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Full-text: December 8 2003

United States District Court
for the Eastern District of Pennsylvania

	)
ACORN, USAction, United	)
for Peace and Justice, and	)
The National Organization,	)
for Women,	)
Plaintiffs,	)
)
v.	)
)
The City of Philadelphia,	)
The Police Department of	)
the City of Philadelphia, and	)
The United States Secret	)
Service of the Department,	)
of Homeland Security,	)
Defendants.	)
	)

United States Secret Service’s Memorandum
in Reply to Plaintiffs’ Opposition to Motion to Dismiss

Introduction

As defendant Secret Service showed in its motion to dismiss this case for lack of standing, plaintiffs’ claim for future equitable relief rests on a series of speculative assumptions. Plaintiffs ask the Court to assume that, without even knowing where or when the President of Vice President might appear, plaintiffs and their members will, one day, demonstrate against them. They further ask the Court to assume that, despite the Secret Service’s express policies and guidelines to the contrary, Secret Service agents will deliberately disregard those directives and discriminate against those demonstrators because of the messages they seek to convey. While plaintiffs’ opposition attempts to portray such future discrimination as {p.2} inevitable, it actually underscores the uncertainty of such harm. Each of plaintiffs’ declarants thus admits that it is impossible to state that any appearance by a Secret Service protectee will involve a demonstration by any plaintiff or its members because of the difficulties in staging such events. Indeed two declarants candidly admit that they simply assumed that their claims of discrimination were caused by the Secret Service because there were “men wearing suits standing around speaking into cell phones or radios.” Pl. Exh. 5, ¶ 10. See also Pl. Exh. 6, ¶ 12.

Plaintiffs’ Amended Complaint alleges past injury, past conduct alone is insufficient to support a claim for future equitable relief. Such relief requires a showing of a threatened injury which is both real and immediate. Plaintiffs’ speculations do not meet this standard.

Argument

I.
The Court is Not Limited
to Reviewing Plaintiffs’ Complaint
in Ruling on Defendant’s Motion

Plaintiffs’ argument begins with an internally inconsistent framework. Plaintiffs argue that this Court’s review is confined to the allegations of the Amended Complaint, which must be accepted as true. At the same time, however, plaintiffs simultaneously supplement the allegations of the Amended Complaint with declarations outside of the {p.3} pleadings. Plaintiffs’ rule of “plaintiffs only” supplementation of the record is a thinly-disguised effort to persuade the Court to ignore the Secret Service’s clearly-stated policy of not treating demonstrators differently than the general public, a policy which clearly undercuts the likelihood that plaintiffs’ allegations of past injury will be repeated and precludes them from seeking the equitable relief they request here. Contrary to plaintiffs’ premise, a court is not confined to the allegations of a complaint in ruling on a motion to dismiss under Rule 12(b)(1), Fed. R. Civ. P., and plaintiffs’ efforts to preclude the Court from considering the Secret Service’s written policies should be rejected.

Indeed, in cases cited by plaintiffs, courts in this Circuit have recognized two types of 12(b)(1) motions, “facial” challenges, where the allegations of the complaint control, and “factual” ones, where matters outside the complaint are submitted and properly considered by the trial court. Turicentro, S.A. v. American Airlines, Inc. {49kb.txt, 66kb.pdf, 66kb.pdf}, 303 F. 3d 293, 300 n.4 (3d Cir. 2002); Tolan v. United States {106kb.pdf}, 176 F.R.D. 507, 510 (E.D. Pa. 1998). 1  The Secret Service thus properly submitted its policy and written guidance regarding {p.4} its handling of demonstrators as part of its motion and the fact that plaintiffs’ Amended Complaint alleges contrary facts does not preclude the Court’s consideration of those written policies and guidelines. And, as we showed initially and in the section that follows, the existence of those policies and guidelines has significantly undercut plaintiffs’ claim that the past conduct recited in the Amended Complaint is sufficiently likely to recur so as to afford plaintiffs standing to obtain prospective equitable relief before the feared harm actually occurs.

II.
Plaintiffs Lack Standing

Plaintiffs’ argument concerning standing begins with a faulty premise and relies on inapposite authorities. Plaintiffs first state that the “only dispute” here is the redressibility element of standing. Pl. Mem. at 5. This misstates defendant’s position. As defendant has argued in its opening brief, plaintiffs lack standing to seek prospective equitable relief because they lack the requisite injury to obtain such relief. As the Supreme Court has made clear, past injuries will not support prospective relief. Rather, plaintiffs must show that they are threatened with a real and imminent injury to have standing. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (requiring a showing of a “real and immediate threat” of future {p.5} injury); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 109 (2000); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979), quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923) (“injury that is certainly impending is enough”). Here, whatever the Amended Complaint has stated regarding past conduct, it has not stated a claim for prospective relief because it has failed to allege a real and immediate threat of future harm. Contrary to plaintiffs’ argument, the issue is not how frequently plaintiffs or their members demonstrate or how ideologically committed they may be to oppose the Administration. Pl. Mem. at 5. Rather, the issue is whether there is a real and immediate threat that plaintiffs or their members will be subjected to discriminatory treatment as a result of their exercise of their free speech rights. 2  {p.6} In this regard, plaintiffs’ opposition only serves to highlight the contingencies which preclude a finding of injury in fact at this juncture. While plaintiffs profess an intent to engage in demonstrations against Secret Service protectees, particularly the President and Vice President, plaintiffs admit that their ability to do so for any specific event is problematic at best. Plaintiffs admit that they cannot state whether they will demonstrate at any particular event because they generally receive insufficient notice to permit them to organize a demonstration, even assuming that any plaintiff organization has members willing to participate at any locale. Cagan Dec., ¶ 9; Blum Dec., ¶¶ 6-7; Vives Dec. ¶ 5; Bachman Dec., ¶ 5-6. Acknowledging that the logistics and timing of any particular appearance make their own ability to organize a demonstration problematic, plaintiffs simply ask the Court to accept that both a demonstration involving their members will occur at “some indefinite future time,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n.2. (1992), and that they will face unequal treatment. Such allegations are insufficient to establish standing. 3  {p.7}

In addition to plaintiffs’ admitted uncertainties concerning any specific demonstration, plaintiffs also ask the Court to assume that the Secret Service will inevitable violate its’ own express policies at one of plaintiffs’ demonstrations. Even assuming that plaintiffs are able to organize future demonstrations, their claim of injury further depends on the decision by Secret Service personnel to ignore the agency’s stated policies, recently reinforced in writing to all personnel, which preclude taking action against demonstrators. While plaintiffs try to ignore those policies at every turn, they are clearly relevant to the question of whether any of plaintiffs’ members will be threatened with the type of discrimination described in the Amended Complaint.

As the Supreme Court stated in similar circumstances in Lyons, plaintiffs here must not only allege “another encounter” with the Secret Service, they must further allege either that all Secret Service agents “always” discriminate against protestors, or that the Secret Service “ordered or authorized” discrimination against demonstrators, such that the threat of future harm can be safely assumed. 461 U.S. at 106. Absent a uniform practice or binding policy requiring differential {p.8} treatment of demonstrators, this Court can not assume that Secret Service agents will routinely violate the agency’s policies. 4  Plaintiffs’ attempt to distinguish Lyons lacks merit. Like plaintiffs’ claim here concerning “typical” Secret Service conduct, plaintiff in Lyons alleged chokeholds were “regularly and routinely” used, 461 U.S. at 98. Absent allegations of a uniform practice or binding policy, this Court cannot assume that Secret Service agents will violate the law or the agency’s express policies.

Indeed, plaintiffs’ own declarations do not support their claims. The Cagan declaration identifies seven demonstrations without any claim of discrimination against protestors. Cagan Dec., ¶ 5. The Blum declaration lists at least fifteen demonstrations without claiming that any discrimination occurred against protestors. Blum Dec., ¶ 5. 5  The declaration concerning {p.9} the recent Washington incident makes no claim that demonstrators were treated differently than other members of the public, Vives Dec., while those concerning the Arkansas demonstration indicate that differential treatment of the demonstrators was done by local police and that the declarants simply assumed that any “men wearing suits standing around speaking into cell phones or radios,” Burks Dec., ¶¶ 4, 10, were Secret Service agents. See also Treadway Dec., ¶¶ 6, 12 (noting “a number of men in suits standing around the area and sitting in cars.... I don’t know for sure if they were Secret Service agents, but that was my impression.”). Even assuming that plaintiffs’ allegations are correct, their own submissions show that an equal or greater number of demonstrations have occurred without claims of discrimination.

Plaintiffs do not argue, much less even allege, that the Secret Service always discriminates against demonstrators or that its policies require discriminatory treatment. At best, they allege that discrimination has occurred in the past, that it has happened “many times,”, Amended Complaint, ¶ 24, and has “occurred more frequently in the past two years.” Id., ¶ 26. 6  {p.10} That is a far cry from alleging that Secret Service policies require discrimination or that discrimination always occurs such that this Court can safely conclude that the threat of future harm is sufficiently real to permit the exercise of federal judicial power. 7  {p.11}

Conclusion

For the foregoing reasons, as well as those stated in defendant’s opening brief, this action should be dismissed.

______________________

Certificate of Service

I hereby certify that the foregoing memorandum has been filed electronically and is available for viewing and downloading from the Court’s ECF system. Parties to this action will receive notice of this filing through the ECF system.

Footnotes

{Each footnote appears on the same page with its text reference. Any carryover to the foot of the following page is marked with an embedded page reference}.

 1  The quotation from Tolan appearing in plaintiffs’ brief at p.4 is part of that court’s discussion of a facial challenge.

 2  This case is thus unlike those cited by plaintiffs where a party suffered a continuing harm. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000) (deprivation of use of river due to environmental harm); Meese v. Keene, 481 U.S. 465 (1987) (injury to reputation); NAACP v. Button, 371 U.S. 415 (1963) (prohibition on soliciting clients by civil rights lawyers) The Pitt News v. Fisher {43kb.txt, 43kb.txt}, 215 F. 3d 354 (3d Cir. 2000), cert. denied, 531 U.S. 1113 (2001) (loss of revenue due to rule against alcohol vendors advertising is student publication); Riqqs v. City of Alburquerque, 916 F. 2d 582 (10th Cir. 1990), cert. denied, 499 U.S. 976 (1991) (injury to reputation from continued illegal surveillance).

 3  Given plaintiffs’ admission that their ability to demonstrate at any particular event is problematic, that they profess an intent to demonstrate “every day when the President or Vice President speaks publically,” Pl. Mem. at 12, while {p.7} not having done so only serves to underscore the contingent nature of their claimed injury.

 4  This case is thus unlike those relied upon by plaintiff, where enforcement actions were more certain. Steffel v. Thompson, 415 U.S. 452 (1974) (plaintiff threatened with prosecution); Babbitt, supra (plaintiff who wished to pursue action proscribed by criminal law); Doe v. Bolton, 410 U.S. 179 (1973) (accord).

 5  While plaintiffs’ brief indicates that the declarations list numerous incidents of differential treatment of demonstrators, Pl. Mem at 2, the declarations themselves do not make those claims. Of the seventeen events mentioned, Blum lists only one event where a protestor was arrested, ¶ 5c, and a December, 2002 event in Pennsylvania, which may be a reference to the event described in the Amended Complaint at {p.9} ¶¶ 28-37.

 6  In this regard, plaintiffs’ allegations fall woefully {p.10} short of the standard of a pervasive pattern sufficient to amount to a standard practice found lacking in Lyons or of the type found sufficient to support prospective relief in the cases they cite. See Allee v. Medrano, 416 U.S. 802, 815 (1974) (“persistent pattern of police misconduct”); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1067 (7th Cir. 1976) (“specific pattern of conduct, akin to an explicit policy”); LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985) (“standard pattern of officially sanction officer behavior”); National Congress for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 161 (S.D.N.Y. 1999) (“policy of unconstitutional practices”); Maryland Conference of NAACP v. Maryland Dept. of State Police, 72 F. Supp. 2d 560 (D. Md. 1999) (pattern and practice of discrimination in specific area).

 7  Plaintiffs’ argument that its First Amendment claims somehow excuse it from satisfying the normal requirements of standing lacks merit. In cases involving First Amendment claims of overbreath against statutes or rules, courts have generally recognized that a threat of sanction itself posed by, for example, a criminal law, may cause persons to limit their expression, creating a distinct injury. NAACP v. Button, supra at 433. See also Briggs v. Ohio Elections Comm’n {22 kb html/txt}, 61 F.3d 487 (6th Cir. 1995) (administrative finding left unreviewed carried possibility of more serious sanction in later case). Here, plaintiffs make no claim that their zeal to express themselves has in any way been chilled by defendant’s alleged conduct. Nor can, contrary to plaintiffs’ argument, Pl. Mem. at 7, n.l, equate a statute or rule with an alleged practice, especially in light of the Secret Service’s stated policy.

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Dec. 9 2003. Updated Jan. 1 2004

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