PORTLAND (LN) — The 9th Circuit on Monday affirmed the district court’s summary judgment in favor of the City of Eugene in a First Amendment challenge to the city’s park rules, holding that the plaintiffs failed to demonstrate standing for a pre-enforcement facial challenge. However, the court reversed the denial of leave to amend, ordering the case back to the District of Oregon to allow the plaintiffs to address standing deficiencies and recent rule changes.
The panel affirmed the district court's determination that plaintiffs Samuel Yergler and Nicholas Hollows lacked Article III standing to pursue prospective relief because their allegations of future injury were too vague. However, the court reversed the denial of leave to amend, ordering the case back to the District of Oregon to allow the plaintiffs to flesh out their claims.
To establish standing for a pre-enforcement First Amendment challenge, a plaintiff must allege an intention to engage in constitutionally protected conduct, that the conduct is proscribed by a statute, and that there is a credible threat of prosecution, the court wrote, citing Susan B. Anthony List v. Driehaus.
A concrete plan need not be "cast in stone," but must be more than a "general intent to violate a statute at some unknown date," the court said, quoting Thomas v. Anchorage Equal Rts. Comm'n.
The court found that Hollows, who lives in New York, admitted he has no specific plans to return to Eugene but would "like to visit, you know, when it's nice out." This amounts to the sort of "some day intentions" that do not support a finding of actual or imminent injury, the court said.
Yergler, who resides in Eugene, asserted only a general intention to "continue speaking out in public spaces against the City's policies." He offered no details about when, where, or in what context he intended to speak, nor did he allege an intention to speak governed by the challenged rules.
"Yergler fails to state with sufficient specificity the conditions or circumstances under which he has spoken and would speak," the court wrote.
The plaintiffs argued that requiring them to disclose concrete plans would threaten their right to "unplanned, spontaneous protests." The court rejected this, stating it only required articulation concrete enough to determine that the plaintiffs actually risk enforcement.
The justiciability analysis was complicated that the City amended the challenged Park Rules after the complaint was filed. While the City argued the amendments rendered the claims moot, it represented at oral argument that plaintiffs engaging conduct as before would still be subject to prosecution.
"The court should freely give leave [to amend] when justice so requires," the court said, citing Federal Rule of Civil Procedure 15(a)(2).
The panel held that Plaintiffs should be granted leave to amend their Complaint to address the rule amendments and the deficiencies in their demonstration of standing.
The case was remanded for further proceedings consistent with the opinion.
The panel included U.S. Circuit Judges Kim McLane Wardlaw, M. Margaret McKeown, and Richard R. Clifton.