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Rodgers v. Bryant

United States Court of Appeals, Eighth Circuit

November 6, 2019

Michael Andrew Rodgers; Glynn Dilbeck Plaintiffs - Appellees
Bill Bryant, Colonel, in His Official Capacity as Director of the Arkansas State Police Defendant-Appellant

          Submitted: September 27, 2018

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.


         Michael Andrew Rodgers and Glynn Dilbeck challenge an Arkansas anti-loitering law that bans begging in a manner that is harassing, causes alarm, or impedes traffic. The district court[1] granted a statewide preliminary injunction preventing Arkansas from enforcing the ban while Rodgers and Dilbeck pursue their claim that the law violates the First Amendment. Having jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.


         Rodgers and Dilbeck, who have been begging in Arkansas for a long time, claim that Arkansas's anti-loitering law violates their free-speech rights. According to the law:

(a) A person commits the offense of loitering if he or she:
(3) Lingers or remains on a sidewalk, roadway, or public right-of-way, in a public parking lot or public transportation vehicle or facility, or on private property, for the purpose of asking for anything as charity or a gift:
(A) In a harassing or threatening manner;
(B) In a way likely to cause alarm to the other person; or
(C) Under circumstances that create a traffic hazard or impediment[.]

Ark. Code Ann. § 5-71-213 (2017) (amended 2019). Violations are punishable by up to 30 days in jail and a fine of up to $500. See id. §§ 5-4-201(b)(3), -4-401(b)(3), -71-213(e).

         Rodgers and Dilbeck, who were arrested or cited under a prior version of Arkansas's anti-loitering law, see id. § 5-71-213(a)(3) (1995) (making it a misdemeanor to "[l]inger[] or remain[] in a public place or on the premises of another for the purpose of begging"), allege that they have changed their behavior because they fear arrest under the new law. Among other things, they changed the locations where they beg and stopped using signs in some areas; Dilbeck even claims to have moved to Tennessee in an alleged effort to avoid application of the law. Absent the anti-loitering law, Rodgers and Dilbeck say they would beg "openly and without fear" in Arkansas.

         Rodgers and Dilbeck brought a First Amendment challenge to the anti-loitering law and requested a preliminary injunction.[2] The district court granted a statewide preliminary injunction based on its conclusion that the law, which it classified as a content-based restriction on speech, does not serve a compelling state interest and is "plainly unconstitutional." Arkansas filed this interlocutory appeal challenging the preliminary injunction. Arkansas argues that Rodgers and Dilbeck lack standing to bring their constitutional challenge, that the anti-loitering law is constitutional, and, in the alternative, that the district court should have entered an injunction preventing enforcement of the law only against Rodgers and Dilbeck.


         To have standing to challenge the Arkansas law, Rodgers and Dilbeck must establish (1) an injury in fact; (2) a causal connection between the injury and the law; and (3) that a favorable decision will "likely" redress the injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). We review questions of standing de novo. In re SuperValu, Inc., 870 F.3d 763, 768 (8th Cir. 2017). At this stage of the litigation, we assume that the allegations in the complaint are true and view the record in the light most favorable to Rodgers and Dilbeck. See id.

         The parties disagree about whether Rodgers and Dilbeck have suffered an injury in fact. After all, neither specifically claims to have violated the law, let alone to have been prosecuted under it. In the First Amendment context, however, "[s]elf-censorship can itself constitute injury in fact" if the "plaintiff[s] show[] an intention to engage in . . . conduct arguably affected with a constitutional interest" and "there exists a credible threat of prosecution." 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (internal quotation marks and citation omitted). In other words, a law's "chilling effect" can create standing. Id. at 627-28; see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) ("[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.").

         Rodgers and Dilbeck have adequately alleged that their speech is, and will continue to be, chilled by Arkansas's anti-loitering law. They claim to have changed when, where, and how they beg due to fear of being criminally prosecuted. See 281 Care Comm., 638 F.3d at 627. They also allege that their begging has caused people to react in fear or alarm and has even occasionally slowed traffic. Viewing the record in the light most favorable to them, SuperValu, 870 F.3d at 768, Rodgers and Dilbeck have established a credible threat of prosecution that gives them standing to challenge the law.

         Arkansas claims that it would never enforce its anti-loitering law against "polite" and "courteous" beggars like Rodgers and Dilbeck. Even if true now, however, Arkansas's in-court assurances do not rule out the possibility that it will change its mind and enforce the law more aggressively in the future. See United Food & Commercial Workers Int'l Union v. IBP, Inc., 857 F.2d 422, 429 (8th Cir. 1988) (rejecting the argument that the plaintiffs lacked standing because the defendants did not plan to enforce an anti-picketing law against them). Nor do these assurances make Rodgers and Dilbeck's fear of prosecution objectively unreasonable because the law's plain language covers their intended activities, and they have already been arrested or cited under a prior version of the law.[3] See Saint Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 485 (8th Cir. 2006) (stating that "fear of prosecution is not imaginary or speculative" when the law, "on [its] face," prohibits the plaintiffs' conduct).

         Having established that Rodgers and Dilbeck's chilled speech amounts to a constitutional injury, we have no trouble concluding that the injury is fairly traceable to the potential enforcement of the anti-loitering law and would be redressed by an injunction prohibiting its enforcement. Lujan, 504 U.S. at 560-61. Accordingly, they have standing to seek a preliminary injunction. We now turn to the injunction itself.


         The district court granted a preliminary injunction after weighing four factors: "(1) the threat of irreparable harm to [Rodgers and Dilbeck]; (2) the state of the balance between this harm and the injury that granting the injunction [would] inflict on [Arkansas]; (3) the probability that [Rodgers and Dilbeck would] succeed on the merits; and (4) the public interest." Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). Under the third Dataphase factor, parties seeking to preliminarily enjoin the "implementation of a state statute" must demonstrate that they are "likely to prevail on the merits." Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 731-32 (8th Cir. 2008) (en banc) (citation omitted). This is in contrast to the "fair chance" of success that is typically required. Id. at 732. The higher bar "reflects the idea that governmental policies implemented through legislation . . . [and] developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly." Id. (citation omitted). Generally, if a party shows a "likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are . . . deemed to have been satisfied." Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (en banc) (citation omitted). We review a district court's balancing of the Dataphase factors for an abuse of discretion. Rounds, 530 F.3d at 733.


         The district court ruled that Rodgers and Dilbeck were likely to prevail on their claim that Arkansas's anti-loitering law violates the First Amendment. Because Arkansas has so far failed to establish that the law is narrowly tailored to achieve a compelling interest, we agree.


         Rodgers and Dilbeck want to go to public areas, hold signs, and speak. The fact that they intend to ask for money does not mean that their speech is unprotected. To the contrary, asking for charity or gifts, whether "on the street or door to door," is protected First Amendment speech. Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632 (1980); see also Reynolds v. Middleton, 779 F.3d 222, 225 (4th Cir. 2015) ("There is no question that panhandling and solicitation of charitable contributions are protected speech."); Speet ...

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