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Dakota Rural Action v. Noem

United States District Court, D. South Dakota, Western Division

September 18, 2019

KRISTI NOEM, in her official capacity as Governor of the State of South Dakota; JASON RAVNSBORG, in his official capacity as Attorney General; and KEVIN THOM, in his official capacity as Sheriff of Pennington County, Defendants.



         Plaintiffs allege that Senate Bill 189, 94th Session, South Dakota Legislature, 2019, "An act to establish a fund to receive civil recoveries to offset costs incurred by riot boosting, to make a continuous appropriation therefor, and to declare an emergency, " and SDCL §§ 22-10-6 and 22-10-6.1 (challenged laws) are unconstitutional, both facially and as-applied. Plaintiffs allege that these laws infringe on their First Amendment rights. Plaintiffs further allege that the laws violate their rights to due process by failing to provide notice of what conduct constitutes a violation of the laws. The State Defendants deny Plaintiffs' allegations.

         Defendant Kevin Thorn, sued in his official capacity as Sheriff of Pennington County, filed a motion to dismiss in lieu of an Answer. (Doc. 23.) Sheriff Thorn argues that he should be dismissed as a defendant pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim. In a nutshell, Sheriff Thorn argues that he is not a proper defendant because § 1983 does not encompass suits against the county simply because the sheriff is required to enforce state law.


         Standing to sue is a jurisdictional requirement "rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, ___U.S.___, 136 S.Ct. 1540, 1547 (2016); see U.S. Const, art. Ill. § 2. This is often referred to as Article III standing. See Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006) (Article HI standing to bring a First Amendment free speech challenge is "an inescapable threshold question"). The party invoking federal jurisdiction bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The burden corresponds with the degree of evidence required at the relevant stage of litigation. Id. "At the pleading stage general factual allegations of injury resulting from the defendant's conduct may suffice." Id. Plaintiffs must demonstrate standing as to each defendant. Calzone v. Hawley, 866 F, 3d 866, 869 (8th Cir. 2017). When determining whether to dismiss a complaint for lack of standing, a court is to "constru[e] the allegations of the complaint, and the reasonable inferences drawn therefrom, most favorably to the plaintiff." Glickert v. Loop Trolley Transp. Dev. Dist, 792 F.3d 876, 880 (8th Cir. 2015) (citations and quotation marks omitted).

         The Supreme Court has stated that "the irreducible constitutional minimum of standing contains three elements." Lujan, 504 U.S. at 560. First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, (b) actual or imminent, not conjectural or hypothetical. Id. (citations omitted). "Second, there must be a causal connection between the injury and the conduct complained of- the injury has to be 'fairly . . . trace[able] to the challenged action of the defendant, and not. . . [t]he result [of] the independent action of some third party not before the court.'" Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)). "Third, it must be 'likely, ' as opposed to merely 'speculative, ' that the injury will be 'redressed by a favorable decision. "'Id. at 561 (quoting Simon, 426 U.S. at 38, 43).

         The Eighth Circuit has said that "[t]o establish injury in fact for a First Amendment challenge to a state statute, a plaintiff need not have been actually prosecuted or threatened with prosecution." 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (citing St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 487 (8th Cir. 2006)). A plaintiff must only "establish that he would like to engage in arguably protected speech, but that he is chilled from doing so by the existence of the statute." 281 Care Comm., 638 F.3d at 627. In 257 Care Committee, the Eighth Circuit continued:

Self-Censorship can itself constitute injury in fact. Of course, self-censorship based on mere allegations of a "subjective" chill resulting from a statute is not enough to support standing, and persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs. The relevant inquiry is whether a party's decision to chill his speech in light of the challenged statute was objectively reasonable. Reasonable chill exists when a plaintiff shows 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.

Id. (internal citations and quotation marks omitted).

         Sheriff Thorn contends that Plaintiffs have not alleged an injury in fact because Plaintiffs admit that they are not inciting anyone to commit imminent violent or forceful actions, that they advocate against the use of violence, and that they plan to advise and encourage others through peaceful methods.

         The assertions in Plaintiffs' Complaint meet the requirement of an injury in fact. Plaintiffs allege that they intend to provide funding, training, and other advice and encouragement to individuals who plan to protest the Keystone XL Pipeline, but they fear arrest, prosecution and/or civil liability because the law is vague about the speech and conduct it regulates. Plaintiff Sierra Club alleges that it will err on the side of curtailing its protected speech:

Sierra Club would be hesitant to engage in many of these forms of protected speech if South Dakota's "riot boosting" laws stand, because it would risk being exposed to civil and criminal liability should authorities or even pipeline companies subjectively decide that the speech somehow contributed to violence. Similarly, the vague wording of the South Dakota laws would leave Sierra Club unsure about what speech is permissible, such that it would err on the side of curtailing protected speech.

         Doc. 1, Complaint at ¶ 66. This self-censorship is Objectively reasonable and demonstrates that Plaintiffs' injuries are sufficiently concrete. See 281 Care Comm., 63 8 F.3d at 628 (plaintiffs' speech was reasonably chilled because they alleged that they wished to engage in conduct and they had reasonable cause to fear the consequences of engaging in such conduct). The Court finds that Plaintiffs have alleged an injury in fact that is sufficient to support standing.

         "Under United States Supreme Court precedent, when a plaintiff challenges the constitutionality of a rule of law, it is the state official designated to enforce that rule who is the proper defendant, even when that party has made no attempt to enforce the rule." American Civil Liberties Union v. Florida Bar,999 F.2d 1486, 1490 (11th Cir. 1993) (citing Diamond v. Charles,476 U.S. 54, 64 (1986)); see also Wilson v. Stocker,819 F.2d 943, 947 (10th Cir. 1987) (finding a case or controversy between a plaintiff bringing a pre-enforcement challenge and a state attorney general because the attorney general has enforcement authority). In Wilson, the Tenth Circuit reasoned that "a controversy exists not because the state official is himself a source of injury, but because the official represents the state whose statute is being challenged as the source of the injury." 819 F.2d at 947. Thus, the Wilson court found that a "plaintiff challenging the constitutionality of ...

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