UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) RAYMING CHANG, et al., ) ) Plaintiffs, ) ) v. ) Civ. Action No. 02-2010 (EGS) ) UNITED STATES, et al., ) ) Defendants. ) )
MEMORANDUM OPINION
Pending before the Court is [574] Defendant District of
Columbia’s (the “District”) motion for partial summary judgment
on plaintiffs’ claims for all equitable relief other than the
expungement of their individual arrest records. The District
moves for summary judgment on two alternative grounds. First,
the District argues plaintiffs lack standing to seek prospective
injunctive relief. Second, defendant claims plaintiffs are
unable to seek this relief because they are bound by the proposed
class settlement in the related case of Barham v. Ramsey, Civ.
Action No. 02-2283 (“Barham”). On September 8, 2010, the Court
ruled on the record in open court that plaintiffs were not bound
by any of the provisions of the Barham class settlement. This
Memorandum Opinion, therefore, addresses the remaining issue in
the District’s motion for partial summary judgment: whether
plaintiffs have Article III standing to seek equitable relief.
Upon consideration of the motion, the response and reply thereto, the parties’ supplemental briefing, the arguments of counsel at
the September 8, 2010 motions hearing, the applicable law, the
entire record, and for the reasons set forth below, the
District’s motion for partial summary judgment is GRANTED.
I. BACKGROUND
This case is one of several which arose from events on
September 27, 2002, during demonstrations in the District of
Columbia protesting the policies of the World Bank, the
International Monetary Fund, and the United States government.
Chang Third Am. Compl. ¶¶ 42-43, 46.1 On that date, plaintiffs,
seven students from George Washington University, were among the
approximately 400 people arrested at or near a demonstration
taking place in General John Pershing Park (“Pershing Park”),
located on Pennsylvania Avenue, N.W., between 14th and 15th
Streets, N.W. Third Am. Compl. ¶¶ 20-27, 75-82. Plaintiffs were
present at Pershing Park either as observers for the National
Lawyers Guild or as journalists or photographers for The Hatchet,
a George Washington University student newspaper. Third Am.
Compl. ¶¶ 15, 18, 75-82. Plaintiffs allege that they were not
engaged in any unlawful activity. Third Am. Compl. ¶¶ 75-82.
1 Plaintiffs filed their Third Amended Complaint on July 19, 2005. Doc. No. 153. Plaintiffs moved for leave to file a fourth amended complaint late in 2009; however, in June 2010 they moved to stay their motion pending finalization of ongoing special master proceedings and resolution of sanctions issues. See Doc. No. 572; Minute Order June 7, 2010. Accordingly, the Third Amended Complaint is still operative.
2 Nevertheless, police officers surrounded them and hundreds of
others in Pershing Park, gave them no warning or order to
disperse, and arrested them. Third Am. Compl. ¶¶ 76-82; see also
Barham v. Ramsey, 434 F.3d 565, 569-70 (D.C. Cir. 2006) (finding
that police gave no order to disperse, did not warn persons in
Pershing Park that arrest was imminent, cordoned off the park,
and arrested 386 people inside). Plaintiffs allege they were
subsequently handcuffed, held on buses for up to 13 hours, and
later detained at the Metropolitan Police Academy for up to 18
hours with one wrist cuffed to the opposite ankle. Third Am.
Compl. ¶¶ 93-99.
Hundreds of other individuals were arrested and detained at
various locations in the city during the September 27, 2002
protests, and several lawsuits followed. In addition to the
Chang case, this Court presided over Abbate v. Ramsey, Civ.
Action No. 03-767; Barham v. Ramsey, Civ. Action No. 02-2283; and
Jones v. Dist. of Columbia, Civ. Action No. 02-2310, all stemming
from arrests on that day. On September 24, 2003, this Court
issued an Opinion and Order certifying a class action in the
Barham case and acceding to the Chang, Jones, and Abbate
plaintiffs’ requests that they be permitted to opt out of the
Barham class.
In the ensuing years, the plaintiffs in these other cases
have settled their claims with the District. The Jones
3 plaintiffs settled in 2004. See Jones, Civ. Action No. 02-2310,
Doc. Nos. 36, 40. The Abbate plaintiffs settled in January 2005.
The Abbate settlement provides for monetary relief as well as
equitable relief including, inter alia, revisions to the
District’s mass demonstration policing policies and practices.
See Abbate, Civ. Action No. 03-767, Doc. No. 99. The Barham
class reached a settlement agreement with the District in
February 2010, which was preliminarily approved by this Court on
March 30, 2010. See Barham, Civ. Action No. 02-2283, Doc. Nos.
595, 599. Among the equitable relief negotiated in the Barham
settlement is the District’s creation and implementation of a
document management and retention system, which is intended to
“ensure the preservation of records and documents arising from
mass demonstrations and protests[.]” Barham, Civ. Action No. 02-
2283, Settlement Agreement, Doc. No. 595-3 at 9.
There have been other changes impacting police policies and
procedures during mass demonstrations over the last eight years
as well. In 2005, the District of Columbia City Council passed
the First Amendment Rights and Police Standards Act (“FARPSA”).
See D.C. Code §§ 5-331.01, et seq. FARPSA includes provisions
which (1) require the police to give clear and audible warnings
to disperse at future protests and provide opportunities to exit
protest areas; (2) prohibit arrest for parading or demonstrating
without a permit; (3) prohibit wrist-to-ankle restraint of
4 persons arrested in connection with a First Amendment assembly;
and (4) require that persons arrested in connection with a First
Amendment assembly be released within four hours. See id.
Finally, in June 2010 another federal judge approved a class
action settlement in an additional protest case, Becker v. Dist.
of Columbia, Civ. Action No. 01-811. The Becker settlement also
contains equitable relief provisions, including mandatory
training for all District police regarding First Amendment
assemblies and mass demonstrations. See Becker v. Dist. of
Columbia, Civ. Action No. 01-811, Doc. No. 358-5 at 8-10.
In sum, while the other mass demonstration actions against
the District have settled, the Chang case continues. The
plaintiffs do not and never have sought preliminary injunctive
relief; instead, they seek permanent injunctive relief,
declaratory relief, and damages. Only the requests for
declaratory and injunctive relief, not including the expungement
of plaintiffs’ individual arrest records, are at issue in this
motion.2 Plaintiffs’ requests for relief include: (1) an order
2 The District does not move for summary judgment on plaintiffs’ claims for monetary damages. In addition, the Court granted expungement of the Chang plaintiffs’ arrest records in 2008. Specifically, the Court ordered that “[t]he arrests of the Chang Plaintiffs on September 27, 2002 are hereby declared null and void. Each of the Chang Plaintiffs are authorized to deny the occurrence of his or her arrest that day, without being subject to any penalty of perjury, fraud or other offense premised upon misrepresentation or deception in response to any query, whether posed orally or in writing[.]” See Doc. No. 381.
5 declaring that the arrest and confinement procedures utilized are
unconstitutional; and, (2) a requirement that clear and audible
warnings to disperse be given at future protests, with
opportunities for individuals to exit areas of protest. See
Third Am. Compl., Prayer for Relief ¶¶ a, b. Elsewhere in their
complaint, plaintiffs seek injunctive relief “to protect the
plaintiffs and the public from the policy, custom and/or practice
of using excessive force to prevent individuals from leaving
trap-and-arrest zones,” and “to protect the plaintiffs and the
public from a policy, custom and/or practice of keeping arrested
individuals in restraints or handcuffed for excessive periods[.]”
Third Am. Compl. ¶¶ 3-4. In their opposition to the District’s
motion for partial summary judgment, plaintiffs describe the
relief they seek as “a consent decree that would provide an
enforcement mechanism for illegal arrest practices.” Pls.’ Opp’n
at 22-23.
Since the commencement of the lawsuit, plaintiffs’ numbers
have dwindled to four. See Doc. No. 147 (dismissing plaintiff
Enright’s claims against the District); Doc. No. 190 (reflecting
the acceptance of the District’s offer of judgment by plaintiffs
Chastain and Young); Minute Order April 4, 2006 (entering
judgment on the claims of Chastain, Young, and Enright against
the District); Minute Order May 10, 2006 (granting the motion of
plaintiffs’ counsel to withdraw as counsel for Chastain, Young,
6 and Enright). In December 2009, the District filed a motion for
partial summary judgment regarding the remaining plaintiffs’
claims for prospective injunctive and equitable relief. The
parties conducted limited additional briefing and presented oral
argument in early September 2010. The District’s motion is now
ripe for determination by the Court.
II. STANDARD OF REVIEW
The standards for summary judgment motions regarding
standing are the same as the standards for summary judgment
motions generally. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)(“Since [the elements of standing] are not mere
pleading requirements but rather an indispensable part of the
plaintiff’s case, each element 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.”)
Under Federal Rule of Civil Procedure 56, a motion for
summary judgment shall be granted if the pleadings, depositions,
answers to interrogatories, admissions on file and affidavits
show that there is no genuine issue of material fact, and that
the moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Summary judgment must be entered “against a party who fails to
make a showing sufficient to establish the existence of an
7 element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The Celotex court explained:
In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Id. at 322-23 (quoting Fed. R. Civ. P. 56(c)).
III. ANALYSIS
Defendant argues that the four remaining plaintiffs lack
standing to seek prospective injunctive and declaratory relief
because they cannot show a real and immediate danger that they
will be subjected to the challenged conduct in the future. See
Def.’s Mem. at 1-4; Def.’s Reply at 6-19. Plaintiffs make two
substantive arguments in support of standing.3 First, plaintiffs
3 Plaintiffs also make an argument which can be characterized as procedural: they claim it is unnecessary for the Court to decide whether they have standing at this point in the litigation. Plaintiffs make two contradictory arguments on this point. First, they claim that the Court has already decided they have standing, and that this decision should be considered law of the case. Inexplicably, they then argue the opposite position and claim it would be premature for the Court to decide whether plaintiffs are entitled to equitable relief now ; instead, the Court should wait until after trial. Compare Pls.’ Opp’n at 5-10 (claiming the Court has already found plaintiffs have standing) with Pls.’ Opp’n at 28-31 (claiming “the Court is not required to address standing at this stage of the litigation”). Neither argument has merit. First, the Court has never addressed, much less decided, the standing issue. Standing arose
8 claim there is a genuine issue of material fact as to whether the
District continues to have a policy of permitting illegal mass
arrests which remains in place. See Pls.’ Opp’n at 12-24.
Second, they claim there is a genuine issue of material fact that
they, personally, face a real and immediate threat of being
subjected to this policy in the future. See Pls.’ Opp’n at 25-
27.
After careful consideration, and for the reasons set forth
below, the Court concludes that the four remaining plaintiffs
have not demonstrated that they are likely to suffer the same
injury again. Plaintiffs’ arguments regarding ongoing District
in two motions at the outset of this litigation, both of which were denied without opinion and without prejudice in order to move forward with other matters in this case as well as the other protest cases described above. See Minute Order Sept. 29, 2003 and Doc. No. 68. Assuming arguendo that the Court had decided the standing issue, such decisions are not law of the case - the doctrine does not apply to interlocutory orders such as the ones on which plaintiffs rely. See Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997) (interlocutory decisions not law of the case). The Court also rejects plaintiffs’ second procedural argument: that the Court should wait to decide if plaintiffs have standing to seek equitable relief until after trial. Standing is “an essential and unchanging predicate to any exercise” of the Court’s jurisdiction. Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting Lujan, 504 U.S. at 560). Accordingly, the Court is obligated to satisfy itself that it has jurisdiction over plaintiffs’ claims for equitable relief. See, e.g., Davis v. Fed. Election Comm’n, 128 S.Ct. 2759, 2569 (2008) (“Standing is not dispensed in gross. Rather, a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought[.]” (quotations and citations omitted)); City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (ruling plaintiff had standing to pursue claims for damages but not for prospective equitable relief).
9 policy are simply not determinative: without evidence that these
plaintiffs, personally, are likely to be subjected to that policy
again, they cannot meet the standing requirements for prospective
relief. Accordingly, the District’s motion for partial summary
judgment is hereby GRANTED.
A. Constitutional Standing Requirements
In order to meet the “irreducible constitutional minimum of
standing,” a plaintiff must establish three elements. Lujan, 504
U.S. 560. Specifically, a plaintiff must demonstrate that (1) he
or she has suffered an injury in fact; (2) the injury is
traceable to the defendant’s conduct; and (3) a federal court
decision is likely to redress the injury. See Northeastern
Florida Contractors v. City of Jacksonville, 508 U.S. 656, 663-64
(1993).
Plaintiffs seeking injunctive relief must establish a fourth
element to have standing. They must show a “real and immediate
threat of repeated injury” demonstrated by more than “past
exposure to illegal conduct.” City of Los Angeles v. Lyons, 461
U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96
(1974)). Unless a plaintiff can show he is “realistically
threatened by a repetition of his experience [giving rise to the
injury] . . . he has not met the requirements for seeking an
injunction in federal court[.]” Id. at 109.
10 The parties agree that Lyons controls plaintiffs’ request
for equitable relief. See Def.’s Mem. at 2; Pls.’ Supplemental
Submission at 6. In Lyons, plaintiff alleged that he was stopped
by the police, seized without provocation and put in a chokehold
which caused him to lose consciousness and suffer permanent
damage to his larynx. 414 U.S. 97-98. He sought both damages
and an injunction barring the city from using chokeholds except
in limited circumstances. Id. The Supreme Court found that Mr.
Lyons’ standing to seek prospective injunctive relief depended on
“whether he was likely to suffer future injury from the use of
chokeholds by police officers.” Id. at 105. In support of his
claim of standing, Mr. Lyons asserted that (1) he had been choked
in the past; (2) city police regularly and routinely apply
chokeholds with no provocation; (3) there had been at least 15
chokehold-related deaths; and (4) he “justifiably fear[ed] that
any contact he ha[d] with Los Angeles police officers may result
in his being choked[.]” Id. at 98. After consideration of these
assertions, the Court concluded that plaintiff had failed to
establish standing for prospective equitable relief. Id. at 108-
109.
The Lyons court set forth several reasons in support of its
determination that Mr. Lyons’ allegations regarding the
likelihood of a future encounter with the police were too remote
to show standing. First, the Court noted, Mr. Lyons could not
11 have standing for injunctive relief unless he could show a
likelihood of future injury to himself as an individual. See id.
at 107-08 (citing Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea v.
Littleton, 414 U.S. 488 (1974)). Accordingly, whether other
people might be victims of an unconstitutional chokehold in the
future was irrelevant to the standing inquiry if the evidence
provided by Mr. Lyons gave rise to “no more than speculation . .
. that Lyons himself will again be subjected to one of these
unfortunate instances.” Id. at 108 (emphasis added).
Similarly, the Court found that Mr. Lyons could not
establish standing based solely on evidence of a police practice
of applying chokeholds absent evidence that he himself was likely
to again be subject to that policy. See id. at 109 (“Lack of
standing does not rest on the termination of the police practice
but on the speculative nature of his claim that he will again
experience injury as the result of that practice even if
continued.”).
Finally, the Court found that the evidence plaintiff
provided regarding the likelihood that he would again be placed
in a chokehold did not support standing. Specifically, the Court
found that this likelihood rested on contingent events occurring
at some time in the future: namely, that plaintiff himself would
again be stopped by the police and would again be choked without
any provocation or legal excuse. See id. at 106, 106 n.7. The
12 Court found this combination of events too speculative to support
standing for injunctive relief. Id.; see also, e.g., United
Transp. Union v. Interstate Commerce Comm’n, 891 F.2d 908, 912
(D.C. Cir. 1989) (“[W]hen considering any chain of allegations
for standing purposes, we may reject as overly speculative those
links which are predictions of future events (especially future
actions to be taken by third parties) and those which predict a
future injury that will result from present or ongoing
actions[.]”).
B. Plaintiffs Have Not Established a Genuine Issue of Material Fact that They Would Suffer Repeated Injury
Defendants argue that, as in Lyons, plaintiffs here have not
established that they, personally, are likely to again be subject
to the same conduct.4 As a threshold matter, plaintiffs largely
ignore this personal injury requirement and focus almost
exclusively on whether the District had a policy of permitting
illegal mass arrests, and whether that policy remains in place.
4 The exact standard for judging likelihood of future injury is unresolved in this Circuit. See Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268, 1274 (D.C. Cir. 1994) (noting that standard for future injury has been formulated as “likely,” “fairly probable,” and “certainly impending,” among others) (citations omitted), see also Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (“real and immediate” or “realistic”) (citations omitted). For the purposes of consistency, the Court will use the term “likely” or “likelihood” here; however, this is not meant as an endorsement of one standard over another. As discussed throughout, plaintiffs cannot establish standing under any of the above formulations.
13 The Court finds plaintiffs’ discussions of the District’s
purported mass arrest policy to be largely misplaced. Even
assuming that plaintiffs have demonstrated a genuine issue of
material fact with respect to a prior and/or ongoing policy, that
is insufficient, without more, to demonstrate standing. As
discussed above, Lyons and its progeny clearly hold that,
regardless of the existence of an unlawful policy, a plaintiff
must show that he is sufficiently likely to be personally
subjected to the challenged conduct again in order to have
standing. See Lyons, 461 U.S. at 108-111 (even assuming illegal
policy exists, plaintiff cannot establish likelihood that he will
again experience injury as a result; accordingly, “he is no more
entitled to an injunction than any other citizen of Los
Angeles”); Haase v. Sessions, 835 F.2d at 911 (“plaintiffs must
not only demonstrate [a policy’s] existence but that they are
likely to be subjected to the policy again”); cf. Friends of the
Earth v. Laidlaw, 528 U.S. 167, 187-192 (2000) (if plaintiff can
establish that he is likely to experience future injury at the
time the lawsuit is filed, he has standing regardless of whether
the defendant has ceased its practice or policy since the suit
was filed). The existence of a policy, by itself, therefore,
cannot substitute for a showing that a plaintiff faces a real
threat that the policy will again be applied to him.
14 For the reasons discussed below, the Court finds that the
four remaining plaintiffs in this case fail to make this crucial
showing. Specifically, plaintiffs fail to create a genuine issue
of material fact that they, personally, face a likelihood of
additional injury similar to that alleged in their complaint.5
In their opposition to the motion for partial summary judgment,
plaintiffs provide a declaration from only one of the remaining
plaintiffs, Chris Zarconi. Mr. Zarconi provides no information
regarding his actions in 2002; his affidavit focuses solely on
his life in 2010. He alleges that he “has worked, in addition to
other jobs, as a professional photographer in the District of
Columbia.” Ex. 14 to Pls.’ Opp’n, Declaration of Christopher
Zarconi ¶ 3 (“Zarconi Decl.”). He states that he is “often
required to photograph events that take place throughout the
District . . . very often these events occur at or near the
5 In their pleadings and at oral argument, both parties focused almost exclusively on events that have occurred since the lawsuit was filed. See, e.g., Def.’s Mem. at 3-4; Pls.’ Opp’n at 15-25; Def.’s Reply at 6-19. The Court is not persuaded that standing analysis should take into account, much less rest on events subsequent to the filing of the lawsuit. See, e.g., Davis, 128 S.Ct. at 2769 (“while the proof required to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed” (citing Laidlaw, 528 U.S. at 180; Arizonans for Official English v. Arizona, 520 U.S. 43, 68, n.22 (1997))). However, as set forth herein, the Court concludes plaintiffs have failed to create a genuine issue of material fact that they had standing to seek prospective injunctive relief at any point in time, including when the suit was filed. It is therefore unnecessary to examine this issue further.
15 various national monuments or the various parks located
throughout the City.” Zarconi Decl. ¶ 5. He states “if I
observe or am made aware that a newsworthy event is taking place,
I will often seek to take photographs of the event.” Zarconi
Decl. ¶ 6. He then describes one of his current assignments.
I was recently hired to photograph the university view book for The George Washington University. For this job, I will be required to take photographs of 4-6 students over an extended period of time. Each of the students is involved politically, socially, academically, and otherwise with the university and the community extensively. I expect to be out on assignment with them in the early spring [2010] at demonstrations or rallies for causes they support or with which they are involved.
Zarconi Decl. ¶ 7. He concludes: “based on what happened to me
in Pershing Park in September 2002, and what I know about the
lack of true reform instituted by [the District] I think it is
entirely likely that I could be arrested again at a large
demonstration, despite my having committed no unlawful act.”
Zarconi Decl. ¶ 9.
The kinds of assertions offered by Mr. Zarconi have been
rejected by Lyons and its progeny as insufficient to establish
standing. His assertions regarding his presence at additional
demonstrations as a professional photographer require the
occurrence of several contingent, future events: that Mr. Zarconi
will be working as a photographer, that his clients will attend
demonstrations or rallies and ask him to accompany them, and that
he will be trapped and arrested without committing any illegal
16 activity or being afforded an opportunity to disperse.6 This
sequence of hypothetical future events is indistinguishable from
that found insufficient to establish standing in Lyons.
His remaining assertions are similarly deficient. Mr.
Zarconi cannot establish standing to seek an injunction based on
“what happened to me in Pershing Park in 2002,” Zarconi Decl. ¶
9; it is beyond dispute that “past 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.” Lyons, 461 U.S. at 102 (quoting
O’Shea, 414 U.S. at 495-96). Nor is his assertion that the
District has failed to institute “true reform” since 2002
sufficient to establish standing - again, it is no more than Mr.
Zarconi’s conjecture of future injury resulting from what he
allegedly knows of present or ongoing actions within the police
department. His remaining assertions are vague, unspecified, and
unsupported statements that, when he is aware “newsworthy events”
6 Mr. Zarconi’s one semi-specific reference to future activity – that he “expects” to be “on assignment” in spring 2010 with students “at demonstrations or rallies for causes they support or with which they are involved,” does not establish standing. Zarconi Decl. ¶ 7. Assuming that Mr. Zarconi’s expectation that he will attend unidentified demonstrations or rallies for unidentified causes that unidentified students support or are involved with is sufficiently concrete, the Court declines to find standing because, so far as the Court is aware, this is the first and only such reference to possible repeated injury made by any of the plaintiffs in nearly eight years. Moreover, assuming Mr. Zarconi did attend such events in the spring, they appear to have come and gone without incident.
17 are occurring, he often takes photographs of those events, and
that he “plan[s] to continue to photograph various events” within
the District. Zarconi Decl. ¶¶ 6, 8. These claims are simply
insufficient to survive summary judgment. See Lujan, 504 U.S. at
564 (“Such some day intentions, without any description of
concrete plans, or indeed any specification of when the some day
will be - do not support a finding of the actual or imminent
injury that our cases require.” (internal quotations and emphasis
omitted)).
The Court is also troubled that plaintiffs’ entire repeated
injury argument rests on Mr. Zarconi’s affidavit: none of the
other plaintiffs provided an affidavit, declaration, or any other
evidence to show they have standing. Plaintiffs point out that
if standing “can be shown for at least one plaintiff, [the court]
need not consider the standing of other plaintiffs to raise that
claim.” Pls.’ Supplemental Submission at 7 (quoting Mountain
States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir.
1996)). While this is undeniably true, in view of the
demonstrated insufficiency of Mr. Zarconi’s claims, the lack of
evidence from any other plaintiff is fatal.
C. The Authority Cited by Plaintiffs Cannot Overcome their Fundamental Failure to Demonstrate a Likelihood of Repeated Injury.
Plaintiffs cite a number of cases from outside this Circuit
where courts have found standing to seek equitable relief, and
18 they urge the Court to apply those cases here. However, the
authority cited by plaintiffs is easily distinguishable from the
facts of this case. First, the vast majority of cases cited by
plaintiffs are class actions. See, e.g., Riggs v. City of
Albequerque, 916 F.2d 582 (10th Cir. 1990) (lawyers, political
activists and politically active organizations subject to
surveillance by Albuquerque police department); Illinois Migrant
Counsel v. Pilliod, 540 F.2d 1062 (7th Cir. 1976) (Mexican
migrant agricultural workers in Illinois); Franklin v. Chicago,
102 F.R.D. 944 (N.D. Ill. 1984) (all persons arrested by Chicago
police and transported in squadrols). Establishing repeated
injury for a class is obviously different than establishing it
for four individuals.
Second, the threat of repeated injury in most of the cases
cited by plaintiffs rested on their status, not on their
behavior. See, e.g., Thomas v. County of Los Angeles, 978 F.2d
504 (9th Cir. 1992)(repeated injury based on race and national
origin); Pilliod, 540 F.2d at 1067 (persons subject to repeated
injury “simply because they appear to be of Mexican ancestry”);
Nat’l Cong. of Puerto Rican Rights v. City of New York, 75 F.
Supp. 2d 154, 159 (S.D.N.Y. 1999)(repeated injury based on race
and national origin); Maryland State Conference of NAACP Branches
v. Maryland Dept. of State Police, 72 F. Supp. 2d 560 (D. Md.
1999) (repeated injury based on race and need to drive on
19 Interstate 95). In these cases, the likelihood of repeated
injury did not depend on a series of contingent future events,
including some taken by third parties; it existed by virtue of an
immutable characteristic.
Finally, the type of relief sought by the Chang plaintiffs
is easily distinguishable from the relief at issue in the cases
they cite. In this case, plaintiffs seek, inter alia, “a consent
decree that would provide an enforcement mechanism for illegal
arrest practices.” Pls.’ Opp’n at 22-23. The Supreme Court has
made it clear that this type of relief against a local police
department is strongly disfavored. See, e.g., O’Shea, 414 U.S.
at 502 (“A major continuing intrusion of the equitable power of
the federal courts into the daily conduct of state criminal
proceedings is in sharp conflict with the principles of equitable
restraint[.]”). By contrast, in many of the cases cited by
plaintiffs, the courts emphasized the narrowness of the relief
requested. See, e.g., LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th
Cir. 1985) (negative injunction which merely prohibited an
unlawful behavior did not “entangle federal courts in the
operations of state law enforcement and criminal justice
institutions.”); Pilliod, 540 F.2d at 1069 (requested injunctive
relief was a cease-and-desist order, and did not attempt to
impose “mandatory, comprehensive relief” that would inject the
Court “into the day to day affairs or discretionary authority” of
20 the local government). In sum, the Court cannot conclude that
plaintiffs’ authority is persuasive or that it allows the Court
to disregard the plaintiffs’ failure to prove an element of
standing necessary for the type of relief they seek.
IV. CONCLUSION
For the foregoing reasons, it is hereby ordered that the
District of Columbia’s motion for partial summary judgment is
GRANTED. An appropriate Order accompanies this Memorandum
Opinion.
SIGNED: Emmet G. Sullivan United States District Court Judge September 19, 2010