person or persons willfully to obstruct the free convenient, and normal use of any public street, highway, or road by any of the means specified in subsection (1) in order to solicit. Any person who violates the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Organizations qualified under s. 501(c)(3) of the Internal Revenue Code and registered pursuant to chapter 496, or persons or organizations acting on their behalf are exempted from the provisions of this subsection for activities on streets or roads not maintained by the state. Permits for the use of any portion of a state-maintained road or right-of-way shall be required only for those purposes and in the manner set out in s. 337.406.
(3) Permits for the use of any street, road, or right-of-way not maintained by the state may be issued by the appropriate local government.
(4) Nothing in this section shall be construed to inhibit political campaigning on the public right-of-way or to require a permit for such activity.
Chapter 316.2055 provides:
It is unlawful for any person on a public street, highway, or sidewalk in the state to throw into, or attempt to throw into, any motor vehicle, or offer, or attempt to offer, to any occupant of any motor vehicle, whether standing or moving, or to place or throw into any motor vehicle any advertising or soliciting materials or to cause or secure any person or persons to do any one of such unlawful acts.
4 and Stites concede that Bowman and Marschke entered the shoulder of the
intersection before being arrested, they claim that Bowman and Marschke did not
enter the traffic lanes, and that Benham simply stood on the grassy median and did
not distribute handbills at all. Plaintiffs deny that any of the men impeded the flow
of traffic.
Plaintiffs state in their affidavits2 that they were engaged in the same
handbilling activities as Bowman and Marschke, that they were specifically
threatened with arrest, and that, following the arrest of Benham, Bowman, and
Marschke, they and the remaining activists were told to stop distributing handbills
and to abandon the intersection. Plaintiffs say they would like to return to the
intersection to distribute handbills but have not done so for fear they will be
arrested.
On May 18, 1998, Bischoff and Stites filed a Complaint against Osceola
County, Florida alleging that Florida Uniform Traffic Control Law chapters
316.2055 and 316.2045 were unconstitutional both as applied and on their face.
Plaintiffs sought declaratory and injunctive relief to prevent Osceola County from
applying the laws to prevent their handbilling activities. On June 9, 1998, Osceola
2 Plaintiffs’ Complaint and Amended Complaint were both verified. Allegations of facts contained in them are included when referring to affidavits of Plaintiffs’.
5 County filed a motion to dismiss on the grounds that the Complaint failed to state a
cause of action against it because it had no connection to or power over the
enactment or enforcement of the statutes at issue. In response to Osceola County’s
motion to dismiss, Plaintiffs filed an Amended Complaint on July 8, 1998. The
Amended Complaint added Osceola County Sheriff Charles Croft, acting in his
official capacity, as a Defendant in the action. Plaintiffs again alleged that the
challenged statutes were unconstitutional both as applied and on their face and
sought declaratory and injunctive relief. Soon thereafter, Sheriff Croft filed a
motion to dismiss, or in the alternative for summary judgment. On July 30, 1998,
Osceola County also filed a motion to dismiss. Plaintiffs, in turn, filed a cross
motion for summary judgment.
On February 2, 1999, in response to the cross motions for summary
judgment, the district court denied Plaintiffs’ motion for summary judgment and
dismissed the action. First, the court held that Plaintiffs “lack standing to
challenge the statutes as applied because they cannot establish that they suffered an
actual or threatened injury sufficient to ensure that the court would not be
rendering an advisory opinion.”3 Order at 6. Next, apparently finding that
3 As a result of this holding, the court did not address the merits of Plaintiffs’ as applied challenge.
6 Plaintiffs did have standing to bring their facial challenge, the court denied
Plaintiffs’ overbreadth claim on the merits. The court held that Plaintiffs’ facial
challenge failed because the statutes were not substantially overbroad but were
“merely traffic laws that regulate conduct in a neutral manner.” Order at 11.
II.
As an initial matter, we emphasize that the district court correctly reached
out and considered the question of standing sua sponte. As the Supreme Court
made clear in United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d
635 (1995), “[t]he question of standing is not subject to waiver . . . . ‘The federal
courts are under an independent obligation to examine their own jurisdiction, and
standing is perhaps the most important of [the jurisdictional] doctrines.’” Id. at
742, 115 S.Ct. at 2435 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31, 110
S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990)) (internal quotation marks omitted); see
also University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410
(11th Cir. 1999) (noting that “it is well settled that a federal court is obligated to
inquire into subject matter jurisdiction sua sponte whenever it may be lacking”);
Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir.
1995) (explaining that “‘[b]efore rendering a decision . . . every federal court
operates under an independent obligation to ensure it is presented with the kind of
7 concrete controversy upon which its constitutional grant of authority is based; and
this obligation on the court to examine its own jurisdiction continues at each stage
of the proceedings, even if no party raises the jurisdictional issue and both parties
are prepared to concede it’”) (quoting Hallandale Prof’l Fire Fighters Local 2238 v.
City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991)); Alabama v. United States
Envtl. Protection Agency, 871 F.2d 1548, 1554 (11th Cir. 1989) (noting that
“[s]tanding is a jurisdictional prerequisite to suit in federal court”) (citing Valley
Forge Christian College v. Americans United for Separation of Church and State,
454 U.S. 464, 475-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).
The party invoking federal jurisdiction bears the burden of proving standing.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119
L.Ed.2d 351 (1992). Moreover, each element of standing “must be supported in
the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the
litigation.” Id. Therefore, when standing becomes an issue on a motion to dismiss,
general factual allegations of injury resulting from the defendant’s conduct may be
sufficient to show standing. However, when standing is raised at the summary
judgment stage, the plaintiff can no longer rest on “mere allegations.” See id. at
561, 112 S.Ct. at 2137. Instead, the plaintiff must “‘set forth’ by affidavit or other
8 evidence ‘specific facts,’ . . . which for purposes of the summary judgment motion
will be taken to be true.” Id. See also Wilson v. State Bar of Georgia, 132 F.3d
1422, 1427 (11th Cir. 1998); Church v. Huntsville, 30 F.3d 1332, 1336 (11th Cir.
1994); Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800,
806 (11th Cir. 1993). In Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987), the
D.C. Court of Appeals nicely summarized the various procedural methods by
which a district court may come to address standing. According to the court:
[A] defendant’s challenge to a plaintiff’s standing can take two forms: a motion to dismiss, which is based exclusively on plaintiff’s pleadings, and a motion for summary judgment, in which evidence, not pleadings, pertinent to standing are evaluated by the district court. In both instances, disputed facts must be construed in the light most favorable to plaintiff. In addition to these two party-initiated motions, the court on its own initiative may undertake evidentiary hearings, even in the context of a motion to dismiss.
Id. at 904.4
A.
As stated previously, in this case, standing was not raised by the Defendants
in either their motion to dismiss or their motion for summary judgment but was
decided by the district court sua sponte in response to the parties’ cross motions for
4 The D.C. Court of Appeals explained that a motion to dismiss for lack of standing brought pursuant to Rule 12(b)(1) does not convert into a motion for summary judgment simply because the court looks beyond the pleadings. Instead, the district court may, within the scope of a Rule 12(b)(1) proceeding, initiate a factual inquiry. Haase, 835 F.2d at 906-08.
9 summary judgment and, notably, was decided without an evidentiary hearing.
Moreover, it is clear that the district court based its standing determination on its
judgments regarding the credibility of the affidavits presented by Plaintiffs and
Defendants. The court concluded that “[a]lthough the plaintiffs assert that they
suffered an injury because a particular officer threatened them with arrest, the
undisputed evidence shows that the plaintiffs are seeking standing not because they
suffered an injury themselves but instead because their companions suffered an
injury.” Order at 7. According to the district court, Plaintiffs did not face a real
threat of arrest because “the officers’ affidavits show that the officers only arrested
those who obstructed traffic, and both parties agree that the plaintiffs did not, and
never intended to, obstruct the flow of traffic.”5 Order at 7. The court referred to
disputed questions of fact as undisputed and clearly disbelieved Plaintiffs’
testimony that they were threatened with arrest for engaging in exactly the same
behavior as did those individuals who were arrested. The district court simply
credited the affidavits provided by the Sheriff’s Department’s officers over those
provided by the Plaintiffs. The core question before us on appeal, therefore, is
whether a district court faced with warring affidavits can make judgments
5 Plaintiffs deny that Marschke, Bowman, and Benham ever obstructed traffic prior to their arrest.
10 regarding witness credibility and findings of disputed fact essential to its standing
determination without holding an evidentiary hearing.
Our Circuit has suggested, and other circuits have made clear, that a district
court cannot decide disputed factual questions or make findings of credibility
essential to the question of standing on the paper record alone but must hold an
evidentiary hearing. In Steele v. National Firearms Act Branch, 755 F.2d 1410
(11th Cir. 1995), we explained that when determining standing, a district court
should resolve disputed factual issues either at a pretrial evidentiary hearing or at
trial. Steele involved a challenge to regulations promulgated by the Secretary of
the Treasury setting forth requirements that had to be met in order to obtain
Treasury approval for the transfer of certain types of firearms. The plaintiff sued
various officials who refused to sign a form authorizing him to sell regulated
firearms and asked the court to declare that the defendants’ refusal to sign the form
was arbitrary and capricious. The district court granted defendants’ motion to
dismiss for failure to state a claim. On appeal we addressed the question of
standing even though this issue had not been raised below. Id. at 1413. We held
that based on the evidence before the district court, consisting of the pleadings and
exhibits, we could not determine if the plaintiff actually had standing to bring his
case. We then remanded to the district court to give the plaintiff the opportunity to
11 present evidence sufficient to permit the district court to resolve the standing
question. In dicta, we discussed the evidentiary burdens placed on the plaintiff to
prove standing at different stages of litigation and the obligations of a district court
when faced with disputed questions of fact. We explained:
If a defendant moves to dismiss a complaint for lack of standing, a court must accept as true all of the plaintiff’s material allegations. A court may treat a motion to dismiss as one for summary judgment, thereby requiring that a plaintiff provide affidavits supporting factual allegations made in the complaint. Disputed factual issues may be resolved at a pretrial evidentiary hearing or during the course of trial.
Id. at 1414 (emphasis added) (internal citations omitted).
The First and Fifth Circuits have been even more explicit about the need to
hold an evidentiary hearing before resolving disputed factual questions material to
the determination of standing. In Martin v. Morgan Drive Away, Inc., 665 F.2d
598 (5th Cir. 1982), the Fifth Circuit reviewed the district court’s grant of
defendant’s motion to dismiss for want of standing. The district court based its
standing conclusion on its factual finding that plaintiff’s agreement with a bank to
assign to him the legal claims of his former company was champertous. The court
of appeals vacated the district court’s order concluding that the district court erred
in making a ruling regarding standing based on its determination of disputed facts
without first holding an evidentiary hearing. Id. at 602 (holding that “the trial
court erred in not holding an evidentiary hearing on the issue of Samford’s
12 standing to prosecute this action. As discussed [], Samford’s standing or its
absence is based upon several disputed issues of fact. Thus, a summary disposition
of the type made by the trial court was inappropriate.”).
In Barrett Computer Services, Inc. v. PDA, Inc., 884 F.2d 214 (5th Cir.
1989), the Fifth Circuit again made clear that disputed factual issues material to
standing must be determined not on the record but with an evidentiary hearing. In
Barrett, the district court granted defendant’s motion for summary judgment for
lack of standing. The district court held that the plaintiff had not presented
evidence sufficient to raise a genuine issue of material fact regarding whether it
possessed the privity of contract necessary for it to have standing because the court
did not credit the affidavit that the plaintiff had relied on for this purpose. The
district court found the affidavit was conclusory and therefore valueless as
evidence of standing. Id. at 215. The court of appeals disagreed that the affidavit
was conclusory. Once the court of appeals credited the affidavit it was faced with
contradictory evidence on the question of standing thereby making summary
judgment inappropriate. Id. at 217-218. As the court explained:
[W]e find that BCS succeeded in putting forth evidence supporting its claim of privity--and , thereby, standing--in relation to the PDA- American Excel contract. As BCS is only required, at the summary judgment stage, to bring forth sufficient evidence of the essential elements on which it bears the burden of proof, we find that the district court erred in granting summary judgment to PDA and
13 dismissing BCS’ claims on the merits. . . . [T]he evidence presented suffices to establish the existence of a genuine fact issue regarding BCS’ standing to bring the claims alleged in its original complaint.
Id. at 218. The court of appeals then remanded the case to the district court to
resolve the disputed questions of fact by holding an evidentiary hearing on the
matter. The court directed that “in a case in which considerations of standing can
be severed from a resolution of the merits, a preliminary hearing--to resolve
disputed factual issues determining standing--is an appropriate course. Such a
hearing could result from a motion to dismiss for lack of subject matter
jurisdiction. The issue of standing may also be raised upon the court’s own
motion.” Id. at 220 (internal citations omitted).
Similarly, the First Circuit in Munoz-Mendoza v. Pierce, 711 F.2d 421 (1st
Cir. 1983), made clear that a district court must resolve disputed questions of fact
relevant to standing either at trial or through a pretrial evidentiary hearing. In
Munoz, the plaintiffs challenged a decision of the Department of Housing and
Urban Development (HUD) to grant money to Boston, Massachusetts for a
commercial complex on the ground that HUD did not sufficiently study the
negative effects the complex would have on the racial integration of neighborhoods
in the area. The district court held that the plaintiffs lacked standing to challenge
the agency action and dismissed their complaint for lack of subject matter
14 jurisdiction without reaching the merits. Id. at 423. The court of appeals made
clear that ordinarily a district court can decide disputed factual questions relevant
to standing only at trial or at a pretrial evidentiary hearing. The First Circuit
explained:
Decisions of the Supreme Court and other federal courts suggest that factual issues concerning the existence of “injury in fact” are to be resolved much like any other factual issue. . . . Where “injury” and “cause” are not obvious, the plaintiff must plead their existence in his complaint with a fair degree of specificity. The defendant thereafter can move for summary judgment, and obtain it unless affidavits or other submissions indicate that a genuine issue of material fact exists concerning standing. The court must resolve any genuine disputed factual issue concerning standing, either through a pretrial evidentiary proceeding or a trial itself.
Id. at 425 (emphasis added) (internal citations omitted).6
We find the logic of these cases persuasive and consistent with our general
conviction that in both the criminal and civil context, credibility determinations
generally are most reliable when the factfinder is able to observe the witness in
person. As Wigmore explained in the context of the Confrontation Clause of the
Sixth Amendment, in person confrontation of witnesses is important because it
ensures “the presence of the witness before the tribunal so that his demeanor while
6 The court went on to explain that although the district court in that case had rested its standing conclusion on factual determinations made on the record alone, because neither party complained on appeal about the district court’s decision to make factual findings or asked the court of appeals to reconsider these findings, it would review the district court’s findings under the clearly erroneous standard. Id. at 426.
15 testifying may furnish such evidence of his credibility as can be gathered
therefrom. . . . [This principle] is satisfied if the witness, throughout the material
part of his testimony, is before the tribunal where his demeanor can be adequately
observed.” 5 J. Wigmore, Evidence § 1399, p. 199 (J. Chadbourn rev. 1974). In
the civil context as well, the Supreme Court has recognized the importance of
direct witness observation for making determinations of credibility. According to
the Court, “[p]articularly where credibility and veracity are at issue . . . written
submissions are a wholly unsatisfactory basis for decision.” Goldberg v. Kelly,
397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (holding that
termination of benefits under the Aid to Families with Dependent Children
program must be preceded by a hearing). Thus, in a case where the evidence
relating to standing is squarely in contradiction as to central matters and requires
credibility findings, a district court cannot make those findings simply by relying
on the paper record but must conduct a hearing at which it may evaluate the live
testimony of the witnesses.
This is such a case. Here, the district court was presented with clearly
contradictory affidavits bearing directly on the central question of whether the
Plaintiffs suffered an injury in fact sufficient to establish standing. The affidavits
of Plaintiffs Bischoff and Stites were consistent as were those of Officers Edward
16 Levine and George L. Griffin, Jr., but the two sets of affidavits plainly were in
direct conflict.
Plaintiffs stated: The Officers stated:
1. Bowman and Marschke were 1. Bowman and Marschke entered the distributing fliers at the intersection. roadway and impeded the flow of Bischoff, ¶ 8, Stites, ¶ 7. Bowman traffic. Levine, ¶ 6. and Marschke stepped onto the shoulder of the roadway but did not enter the traffic lanes. Bischoff, ¶ 14, Stites, ¶13. 2. Marschke and Bowman were arrested 2. Marschke, and Bowman did not because they entered the roadway and obstruct the flow of traffic at the impeded the flow of traffic. Levine, ¶ 8. intersection. Bischoff, ¶ 13, Stites, ¶ 12. 3. Benham entered the roadway and 3. Benham stood in the grassy impeded the flow of traffic. Griffin, ¶ 4. median prior to his arrest and had not distributed any literature. Bischoff, ¶¶ 8, 14, Stites, ¶¶ 7, 13. 4. Benham was arrested because he 4. Benham did not obstruct the flow entered the roadway and impeded the of traffic at the intersection. Bischoff, flow of traffic. Griffin, ¶ 6. ¶ 13, Stites, ¶ 12. 5. Only those persons who entered the 5. Benham stood in the grassy roadway and impeded the flow of traffic median, did not obstruct traffic, did were arrested. Those persons who stood not distribute literature, and was in the median were not arrested. Levine, arrested. Bischoff, ¶ 5, Stites, ¶ 5. ¶ 8, Griffin, ¶ 6.
6. Bischoff and Stites were engaged in “the exact same [handbilling] activity” as Bowman and Marschke but were not arrested. Bischoff ¶ 8, Stites, ¶ 7.
17 7. Bischoff and Stites were each specifically threatened with arrest by an officer who identified herself as Officer Crawford. Bischoff, ¶ 17, Stites, ¶ 16.
These affidavits are contradictory on several points essential to standing.
Thus, for example, while the officers state that only individuals who entered the
roadway and impeded traffic were arrested, Plaintiffs say that the individuals who
were arrested did not impede traffic and, notably, that Benham never left the grassy
median. In addition, while the officers’ affidavits suggest that Plaintiffs were not
really threatened with arrest because they did not enter the roadway or impede
traffic,7 the officers do not directly address or deny Plaintiffs’ unambiguous
averments that they were directly threatened with arrest despite the fact that they
neither entered the roadway nor impeded traffic. The question of whether the
Plaintiffs were in fact threatened with arrest for their activities is crucial to the
question of whether they suffered an injury in fact sufficient to establish standing.
7 In their opposition to Sheriff Croft’s Motion for Summary Judgment, Plaintiffs state that they did not step into the roadway. Plaintiffs use the definition of roadway provided in Fla. Stat. 316.003(42): “Roadway - the portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.” In light of this definition, Plaintiffs’ testimony that they engaged in exactly the same activity as Bowman and Marschke is entirely consistent with their statements that they did not enter the roadway, since they may have only entered the shoulder of the roadway.
18 In light of the conflicting affidavits in this case, we conclude that the district
court erred by making disputed factual findings and judgments regarding witness
credibility that were essential to its determination of standing without holding an
evidentiary hearing. As a result, we cannot defer to the district court’s factual
findings. Instead, we must accept the evidence in the record as true and review the
district court’s order on standing as if it were made in response to a motion for
summary judgment.8
8 Plaintiffs contend that because the court ruled on standing sua sponte we should apply the standard of review that is appropriate when such determinations are made at the motion to dismiss stage--requiring only that Plaintiffs have adequately alleged standing without inquiring as to whether they have presented actual evidence sufficient to demonstrate standing. Plaintiffs look for support to Church v. City of Huntsville in which we considered “the ‘degree of evidence’ by which the plaintiffs must have established their standing” at an early stage of litigation where a preliminary injunction is being sought. Huntsville, 30 F.3d at 1336. In Huntsville we applied the same evidentiary burden imposed in cases where standing is raised on a motion to dismiss and focused only on the adequacy of the complaint. We explained:
It might well be unfair [] to impose a standing burden beyond the sufficiency of the allegations of the pleadings on a plaintiff seeking a preliminary injunction, unless the defendant puts the plaintiff on notice that standing is contested. . . . In these particular circumstances, and for present purposes only, we think that the plaintiffs’ standing should be judged on the sufficiency of the allegations of the complaint, with any preliminary hearing evidence favorable to the plaintiffs on standing treated as additional allegations of the complaint.
Id. at 1336.
In Huntsville, we applied the more lenient standard of review because the standing issue was decided by the district court so early in the case and without any notice to plaintiffs that standing was at issue. In this case, although the Defendants did not make an issue of standing, the Plaintiffs themselves raised the issue in their Opposition to Sheriff Croft’s Motion for Summary Judgment. Moreover, this case had moved well beyond the preliminary stages at the time when the district court made its sua sponte ruling regarding standing in response to the cross motions for summary judgment. For these reasons, we review the district court’s ultimate conclusion regarding standing
19 B.
Accepting Plaintiffs’ affidavits as true (as we must at this stage), we
conclude that Plaintiffs have established standing. In order to prove standing,
Plaintiffs must satisfy the doctrine’s constitutional requirements. Huntsville, 30
F.3d at 1335-36. To satisfy the constitutional standing requirements, a plaintiff
must make three showings:
First, the plaintiff must have suffered an “injury in fact”--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan, 504 U.S. at 560-561, 112 S.Ct. at 2136 (internal citations and footnote
omitted). See also Huntsville, 30 F.3d at 1335 (quoting Valley Forge, 454 U.S. at
472, 102 S.Ct. at 758); Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994).
The Supreme Court has also instructed courts to consider three prudential
principles which may counsel for judicial restraint in considering the plaintiff’s
claims. The prudential considerations include: “1) whether the plaintiff’s
as if it were made in response to a motion for summary judgment. In practice, our choice is immaterial since Plaintiffs have presented sufficient allegations and evidence to survive either test.
20 complaint falls within the zone of interests protected by the statute or constitutional
provision at issue; 2) whether the complaint raises abstract questions amounting to
generalized grievances which are more appropriately resolved by the legislative
branches; and 3) whether the plaintiff is asserting his or her own legal rights and
interests rather than the legal rights and interests of third parties.” Saladin v. City
of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987) (citing Allen v. Wright, 468
U.S. 737, 751, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984)); see also Cone Corp.
v. Florida Dep’t of Transp., 921 F.2d 1190, 1203 n.43 (11th Cir. 1991).
The requirements for standing are somewhat more lenient for facial
challenges to statutes on the grounds of overbreadth. In the First Amendment
context, plaintiffs can challenge the constitutionality of a statute that has not been
unconstitutionally applied to them. See Secretary of State of Maryland v. Joseph
H. Munson Co., 467 U.S. 947, 955-57, 104 S.Ct. 2839, 2845-47, 81 L.Ed.2d 786
(1984); National Council for Improved Health v. Shalala, 122 F.3d 878, 882-83
(10th Cir. 1997); Bordell v. General Electric Co., 922 F.2d 1057, 1060-61 (2d Cir.
1991). That is, plaintiffs can challenge a statute as overbroad even if their
particular conduct is not constitutionally protected. As the Supreme Court
explained in Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915-16,
37 L.Ed.2d 830 (1973):
21 [T]he Court has altered its traditional rules of standing to permit--in the First Amendment area--“attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. at 486, 35 S.Ct. at 1121. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
However, even under the more lenient requirements for standing applicable
to First Amendment overbreadth challenges, it still remains the law that plaintiffs
must establish that they have suffered some injury in fact as a result of the
defendant’s actions. See Virginia v. American Booksellers Assoc. Inc., 484 U.S.
383, 392, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (explaining that to facially
challenge the constitutionality of a statute on overbreadth grounds the plaintiff
must “establish at an irreducible minimum an injury in fact; that is, there must be
some ‘threatened or actual injury resulting from the putatively illegal action. . . .
.’”) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d
343 (1975) (internal quotation omitted)); Munson, 467 U.S. at 958, 104 S.Ct. at
2847 (emphasizing that plaintiff challenging the constitutionality of a statute as
overbroad, although it need not show that its own First Amendment rights have
been violated, must still show an “injury in fact” caused by the challenged statute);
22 National Council for Improved Health, 122 F.3d at 883 (noting that “although the
overbreadth doctrine allows one whose First Amendment rights have not been
violated to assert a facial challenge on behalf of others whose rights may be
infringed, it does not eliminate the need for the plaintiff to demonstrate its own
cognizable injury in fact”); Bordell, 922 F.2d at 1061 (explaining that “[t]his
slender exception to the prudential limits on standing [allowing litigants to seek
redress for violations of the rights of others] [] does not affect the rigid
constitutional requirement that plaintiffs must demonstrate an injury in fact to
invoke a federal court’s jurisdiction. Rather, the exception only allows those who
have suffered some cognizable injury, but whose conduct is not protected under the
First Amendment, to assert the constitutional rights of others.”) (citations omitted).
Plaintiffs’ evidence, taken as true, is sufficient to raise a genuine issue of
material fact regarding standing to defeat a motion for summary judgment on this
ground. First, Plaintiffs have asserted in their affidavits that they suffered a
specific and concrete injury in fact; namely, they were threatened with arrest for
their handbilling activities which were exactly the same activities as those for
which their co-demonstrators were arrested and charged under the statutes.
Plaintiff Bischoff states in her affidavit: “A female Osceola Sheriff’s department
officer, who identified herself as Officer Crawford, threatened to arrest all present
23 and specifically sought to arrest Mr. Benham and me.” Bischoff Aff. ¶ 17.
Plaintiff Stites also testified that a female Sheriff’s department officer threatened to
arrest all present and specifically sought to arrest Stites and Benham. Stites Aff. ¶
16. Taken as true, Plaintiffs’ testimony that they were threatened with arrest for
engaging in free speech activities is evidence of an actual and concrete injury
wholly adequate to satisfy the injury in fact requirement of standing. See Steffel v.
Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974)
(holding that plaintiff had standing to challenge constitutionality of a Georgia
criminal trespass law because he was warned twice to stop handbilling and was
told that if he engaged in the activity again he would be arrested); Wilson v. State
Bar of Georgia, 132 F.3d 1422, 1428 (11th Cir. 1998) (explaining that “standing
exists at the summary judgment stage when the plaintiff has submitted evidence
indicating ‘an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat
of prosecution’”) (quoting Babbitt v. United Farm Workers Nat’l Unition, 442 U.S.
289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979)); Jacobs v. Florida Bar, 50
F.3d 901, 904 (11th Cir. 1995) (noting that a plaintiff may establish standing by
showing that he was threatened with prosecution, that prosecution is likely, or that
there is a credible threat of prosecution); Harris v. Evans, 20 F.3d 1118, 1125 (11th
24 Cir. 1994) (describing the threat of prosecution as a concrete injury for purposes of
establishing standing).
Second, Plaintiffs have presented evidence showing a direct causal link
between the injury they suffered--the threat of arrest--and Defendants’ enforcement
of the challenged statutes. Both Plaintiffs testified that they were threatened with
arrest for engaging in the same handbilling conduct that resulted in the arrest and
charge under the challenged statutes of Bowman, and Marschke. Plaintiff Bischoff
testified that Bowman and Marschke were arrested for distributing fliers at the
intersection and that she was involved “in the exact same activity.” Bischoff Aff. ¶
8. Plaintiff Stites similarly testified that Bowman and Marschke were arrested
while distributing fliers at the intersection and she was involved “in the exact same
activity.” Stites Aff. ¶ 7. Finally, it is clear that a decision in Plaintiffs’ favor
declaring the chapters unconstitutional, either on their face or as applied to
Plaintiffs, would redress the injury of being threatened with arrest for engaging in
constitutionally protected activity.
Plaintiffs satisfy the prudential considerations of standing as well. First,
Plaintiffs’ Amended Complaint does “fall within ‘the zone of interests to be
protected or regulated by the statute or constitutional guarantee in question.’”
Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data
25 Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d
184 (1970)). Plaintiffs’ Amended Complaint unambiguously alleges that the
statutes at issue and the Defendants’ enforcement of these statutes violates their
First Amendment rights. See Church of Scientology Flag Serv. Org., Inc. v. City
of Clearwater, 2 F.3d 1514, 1526 (11th Cir. 1993) (finding that “[a]ny citizen’s
interest in preventing violations of [her First Amendment] rights is more than
marginally related to the constitutional provision . . . .”). Second, the Amended
Complaint raises specific grievances regarding both the application and the breadth
of the statutes at issue. Plaintiffs’ grievances are not abstract and generalized but
are specific and concrete challenges to Defendants’ threatened enforcement of
these statutes against Plaintiffs. Third, and most notably, Plaintiffs are asserting
their own legal rights and interests rather than those of third parties. Although
Plaintiffs were not themselves arrested, as were their fellow demonstrators
Marschke, Bowman, and Benham, they have presented evidence that they were
specifically threatened with arrest, thereby giving them their own legally
cognizable interest in challenging the constitutionality of the statutes at issue. On
this record, the Plaintiffs have presented sufficient evidence to raise a genuine
issue of fact regarding whether they have standing to pursue their claims.
26 Accordingly, we conclude that in this case, where the district court was
faced with warring affidavits on issues essential to standing, the court erred in
making findings of disputed facts and judgments regarding credibility, on which it
then based its standing conclusion, without holding an evidentiary hearing. As a
result, we cannot defer to the district court’s factual findings. Instead, we accept
Plaintiffs’ evidence as true and review de novo the district court’s determination
regarding standing as though it were made in response to a motion for summary
judgment. Here, the Plaintiffs have presented sufficient evidence of standing to
survive summary judgment. We therefore reverse the district court’s order
dismissing Plaintiffs’ action for lack of standing and remand to the district court
either to hold an evidentiary hearing on the question of standing or to rule on the
merits of Plaintiffs’ as applied challenge as raised in the parties’ cross motions for
summary judgment.9 We refrain from reviewing the district court’s ruling on the
merits of Plaintiffs’ facial challenge at this time.10
REVERSED AND REMANDED.
9 We add that the district court cannot grant summary judgment in favor of the Plaintiffs on their as applied claim without first finding, after appropriate review, that they have standing to assert such a claim. 10 We note that if the district court determines, either at an evidentiary hearing or at trial, that the Plaintiffs were not actually threatened with arrest, then the Plaintiffs have not sustained a specific injury in fact and plainly, therefore, cannot bring either their as applied or facial challenge to the statutes.
27 28