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Seals v. McBee

United States Court of Appeals, Fifth Circuit

October 31, 2018

TRAVIS SEALS; ALI BERGERON, Plaintiffs-Appellees,
v.
BRANDON MCBEE; ET AL., Defendants, JEFF LANDRY, Attorney General, State of Louisiana, Intervenor-Appellant.

          Appeal from the United States District Court for the Eastern District of Louisiana

         ON REQUEST FOR A POLL Opinion 898 F.3d 587 (Aug. 3, 2018)

          Before SMITH, WIENER, and WILLETT, Circuit Judges.

          PER CURIAM

         The 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).

          Jerry E. Smith United States Circuit Judge

          By EDITH H. JONES, Circuit Judge, joined by SOUTHWICK, HO, DUNCAN, ENGELHARDT and OLDHAM, Circuit Judges, dissenting from denial of Rehearing En Banc:

         My 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.

         I. Background and Panel Opinion

         Plaintiff 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.[1] The district court granted injunctive relief against enforcement of the law.

         Agreeing 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.

         II. Seals Has No Standing to Sue

         Constitutional 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 ...


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