D.L.S. v. State of Utah

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 7 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

D.L.S.,

Plaintiff-Appellant,
v. No. 03-4031
THE STATE OF UTAH; UTAH
COUNTY, a government entity; C.
KAY BRYSON, Utah County
Attorney; AMERICAN FORK CITY, a
municipal corporation, and JAMES
“TUCKER” HANSEN, Prosecutor,
American Fork City,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:02-CV-565 DAK)

Brian M. Barnard (James L. Harris, Jr. with him on the briefs), Utah Legal Clinic,
Salt Lake City, Utah, for Plaintiff-Appellant.

Jerrold S. Jensen, Assistant Attorney General (Mark L. Shurtleff, Attorney
General, with him on the brief), Salt Lake City, Utah, for Defendants-Appellees.

Before HENRY , BRISCOE , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.
 Pseudonymous Plaintiff D.L.S. brought a civil rights suit seeking a

declaratory judgment that Utah’s sodomy statute is unconstitutional. The district

court dismissed the suit for lack of standing and ripeness. Plaintiff now appeals

that dismissal, and we AFFIRM the district court’s judgment.

BACKGROUND

Plaintiff’s complaint and affidavit allege the following facts. D.L.S. lives

in American Fork, Utah County, Utah. He is an unmarried adult. On various

occasions in the recent past, he and an unmarried female have engaged in sexual

activity in violation of Utah’s sodomy laws. 1
The relevant sex acts were

consensual and non-commercial, and took place in private. D.L.S. hopes and

expects to continue these practices in the future. However, he fears that his

conduct might come to the attention of the government and result in criminal

prosecution by Utah County or American Fork City authorities. D.L.S. claims

that this fear of prosecution has restrained and inhibited his sexual conduct and

limited his ability to pursue intimate relationships.

1
Utah law declares that “[a] person commits sodomy when the actor
engages in any sexual act with a person who is 14 years of age or older involving
the genitals of one person and mouth or anus of another person, regardless of the
sex of either participant.” Utah Code Ann. § 76-5-403(1). Consensual sodomy is
a class B misdemeanor. Id. § 76-5-403(3).

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 D.L.S. sued the State of Utah, Utah County, county prosecutor C. Kay

Bryson, and American Fork city prosecutor James “Tucker” Hansen in federal

district court. The lawsuit sought a declaratory judgment that Utah’s sodomy

statute was unconstitutional and a permanent injunction prohibiting prosecution of

D.L.S. for sodomy violations. The suit also asked for $1 in nominal damages and

attorney’s fees and costs.

The defendants moved to dismiss, arguing that D.L.S. lacked standing and

that the case was not ripe. The district court held a hearing on the defendants’

motion and issued a written opinion two days later. The court granted the motion

and dismissed the case on standing and ripeness grounds. The court reasoned that

a plaintiff has standing to challenge a state criminal law only when he can show a

real and immediate threat of prosecution, and that D.L.S. failed to make such a

showing.

On appeal, D.L.S. contends that he faces a threat of sodomy prosecution

that is sufficiently likely to support standing. This credible threat is a sufficient

injury, according to D.L.S., because it chills his First Amendment right to express

intimate emotions via sodomous acts. These same considerations, in his view,

also require a conclusion that the case is ripe.

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 DISCUSSION

Article III of the Constitution limits the jurisdiction of the federal courts to

particular “cases” or “controversies.” The case or controversy requirement helps

preserve appropriate separation of powers between the courts and the other

branches, Lujan v. Defenders of Wildlife , 504 U.S. 555, 559-60 (1992), and

provides courts with “that concrete adverseness which sharpens the presentation

of issues necessary for the proper resolution of constitutional questions,” City of

Los Angeles v. Lyons , 461 U.S. 95, 101 (1983) (internal quotation marks omitted).

To satisfy the standing requirement, a plaintiff must show “that (1) he or she has

suffered an injury in fact; (2) there is a causal connection between the injury and

the conduct complained of; and (3) it is likely that the injury will be redressed by

a favorable decision.” Phelps v. Hamilton , 122 F.3d 1309, 1326 (10th Cir. 1997)

(citation omitted). Under the “injury in fact” prong, the plaintiff’s injury must be

“actual or imminent, not conjectural or hypothetical.” Lujan , 504 U.S. at 560

(internal quotation marks omitted). When a plaintiff challenges the validity of a

criminal statute under which he has not been prosecuted, he must show a “real

and immediate threat” of his future prosecution under that statute to satisfy the

injury in fact requirement. Faustin v. City and County of Denver, Colo. , 268 F.3d

942, 948 (10th Cir. 2001).

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 We agree with the district court that D.L.S. has failed to show a sufficient

likelihood of his future prosecution under the statute to support standing. It is

undisputed that D.L.S. has never been charged with sodomy, prosecuted under the

statute, or directly threatened with prosecution. Although such direct evidence of

a real threat of prosecution is not always necessary for standing, in this case there

is additional evidence indicating that prosecution of D.L.S. for sodomy is

unlikely. The Utah County prosecutor, defendant Kay Bryson, provided an

affidavit in which he states that during his tenure in the Utah County Attorney’s

Office (1987 to the present), to his knowledge Utah County has not charged

anyone with a violation of the challenged sodomy statute. Appellant’s App. 29-

30. Mr. Bryson further states that it is doubtful that Utah County would bring

sodomy charges against D.L.S. for his past or future sexual activities as described

in his complaint. The American Fork city prosecutor, defendant James “Tucker”

Hansen, states in his affidavit that he has filed only one sodomy prosecution

during his 11-year tenure, that he subsequently dismissed that case, and that he

will not file charges against D.L.S. for the kind of sexual activity D.L.S. intends

to practice. Appellant’s App. 31-32.

D.L.S. maintains that these prosecutorial promises provide only cold

comfort, because Mr. Hansen did in fact bring a sodomy charge in 2000 against a

man for the same sort of private consensual conduct that D.L.S. practices. As the

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district court noted, however, that case involved a scenario with significant

differences from D.L.S.’s case:

The Defendant . . . was arrested at his home for possession of a
controlled substance, contributing to the delinquency of a minor,
unlawful purchase, possession or consumption of alcohol, and sodomy
with a minor 16 year-old girl. Police entered the defendant’s home
pursuant to a search warrant for a rape charge. The sodomy charge
was brought because of statements made by the girl about her oral sex
with the defendant over the prior 24 hours. The police also found a
list from the defendant’s home identifying approximately 50 girls and
various sex acts the defendant had had with them, including oral sex.
The defendant in that case ultimately pleaded guilty to a possession of
marijuana charge and the other charges, including the sodomy charge,
w[ere] dropped.

Op. 5. The fact that the city brought charges, in the context of a rape

investigation, for conduct involving a minor does not support an inference that

D.L.S. faces a real and immediate threat of prosecution, especially where the

same prosecutor has stated in an affidavit that he will not bring charges against

D.L.S. for the conduct as he has described it. We have held that assurances from

prosecutors that they do not intend to bring charges are sufficient to defeat

standing, even when the individual plaintiff had actually been charged or directly

threatened with prosecution for the same conduct in the past. See Faustin , 268

F.3d at 948; PeTA v. Rasmussen , 298 F.3d 1198, 1203 (10th Cir. 2002). It

follows that a plaintiff cannot show a real threat of prosecution in the face of

assurances of non-prosecution from the government merely by pointing to a single

past prosecution of a different person for different conduct.

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 Any lingering threat of prosecution that might have survived the

prosecutors’ affidavits has now been snuffed out by the Supreme Court’s recent

decision invalidating Texas’ sodomy statute as applied to consensual, private sex

between adults. Lawrence v. Texas , 539 U.S. 558 (2003). Prosecutors who swore

that they would not, or were unlikely to, prosecute D.L.S. for private consensual

activity before the issuance of Lawrence are of course exceedingly unlikely to

launch sodomy prosecutions after that decision. See Doe v. Pryor , 344 F.3d 1282,

1287 (11th Cir. 2003) ( Lawrence establishes that plaintiffs face no credible threat

of prosecution under Alabama sodomy statute).

In the alternative, D.L.S. argues at considerable length that sodomy is

“expressive conduct” protected by the First Amendment and that he has suffered

an injury in fact because Utah’s sodomy laws have a chilling effect on his desire

to exercise his First Amendment rights. Our cases have recognized that an

ongoing chilling effect can, in some circumstances, amount to a sufficient injury

to support standing. See Ward v. Utah , 321 F.3d 1263, 1267 (10th Cir. 2003).

However, mere allegations of a subjective chill are “not an adequate substitute for

a claim of specific present objective harm or a threat of specific future harm.”

Laird v. Tatum , 408 U.S. 1, 13-14 (1972). The chilling effect, to amount to an

injury, must arise from an objectively justified fear of real consequences, which

can be satisfied by showing a credible threat of prosecution or other consequences

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following from the statute’s enforcement. See Ward , 321 F.3d at 1267. As

previously noted, D.L.S. has not demonstrated the existence of a real threat of

prosecution, and he has not indicated any other objective source for the statute’s

alleged chilling effect. His unsupported claims of a subjective “chill” are

therefore insufficient to support standing.

Finally, D.L.S. claims that he has standing under the more lenient standing

requirements applicable to cases raising facial challenges on First Amendment

overbreadth grounds. See, e.g., Forsyth County v. Nationalist Movement , 505

U.S. 123, 129 (1992). Although plaintiffs bringing overbreadth challenges are

not always required to show that their own First Amendment rights have been

violated (as opposed to the rights of third parties), they still must show that they

themselves have suffered some cognizable injury from the statute. See Ward , 321

F.3d at 1267 (“A plaintiff bringing a facial challenge to a statute on First

Amendment grounds, however, must nonetheless establish an injury-in-fact

sufficient to satisfy Article III’s case-or-controversy requirement.”); Am. Library

Ass’n. v. Barr, 956 F.2d 1178, 1194 (D.C. Cir. 1992) (even facial overbreadth

challenges require some showing of concrete injury). D.L.S. has not established

such an injury. In addition, we have required that plaintiffs asserting standing on

an overbreadth theory must show that the statute censors or chills third parties

whose speech is more likely to be protected by the First Amendment than the

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plaintiff’s own speech. Faustin , 268 F.3d at 948-49, citing Members of City

Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 801 (1984). In

Faustin , we held that a plaintiff lacks standing under the “overbreadth doctrine”

where the plaintiff offers no explanation of how the statute inhibits the speech of

third parties, but instead focuses solely on the argument that the statute

unconstitutionally inhibits his own speech. Id. (“The overbreadth doctrine does

not apply where there is no significant difference between the claim that the

ordinance is invalid because of overbreadth and the claim that it is

unconstitutional when applied to the plaintiff’s own activities.”). D.L.S. has

similarly focused on the unconstitutionality of the statute as applied to his own

conduct and has not demonstrated that the ordinance applies to any third party’s

conduct that would be more likely to be protected by the First Amendment.

D.L.S. therefore has failed to establish standing under First Amendment

overbreadth standing requirements.

Our conclusion that D.L.S. lacks standing to challenge Utah’s sodomy

statute makes it unnecessary to review the district court’s conclusion that the case

was unripe. The district court’s dismissal of the case is, accordingly,

AFFIRMED .

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