from the United States District Court for the Eastern
District of Louisiana
REQUEST FOR A POLL Opinion 898 F.3d 587 (Aug. 3, 2018)
SMITH, WIENER, and WILLETT, Circuit Judges.
court having been polled at the request of one of its
members, and a majority of the judges who are in regular
active service and not disqualified not having voted in favor
(Fed. R. App. P. 35 and 5th Cir. R. 35), rehearing en banc is
DENIED.[*] In the poll, 8 judges voted in favor of
rehearing (Judges Jones, Owen, Southwick, Costa, Ho, Duncan,
Engelhardt, and Oldham), and 8 judges voted against rehearing
(Chief Judge Stewart and Judges Smith, Dennis, Elrod, Haynes,
Graves, Higginson, and Willett).
E. Smith United States Circuit Judge
EDITH H. JONES, Circuit Judge, joined by SOUTHWICK, HO,
DUNCAN, ENGELHARDT and OLDHAM, Circuit Judges, dissenting
from denial of Rehearing En Banc:
esteemed colleagues wish to ensure that the Louisiana statute
criminalizing intimidation against public officials by
"violence, force, or threats" is not arbitrarily
used to stifle constitutionally protected speech. So do we
all. But federal courts' ability to "do the right
thing" is strictly limited by Article III of the
Constitution to cases or controversies. A plaintiff who lacks
"standing" to sue has no legitimate federal case.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 2136 (1992). Plaintiff Seals failed two of
the three prerequisites to standing. He did not suffer
"injury" as the Supreme Court has explained it, and
he did not sue the only party against whom federal courts
could provide "redress." Because of the threshold
lack of justiciability and serious federalism problems
presented in this opinion, our court should have undertaken
to correct the panel errors en banc.
Background and Panel Opinion
Seals was arrested on December 24, 2014 and charged with
assaulting his neighbor and violating the Louisiana public
intimidation statute in his conduct toward the arresting
deputies. The public intimidation statute prohibits "the
use of violence, force, or threats" upon any public
officer or employee "with the intent to influence his
conduct in relation to his position, employment, or
duty." La. Rev. Stat. Ann. § 14:122(A) (2010).
Seals filed suit in federal court, seeking damages for
unconstitutional false arrest and the facial invalidation of
the public intimidation law. The district court granted
injunctive relief against enforcement of the law.
with the district court, this court's panel held that
Section 14:122 is unconstitutionally overbroad as to
"threats," because the law allegedly criminalizes
"threats to engage in lawful activities" against
public officials like filing misconduct grievances or
lawsuits. The "threats" statute may not be enforced
by the parties enjoined even if a suspect threatens to kill
individual public officials. See n. 4 infra. The
panel held that Seals has constitutional standing to obtain
injunctive relief, not because he is being
prosecuted under the statute and not because he
plans to issue "threats" against public officials
in the future, but solely because he "faces a credible
threat of future prosecution based on his past violation of
Section 14:122 and his arrest." Travis Seals, et al
v. Brandon McBee, 17-30667, __F.3d__, 1, 7 n. 13 (2018).
The "credible threat" arises only because the
state's four-year prescription period has not quite run,
and the DA "can change his mind" and decide to
prosecute anyway. Seals, 17-30667, __F.3d__ at 6.
Additionally, the injunction affirmed by the panel was
directed to the wrong party: the Attorney General of
Louisiana, who intervened to defend the statute. Under
Louisiana's constitution, only the District Attorney had
authority to prosecute Seals, but he was not sued.
Seals Has No Standing to Sue
standing to sue has three prerequisites: an injury in fact,
which is concrete and particularized as well as actual or
imminent; a causal connection between the plaintiff's
injury and the alleged violation; and the likely, not merely
speculative, possibility that the injury be redressable by a
federal court judgment. See Lujan, 504 U.S. at
560-61, 112 S.Ct. at 2136. In its haste to facially
invalidate the Louisiana statute, the ...