Amnesty International, USA v. Battle

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ FEBRUARY 23, 2009
THOMAS K. KAHN
No. 07-12442 CLERK
________________________

D. C. Docket No. 06-21619-CV-PCH

AMNESTY INTERNATIONAL, USA,

Plaintiff-Appellant,

versus

LOUIS BATTLE,
THOMAS CANNON,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(February 23, 2009)

Before HULL, MARCUS, and KRAVITCH, Circuit Judges.

KRAVITCH, Senior Circuit Judge:
 Amnesty International (“Amnesty”) appeals the dismissal of its complaint

against police officers Louis Battle and Thomas Cannon brought pursuant to 42

U.S.C. § 1983 and alleging violations of its First Amendment rights during a

protest rally. The district court found that Battle and Cannon were entitled to

qualified immunity. We hold that Amnesty’s complaint properly states a valid

claim alleging a violation of its First Amendment rights including its right to be

heard and to distribute pamphlets without unreasonable police interference and

therefore reverse the district court’s dismissal of Amnesty’s complaint.

I. BACKGROUND

The complaint alleges the following facts:

On November 20, 2003, Amnesty planned to hold a demonstration and rally

near, and in protest against, a meeting of the Free Trade Association of the

Americas in Miami.1 Amnesty obtained a permit from the City of Miami Police

Department to conduct this demonstration on that date at the Torch of Friendship,

a monument with a surrounding plaza within Bayfront Park in Miami.

Anticipating that a large number of people would assemble in downtown

Miami to protest the Free Trade Association meeting, the City of Miami Police

1
Amnesty held a similar rally in 1994 at the same location. One hundred people
attended and no violence or disturbance occurred.

2
Department formulated a security plan to handle the demonstrations and enlisted

the help of police entities from other jurisdictions, including the Miami-Dade

County Police Department. Defendants Battle and Cannon were officers

supervising subordinate police officers in the downtown area of Miami on

November 20, 2003. Battle worked for the Miami-Dade Police Department and

Cannon worked for the City of Miami Police Department.

Just after 10:00 am, Amnesty had gathered ten to twelve people in the Torch

of Friendship area, most of whom were speakers and Amnesty members, and

attempted to begin its demonstration. At around the same time, Defendants

directed their subordinate officers to create a police cordon 50 to 75 yards from the

Torch of Friendship and to allow no one to enter the area. “People in the area,” as

stated in the complaint, attempted to attend the demonstration but the cordon

prevented them from doing so. They also could not hear or see the people

speaking at Amnesty’s demonstration because the police cordon kept them at too

great a distance. Amnesty members attempted to pass through the cordon to hand

out Amnesty literature to the crowd beyond the cordon, invite people to attend

their demonstration, and obtain media coverage for their rally, but the police

cordon kept the Amnesty members inside the Torch of Friendship and prevented

them from doing any of these above activities.

3
 Specifically, the complaint alleges:

[t]he Defendants knew of Amnesty’s First and Fourteenth
Amendment rights, knew that these rights were clearly established,
knew of Amnesty’s permit, and knew that their actions would destroy
these rights . . . As the direct and proximate result of the illegal and
unconstitutional acts of the Defendants . . . Amnesty’s First and
Fourteenth Amendment rights were destroyed, it was unable to have
its message heard, people were unable to attend its rally/
demonstration, people were unable to hear its speakers, it was unable
to invite people to attend the rally/demonstration, it was unable to
distribute literature to the people, it was unable to obtain media
coverage of its rally/demonstration, it was unable to distribute
literature to representatives of the media and it was unable to speak to
representatives of the media.

Amnesty requested compensatory and punitive damages, a declaratory

judgment that Defendant’s actions violated Amnesty’s First and Fourteenth2

Amendment rights, and attorney’s fees and costs.

Defendants filed a motion to dismiss, asserting qualified immunity and

arguing that Amnesty lacked standing. The district court granted the motion,

finding that the allegations were not detailed enough to satisfy the heightened

pleading standard for § 1983 actions, especially in light of the failure to identify a

specific individual who was prevented from joining the rally or a specific media

reporter that was unable to cover the protest.

2
Amnesty makes no mention of rights specific to the Fourteenth Amendment such as due
process or equal protection. We, therefore, assume that the inclusion of the Fourteenth
Amendment refers only to the application of the First Amendment to the states.

4
 The district court also found that, even assuming that the allegations were

sufficiently pleaded, Amnesty had “failed to establish that its purported rights

were clearly established” and thus failed to overcome Defendants’ qualified

immunity from suit. The court distinguished the two main cases cited by Amnesty

to support its asserted right to protest peacefully, Edwards v. South Carolina, 372

U.S. 229 (1963) and Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006), by noting that

both cases involved the arrest of protestors. Because no member of Amnesty was

arrested, the court concluded that those cases could not clearly establish a

violation of Amnesty’s First Amendment rights. The court stated “Amnesty has

failed to show that any reasonable official in Defendants’ position would have

known that ordering the formation of a cordon of police officers near the sight of a

permitted demonstration was a violation of the demonstrating organization’s First

Amendment rights.” Having found that Amnesty failed to overcome Defendants’

qualified immunity, the district court dismissed the complaint for failure to state a

claim. The district court did not address standing. Amnesty timely appealed.

II. STANDARD OF REVIEW

We analyze standing de novo. Florida Ass’n of Med. Equip. Dealers,

Med-Health Care v. Apfel, 194 F.3d 1227, 1229 (11th Cir. 1999).

We also review de novo an order granting a motion to dismiss, Doe v.

5
Pryor, 344 F.3d 1282, 1284 (11th Cir. 2003), and “accept all well-pleaded factual

allegations as true and construe the facts in the light most favorable to the

plaintiff.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).

III. DISCUSSION

Standing

The district court erred in addressing the merits of Amnesty’s claim and

Defendants’ qualified immunity without first assuring itself that Amnesty had

standing to bring this suit. “A federal court not only has the power but also the

obligation at any time to inquire into jurisdiction whenever the possibility that

jurisdiction does not exist arises.” Johansen v. Combustion Eng’g, Inc., 170 F.3d

1320, 1328 n.4 (11th Cir. 1999). “Standing is a threshold jurisdictional question

which must be addressed prior to and independent of the merits of a party’s

claims.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005).

The standing inquiry “is an essential and unchanging part of the case-or-

controversy requirement of Article III” of the United States Constitution. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have standing, a plaintiff

must establish (1) an injury in fact, which is concrete and particularized and actual

or imminent; (2) a causal connection between the injury and the causal conduct;

and (3) a substantial likelihood that a favorable decision will redress the injury.

6
Granite State Outdoor Adver. Co. v. City of Clearwater, Fla., 351 F.3d 1112, 1116

(11th Cir. 2003) (citing Bennett v. Spear, 520 U.S. 154, 167 (1997)).

The party invoking federal jurisdiction — in this case, Amnesty — bears the

burden of establishing standing. Lujan, 504 U.S. at 561. Each element of

standing must be supported in the same manner as any other matter on which the

plaintiff bears the burden of proof. Tanner Adver. Group LLC v. Fayette County,

Ga., 451 F.3d 777, 791 (11th Cir. 2006). “At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may suffice, for on a

motion to dismiss we presume that general allegations embrace those specific facts

that are necessary to support the claim.” Lujan, 504 U.S. at 561.

Other than the asserted violations of First Amendment rights, Amnesty has

alleged no injury-in-fact to either itself or its members. Amnesty’s complaint does

not describe any injury flowing from the constitutional violations. Amnesty

appears to argue on appeal that this court should infer an injury to Amnesty’s

ability to pressure countries to release political prisoners from Amnesty’s inability

to have a successful protest rally on November 20, 2003, but this injury is not set

forth in the complaint. The complaint provides the mission statement of the

organization and discusses the alleged violation of constitutional rights, but fails

to describe a link explaining how the violations caused any injury. “It is not

7
enough that the plaintiff’s complaint sets forth facts from which we could imagine

an injury sufficient to satisfy Article III’s standing requirements, since we should

not speculate concerning the existence of standing, nor should we imagine or piece

together an injury sufficient to give plaintiff standing when it has demonstrated

none.” Bochese, 405 F.3d at 976 (internal quotation and alteration omitted).

Because Amnesty failed to allege an injury-in-fact, it lacks standing to bring a

§ 1983 claim for compensatory damages.

Section 1983, however, allows for the recovery of nominal damages where

the plaintiff’s constitutional rights were violated but the violation did not result in

any injury giving rise to compensatory damages. Slicker v. Jackson, 215 F.3d

1225, 1227 (11th Cir. 2000); see also Al-Amin v. Smith, 511 F.3d 1317, 1335

(11th Cir. 2008) (“Our precedent . . . recognizes the award of nominal damages

for violations of the fundamental constitutional right to free speech absent any

actual injury.”). By alleging that its First and Fourteenth Amendment rights were

violated, Amnesty has established standing to bring a § 1983 claim for nominal

damages even without alleging a specific injuring flowing from the violations.

See Covenant Media of South Carolina, LLC v. City of North Charleston, 493

F.3d 421, 428 (4th Cir. 2007) (holding that the plaintiff had suffered an injury

sufficient to establish standing where an unconstitutional application of law

8
created a claim “redressable at least by nominal damages”).3

Although Amnesty alleged sufficient facts to support its claims for nominal

damages, there remain a few questions as to its standing. Amnesty asserted claims

on two grounds: on behalf of its members and in its own capacity as a

organization. We, however, conclude that Amnesty established standing only on

the claim brought on its own behalf.

Amnesty’s complaint states that its own First Amendment rights were

violated because “it was unable to have its message heard, . . . it was unable to

distribute literature to the people, it was unable to obtain media coverage of its

rally/demonstration . . . and it was unable to speak to representatives of the

media.” These statements allege violations of Amnesty’s own constitutional

rights, and establish Amnesty’s standing to bring a § 1983 claim for itself. See

generally Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward

County, 450 F.3d 1295, 1305-06 (11th Cir. 2006) (noting that corporations and

organizations have standing to sue under § 1983 for violations of their own First

Amendment rights).

Regarding Amnesty’s representational standing, Amnesty’s complaint states

3
We note that punitive damages may be available to Amnesty should it prevail on the
merits. Harden v. Pataki, 320 F.3d 1289, 1300 n.14 (11th Cir. 2003).

9
that Amnesty members were prevented from distributing literature, from signing

up new members, from obtaining media coverage, and from passing through the

police cordon to gather an audience. “It is clear that an organization whose

members are injured may represent those members in a proceeding for judicial

review.” Sierra Club v. Morton, 405 U.S. 727, 739 (1972). The Supreme Court

has put limits, however, on the right of organizations to represent its injured

members in litigation. The Court “recognized that an association has standing to

bring suit on behalf of its members when: (a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to protect are germane

to the organization’s purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit.” Hunt

v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). For the same

reasons that Amnesty has standing to bring this claim on its own behalf for the

violation of its own First Amendment rights, we conclude that those Amnesty

members present at the attempted demonstration on November 20, 2003 would

have standing to bring claims for the alleged violations of their rights that day.

The complaint provides that “Amnesty is involved in securing the release of

political prisoners throughout the world through rallies, demonstrations, letter

writing, and other means.” The protection of Amnesty members’ rights to protest

10
and distribute literature is clearly germane to this purpose. It is less clear whether

this suit meets the third prong: whether it requires the participation of individual

members in the lawsuit. Amnesty has not discussed this prong; it has provided no

explanation or reasons why the members are not needed. Because Amnesty bears

the burden of proof on standing, Lujan, 504 U.S. at 561, we must therefore hold

that Amnesty has not established standing to sue on behalf of its members.4

Pleading Requirements

On appeal, Amnesty claims that the district court erred in applying a

heightened pleading standard. Although we agree with Defendants that a

heightened standard applies to § 1983 cases against individuals who are eligible to

claim qualified immunity, we conclude that Amnesty satisfied this standard.

This court has established a heightened pleading standard applicable to

§ 1983 actions. See Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th

Cir. 1992). The Supreme Court, however, called this rule into question in

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507

4
The complaint also mentions other “people in the area” and “media representatives”
who were unable to attend or hear the demonstration because of the police cordon, but does not
affirmatively state that these were or are members of Amnesty. It is unclear whether Amnesty
intended this suit to cover claims on behalf of these other individuals. Regardless, an
organization may not bring suit on behalf of non-members. United States v. City of Miami, Fla.,
115 F.3d 870, 872 (11th Cir. 1997). Thus, Amnesty has not established standing to bring suit on
behalf of these individuals who were prevented from participating in the demonstration.

11
U.S. 163 (1993), by holding that courts may not employ a heightened pleading

standard in civil rights cases alleging municipal liability. Since Leatherman, this

court has determined that heightened pleading still applies where the defendants

are individuals for whom qualified immunity may be available. See Swann v. S.

Health Partners, Inc., 388 F.3d 834, 838 (11th Cir. 2004) (discussing this court’s

case law on pleading in qualified immunity cases). Thus, under the law of this

Circuit, heightened pleading is required where, as here, the defendants are

individuals who may seek qualified immunity. In addition to the Federal Rules of

Civil Procedure 8(a)(2) requirement that the complaint contain a short, plain

statement of the claim, “[i]n pleading a section 1983 action, some factual detail is

necessary, especially if [the court is] to be able to see that the allegedly violated

right was clearly established when the allegedly wrongful acts occurred.”

Oladeinde, 963 F.2d at 1485. A complaint alleging civil rights violations “will be

dismissed as insufficient where the allegations it contains are vague and

conclusory.” Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984).5

Defendants argue that Amnesty failed to satisfy the applicable heightened

5
To the extent Amnesty argues that heightened pleading should not apply in § 1983
actions against individual defendants, we are bound by this court’s precedent unless and until it is
overruled or undermined to the point of abrogation by the Supreme Court or this court sitting en
banc. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

12
pleading standard because it did not allege sufficient facts to establish a violation

of the organization’s constitutional rights and overcome Defendants’ qualified

immunity. Defendants also contend that Amnesty should have identified specific

people who were unable to join or hear the demonstration and specific actions of

each defendant, rather than lumping both together with only vague allegations.6

To state a claim under § 1983, a plaintiff must allege that he was deprived

of a federal right by a person acting under color of state law.7 42 U.S.C. § 1983.

Additionally, because the defense of qualified immunity should be resolved at the

earliest possible procedural moment, the complaint must allege sufficient facts for

the court to determine whether the alleged constitutional violation was clearly

established at the time of the incident. See Gonzalez v. Reno, 325 F.3d 1228,

1233 (11th Cir. 2003) (noting that dismissal of a § 1983 claim is proper if the

complaint fails to allege the violation of a clearly established constitutional right).

Here, the district court conflated the issues of satisfying the heightened

pleading with the need to overcome qualified immunity. To satisfy even the

heightened pleading standard for § 1983 claims, Amnesty need plead only “some

6
Defendants also argue that Amnesty has improperly pleaded a conspiracy claim. As
Amnesty concedes it is not pursuing a conspiracy claim, this court need not address this issue.
7
The parties do not dispute that Defendants were acting under color of state law.

13
factual detail” from which the court may determine whether Defendants’ alleged

actions violated a clearly established constitutional right. Oladeinde, 963 F.2d at

1485. The heightened pleading standard does not require a complaint to cite cases

demonstrating that the defendant is not entitled to qualified immunity.

Although the complaint is concededly sparse, Amnesty has satisfied the

heightened pleading standard. The complaint states that the police cordon created

at Defendants’ direction “destroyed Amnesty’s rally/ demonstration” by

preventing Amnesty members from being heard or seen by potential audience

members and media representatives and from distributing literature to people in

the area. The complaint asserts that “[a]s the direct and proximate result of the

illegal and unconstitutional acts of the Defendants, set forth above, Amnesty’s

First and Fourteenth Amendment rights were destroyed . . . .” Thus, the complaint

makes clear Amnesty’s allegation that its First and Fourteenth Amendment rights

were violated because it was unable to have a successful protest rally and unable

to pass out Amnesty literature as a result of Defendants’ creation of a police

cordon. These facts provide sufficient detail for Defendants to understand what

alleged rights were violated (the right to hold a peaceful protest with an audience

and the right to pass out leaflets) and which of their actions allegedly violated

those rights (Defendants’ actions ordering their subordinates to create a police

14
cordon which interfered with the rally and the distribution of leaflets). These facts

also provide enough information for the court to determine whether those facts

indeed set out a violation of rights and whether those rights were clearly

established when these incidents occurred.

As to Defendants’ second point, we disagree that Amnesty was required to

identify, by name, the individual members affected. The district court relied on

GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359 (11th Cir.

1998) in concluding that pleadings were deficient because the complaint failed to

name individual Amnesty members. In GJR Investments, the plaintiff brought a

§ 1983 equal protection claim but neglected to identify the other similarly-situated

individuals who received better treatment. Id. at 1367-68. In order to state an

equal protection claim, the plaintiff must prove that he was discriminated against

by establishing that other similarly-situated individuals outside of his protected

class were treated more favorably. Id. Thus, the identification of these individuals

comprised a part of the claim itself. Unlike an equal protection claim, a First

Amendment claim does not rely on the identification of an individual, and so GJR

Investments is inapposite.

Finally, we disagree with Defendants’ contention that Amnesty improperly

pleaded a claim for supervisory liability against Defendants. It is well-established

15
that § 1983 claims may not be brought against supervisory officials on the basis of

vicarious liability or respondeat superior. Belcher v. City of Foley, Ala., 30 F.3d

1390, 1396 (11th Cir. 1994). Supervisors are liable under § 1983 when “the

supervisor personally participates in the alleged constitutional violation or when

there is a causal connection between actions of the supervising official and the

alleged constitutional violation.” Gonzalez, 325 F.3d at 1234. A causal

connection can be established by, inter alia, “facts which support an inference that

the supervisor directed the subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop them from doing so.” Id.

Amnesty’s complaint alleges that “Defendants directed police officers whom they

supervised to take police action that destroyed Amnesty’s rally/demonstration.

The Defendants ordered these police officers to form a cordon, 50 to 75 yards

from the Torch of Friendship, and to allow no one to enter.” Taken as true, the

allegations in the complaint pleaded a causal connection between the Defendants’

actions and the constitutional violations.

Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

16
have known.’” Pearson v. Callahan,129 S.Ct. 808, 815 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v. Katz, 533 U.S. 194, 201

(2001), the Supreme Court developed a two-step analysis to determine if qualified

immunity applies. Under Saucier, a court first determines whether the plaintiff

was exercising a constitutional right and whether the defendant’s action

impermissibly burdened the exercise of that right. Id. If a constitutional violation

occurred, the court then proceeds to determine whether that right was clearly

established. Id. Although this two-step inquiry is no longer mandatory, we think

it remains appropriate in this case. Pearson, 129 S.Ct. at 818 (“Although . . . the

Saucier protocol should not be regarded as mandatory in all cases, we continue to

recognize that it is often beneficial.”).

1. Does the Complaint Allege a Violation of Constitutional Rights?

The alleged violations of constitutional rights occurred when Amnesty was

prevented from (1) distributing literature to people attending the various protests

in the area, and (2) conducting a successful demonstration with an audience and

media coverage.

The Supreme Court has recognized that passing out leaflets is an activity

protected by the First Amendment. Hill v. Colorado, 530 U.S. 703, 715 (2000);

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). This right,

17
however — like nearly every other constitutional right — is not without limitation.

In Heffron v. Int’l Soc’y for Krishna Consciousness, the Supreme Court held that

it was constitutionally permissible to restrict leafletting at a state fair to certain

locations as part of a reasonable time, manner, and location restriction. 452 U.S.

640, 647 (1981). Defendants argue that in light of the high profile Free Trade

Association meeting and the “hundreds of people in the area,” a police presence

was objectively reasonable. A police presence, however, is not the action which

interfered with Amnesty’s ability to distribute leaflets. According to the

complaint, Defendants ordered a police cordon to form around and 50 to 75 yards

away from Amnesty’s demonstration preventing Amnesty from leaving the Torch

of Friendship area and passing out literature. We see nothing indicating that this

extreme action constituted a “reasonable time, manner, and location restriction.”

We will not assume from the mere presence of a large number of people in the

area that a level of danger existed that justified the complete deprivation of

Amnesty’s right to pass out literature. See Bourgeois v. Peters, 387 F.3d 1303,

1311 (11th Cir. 2004)(noting that the constitution contains no exception to the

personal rights of citizens “for large gatherings of people”). Thus, Amnesty’s

complaint alleges a violation of its right to pass out literature about its

organization and its views.

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 Amnesty also has a constitutional right to engage in peaceful protest on

public land, such as in a city park. Frisby v. Schultz, 487 U.S.474, 484 (1988) (“In

. . . quintessential public fora, the government may not prohibit all communicative

activity.”); Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 162 (1969)

(Harlan, J., concurring) (noting that the right to assemble peaceably to voice

political protest is a basic right). Governments may not prevent protests, punish

the exercise of the right to protest peacefully by arresting the demonstrators, nor

unduly burden the right by forcing demonstrators to undergo excessive searches

that violate the Fourth Amendment . Edwards v. South Carolina, 372 U.S. 229,

235 (1963); Cox v. State of Louisiana, 379 U.S. 536, 545 (1965); Bourgeois, 387

F.3d at 1324-25.

This is not the end of our analysis, however, for Amnesty was not prevented

from holding its demonstration or arrested for attempting to hold a protest rally.

Rather, Amnesty alleges that its demonstration was rendered ineffective by

Defendants’ actions because no one could attend, see, or hear the demonstration.

“Our cases make clear [] that even in a public forum the government may impose

reasonable restrictions on the time, place, or manner of protected speech, provided

the restrictions ‘are justified without reference to the content of the regulated

speech, that they are narrowly tailored to serve a significant governmental interest,

19
and that they leave open ample alternative channels for communication of the

information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). So

the question before this court is, essentially, whether the police may restrict the

right to conduct a peaceful protest rally so completely that they prevent the rally

from being seen or heard.

In Saia v. People of State of N.Y., the Supreme Court struck down an

ordinance which gave the police unbridled discretion to ban the use of loud

speakers. 334 U.S. 558 (1948). The Court held that the First Amendment carried

with it a “right to be heard” that should not be infringed upon by an ordinance in

which “no standards [were] prescribed for the exercise of [police] discretion.” Id.

at 560. This court noted that a constitutional problem would arise were the

government to deprive protestors of an audience by drowning-out those protestors

with the government’s own, louder communication. Warner Cable Commc’ns,

Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990) (“We agree that the

government may not speak so loudly as to make it impossible for other speakers to

be heard by their audience. The government would then be preventing the

speakers’ access to that audience, and first amendment concerns would arise.”). In

Ward v. Rock Against Racism, the Supreme Court reviewed a city’s efforts to

20
regulate the volume of amplified music at concerts held at an amphitheater in a

public park. 491 U.S. at 784. Although the Court upheld the city’s limitations on

volume, it did so only after noting that the limits left open “ample alternative

channels of communication” and that concert organizers could still express

themselves with their own decisions as to sound-mixing and sound volume within

the limits imposed by the city. Id. at 800-02. These cases establish a “right to be

heard” inherent in the First Amendment. This right is obvious from the grant of

the freedom of speech itself; the right to demonstrate would be meaningless if

governments were entitled to isolate a demonstration so completely that no one

could see or hear it.

The Tenth Circuit faced a situation similar to this case wherein plaintiffs

brought a § 1983 lawsuit contending that their First Amendment rights were

violated when they were kept outside security zones near a NATO meeting in

Colorado. Citizens for Peace in Space v. City of Colorado Springs, Colo., 477

F.3d 1212 (10th Cir. 2007). In that case, the city created a “secured zone” around

the conference center where the meeting was held into which protestors could not

go. Id. at 1217. Protestors were allowed to congregate near one, but only one, of

the entry checkpoints through which meeting attendees traveled. Id. Accredited

media representatives were allowed into the secured zone and were separated from

21
the protestors. Id. Plaintiffs brought a suit for nominal damages arguing that

keeping them out of the security zone and therefore away from their intended

audience and media representatives violated their constitutional rights to conduct a

peaceful protest. Id. Although the court held that these restrictions were

permissible in light of the significant government interest in preventing terrorist

attacks at the NATO meeting, the court so concluded only after assuring itself that

plaintiffs were not completely deprived of an audience for their message. Id. at

1226. The court noted that plaintiffs were seen by all conference delegates and

media personnel entering the secured area, and that the plaintiffs were in fact

interviewed by local media. Id. Thus, the court felt that the protestors’ First

Amendment rights were not violated because it was “not a case where the citizens

were wholly deprived of their ability to communicate effectively . . . They were

not wholly cut off from their intended audience, such that there were no ample

alternatives to a protest within the security zone itself.” Id.

In this case, the restriction of Amnesty to a certain area away from its

desired audience was similar to that in Citizens for Peace in Space, but the impact

on the demonstration was far different. Here, according to the complaint,

Amnesty was completely prevented from communicating its message to anyone

because no one was allowed into the Torch of Friendship area to attend the rally,

22
and no Amnesty speaker was allowed out to reach them through any other means,

not even leafletting. Amnesty had a permit to hold a demonstration at the Torch of

Friendship on November 20, 2003 and had previously held a similar protest in

1994 that occurred without any incidents of violence. And yet Defendants ordered

the creation of a police cordon 50 to 75 yards away from Amnesty’s

demonstration, making it impossible for Amnesty’s speakers to be seen or heard.

This action is no different than if the City of Miami had given Amnesty a permit to

hold a meeting in an auditorium and then barred the doors and windows such that

no audience could enter and no sound could escape the building. Such action

clearly fails to leave open “ample alternative channels for communication.”

We recognize that police may properly limit the exercise of free speech

where necessary for the safety and protection of protestors and the community.

Cantwell v. Connecticut, 310 U.S. 296, 304 (1940) (“Conduct remains subject to

regulation for the protection of society.”). But even permissible regulation must

not unduly infringe the protected freedom.” Id. The alleged action in this case

was not constitutionally permissible without a greater justification than has been

given. The presence of a large group of people, without more, is not sufficient to

justify the extreme action taken here. Defendants have argued only vaguely that

the police restrictions were “essential” in light of potentially violent protests in the

23
area outside the Torch of Friendship and the large groups of people in the area.

Defendants have not provided sufficient detail for us to analyze this asserted

significant government interest and to judge whether the action taken was

narrowly tailored to serve this interest. A “potential” for violence hardly justifies

placing a cordon 50 to 75 yards – a significant distance – away from Amnesty’s

protest and preventing any and all communication from passing through the

cordon. We are hard-pressed to see how a small cordon placed just 15 or 20 feet

away from the speakers would not have been just as effective at preventing

violence and protecting plaintiff’s members without infringing on plaintiff’s

rights, if a cordon was indeed “essential.”8 Without greater justification than has

been presented, Defendants’ creation of a police cordon at so great a distance that

Amnesty could not be seen or heard and members could not pass through to

distribute literature was not narrowly tailored to serve a significant government

interest and did not leave open ample alternative channels of communication. We

hold, therefore, that Amnesty alleged a violation of its constitutional rights.

8
We do not mean to suggest that, if there was danger present, Defendants were required
to use the least restrictive means possible in limiting Amnesty’s rally. See Ward, 491 U.S. at 798
(noting that restrictions on First-Amendment-protected speech need not be the “least restrictive”
or intrusive means of meeting the government’s interests). We simply note that the extreme
nature of the police cordon in this case calls into question Defendants' assertion that their actions
were absolutely necessary.

24
 2. Were these rights “Clearly Established”?

Although Amnesty alleged violations of its constitutional rights, Defendants

will still be entitled to qualified immunity unless those rights were “clearly

established” at the time the violations took place. Andujar v. Rodriguez, 486 F.3d

1199, 1202-03 (11th Cir. 2007). Under this analysis, we evaluate whether the

right was “sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). In this Circuit, only the caselaw of the

Supreme Court, the Eleventh Circuit or the law of the highest court of the state

where the events took place — in this case, Florida — can “clearly establish”

constitutional rights. Marsh v. Butler County, Ala., 268 F.3d 1014, 1032 n.10

(11th Cir. 2001).

Supreme Court caselaw makes clear that the First Amendment right to

distribute pamphlets was clearly established prior to November 2003. Hill v.

Colorado, 530 U.S. at 715; Organization for a Better Austin, 402 U.S. at 419

(1971). Thus, at this stage in litigation, Defendants are not entitled to qualified

immunity on Amnesty’s claim that its right to distribute leaflets was violated.

It is a closer question whether Amnesty’s right to have an audience and be

heard at its demonstration was clearly established. All of the caselaw cited above,

25
with the exception of Citizens for Peace in Space, is good authority that predates

the November 20, 2003 incident. Saia, 334 U.S. 558 (1948); Warner Cable

Commc’ns, 911 F.2d 634 (11th Cir. 1990); Ward, 491 U.S. 781 (1989).9 None of

these cases, however, are on all fours with the instant case, and do not clearly

elucidate the fact-specific rule that police may not create a police cordon that

makes a protest rally totally ineffective. Prior cases clearly establishing the

constitutional violation, however, need not be “materially similar” to the present

circumstances so long as the right is “sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Hope v. Pelzer, 536

U.S. 730, 739 (2002). There need not, however, be a prior case wherein “the very

action in question has previously been held unlawful.” Id. at 741 (quoting

Anderson, 483 U.S. at 640). Here, Defendants had fair warning that Amnesty had

a clearly established right to assemble, to protest, and to be heard while doing so.

Because Amnesty alleges violations of its clearly established constitutional

rights, we hold that the district court erred in concluding that Defendants were

entitled to qualified immunity based on the allegations contained in the complaint.

9
Although the discussion of the rights at issue may have been put in general terms in the
cited cases, this generality does not deprive these cases of their ability to “clearly establish” the
violation of Amnesty’s constitutional rights. Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(“[G]eneral statements of the law are not inherently incapable of giving fair and clear
warning . . . .”).

26
 IV. CONCLUSION

We hold that Amnesty’s complaint properly alleges a claim for nominal

damages for the violation of its constitutional rights, and reverse the district

court’s dismissal of that portion of the complaint. Because Amnesty failed to

allege an injury-in-fact and to establish standing to bring claims on behalf of its

members, however, we affirm the dismissal of Amnesty’s claims for compensatory

damages and its claims brought on behalf of its members.

For the foregoing reasons, we REVERSE IN PART and AFFIRM IN PART

the district court’s dismissal of the Second Amended Complaint and REMAND

for further proceedings consistent with this opinion.

27
MARCUS, Circuit Judge, specially concurring:

I join fully in the majority’s thoughtful and thorough opinion but write

separately to emphasize a few things.

As the majority opinion clearly explains, qualified immunity does not

protect government officials from a § 1983 civil rights claim if their conduct

violates “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quotation marks and citation omitted). Where, as here, there is no controlling

case law factually on point, “general statements of the law contained within the

Constitution, statute, or case law may sometimes provide fair warning of unlawful

conduct.” Willingham v. Loughnan, 321 F.3d 1299, 1304 (11th Cir. 2003);

Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (“[T]he words of the

pertinent federal statute or federal constitutional provision in some cases will be

specific enough to establish clearly the law applicable to particular conduct and

circumstances and to overcome qualified immunity, even in the total absence of

case law.”). Thus, “[f]or example, the words of a federal statute or federal

constitutional provision may be so clear and the conduct so bad that case law is

not needed to establish that the conduct cannot be lawful.” Vinyard, 311 F.3d at

1350 (“[I]n the absence of fact-specific case law, the plaintiff may overcome the

28
qualified immunity defense when the preexisting general constitutional rule

applies with obvious clarity to the specific conduct in question, and it must have

been obvious to a reasonable police officer that the pertinent conduct given the

circumstances must have been unconstitutional at the time.”) (quotation marks and

citation omitted); see also Hope, 536 U.S. at 743. Similarly, the reasoning of prior

cases may also send “the same message to reasonable officers” in new factual

scenarios. Hope, 536 U.S. at 743; Vinyard, 311 F.3d at 1351 (“[S]ome broad

statements of principle in case law are not tied to particularized facts and can

clearly establish law applicable in the future to different sets of detailed facts.”).

Under controlling Circuit law we are obliged, as the majority opinion

suggests, to apply a heightened pleading standard to a § 1983 civil rights

complaint. See discussion infra; see also Danley v. Allen, 540 F.3d 1298, 1313-14

(11th Cir. 2008); Swann v. S. Health Partners, Inc., 388 F.3d 834, 838 (11th Cir.

2004); Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003); Cottone v. Jenne,

326 F.3d 1352, 1362 n.7 (11th Cir. 2003). While heightened pleading may not be

altogether consonant with the latest Supreme Court law on pleadings, see

Leatherman v. Tarrant County N.I.C.U., 507 U.S. 163, 168-69 (1993) (explaining

that heightened pleading standards “must be obtained by the process of amending

the Federal Rules, and not by judicial interpretation”); Swierkiewicz v. Sorema,

29
N.A., 534 U.S. 506, 513 (2002) (rejecting a judicially-created heightened pleading

standard for employment discrimination complaints, because “complaints in these

cases, as in most others, must satisfy only the simple requirements of Rule 8(a)”),

we have no occasion to address the matter today because, even when measured

against heightened pleading, the allegations contained in this complaint are more

than sufficient, if taken as true, to establish a violation of clearly established

constitutional law.

There can be absolutely no doubt that the First Amendment rights to

assemble, petition the government for redress of grievances, and speak are among

our most fundamental, deeply cherished and clearly established constitutional

freedoms. Indeed, long-standing Supreme Court case law interpreting the First

Amendment has made it abundantly clear that a municipality or its police

department may not intentionally and systematically destroy the ability of

individuals or groups to assemble, speak, and distribute literature in a public park.

The Supreme Court has put police officers on clear notice for more than half a

century that protestors on public property have a First Amendment right to

peacefully assemble, express their views, and distribute their literature.

The First Amendment itself expressly provides that “Congress shall make

no law . . . abridging the freedom of speech . . . or the right of the people

30
peaceably to assemble, and to petition the Government for a redress of

grievances.” U.S. Const. amend. I. And, “[i]t has long been established that these

First Amendment freedoms are protected by the Fourteenth Amendment from

invasion by the States.” Edwards v. South Carolina, 372 U.S. 229, 235 (1963). “It

is also well settled that municipal ordinances adopted under state authority

constitute state action and are within the prohibition of the amendment.” Lovell v.

City of Griffin, 303 U.S. 444, 450 (1938).

As far back as 1939, the Supreme Court made it clear that the rights to

assemble and distribute literature -- two of the primary acts Amnesty sought to

undertake on November 20, 2003 at the Torch of Friendship -- lie at the heart of

the expressive freedoms protected by the First Amendment. Schneider v. New

Jersey, 308 U.S. 147, 160 (1939) (“Although a municipality may enact regulations

in the interest of the public safety, health, welfare, or convenience, these may not

abridge the individual liberties secured by the Constitution to those who wish to

speak, write, print, or circulate information or opinion.”). In 1943 the Supreme

Court again spoke on the subject, reminding us that an ordinance prohibiting

leafletting cannot be sustained under the First Amendment, because “one who is

rightfully on a street which the state has left open to the public carries with him

there as elsewhere the constitutional right to express his views in an orderly

31
fashion. This right extends to the communication of ideas by handbills and

literature as well as by the spoken word.” Jamison v. Texas, 318 U.S. 413, 416

(1943).

Again, in 1969, the Supreme Court made it abundantly clear that a protest

march “if peaceful and orderly, falls well within the sphere of conduct protected

by the First Amendment.” Gregory v. City of Chicago, 394 U.S. 111, 112 (1969).

Still again, in 1980, the Supreme Court reiterated that a peaceful demonstration,

such as the one Amnesty allegedly sought to conduct, is expressive conduct

plainly falling within the protections afforded by the First Amendment. Carey v.

Brown, 447 U.S. 455, 460 (1980). Indeed, Carey unequivocally said that the

“streets, sidewalks, parks, and other similar public places are so historically

associated with the exercise of First Amendment rights that access to them for the

purpose of exercising such rights cannot constitutionally be denied broadly and

absolutely.” Id. (alteration omitted) (quoting Hudgens v. NLRB, 424 U.S. 507,

515 (1976)). If there was any lingering question about whether police officers

could completely prohibit individuals or groups from assembling, speaking, and

distributing literature, the Supreme Court put an end to it in 1983 when the Court

decreed that “[t]here is no doubt that as a general matter peaceful picketing and

leafletting are expressive activities involving ‘speech’ protected by the First

32
Amendment.” United States v. Grace, 461 U.S. 171, 176 (1983).

There can be no dispute that Amnesty’s conduct -- assembling,

demonstrating, and distributing literature -- constituted expressive activities

squarely protected by the First Amendment. Nor can there be any doubt that the

conduct alleged in Amnesty’s complaint utterly and completely eviscerated

Amnesty’s ability to participate in such expressive activity. The injury expressly

alleged is that the Defendants created a barrier to Amnesty’s speech so great that it

effectively denuded Amnesty of any ability to assemble, demonstrate, speak

publicly, or distribute its literature in a public park. The Defendants may as well

have locked all of Amnesty’s members in a closed room far away from the Torch

of Friendship between the hours of 10 a.m. and 2 p.m. on November 20, 2003; if

they had been so isolated the members of Amnesty would have had the same

opportunity to speak, assemble, and petition as they did from their actual positions

on one side or the other of the police cordon allegedly thrown around the Torch of

Friendship on November 20, 2003. The allegations detailed in the complaint

suggest nothing less than a complete ban on any meaningful First Amendment

activity within the cordoned off park, the precise area where Amnesty was

permitted by the police to engage in the exercise of First Amendment activity.

Of course, it is also well-established and long-standing constitutional law

33
that there are circumstances when a reasonable time, place, and manner restriction

on demonstrations and leafletting in a public park may be valid under the First

Amendment. As the Supreme Court explained in Grace:

“[P]ublic places” historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks, are
considered, without more, to be “public forums.” In such places, the
government’s ability to permissibly restrict expressive conduct is very
limited: the government may enforce reasonable time, place, and
manner regulations as long as the restrictions “are content-neutral, are
narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication.” Additional
restrictions such as an absolute prohibition on a particular type of
expression will be upheld only if narrowly drawn to accomplish a
compelling governmental interest.

461 U.S. at 177 (internal citations omitted).

But the conduct alleged in this complaint cannot constitute a valid time,

place, and manner restriction on Amnesty’s expressive rights. If the complaint is

to be believed -- and at this stage in the case we are obliged to accept it as true --

the police did not set about to enforce a reasonable rule designed to ensure the

public’s safety. Rather, the Defendants are said to have effectively and completely

closed off Amnesty’s opportunity to speak, assemble, and leaflet in a public park.

The police allegedly provided Amnesty with no alternative channel of

communication by effectively foreclosing the only venue allowed under the

permit. Compare Horton v. City of St. Augustine, 272 F.3d 1318, 1334 (11th Cir.

34
2001); One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1288

(11th Cir. 1999); ISKCON Miami, Inc. v. Metro. Dade County, 147 F.3d 1282,

1290 (11th Cir. 1998).

There can be no doubt that it is the long-standing and clearly established

law of this nation that the government may not grant a permit to a political group

instructing it where and when it may assemble, speak and petition with one hand,

and then, at the last moment, completely deny the organization the opportunity to

utilize that very permit with the other hand. And there can be no doubt that police

conduct knowingly designed to so utterly eviscerate fundamental expressive

freedoms would violate clearly established constitutional law.

HULL, Circuit Judge, specially concurring:

35
 I specially concur in the judgment reversing the district court’s dismissal of

Amnesty’s Second Amended Complaint.

36