United States Court of Appeals,
Eleventh Circuit.
No. 95-4410.
Robert SMITH, Ernest Porter, American Civil Liberties Union of
Florida, Incorporated, a Florida non-partisan organization, Roger
Kinkle, on behalf of himself and all others similarly situated,
Plaintiffs-Appellants,
William Pitts, Plaintiff,
v.
Joaquin AVINO, in his official capacity as manager of
Metropolitan Dade County, Florida, Metropolitan Dade County,
Defendants-Appellees.
Aug. 12, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 92-2593-CV-KMM), K. Michael Moore, Judge.
Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.
RONEY, Senior Circuit Judge:
This is an official capacity suit against Metropolitan Dade
County and its manager challenging the curfew that was imposed in
the wake of Hurricane Andrew. The plaintiffs alleged the curfew
was unconstitutionally vague and overly broad, both facially and as
applied, and sought a declaratory decree, damages, and attorneys
fees pursuant to 42 U.S.C. § 1988.
A final judgment for the defendants resulted from the
decisions of two district judges: Judge K. Michael Moore denied
plaintiffs' motion for summary judgment alleging the facial
invalidity of the curfew, holding that the curfew was neither vague
nor overbroad. Smith v. Avino, 866 F.Supp. 1399 (Oct. 20, 1994).
*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
In a subsequent order, he declined to reconsider that decision and
refused 28 U.S.C. § 1292(b) certification for immediate appeal.
Smith v. Avino, Case No. 92-2593-Civ-Moore (Dec. 8, 1994). Judge
Jacob Mishler held a bench trial of the "as applied" claims. These
claims asserted that the curfew was overbroad because it impinged
on plaintiffs' personal liabilities, primarily the right of travel,
and continued after the emergency had passed; and that the curfew
was void for vagueness because it was selectively enforced against
these plaintiffs. Based upon his findings of fact, Judge Mishler
resolved the issues against the plaintiffs, and, declining to
reconsider the earlier decisions of Judge Moore, entered final
judgment for the defendants. Smith v. Avino, Case No. 92-2593-Civ-
Moore/Mishler (Feb. 27, 1995). Plaintiffs appeal all three of
those decisions.
Holding that these judges applied the correct standard in
considering challenges such as this one to curfews promulgated in
times of natural disaster emergencies made not clearly erroneous
findings of fact, and properly held that based on those facts and
the correct standard of review, the curfew was not
unconstitutionally vague or overly broad, we affirm.
We decide this case on the basis of the constitutionality of
the curfew. Defendants argued that because the defendant county
manager and the County itself acted as agents or instrumentalities
of the State of Florida, they cannot be held liable because they
were not the final policy making authorities and are immune from
suit under the Eleventh Amendment. Judge Moore refused to dismiss
the case on this ground. Judge Mishler held that declaratory
relief outlining the permissible scope of future executive actions
would be an advisory opinion contrary to Article III jurisdiction.
We voice no opinion as to the correctness of those decisions. We
assume, without deciding, that plaintiffs here are entitled to a
decision addressing their concerns about the constitutionality of
the curfew.
As an alternative basis for affirming the district court,
defendants ask this Court to hold they are immune from suit under
the Eleventh Amendment, an argument plaintiffs argue has been
waived. Under the law of this Circuit, Eleventh Amendment immunity
is considered to be in the nature of subject matter jurisdiction,
which can be considered at any time in the litigation and cannot be
waived by the parties. Zatler v. Wainwright, 802 F.2d 397, 399
(11th Cir.1986) (This Court is duty bound to "review [its]
jurisdiction at any point on appeal, ... and the eleventh amendment
"partakes of the nature of a jurisdictional bar' ") (citations
omitted); Whiting v. Jackson State University, 616 F.2d 116, 127
n. 8 (5th Cir.1980) ("Although neither [defendant] has raised the
bar of the eleventh amendment, we consider it sua sponte because a
defense based upon the eleventh amendment is in the nature of a
jurisdictional bar."). Compare Benning v. Board of Regents of
Regency Universities, 928 F.2d 775, 777 n. 2 (7th Cir.1991) ("We
are not obliged to reach the Eleventh Amendment issue because the
Eleventh Amendment doctrine of sovereign immunity, though often
characterized as jurisdictional, does not function as a true
jurisdictional bar.").
Though it is the usual practice to resolve subject matter
jurisdiction issues before reaching the merits, it is permissible
for the Court to bypass jurisdictional questions and decide the
case on the merits when the jurisdictional issue is difficult, the
law is not well-established, and a decision on the merits favors
the party who has raised the jurisdictional bar. See Slocum v.
United States, 515 F.2d 237, 238 n. 2 (5th Cir.1975) (Regarding
whether agriculture department order reviewable under the APA,
court decided there was no need to take up the "interesting"
jurisdictional question when a finding of no jurisdiction would
produce the same result reached on the merits). See also Browning-
Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151
(2d Cir.1990) (Lengthy discussion of court's decision to assume
subject-matter jurisdiction in case where operator of waste
disposal facility challenging requirement of Environmental
Protection Agency). See generally Case Comment, Assuming
Jurisdiction Arguendo: The Rationale and Limits of Hypothetical
Jurisdiction, 127 U. of Pa.L.Rev. 712 (1979). Though rarely used,
the device of assuming without deciding subject matter jurisdiction
seems appropriate in this case.
Hurricane Andrew struck Dade County, Florida, on August 24,
1992. The storm's widespread destruction to homes, roads, power,
and communication services is undisputed. The Governor of the
State of Florida issued an Executive Order that declared a state of
emergency and provided that Miami city and Metropolitan Dade County
officials could impose curfews until December 21, 1992. The county
manager issued a proclamation setting a curfew for the County from
7:00 pm to 7:00 am. The National Guard, as well as other law
enforcement officials, was called in to assist local police. Over
the next few weeks, the curfew was modified as to geographical area
and time of enforcement. By October 2, 1992, the curfew was in
effect from 10:00 pm through 5:00 am and covered a specified area
of south county. Each proclamation required that persons in the
affected area were to remain in their homes during the curfew
hours, unless otherwise authorized. The curfew was lifted November
16, 1992, twenty-four hours after the National Guard departed.
The challenged curfew language required that "[a]ll persons
residing in these areas are commanded to remain in their homes
during the hours of the curfew, unless otherwise authorized by Dade
County, State of Florida or federal officials."
The basic law concerning the vagueness and overbreadth of
legislative authority has been established by the Supreme Court.
A statute is void for vagueness when its prohibition is so vague as
to leave an individual without knowledge of the nature of the
activity that is prohibited. NAACP v. Button, 371 U.S. 415, 83
S.Ct. 323, 9 L.Ed.2d 405 (1963). To pass constitutional muster, a
statute must "give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited.... [and] provide explicit
standards for those who apply [it]" to avoid arbitrary and
discriminatory enforcement. Grayned v. City of Rockford, 408 U.S.
104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Even
a clear, precise ordinance may be "overbroad" if it prohibits
constitutionally protected conduct. Grayned, 408 U.S. at 114, 92
S.Ct. at 2302.
Once a law is determined to be constitutional as written, it
may still be challenged if it was applied in an unconstitutional
manner. Smith v. Goguen, 415 U.S. 566, 576, 94 S.Ct. 1242, 1248-
49, 39 L.Ed.2d 605 (1974); Palmer v. City of Euclid, Ohio, 402
U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971).
The key to judicial consideration to the challenge in this
instance lies in the circumstances under which the curfew was
instituted. The plaintiffs do not argue, nor can there be any
doubt, that the devastation and chaos created by Hurricane Andrew
required the authorities to act, and act quickly, to protect the
interests of the victims. In fact, the first prayer for relief in
the plaintiffs' complaint asked the court to declare
unconstitutional and unlawful the "failure of Defendants" to create
and implement constitutionally valid ordinances. Police action was
clearly required.
Cases have consistently held it is a proper exercise of police
power to respond to emergency situations with temporary curfews
that might curtail the movement of persons who otherwise would
enjoy freedom from restriction. Moorhead v. Farrelly, 727 F.Supp.
193 (D.V.I.1989) (ravages of Hurricane Hugo); United States v.
Chalk, 441 F.2d 1277 (4th Cir.1971) (civil unrest after racial
incident); In re Juan C., 28 Cal.App.4th 1093, 33 Cal.Rptr.2d 919
(1994) (widespread looting, violence during riots in Los Angeles).
In such circumstances, governing authorities must be granted
the proper deference and wide latitude necessary for dealing with
the emergency. From prior decisions involving natural disasters,
both of the judges in the district court gleaned the proper
approach in such matters: when a curfew is imposed as an emergency
measure in response to a natural disaster, the scope of review in
cases challenging its constitutionality "is limited to a
determination whether the [executive's] actions were taken in good
faith and whether there is some factual basis for the decision that
the restrictions ... imposed were necessary to maintain order."
United States v. Chalk, 441 F.2d at 1281; Moorhead v. Farrelly,
727 F.Supp. at 200.
Plaintiffs concede a curfew was necessary when imposed. There
has been no suggestion that the defendants acted in bad faith. The
curfew was in direct response to the official emergency declared by
the Governor of the State and the factual emergency conceded to
exist. Flexibility in any such curfew is a key ingredient to
provide the enforcing authorities with the practical ability to
carry out the purposes for which it is instituted. Moorhead v.
Farrelly, 727 F.Supp. 193 (D.V.I.1989).
Plaintiffs complain that the curfew is unconstitutionally
vague both on its face and as applied because it failed to advise
residents of the parameters of their right to travel. Though the
curfew allowed "authorized" travel, there was no criteria set forth
in the curfew order itself for obtaining authorization; no stated
exceptions for necessary travel to or from work, school, religious
activities, or in connection with medical or personal emergencies
for the residents; nor were there exceptions for emergency
personnel, such as ambulance drivers or firefighters to enter the
area during the curfew.
Contrary to plaintiffs' argument that this information was
unavailable to residents, the district court made factual findings,
unchallenged on this appeal, that the police were given guidelines
in the exercise of discretion to permit travel for medical reasons,
work, or school, and that the police trained the military in the
application thereof. There was also testimony that during regular
door-to-door visits by police officers, the community was advised
of the possibilities for obtaining authorization for travel during
curfew hours.
Basically, plaintiffs argue that the curfew is
constitutionally flawed because it did not contain "built-in
exceptions" for necessary activity. State of Connecticut v. Boles,
5 Conn.Cir.Ct. 22, 240 A.2d 920, 923 (1967). That court, in
considering a curfew that was imposed to quell a riot, acknowledged
that "[u]nder usual and normal circumstances and as a general
proposition, this may be true. But the circumstances existing at
the time were not usual, nor were they normal." Id. While we
would agree with plaintiffs that in a normal situation, the
proclamation should be as informative as possible, under the
emergency circumstances present in this case, the proclamation was
not constitutionally flawed because it did not include exceptions.
In an emergency situation, fundamental rights such as the right of
travel and free speech may be temporarily limited or suspended.
See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12
L.Ed.2d 992 (1964); Korematsu v. United States, 323 U.S. 214, 65
S.Ct. 193, 89 L.Ed. 194 (1944).
The claims tried by Judge Mishler—that the curfew was
overbroad because it impinged on plaintiffs' personal liberties and
continued after the emergency ended and that it was void for
vagueness as it was applied to plaintiffs because of selective
enforcement—were denied because the findings of fact did not
support the claims. Those findings are protected here by the
clearly erroneous standard of review.
The district court properly held that it could not say that
the curfew was so broad or vague that it unconstitutionally denied
personal liberty without due process of law. The nature of the
emergency and the exigency of the time warranted the imposition and
length of the curfew.
It is significant that the parties have cited no cases, nor
have we found any in which a curfew mandated because of situation
caused by a natural disaster was held unconstitutional so that
affected persons could recover damages against the local
authorities.
AFFIRMED.