United States District Court, D. South Dakota, Western Division
DAKOTA RURAL ACTION; DALLAS GOLDTOOTH; INDIGENOUS ENVIRONMENTAL NETWORK; NDN COLLECTIVE; SIERRA CLUB; and NICHOLAS TILSEN; Plaintiffs,
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.
MEMORANDUM OPINION AND ORDER GRANTING KEVTN
THOM'S MOTION TO DISMISS
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
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
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.
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).
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).
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
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.
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.
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.
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 ...