United States Court of Appeals
For the First Circuit
No. 05-1798
MIRIAM J. RAMÍREZ,
Plaintiff, Appellant,
v.
ROBERTO SÁNCHEZ RAMOS, IN HIS CAPACITY AS
SECRETARY OF JUSTICE OF PUERTO RICO,*
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Lipez and Howard, Circuit Judges.
David W. Roman, with whom José Luis Ubarri and Brown & Ubarri
were on brief, for appellant.
Eduardo Vera Ramírez, with whom Roberto Sánchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Eileen Landrón Guardiola, Courtney R. Carroll, and Landrón & Vera,
LLP were on brief, for appellee.
February 21, 2006
__________
*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we have
substituted Roberto Sánchez Ramos for his predecessor in office,
Anabelle Rodríguez.
SELYA, Circuit Judge. Following her failed efforts to
force an agency of the Puerto Rican government to display the
American flag in its central office, plaintiff-appellant Miriam J.
Ramírez found herself on the wrong end of criminal charges brought
pursuant to the Riot Act, P.R. Laws Ann. tit. 33, § 4522. Claiming
that the Riot Act impermissibly infringed her First Amendment right
to political expression and that the party in power was using it as
a tool to harass political opponents, the plaintiff mounted a
constitutional challenge.1 After the criminal charges were
dropped, the district court determined that the plaintiff no longer
had an adequate stake in the action and dismissed her
constitutional claims as moot. Ramírez v. Rodríguez, 389 F. Supp.
2d 143, 147 (D.P.R. 2005). This appeal followed.
We conclude that the plaintiff lacked standing to bring
a facial challenge to the Riot Act. While she had standing to
mount an as-applied challenge, that claim became moot upon the
termination of the criminal charges. Accordingly, we affirm the
judgment below.
I. BACKGROUND
The plaintiff is a member of the New Progressive Party
(NPP) and a former legislator. In 2002, the NPP's main rival, the
1
The First Amendment applies to the several states by
operation of the Fourteenth Amendment. See 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 489 n.1 (1996). Puerto Rico is, for
this purpose, the functional equivalent of a state. See El Vocero
de P.R. v. Puerto Rico, 508 U.S. 147, 148 n.1 (1993).
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Popular Democratic Party (PDP), controlled the Puerto Rican
government. On June 20, 2002, after learning that a government
agency, the Office of the Women's Advocate (OWA), was not
displaying the American flag alongside the Puerto Rican flag, the
plaintiff joined a group of NPP adherents who marched, flag in
hand, to the OWA's headquarters in an effort to rectify the
situation. The marchers were denied entry when they reached their
destination. Carlos Pesquera, then the president of the NPP, met
with OWA representatives to explain the group's objective.
Pesquera's entourage waited outside in hopes that they would be
allowed to enter the building and hoist the American flag. Over
the course of the afternoon, the large crowd attracted attention
from both the media and the police.
After many hours, the doors to the OWA's headquarters
were finally unlocked. The plaintiff claims that she was swept
inside when the crowd rushed to enter the ground-level vestibule.
The influx did not proceed very far; OWA personnel used physical
force to prevent the marchers from ascending the stairs to the
reception area (where they wished to place the flag).
Throughout, the plaintiff remained on the ground floor,
seeking refuge in a side stairwell. While waiting for the frenzy
to abate, she grabbed a man to prevent him from climbing over
peoples' heads as he attempted to ascend the staircase. The man
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(later identified as an OWA hierarch) turned and struck her. The
plaintiff subsequently left the building.
No one was arrested or charged on the date of the
incident. In its aftermath, however, the Puerto Rico Department of
Justice appointed an independent prosecutor (the Prosecutor). The
Prosecutor secured affidavits stating that the plaintiff had (i)
directed threatening gestures at OWA officials while awaiting
ingress to the building and (ii) used physical force against an OWA
official once she was inside. Armed with these affidavits, the
Prosecutor filed criminal charges against the plaintiff under the
Riot Act. The Prosecutor charged several other prominent NPP
members for their roles in the incident. No charges were lodged
against anyone from the OWA.
On February 6, 2003, a local court dismissed the charges
against the plaintiff for want of probable cause. Later, however,
the court agreed to reconsider its decision and scheduled a hearing
for March 19, 2003. Shortly before the appointed date, the
plaintiff filed suit in the United States District Court for the
District of Puerto Rico. In that action, she sought to enjoin the
pending prosecution and to secure a declaration of the Riot Act's
unconstitutionality.
At this point, a few words of explanation are in order.
The Riot Act defines the offense with which the plaintiff was
charged as "[a] use of force or violence to disturb the public
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peace, or any threat to use such force or violence," so long as
that act is "accompanied by immediate power of execution" and is
carried out "by two (2) or more persons, acting together and
without authority of law." P.R. Laws Ann. tit. 33, § 4522. The
plaintiff's constitutional challenge to this statute has two
facets. First, she attacks the Riot Act on the ground that the
government was using it selectively to prosecute NPP partisans for
their lawful exercise of First Amendment freedoms. Second, she
alleges that the Riot Act, on its face, is unconstitutionally
vague, overly broad, and incompatible with Fourteenth Amendment
protections (e.g., due process and equal protection). In this
regard, the plaintiff complains that the Riot Act neither specifies
what behavior constitutes a disturbance of the peace nor limits
violations to those situations in which the interdicted conduct
presents a clear and present danger of actual injury.
The defendants, government officials sued in their
representative capacities, moved to dismiss the action based on
Younger abstention principles. See Younger v. Harris, 401 U.S. 37
(1971). The district court prudently stayed proceedings pending
the outcome of the criminal prosecution. That case terminated on
March 25, 2003, when the local court reaffirmed its earlier
dismissal of the charges against the plaintiff for want of probable
cause.
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In short order, the district court jettisoned the
plaintiff's claim for injunctive relief as moot. The court
simultaneously denied the defendants' motion to dismiss the federal
action on Younger grounds. Neither of these determinations is at
issue in this appeal.
On April 22, 2003, the plaintiff moved for summary
judgment on her declaratory judgment claim. She argued that she
retained a personal stake in the matter because, as an active NPP
member, she intended to continue participating in activities
critical of the PDP-controlled administration. Specifically, she
explained that she planned to participate in the NPP's upcoming
"march of indignation" and to continue exercising her rights of
peaceful assembly and vocal protest. She worried that these
activities might subject her to selective prosecution under the
allegedly vague and overbroad language of the Riot Act. She also
worried that her fear of future prosecution might, in turn, chill
the free exercise of her First Amendment rights.
In response, the Secretary of Justice (the sole remaining
defendant) cross-moved to dismiss the plaintiff's complaint on the
ground that the entire case had become moot when the criminal
charges were squelched. On March 31, 2005, the district court
granted the defendant's motion. The court cited the following
uncontested facts: (i) the criminal charges against the plaintiff
had been dismissed; (ii) a general election had intervened and a
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new administration (albeit one headed by a different PDP governor)
was in power; (iii) the plaintiff's term of office had expired and
she was no longer an elected official; and (iv) the other NPP
leaders who had been charged under the Riot Act in connection with
the flag incident had all been acquitted in a highly publicized
trial. See Ramírez, 389 F. Supp. 2d at 146-47. The court found
that these changed circumstances rendered it "improbable that the
Puerto Rico Department of Justice [would] once again expose itself
to public embarrassment and ridicule by selectively prosecuting
public officials under the Riot Act for voicing their differences
with the government." Id. at 147. Although it dismissed all that
remained of the action, the court did not undertake separate
analyses of the plaintiff's as-applied and facial challenges. This
timely appeal ensued.2
II. ANALYSIS
We review the district court's mootness determination de
novo, accepting as true the material factual allegations contained
in the complaint and drawing all reasonable inferences therefrom in
the plaintiff's favor. See N.H. Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996).
2
Effective May 1, 2005, the legislature recodified the Riot
Act as Article 248 of the Puerto Rico Penal Code, P.R. Laws Ann.
tit. 33, § 4876. Aside from altering the penalty for violations —
a modification that is of no consequence to the plaintiff's
constitutionality arguments — Article 248 is a verbatim
recodification of Article 261. Thus, we do not distinguish between
the two for purposes of this appeal.
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It is beyond dispute that when a litigant wishes to
pursue a claim in a federal court, justiciability principles
require the existence of an actual case or controversy. See U.S.
Const. art. III, § 2, cl. 1; see also Allen v. Wright, 468 U.S.
737, 750 (1984); Osediacz v. City of Cranston, 414 F.3d 136, 139
(1st Cir. 2005). To satisfy the case or controversy criterion, the
party alleging the existence of jurisdiction (normally, the
plaintiff) must possess a personal stake in the outcome of the
litigation. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
This requirement "subsists through all stages of federal judicial
proceedings, trial and appellate." Lewis v. Cont'l Bank Corp., 494
U.S. 472, 477 (1990).
The doctrine of standing measures whether a plaintiff has
satisfied the "personal stake" requirement at the commencement of
an action. See Baker v. Carr, 369 U.S. 186, 204 (1962).
Thereafter, the doctrine of mootness measures whether the
plaintiff's interest remains sufficient to justify continuing
federal jurisdiction. See U.S. Parole Comm'n v. Geraghty, 445 U.S.
388, 397 (1980). Given that dichotomy, mootness is aptly described
as "the doctrine of standing set in a time frame." Id. (citation
and internal quotation marks omitted).
In this instance, the plaintiff asserts that she has a
personal stake sufficient to support the justiciability of both her
as-applied (selective prosecution) claim and her facial challenge
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to the constitutionality of the Riot Act. These two claims involve
different justiciability standards. For that reason, we analyze
them separately.
The difference between standing and mootness necessitates
a further segmentation of our analysis. Thus, we first consider,
as to each claim, whether the plaintiff carried her initial burden
of establishing standing. We then proceed to a mootness inquiry if
— and only if — that answer is in the affirmative. Cf. Warth v.
Seldin, 422 U.S. 490, 498 (1975) (explaining that standing is a
"threshold question in every federal case").
A. Standing.
Standing involves both constitutional imperatives and
prudential considerations. Valley Forge Christian Coll. v. Ams.
United for Separation of Church & State, 454 U.S. 464, 471 (1982).
An inquiry into standing must be based on the facts as they existed
when the action was commenced. Mangual v. Rotger-Sabat, 317 F.3d
45, 56 (1st Cir. 2003).
To satisfy Article III's "personal stake" requirement
vis-à-vis a statutory challenge, the plaintiff bears the burden of
demonstrating that (i) she has suffered an actual or threatened
injury in fact, which is (ii) fairly traceable to the statute, and
(iii) can be redressed by a favorable decision. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Lewis, 494 U.S.
at 477. Allegations of abstract injury are insufficient to make
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out an injury in fact. Instead, the plaintiff "must show that he
has sustained or is immediately in danger of sustaining some direct
injury." Lyons, 461 U.S. at 101-02 (citations and internal
quotation marks omitted). Moreover, she must show that the injury
or threat of injury is both real and immediate. Id. at 102
(citations and internal quotation marks omitted).
In addition to these constitutional requirements,
prudential considerations must be taken into account. In general
— there are exceptions, but we need not discuss them here —
prudential concerns require a plaintiff to show that she is seeking
to protect her own legal rights (rather than those of a third
party), that her complaint does not merely represent a generalized
grievance, and that the complaint falls within the zone of
interests protected by the law invoked. See N.H. Right to Life, 99
F.3d at 15.
Against this backdrop, we turn to the two claims at issue
here.
1. The As-Applied Challenge. At the time the plaintiff
sued, criminal charges were pending against her under the Riot Act.
Because she was in immediate danger of sustaining harm, her as-
applied claim satisfies the first prong of the constitutional
standing inquiry. See Lyons, 461 U.S. at 101-02. This claim also
clears the second and third hurdles of the constitutional test: her
injury was directly traceable to the challenged conduct, and a
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declaration of the Riot Act's invalidity would eliminate the
threatened harm.
By the same token, the as-applied claim satisfies
prudential prerequisites. The plaintiff is seeking to protect her
own First Amendment freedoms; the allegedly selective prosecution
crystallized in a particularized event (the institution of criminal
charges); and aspects of the threatened injury (most particularly,
the chilling of political expression) fall comfortably within the
zone of interests that the First Amendment protects.
To say more would be to paint the lily. We hold, without
serious question, that the plaintiff carried her burden of
establishing initial standing to seek a declaratory judgment with
respect to her as-applied claim.
2. The Facial Challenge. Although allegations of
abstract injury are insufficient to satisfy the first prong of the
Article III standing test, a litigant who brings a First Amendment
challenge to the face of a statute need not actually violate the
statute or suffer the prescribed penalty in order to establish an
injury in fact. Steffel v. Thompson, 415 U.S. 452, 459 (1974).
Because the "conflict between state officials empowered to enforce
a law and private parties subject to prosecution under that law is
a classic 'case' or 'controversy' within the meaning of Art. III,"
Diamond v. Charles, 476 U.S. 54, 64 (1986), two other types of
injury may in some situations constitute valid proxies.
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The first occurs when a "plaintiff has alleged an
intention to engage in a course of conduct arguably affected with
a constitutional interest, but proscribed by [the] statute, and
there exists a credible threat of prosecution." Babbitt v. United
Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). The second
occurs when a plaintiff "is chilled from exercising her right to
free expression or forgoes expression in order to avoid enforcement
consequences." N.H. Right to Life, 99 F.3d at 13. The plaintiff
seeks to invoke these exceptions here.
However, there is a rub. Each of the exceptions requires
a credible threat — as opposed to a hypothetical possibility — that
the challenged statute will be enforced to the plaintiff's
detriment if she exercises her First Amendment rights. Id. at 14.
Consequently, "[a] party's subjective fear that she may be
prosecuted for engaging in expressive activity will not be held to
constitute an injury for standing purposes unless that fear is
objectively reasonable." Id. The evidentiary threshold that must
be crossed in order to establish a credible threat is modest, see,
e.g., Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392-93
(1988); Babbitt, 442 U.S. at 302, but it is real. We turn, then,
to the question of whether the plaintiff's proffer passes muster.
In her filings, the plaintiff expressed her intention to
participate in a march, peacefully assemble, and openly voice her
opposition to the PDP regime. She asserted that she feared future
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prosecutions under the Riot Act if she followed through on any or
all of these intentions and worried that she might be dissuaded
from exercising her First Amendment freedoms.
Because the plaintiff never stated an intention to engage
in any activity that could reasonably be construed to fall within
the confines of the Riot Act, she failed to satisfy even the
relaxed standing requirements reserved for facial First Amendment
challenges. See Osediacz, 414 F.3d at 141 (suggesting that a
"party mounting a facial challenge [must] at the very least
desire[] or intend[] to undertake activity within the compass of
the challenged statute"). Read straightforwardly, the Riot Act
only criminalizes the "use of force or violence" or the "threat to
use such force or violence." P.R. Laws Ann. tit. 33, § 4522. None
of the activities in which the plaintiff has expressed a desire to
engage — marching, peacefully assembling, and speaking out —
involves force or violence. Therefore, none of them is even
arguably within the statute's reach. Accordingly, the plaintiff
lacks standing to pursue a declaration that the Riot Act is
unconstitutional on its face. See Osediacz, 414 F.3d at 141; N.H.
Right to Life, 99 F.3d at 14.
To be sure, the plaintiff maintains that her fear is
credible because the prosecutions following the flag incident
warrant an inference that the PDP administration is overly eager to
employ the Riot Act against NPP leaders. Assuming, for argument's
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sake, that such an inference reasonably can be drawn, there is an
important distinction between the flag incident and the activities
that the plaintiff lists as future pursuits. Even though the Riot
Act charges against the plaintiff were ultimately found to be
baseless, the Prosecutor had obtained evidence suggesting that the
plaintiff had used force on that occasion. It is simply too much
of a stretch to posit that the government's decision to prosecute
a Riot Act charge when some evidence supports a "force or violence"
finding indicates a willingness to prosecute entirely peaceful
First Amendment expression. See United States v. Armstrong, 517
U.S. 456, 464 (1996) (explaining that "in the absence of clear
evidence to the contrary, courts presume that [prosecutors will]
properly discharge[] their official duties") (citation and internal
quotation marks omitted). While the government's decision to
prosecute the earlier case is relevant to the plaintiff's as-
applied claim, it does not confer standing to bring a facial
challenge where, as here, the plaintiff has stated no intention of
engaging in similar conduct. The plaintiff has, therefore, failed
to clear the evidentiary bar for establishing a credible threat of
future prosecution. See N.H. Right to Life, 99 F.3d at 14; see
also Osediacz, 414 F.3d at 141 (explaining that although "standing
concerns are relaxed in certain facial challenges implicating the
First Amendment, a litigant still must demonstrate that she
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satisfies the constitutional minima essential to establish
standing").
B. Mootness.
As limned above, the plaintiff had initial standing to
bring her as-applied challenge to the Riot Act, but not her facial
challenge. Consequently, only the former claim engenders a
mootness inquiry.
Article III considerations require that an actual case or
controversy "must be extant at all stages of review, not merely at
the time the complaint is filed." Steffel, 415 U.S. at 459 n.10.
When, as now, a plaintiff has initial standing to bring a
particular claim, a federal court is duty bound to dismiss the
claim as moot if subsequent events unfold in a manner that
undermines any one of the three pillars on which constitutional
standing rests: injury in fact, causation, and redressability. See
Goodwin v. C.N.J., Inc., ___ F.3d ___, ___ (1st Cir. 2006) [No. 04-
2050, slip op. at 6] ("A case becomes moot if, at some time after
the institution of the action, the parties no longer have a legally
cognizable stake in the outcome."); Mangual, 317 F.3d at 60 ("If
events have transpired to render a court opinion merely advisory,
Article III considerations require dismissal of the case.").
Despite their close family resemblance, there is a
telltale distinction between the doctrines of standing and
mootness. Whereas the party invoking federal jurisdiction bears
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the burden of proving that she has standing, the party raising a
mootness defense has the burden of establishing the facts necessary
to sustain that defense. See Mangual, 317 F.3d at 61. To satisfy
this burden, the challenger must show that, after the case's
commencement, intervening events have blotted out the alleged
injury and established that the conduct complained of cannot
reasonably be expected to recur. See County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979); United States v. Concentrated
Phosphate Export Ass'n, 393 U.S. 199, 203 (1968). If it is
sufficiently plain that intervening events have wiped the slate
clean, the case has become moot.
We conclude that in this case the defendant has satisfied
his heavy burden of showing that the plaintiff's as-applied claim
is moot. The Puerto Rico court's "want of probable cause"
determination eradicated the threatened injury that formed the
centerpiece of the plaintiff's selective prosecution claim. The
finality of that ruling makes it transparently clear that the
plaintiff will not face future prosecution under the Riot Act for
her participation in the flag incident (indeed, she has made no
claim to the contrary). No more is exigible to establish mootness.
In an effort to parry this thrust, the plaintiff notes
that there is an exception to the mootness bar for situations in
which a claim is capable of repetition, yet evades review. See,
e.g., S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); Cruz
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v. Farquharson, 252 F.3d 530, 534 (1st Cir. 2001). Here, however,
the plaintiff's attempt to avail herself of this exception is
unpersuasive.
The exception is applicable when "(1) the challenged
action [is] in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subjected to
the same action again." Weinstein v. Bradford, 423 U.S. 147, 149
(1975). The party who asserts continuing jurisdiction (here, the
plaintiff) bears the burden of establishing both that the issue is
capable of repetition and that, absent relaxation of the classic
mootness rule, it will evade review. See Lawrence v. Blackwell,
430 F.3d 368, 371 (6th Cir. 2005); Video Tutorial Servs. v. MCI
Telecomms. Corp., 79 F.3d 3, 6 (2d Cir. 1996). In the case at
hand, the plaintiff has not satisfied her burden with respect to
either requirement. We explain briefly.
First, there is nothing about Riot Act prosecutions in
general that would routinely preclude defendants from litigating
the constitutionality of the statute during the pendency of
criminal proceedings. That the criminal proceedings here were
short-circuited by the "want of probable cause" determination and
thus proved to be of insufficient duration to allow the plaintiff
to adjudicate her constitutional challenge to a conclusion does not
change this calculus. It is the issue raised, not the particulars
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of the plaintiff's claim, that is determinative. In other words,
the issue itself must systematically evade review in order for the
exception to apply. See Spencer v. Kemna, 523 U.S. 1, 18 (1998)
(finding that due process challenge to parole revocation hearing
did not qualify for the exception, even though the plaintiff's
sentence expired before he could litigate his constitutional
challenge, because the time between parole hearings and the
expiration of criminal sentences is not always — or even typically
— so short as to evade review); Horizon Bank & Trust Co. v.
Massachusetts, 391 F.3d 48, 54 (1st Cir. 2004) (holding that claims
evade review only when "the underlying facts are inherently
temporary such that they will predictably have changed and
foreclosed meaningful relief by the time the case has worked its
way through the legal system"). On this basis, the plaintiff's as-
applied claim cannot be said to evade review.
Second, the plaintiff has not alleged any intent to
engage in future political expression involving the actual or
threatened use of force or violence. See supra Part II(A)(2). Her
allegations, therefore, do not support a reasonable anticipation
that she herself will be exposed to further Riot Act prosecutions.
This is vitally important because it is the original plaintiff,
rather than some other party, who must bear the onus of repeated
exposure to the challenged conduct in order to meet the "capable of
repetition" standard. See Marchand v. Dir., U.S. Prob. Office, 421
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F.2d 331, 334 (1st Cir. 1970). Consequently, the plaintiff's as-
applied claim has not been shown to be capable of repetition in the
requisite sense.
III. CONCLUSION
We need go no further. Because the plaintiff's
expressive aspirations, as she describes them, do not give rise to
a credible threat of future prosecution under the Riot Act, she
lacked standing to mount a facial challenge to the statute. And
while she had standing to bring an as-applied challenge, that claim
became moot once the criminal charges against her vanished. Hence,
the district court did not err in dismissing the action.
Affirmed.
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