|||U.S. Court of Appeals, Eighth Circuit
|||205 F.3d 1034, 2000.C08.0042242 <http://www.versuslaw.com>
|||March 03, 2000
|||TRACIE PARK, APPELLEE,
FOREST SERVICE OF THE UNITED STATES OF AMERICA, APPELLANT.
|||Before Wollman, Chief Judge, and Morris Sheppard Arnold and Murphy, Circuit
|||The opinion of the court was delivered by: Morris Sheppard Arnold, Circuit
|||Appeal from the United States District Court for the Western District
|||Submitted: January 10, 2000
|||Tracie Park is a member of a group known as the "Rainbow Family,"
which holds periodic gatherings of its members in various national forests.
Ms. Park brought a suit for injunctive relief in the district court claiming
that the United States Forest Service employed an unconstitutional checkpoint
on a forest road, that the checkpoint was targeted against her group, and
that the Forest Service would continue to use unlawful checkpoints against
the Rainbow Family in the future. The district court granted summary judgment
in favor of Ms. Park, and enjoined the Forest Service from using certain
types of checkpoints that target Rainbow Family gatherings. The Forest Service
appeals and we reverse.
|||The Forest Service argues, among other things, that Ms. Park lacks standing
to seek injunctive relief. "Standing is, of course, a threshold issue
in every case before a federal court: If a plaintiff lacks standing, he
or she cannot invoke its jurisdiction." Arkansas Right to Life State
Political Action Committee vs. Butler, 146 F.3d 558, 560 (8th Cir. 1998),
cert. denied, 119 S. Ct. 1041 (1999). Before moving to the merits of the
case, we consider first, therefore, whether Ms. Park had standing to seek
|||The existence of standing is a determination of law that we review de
novo. See National Federation of the Blind v. Cross, 184 F.3d 973, 979 (8th
Cir. 1999), cert. denied, 120 S. Ct. 533 (1999). "Since [the elements
of standing] are not mere pleading requirements but rather an indispensable
part of the plaintiff's case, each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive
stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S.
555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Under Fed. R. Civ.
P. 56(c), summary judgment is proper only if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates that there is
no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.
|||To establish standing, Ms. Park must demonstrate that she has suffered
an injury in fact, that her injury was caused by the conduct of the Forest
Service, and that her injury is likely to be redressed by a favorable ruling
from a federal court. See Lujan, 504 U.S. at 560-61. In the case of complaints
for injunctive relief, the "injury in fact" element of standing
requires a showing that the plaintiff faces a threat of ongoing or future
harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-05, 103 S. Ct.
1660, 75 L. Ed. 2d 675 (1983). "[I]t is the plaintiff's burden to establish
standing by demonstrating that, if unchecked by the litigation, the defendant's
allegedly wrongful behavior will likely occur or continue, and that the
'threatened injury [is] "certainly impending." ' " Friends
of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 120 S. Ct. 693,
709 (2000), quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990), itself
quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923), reaff'd,
263 U.S. 350 (1923).
|||In this case, Ms. Park maintained that she was subjected to an unconstitutional
checkpoint while attending the 1996 annual gathering of the Rainbow Family,
and she filed her complaint in the district court a few weeks after the
conclusion of that gathering. The Forest Service does not deny that the
checkpoint was impermissibly operated, but argues that Ms. Park has not
made an adequate showing that she will be subjected to unconstitutional
checkpoints in the future; the Forest Service therefore contends that Ms.
Park does not have standing to seek injunctive relief. We agree.
|||The mere fact that the checkpoint used at the 1996 gathering was unconstitutional
cannot alone give Ms. Park standing: "Past exposure to illegal conduct
does not in itself show a present case or controversy regarding injunctive
relief ... if unaccompanied by any continuing, present adverse effects."
O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674
(1974). At the time that Ms. Park filed her complaint for relief, the 1996
gathering had ended and the checkpoint was no longer being used. We are
therefore not presented with a case in which the unlawful conduct is ongoing;
instead, to have standing, Ms. Park must demonstrate " ' "a real,
[and] immediate threat that [she] would again" suffer similar injury
in the future.' " Harmon v. City of Kansas City, 197 F.3d 321, 327
(8th Cir. 1999), quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
211 (1995), itself quoting Lyons, 461 U.S. at 105.
|||In the discussion of standing in her appellate brief, Ms. Park argues
that she has standing because she intends to continue attending Rainbow
Family gatherings and because the Forest Service continues to target the
Rainbow Family with unconstitutional checkpoints. The only evidence that
she adduces for this latter assertion is an affidavit from another Rainbow
Family member that claims that the Forest Service used checkpoints at Rainbow
Family gatherings on certain occasions in 1997, 1998, and 1999.
|||We do not think, however, that the actual use of checkpoints in 1997,
1998, and 1999 is relevant on the issue of standing because all of these
events occurred after Ms. Park filed her original complaint. We believe
that it is Ms. Park's burden to show that, at the time she filed her suit
in 1996, there was a real and immediate threat that she would again be subjected
by the Forest Service to an unconstitutional checkpoint. We do not think
that she may use evidence of what happened after the commencement of the
suit to make this showing.
|||In Lujan, 504 U.S. at 568 (plurality opinion), the Supreme Court found
that the plaintiffs lacked standing because, among other things, they could
not demonstrate that their alleged injury was redressable. In so holding,
id. at 568-69 (plurality opinion), a four-justice plurality rejected the
argument that an authoritative ruling by the Court would have the ameliorative
effect that the plaintiffs sought. The plurality stated that "standing
is to be determined as of the commencement of the suit," id. at 571-72
n.5, and that at the commencement of the suit it could not have been foreseen
that the suit would reach the Supreme Court, see id. at 571 n.5. It seems
to us that if redressability may not be established by a development that
occurs after the commencement of the litigation, neither may an injury-in-fact.
See also Perry v. Village of Arlington Heights, 186 F.3d 826, 830 (7th Cir.
1999) ("[i]t is not enough for [the plaintiff] to attempt to satisfy
the requirements of standing as the case progresses. The requirements of
standing must be satisfied from the outset").
|||In its argument that Ms. Park lacked standing, the Forest Service also
relied on events that took place after the commencement of this litigation.
The Forest Service pointed to the 1998 adoption of new rules that supposedly
eliminate the possibility that unconstitutional checkpoints will be used
in the future, and argued that Ms. Park could not, therefore, have standing.
For the reasons that we have already stated, however, the adoption of the
1998 rules is not relevant to the standing inquiry in this case. The adoption
of these rules would be relevant only to a contention that Ms. Park's complaint
has become moot. To carry the day on that contention, the Forest Service
would have to "[bear] the formidable burden of showing that it is absolutely
clear [that] the allegedly wrongful behavior could not reasonably be expected
to recur." Friends of the Earth, 120 S. Ct. at 709. In any event, since
we decide this case on standing, we do not reach the question of mootness.
|||Having found that allegations of improper checkpoints after the commencement
of this suit are inapposite to the issue of standing, we turn to the record
to see what other events, predating commencement of this suit, support Ms.
Park's assertion of standing. Our analytical approach is similar to the
one used by the Supreme Court in Lyons, 461 U.S. at 97-98, in which the
plaintiff claimed to have been subjected to an unconstitutional chokehold
during a traffic stop. The Court found that he did not have standing to
seek injunctive relief because the possibility that he would be stopped
again and, moreover, treated in a similar manner was simply too speculative.
Id. at 105-07. The Court's measurement of the likelihood of future injury
seemed to require two criteria: First, the probability that the plaintiff
would be stopped again and, second, the probability that the officers would
use a chokehold again.
|||It is undisputed that Ms. Park planned to attend, at the very least, the
next annual gathering of the Rainbow People. We find the probability very
high, therefore, that Ms. Park would, within one year of commencing this
suit, attend a gathering of the Rainbow People, in the course of which she
would visit a national forest and potentially come into contact with the
Forest Service. We note that an upcoming annual event is sufficiently temporally
proximate to be considered an "immediate" threat and therefore
to support standing for injunctive relief, Adarand Constructors, 515 U.S.
|||The key inquiry in the issue of standing in our case, however, focuses
on the second criterion in the probability calculus, that is, the probability
that the Forest Service will use an unconstitutional checkpoint at the next
annual gathering. We think that among the relevant considerations in this
regard are statements of future intent and patterns of past practice. See
Lyons, 461 U.S. at 106 (identifying official police policy as an indicator
of future police conduct), and United States v. Articles of Drug, 825 F.2d
1238, 1248 (8th Cir. 1987) (citing a "pattern of noncompliance"
to justify injunctive relief).
|||There is no indication in the record in our case that the Forest Service
maintained an official policy of using unlawful checkpoints against the
Rainbow Family. Nor are we persuaded that the record could support a finding
that the Forest Service harbored an unofficial animus against the Rainbow
Family. We note first that there is no evidence that the Forest Service
treated similarly situated groups differently from the Rainbow Family, partly
because there were no similarly situated groups. The Forest Service presented
an affidavit that the Rainbow Family's meetings were unique in their size:
Whereas the largest gatherings in a national forest ordinarily number approximately
250 people, the annual meeting of the Rainbow Family draws over 15,000 people,
which presents unique administrative and logistical concerns. The Rainbow
Family does not contest this.
|||The Forest Service also presented affidavits stating that checkpoints
were routinely used at much smaller gatherings (i.e., 100-200 people), such
as fraternity parties and large hunting groups. The Rainbow Family presented
no evidence to contest this, either. Finally, although Ms. Park suggested
in her deposition that the Forest Service was "overly enthusiastic"
in its enforcement of the law at Rainbow Family gatherings, she was not
aware of any occasion on which a Forest Service officer turned a blind eye
to similar violations committed by non-Rainbow Family members, at their
own or any other gatherings.
|||Ms. Park also cited an unpublished opinion by a Texas district court from
an earlier case between the Rainbow Family and the Forest Service in which
the district court found that the Forest Service "acted with hostility
to the Rainbow Family." United States v. Rainbow Family, No. L-88-68-CA
(E.D. Tex. Apr. 14, 1989), at 27. We believe, however, that this opinion,
which concerned a dispute that occurred eleven years ago over an unrelated
permit policy, is insufficient evidence of a service-wide animus in 1996
that would make the use of an unconstitutional checkpoint in 1997 likely.
|||Nor are we persuaded by Ms. Park's claim, advanced in oral argument but
not in her brief, that the Forest Service's inability to state the purpose
for the 1996 checkpoint consistently indicates that the Forest Service harbors
some hidden animus against the Rainbow People. Although it may be true that
various Forest Service officers gave different explanations for the checkpoint
(for example, some officers said that the checkpoint was for informational
and resource conservation purposes, while others said that it was a drunk-driving
checkpoint), we find it far more likely that this was the product of individual
confusion rather than institutional animus.
|||Finally, we note that there is very little evidence of a "pattern
of noncompliance," Articles of Drug, 825 F.2d at 1248, with the Constitution
by the Forest Service. In her deposition, Ms. Park expressed some uncertainty
as to when the Forest Service employed checkpoints in the past, but it is
apparent that the Forest Service used checkpoints in some years but not
others. Ms. Park provided almost no details about the operation of these
prior checkpoints, and we are unable to conclude from her very limited account
that those checkpoints were unconstitutional.
|||One Rainbow Family member stated in an affidavit that he saw checkpoints
at Rainbow Family gatherings on three occasions prior to the 1996 national
gathering. We note, however, that the affidavit claims only that the Forest
Service operated one of these checkpoints, in 1993, and that other or unnamed
entities operated the checkpoints on the other two occasions. As far as
the 1993 checkpoint is concerned, even if that checkpoint was unconstitutionally
operated, we are doubtful that that would be enough to establish a "pattern
of noncompliance," id.
|||We believe, moreover, that there is insufficient evidence to establish
that the 1993 checkpoint was unconstitutional. According to the affidavit,
the checkpoint was operated on a forest road, in close proximity to the
Rainbow Family gathering, and consisted of an identification and registration
check. These assertions, however, taken as true, do not describe an unconstitutional
|||We do not believe that a checkpoint where officers ask for identification
is illegal per se, nor do we believe that a checkpoint on a forest road
is illegal per se. See Michigan Department of State Police v. Sitz, 496
U.S. 444, 451-53 (1990). On this latter point we note in passing that although
it may be true that the forest road in question ordinarily has little traffic,
it is heavily traveled on the day of the gathering, and is therefore distinguishable
from the " ' "seldom-traveled roads" ' " described in
Sitz, 496 U.S. at 453, quoting United States v. Martinez-Fuerte, 428 U.S.
543, 558 (1976), itself quoting United States v. Ortiz, 422 U.S. 891, 894-95
(1975). Finally, we do not believe that a checkpoint that targets a uniquely
disruptive event, such as the Rainbow Family's annual gathering, is illegal
per se. Although it is possible that, when provided with evidence of the
numbers of cars stopped and the number of arrests made, we would conclude
that the 1993 checkpoint failed the test described in Sitz, 496 U.S. at
451-53, 455, the Rainbow Family has failed to produce any such evidence.
|||To summarize, we find that Ms. Park has failed to show that, at the commencement
of the litigation, there was a significant probability that the Forest Service
would use an unconstitutional checkpoint in the future. Therefore, we do
not believe that the " 'threatened injury [was] "certainly impending,"
' " Friends of the Earth, 120 S. Ct. at 709, quoting Whitmore, 495
U.S. at 158, itself quoting Pennsylvania v. West Virginia, 262 U.S. at 593,
and we conclude that Ms. Park did not have standing to seek injunctive relief
when she filed her complaint in 1996. In reaching this conclusion we are
mindful that the Forest Service admitted to using an improper checkpoint
in 1996, and that questionable checkpoints may have been used since that
time. It is possible that Ms. Park would have standing to seek injunctive
relief in an action commenced today, if these more recent checkpoints establish
a pattern of wrongdoing by the Forest Service. It is our hope, however,
that Ms. Park will not have to resort to legal action again to be free from
future violations of her constitutional rights, and that the administrators
of the Forest Service will ensure that the inappropriate conduct of 1996
is not repeated.
|||For the foregoing reasons the district court's award of summary judgment
in favor of Ms. Park is reversed, and the district court's injunction against
the Forest Service is vacated.
|||A true copy.
|||CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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