UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1059
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, Western York County Branch;
KEITH HUNTER, Reverend; STEVE LOVE; JOSIE
LOWRY; PHYLLIS WARD,
Plaintiffs - Appellants,
versus
KEVIN BRACKETT, sued in his official capacity
as Deputy Solicitor of York County and in his
personal capacity; TOMMY POPE, sued in his
official capacity as Solicitor of York County
and in his personal capacity; MARVIN BROWN,
sued in his official capacity as an officer of
the York County Police Department and in his
personal capacity; TERRELL HARRIS, sued in his
official capacity as an officer of the York
County Police Department and in his personal
capacity,
Defendants - Appellees,
and
YORK COUNTY, SOUTH CAROLINA; UNKNOWN OFFICERS
1 THROUGH 20 OF THE YORK COUNTY POLICE
DEPARTMENT, sued in their official capacities
as officers of the York County Police
Department and in their individual capacities,
Defendants.
---------------------------------------------
NICHOLE BELL; KATHY ROBERTS,
Movants.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Chief
District Judge. (CA-02-2329)
Argued: February 2, 2005 Decided: May 16, 2005
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Alexander M. Sanders, Jr., Charleston, South Carolina, for
Appellants. Terry B. Millar, Rock Hill, South Carolina; Donna
Seegars Givens, WOODS & GIVENS, L.L.P., Lexington, South Carolina,
for Appellees. ON BRIEF: Mark J. MacDougall, Heather J.
Pellegrino, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington,
D.C.; William N. Nettles, John D. Delgado, Columbia, South
Carolina; Hannibal G. Williams II Kemerer, NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, Baltimore, Maryland, for
Appellants. Darra J. Coleman, WOODS & GIVENS, L.L.P., Lexington,
South Carolina, for Appellee Terrell Harris.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
The Western York County Branch of the National
Association for the Advancement of Colored People and four of its
members (collectively, “the NAACP”) filed this § 1983 action to
enjoin four individuals in the York County, South Carolina,
Solicitor’s Office and the York County Police Department
(collectively, “the defendants”) from depriving the NAACP and its
members of their First Amendment rights. The NAACP alleges that
the defendants engaged in a campaign of intimidation by questioning
NAACP members at their homes about the substance of an NAACP
meeting, following them in police cars, and attempting to exclude
them from the courtroom during the retrial of an African-American
charged with murder. The district court awarded summary judgment
to the defendants. We conclude that the NAACP has produced
insufficient evidence of the likelihood of future irreparable harm
and therefore affirm.
I.
We review the facts in the light most favorable to the
NAACP, the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). On January 10, 2002,
the NAACP held an open meeting to discuss the pending retrial of
Sterling Spann, an African-American York County resident whose 1981
capital murder conviction and death sentence had been overturned by
3
the South Carolina Supreme Court in 1999. Spann, who had been
released on bond pending retrial, attended the meeting along with
three members of his legal team. The night before the NAACP
meeting, York County Solicitor Tommy Pope and his deputy Kevin
Brackett sought a gag order in a telephone hearing to prevent Spann
and his lawyers from publicly disclosing information about a
polygraph test that Spann had taken. The presiding judge in the
Spann case verbally ordered both sides to refrain from publicly
discussing the polygraph information.
The next day, January 10, 2002, Brackett and Pope learned
that the NAACP was planning to meet that night to discuss the Spann
case. They directed Marvin Brown, head of the York County Multi-
Jurisdictional Drug Enforcement Unit, to “get somebody to go over”
to the meeting to “hear what they had to say.” J.A. 232-33.
Brackett told Brown that he “wanted a black person, a black male or
female, a black officer,” and Brown ordered Officer Terrell Harris,
who is African-American, to attend and observe the meeting in
plainclothes. J.A. 328. At the meeting either Spann or an
investigator on Spann’s defense team discussed the polygraph
evidence. The following day, Harris gave a written report about
the meeting to Brackett and Pope.
Nearly one month later, on February 5, 2002, Brackett
again contacted Brown and told him to locate and question NAACP
members who attended the January 10 meeting. For the next several
4
days, certain of the defendants visited the homes of seven or eight
NAACP members, including plaintiffs Josie Lowry, the NAACP Branch
Membership Chairperson; Steve Love, the Political Action Chair; and
Phyllis Ward, the Freedom Fund Chair. These visits were usually
made without prior notification and sometimes occurred in the
evening. Harris wore a “Drug Enforcement Unit” badge around his
neck during all of his visits. J.A. 340-41. One of the visits
occurred on February 6, 2002, when Harris and Brown appeared at
Lowry’s home unannounced at approximately 8:20 p.m. Due to the
late hour, Lowry asked the officers to come back the next day.
When the officers returned the next afternoon, they told Lowry that
they needed to question her “to be sure that no laws had been
broken at the [January 10] meeting.” J.A. 471. Solicitor Pope
himself questioned Ward, asking her if the NAACP “felt like th[e
Spann] case was a racial thing.” J.A. 599.
Many NAACP members believed that the defendants’
investigation was creating an “atmosphere of intimidation.” J.A.
574. Longtime NAACP member Ernestine Wright compared it to a time
when “[y]ou were almost afraid to say that you were a member of the
NAACP.” J.A. 687. Several members expressed their concerns to the
Reverend Keith Hunter, the Branch President. Hunter and Love
arranged a meeting with Pope and Brackett on February 11, 2002. At
the meeting Hunter and Love formally asked the defendants to stop
intimidating NAACP members. Pope and Bracket replied that the
5
questioning was a necessary part of their investigation into
“issues of jury tampering or a violation of a gag order,” J.A.
245, and asked Hunter and Love whether they were trying “to stack
the court room with African-Americans” or “intimidate the jury” in
the Spann retrial, J.A. 440-41. Pope and Brackett said they would
continue to send the police to interview NAACP members and that an
officer had been dispatched to interview a member that same
evening.
About one week after this meeting, two NAACP members
began to observe police vehicles following them. Branch Treasurer
Dorothy Williams noticed a marked Sheriff’s car following her after
she left the Wesley United Methodist Church where she had been
working on NAACP business. Hunter saw a black sedan following him
for extended distances on three occasions. J.A. 422-23. On the
third occasion Hunter pulled over to write down the sedan’s license
plate number. The number belonged to a black, four-door Crown
Victoria assigned to Detective Timothy Smith of the York County
Sheriff’s Office.
The defendants’ investigation of the NAACP made it more
difficult for the Branch to recruit new members. One prospective
member said one reason she did not join the NAACP was that she
“didn’t want to join because . . . [of] the police coming to NAACP
members’ houses.” J.A. 711. In the wake of the investigation, the
6
Branch has suffered a decrease in membership and a decline in
attendance at general meetings.
On March 4, 2002, the venire was assembled for jury
selection in Spann’s retrial. During preliminary questioning, Pope
and Brackett asked the court to require potential jurors to specify
whether they were NAACP members. The court denied the request, and
thereafter an employee in the solicitor’s office placed Hunter,
Love, and Ward on the potential witness list. Neither Hunter,
Love, nor Ward had any personal knowledge of the facts of the Spann
case, and none of them had been served with a subpoena or
questioned by any law enforcement officer about the case.
Subpoenas were issued for all of the other witnesses on the state’s
witness list. Pope and Brackett maintain that they do not know or
remember who placed Hunter, Love, and Ward on the witness list.
The only explanation the defendants offer for why these three were
placed on the state’s witness list is that “[i]t may have had
something to do with the change of venue motion or mitigation
evidence in the penalty phase of the trial.” Brief for Appellees
at 23. Once on the witness list, Hunter, Love, and Ward would have
been excluded from the courtroom for the duration of the Spann
retrial. (There was no retrial because Spann pled guilty.)
The NAACP, Hunter, Love, Lowry, and Ward invoked 42
U.S.C. § 1983 to sue Brackett, Pope, Brown, and Harris, in their
official and personal capacities. The plaintiffs seek a permanent
7
injunction prohibiting the defendants from questioning,
threatening, or detaining NAACP members in connection with lawful
activities protected by the First Amendment. The district court
granted summary judgment to the defendants on the basis that the
NAACP had not produced sufficient evidence (1) that the defendants
had violated their constitutional rights or (2) that the NAACP
might suffer future irreparable harm. The NAACP appeals.
II.
Summary judgment is appropriate when there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). We review a
grant of summary judgment de novo. Higgins v. E.I. DuPont De
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). The NAACP
argues that the defendants, by monitoring its meetings and
interviewing and tailing its members, engaged in a campaign of
harassment and intimidation that violated the First Amendment
rights of the organization and its membership to free association
and to recruit new members. The defendants reply, in essence, that
their actions were part of a legitimate investigation into the
possible violation of a court order. The NAACP also argues that
the office of the solicitor’s placement of Hunter, Love, and Ward
on the state’s witness list for the Spann retrial deprived these
individuals of their First Amendment right to attend criminal
8
trials. The solicitor’s office responds to this troubling incident
by saying that someone in the office, whose identity is unknown,
placed these names on the list, and “[i]t may have had something to
do with the change of venue motion or mitigation evidence in the
penalty phase of the trial.” Brief for Appellees at 23. These
disputes need not be resolved, however, because the NAACP has not
proffered evidence to demonstrate that future violations of the
constitutional rights of the organization and its members are
likely to occur, and such a showing is a prerequisite for obtaining
injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95,
111 (1983). Specifically, the plaintiffs must show “(1) that it is
likely that they again will find themselves in the same or similar
circumstances giving rise to the allegedly unconstitutional
conduct; and (2) that it is likely that they again will be
subjected to the allegedly unconstitutional conduct.” Travelers
Social Club v. Pittsburgh, 685 F. Supp. 929, 932 (W.D. Pa. 1988).
In addition, “the need for a proper balance between state and
federal authority counsels restraint in the issuance of injunctions
against state officers engaged in the administration of the States’
criminal laws in the absence of irreparable injury which is both
great and immediate.” Lyons, 461 U.S. at 112. The NAACP contends
that the evidence establishes an issue of material fact with
respect to the likelihood of future irreparable harm because the
organization will continue to take an active role in advocating for
9
the rights of African-American defendants in criminal cases and
because Pope and Brackett have said that they would continue to
interview NAACP members. These facts, however, are not enough to
demonstrate that future harm is likely.
First, while it is a given that the NAACP will continue
to advocate for the rights of African-American defendants in
criminal cases, the organization has not shown that it is likely
that it will again find itself in circumstances the same as or
similar to this case. There is a dispute over whether the
defendants’ investigation was part of a legitimate law enforcement
effort or was used as a pretext to harass the NAACP, but it is
undisputed that the defendants’ conduct began in response to the
court order prohibiting Spann’s defense team from discussing the
results of a polygraph examination. The Western York County Branch
of the NAACP’s advocacy for the rights of an African-American
defendant in a case involving a gag order presents an unusual
circumstance. The NAACP has produced no evidence that it has been
subjected to harassment or investigation due to its advocacy in
other cases.
The defendants have offered a dubious explanation for the
placement of the names of Hunter, Love, and Ward on the witness
list for Spann’s retrial, but (this case aside) there is no
evidence that the solicitor’s office has manipulated witness lists
in the past, or is likely to manipulate them in the future, to keep
10
interested NAACP members from attending trials. The NAACP has made
only one allegation of police misconduct occurring after the Spann
case concluded, and this allegation is insufficient to create a
genuine issue of material fact. Specifically, the organization
alleges that on January 9, 2003, a police officer parked in an
unmarked vehicle at the Wesley United Methodist Church for at least
an hour. When NAACP (and church) members approached the car to
determine why it was in the church parking lot, the officer said he
was “trying to clean up the drugs in [the] community.” J.A. 722A.
Deputy Sheriff J. M. Ligon stated in an affidavit that he was the
officer parked in the church lot that day, and he was there waiting
to assist in a search with his drug dog. He said, “I did not know
the name of the church at the time . . . . The only reason I was
at the church parking lot was to be in close proximity to the
location where the narcotics surveillance team was going to execute
a search warrant.” J.A. 723. There is no evidence suggesting that
Deputy Ligon’s account is inaccurate, and, in light of Ligon’s
reason for parking in the church lot, his statement that was
“trying to clean up the drugs” is a straightforward explanation for
his presence; it does not suggest an attempt to intimidate. In
sum, the NAACP has not produced evidence that it is likely to find
itself in future circumstances similar to those in this case. See,
Lyons, 461 U.S. at 111.
11
Second, there is a lack of evidence that the NAACP will
continue to be subjected to the alleged unconstitutional conduct.
Although Pope and Brackett said they would continue to interview
NAACP members, their statement was limited to interviews relating
to the NAACP meeting involving the Spann retrial. Because the
NAACP can not show a sufficient likelihood that it and its members
will be subjected to future violations of their constitutional
rights, the defendants are entitled to summary judgment.
Accordingly, the district court’s order awarding summary
judgment to the defendants is affirmed.
AFFIRMED
12