Bischoff v. Osceola County, FL

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

AUGUST 14, 2000

THOMAS K. KAHN

No. 99-2354 CLERK

________________________

D. C. Docket No. 98-CV-00583-CV-ORL-18C

CHERYL BISCHOFF, VICKY STITES,

Plaintiffs-Appellants,

versus

OSCEOLA COUNTY, FLORIDA, a Political

Subdivision of the State of Florida, CHARLES CROFT,

Sheriff, in his official capacity,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 14, 2000)

Before EDMONDSON and MARCUS, Circuit Judges, and HANCOCK*, District

Judge.

MARCUS, Circuit Judge:

*

Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting

by designation.

In this appeal, we address whether a federal district court, having raised sua

sponte a question about the Plaintiffs’ standing, may dismiss a complaint

determining that the Plaintiffs lack standing simply by making a credibility

determination based on the contents of squarely conflicting affidavits without

taking oral testimony at an evidentiary hearing.

Plaintiffs Cheryl Bischoff and Vicky Stites filed this action alleging that

certain Florida traffic control laws are unconstitutional on their face and as applied.

Presented with cross-motions for summary judgment on the merits, the district

court ruled sua sponte that Plaintiffs’ as applied challenge failed for lack of

standing because the Plaintiffs were not threatened with arrest and therefore

sustained no injury in fact. In so ruling, however, the court resolved central factual

disputes and made witness credibility choices on issues material to standing just by

relying on its reading of warring affidavits. Because we conclude that in this

situation the district court was required to conduct an evidentiary hearing before

resolving the disputed factual issues, and could not make credibility determinations

based solely on the contents of a plainly conflicting paper record, we are

constrained to reverse the dismissal of this action and remand to the district court

to either hold an evidentiary hearing on the question of standing or to consider the

2

merits of Plaintiffs’ as applied challenge as raised in the parties’ cross motions for

summary judgment.

I.

The core facts of this case are straightforward and squarely in dispute. On

December 29, 1997, Plaintiffs Bischoff and Stites, along with other religious

activists representing a variety of organizations, participated in a demonstration to

protest what they perceived to be Walt Disney World’s support of homosexuality.

The demonstration occurred along the narrow, grassy islands that border the

heavily-trafficked intersection of Irlo Bronson Memorial Highway and Old

Vineland Road in Osceola County, Florida. The activists carried signs and

handbills expressing their criticism of Walt Disney World’s policies regarding

homosexuals. When motorists stopped at traffic lights, some of the activists

distributed their handbills to them.

The demonstration drew the attention of the Osceola County Sheriff’s

Department. The officers complained to the activists that the demonstration was

backing up traffic. They warned the demonstrators not to impede the flow of

traffic and to “stay off the roadway or they would be arrested.” Three

demonstrators, Phillip Benham, Matthew Bowman, and Seth Marschke, were

3

arrested.1 The officers stated in affidavits that these three activists were arrested

because they entered the roadway and impeded the flow of traffic. While Bischoff

1

Benham, Bowman, and Marschke were charged with violating chapters 316.2045 and

316.2055 of the Florida Uniform Traffic Control Law. The relevant provisions of chapter 316.2045

are as follows:

(1) It is unlawful for any person or persons willfully to obstruct the free, convenient,

and normal use of any public street, highway, or road by impeding, hindering,

stifling, retarding, or restraining traffic or passage thereon, by standing or

approaching motor vehicles thereon, or by endangering the safe movement of

vehicles or pedestrians traveling thereon; and any person or persons who violate the

provisions of this subsection, upon conviction, shall be cited for a pedestrian

violation, punishable as provided in chapter 318.

(2) It is unlawful, without proper authorization or a lawful permit, for any person or

persons willfully to obstruct the free convenient, and normal use of any public street,

highway, or road by any of the means specified in subsection (1) in order to solicit.

Any person who violates the provisions of this subsection is guilty of a misdemeanor

of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Organizations qualified under s. 501(c)(3) of the Internal Revenue Code and

registered pursuant to chapter 496, or persons or organizations acting on their behalf

are exempted from the provisions of this subsection for activities on streets or roads

not maintained by the state. Permits for the use of any portion of a state-maintained

road or right-of-way shall be required only for those purposes and in the manner set

out in s. 337.406.

(3) Permits for the use of any street, road, or right-of-way not maintained by the state

may be issued by the appropriate local government.

(4) Nothing in this section shall be construed to inhibit political campaigning on the

public right-of-way or to require a permit for such activity.

Chapter 316.2055 provides:

It is unlawful for any person on a public street, highway, or sidewalk in the state to

throw into, or attempt to throw into, any motor vehicle, or offer, or attempt to offer,

to any occupant of any motor vehicle, whether standing or moving, or to place or

throw into any motor vehicle any advertising or soliciting materials or to cause or

secure any person or persons to do any one of such unlawful acts.

4

and Stites concede that Bowman and Marschke entered the shoulder of the

intersection before being arrested, they claim that Bowman and Marschke did not

enter the traffic lanes, and that Benham simply stood on the grassy median and did

not distribute handbills at all. Plaintiffs deny that any of the men impeded the flow

of traffic.

Plaintiffs state in their affidavits2 that they were engaged in the same

handbilling activities as Bowman and Marschke, that they were specifically

threatened with arrest, and that, following the arrest of Benham, Bowman, and

Marschke, they and the remaining activists were told to stop distributing handbills

and to abandon the intersection. Plaintiffs say they would like to return to the

intersection to distribute handbills but have not done so for fear they will be

arrested.

On May 18, 1998, Bischoff and Stites filed a Complaint against Osceola

County, Florida alleging that Florida Uniform Traffic Control Law chapters

316.2055 and 316.2045 were unconstitutional both as applied and on their face.

Plaintiffs sought declaratory and injunctive relief to prevent Osceola County from

applying the laws to prevent their handbilling activities. On June 9, 1998, Osceola

2

Plaintiffs’ Complaint and Amended Complaint were both verified. Allegations of facts

contained in them are included when referring to affidavits of Plaintiffs’.

5

County filed a motion to dismiss on the grounds that the Complaint failed to state a

cause of action against it because it had no connection to or power over the

enactment or enforcement of the statutes at issue. In response to Osceola County’s

motion to dismiss, Plaintiffs filed an Amended Complaint on July 8, 1998. The

Amended Complaint added Osceola County Sheriff Charles Croft, acting in his

official capacity, as a Defendant in the action. Plaintiffs again alleged that the

challenged statutes were unconstitutional both as applied and on their face and

sought declaratory and injunctive relief. Soon thereafter, Sheriff Croft filed a

motion to dismiss, or in the alternative for summary judgment. On July 30, 1998,

Osceola County also filed a motion to dismiss. Plaintiffs, in turn, filed a cross

motion for summary judgment.

On February 2, 1999, in response to the cross motions for summary

judgment, the district court denied Plaintiffs’ motion for summary judgment and

dismissed the action. First, the court held that Plaintiffs “lack standing to

challenge the statutes as applied because they cannot establish that they suffered an

actual or threatened injury sufficient to ensure that the court would not be

rendering an advisory opinion.”3 Order at 6. Next, apparently finding that

3

As a result of this holding, the court did not address the merits of Plaintiffs’ as applied

challenge.

6

Plaintiffs did have standing to bring their facial challenge, the court denied

Plaintiffs’ overbreadth claim on the merits. The court held that Plaintiffs’ facial

challenge failed because the statutes were not substantially overbroad but were

“merely traffic laws that regulate conduct in a neutral manner.” Order at 11.

II.

As an initial matter, we emphasize that the district court correctly reached

out and considered the question of standing sua sponte. As the Supreme Court

made clear in United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d

635 (1995), “[t]he question of standing is not subject to waiver . . . . ‘The federal

courts are under an independent obligation to examine their own jurisdiction, and

standing is perhaps the most important of [the jurisdictional] doctrines.’” Id. at

742, 115 S.Ct. at 2435 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31, 110

S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990)) (internal quotation marks omitted); see

also University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410

(11th Cir. 1999) (noting that “it is well settled that a federal court is obligated to

inquire into subject matter jurisdiction sua sponte whenever it may be lacking”);

Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir.

1995) (explaining that “‘[b]efore rendering a decision . . . every federal court

operates under an independent obligation to ensure it is presented with the kind of

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concrete controversy upon which its constitutional grant of authority is based; and

this obligation on the court to examine its own jurisdiction continues at each stage

of the proceedings, even if no party raises the jurisdictional issue and both parties

are prepared to concede it’”) (quoting Hallandale Prof’l Fire Fighters Local 2238 v.

City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991)); Alabama v. United States

Envtl. Protection Agency, 871 F.2d 1548, 1554 (11th Cir. 1989) (noting that

“[s]tanding is a jurisdictional prerequisite to suit in federal court”) (citing Valley

Forge Christian College v. Americans United for Separation of Church and State,

454 U.S. 464, 475-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

The party invoking federal jurisdiction bears the burden of proving standing.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119

L.Ed.2d 351 (1992). Moreover, each element of standing “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.” Id. Therefore, when standing becomes an issue on a motion to dismiss,

general factual allegations of injury resulting from the defendant’s conduct may be

sufficient to show standing. However, when standing is raised at the summary

judgment stage, the plaintiff can no longer rest on “mere allegations.” See id. at

561, 112 S.Ct. at 2137. Instead, the plaintiff must “‘set forth’ by affidavit or other

8

evidence ‘specific facts,’ . . . which for purposes of the summary judgment motion

will be taken to be true.” Id. See also Wilson v. State Bar of Georgia, 132 F.3d

1422, 1427 (11th Cir. 1998); Church v. Huntsville, 30 F.3d 1332, 1336 (11th Cir.

1994); Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800,

806 (11th Cir. 1993). In Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987), the

D.C. Court of Appeals nicely summarized the various procedural methods by

which a district court may come to address standing. According to the court:

[A] defendant’s challenge to a plaintiff’s standing can take two forms:

a motion to dismiss, which is based exclusively on plaintiff’s

pleadings, and a motion for summary judgment, in which evidence,

not pleadings, pertinent to standing are evaluated by the district court.

In both instances, disputed facts must be construed in the light most

favorable to plaintiff. In addition to these two party-initiated motions,

the court on its own initiative may undertake evidentiary hearings,

even in the context of a motion to dismiss.

Id. at 904.4

A.

As stated previously, in this case, standing was not raised by the Defendants

in either their motion to dismiss or their motion for summary judgment but was

decided by the district court sua sponte in response to the parties’ cross motions for

4

The D.C. Court of Appeals explained that a motion to dismiss for lack of standing brought

pursuant to Rule 12(b)(1) does not convert into a motion for summary judgment simply because the

court looks beyond the pleadings. Instead, the district court may, within the scope of a Rule 12(b)(1)

proceeding, initiate a factual inquiry. Haase, 835 F.2d at 906-08.

9

summary judgment and, notably, was decided without an evidentiary hearing.

Moreover, it is clear that the district court based its standing determination on its

judgments regarding the credibility of the affidavits presented by Plaintiffs and

Defendants. The court concluded that “[a]lthough the plaintiffs assert that they

suffered an injury because a particular officer threatened them with arrest, the

undisputed evidence shows that the plaintiffs are seeking standing not because they

suffered an injury themselves but instead because their companions suffered an

injury.” Order at 7. According to the district court, Plaintiffs did not face a real

threat of arrest because “the officers’ affidavits show that the officers only arrested

those who obstructed traffic, and both parties agree that the plaintiffs did not, and

never intended to, obstruct the flow of traffic.”5 Order at 7. The court referred to

disputed questions of fact as undisputed and clearly disbelieved Plaintiffs’

testimony that they were threatened with arrest for engaging in exactly the same

behavior as did those individuals who were arrested. The district court simply

credited the affidavits provided by the Sheriff’s Department’s officers over those

provided by the Plaintiffs. The core question before us on appeal, therefore, is

whether a district court faced with warring affidavits can make judgments

5

Plaintiffs deny that Marschke, Bowman, and Benham ever obstructed traffic prior to their

arrest.

10

regarding witness credibility and findings of disputed fact essential to its standing

determination without holding an evidentiary hearing.

Our Circuit has suggested, and other circuits have made clear, that a district

court cannot decide disputed factual questions or make findings of credibility

essential to the question of standing on the paper record alone but must hold an

evidentiary hearing. In Steele v. National Firearms Act Branch, 755 F.2d 1410

(11th Cir. 1995), we explained that when determining standing, a district court

should resolve disputed factual issues either at a pretrial evidentiary hearing or at

trial. Steele involved a challenge to regulations promulgated by the Secretary of

the Treasury setting forth requirements that had to be met in order to obtain

Treasury approval for the transfer of certain types of firearms. The plaintiff sued

various officials who refused to sign a form authorizing him to sell regulated

firearms and asked the court to declare that the defendants’ refusal to sign the form

was arbitrary and capricious. The district court granted defendants’ motion to

dismiss for failure to state a claim. On appeal we addressed the question of

standing even though this issue had not been raised below. Id. at 1413. We held

that based on the evidence before the district court, consisting of the pleadings and

exhibits, we could not determine if the plaintiff actually had standing to bring his

case. We then remanded to the district court to give the plaintiff the opportunity to

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present evidence sufficient to permit the district court to resolve the standing

question. In dicta, we discussed the evidentiary burdens placed on the plaintiff to

prove standing at different stages of litigation and the obligations of a district court

when faced with disputed questions of fact. We explained:

If a defendant moves to dismiss a complaint for lack of standing, a

court must accept as true all of the plaintiff’s material allegations. A

court may treat a motion to dismiss as one for summary judgment,

thereby requiring that a plaintiff provide affidavits supporting factual

allegations made in the complaint. Disputed factual issues may be

resolved at a pretrial evidentiary hearing or during the course of trial.

Id. at 1414 (emphasis added) (internal citations omitted).

The First and Fifth Circuits have been even more explicit about the need to

hold an evidentiary hearing before resolving disputed factual questions material to

the determination of standing. In Martin v. Morgan Drive Away, Inc., 665 F.2d

598 (5th Cir. 1982), the Fifth Circuit reviewed the district court’s grant of

defendant’s motion to dismiss for want of standing. The district court based its

standing conclusion on its factual finding that plaintiff’s agreement with a bank to

assign to him the legal claims of his former company was champertous. The court

of appeals vacated the district court’s order concluding that the district court erred

in making a ruling regarding standing based on its determination of disputed facts

without first holding an evidentiary hearing. Id. at 602 (holding that “the trial

court erred in not holding an evidentiary hearing on the issue of Samford’s

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standing to prosecute this action. As discussed [], Samford’s standing or its

absence is based upon several disputed issues of fact. Thus, a summary disposition

of the type made by the trial court was inappropriate.”).

In Barrett Computer Services, Inc. v. PDA, Inc., 884 F.2d 214 (5th Cir.

1989), the Fifth Circuit again made clear that disputed factual issues material to

standing must be determined not on the record but with an evidentiary hearing. In

Barrett, the district court granted defendant’s motion for summary judgment for

lack of standing. The district court held that the plaintiff had not presented

evidence sufficient to raise a genuine issue of material fact regarding whether it

possessed the privity of contract necessary for it to have standing because the court

did not credit the affidavit that the plaintiff had relied on for this purpose. The

district court found the affidavit was conclusory and therefore valueless as

evidence of standing. Id. at 215. The court of appeals disagreed that the affidavit

was conclusory. Once the court of appeals credited the affidavit it was faced with

contradictory evidence on the question of standing thereby making summary

judgment inappropriate. Id. at 217-218. As the court explained:

[W]e find that BCS succeeded in putting forth evidence supporting its

claim of privity--and , thereby, standing--in relation to the PDA-

American Excel contract. As BCS is only required, at the summary

judgment stage, to bring forth sufficient evidence of the essential

elements on which it bears the burden of proof, we find that the

district court erred in granting summary judgment to PDA and

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dismissing BCS’ claims on the merits. . . . [T]he evidence presented

suffices to establish the existence of a genuine fact issue regarding

BCS’ standing to bring the claims alleged in its original complaint.

Id. at 218. The court of appeals then remanded the case to the district court to

resolve the disputed questions of fact by holding an evidentiary hearing on the

matter. The court directed that “in a case in which considerations of standing can

be severed from a resolution of the merits, a preliminary hearing--to resolve

disputed factual issues determining standing--is an appropriate course. Such a

hearing could result from a motion to dismiss for lack of subject matter

jurisdiction. The issue of standing may also be raised upon the court’s own

motion.” Id. at 220 (internal citations omitted).

Similarly, the First Circuit in Munoz-Mendoza v. Pierce, 711 F.2d 421 (1st

Cir. 1983), made clear that a district court must resolve disputed questions of fact

relevant to standing either at trial or through a pretrial evidentiary hearing. In

Munoz, the plaintiffs challenged a decision of the Department of Housing and

Urban Development (HUD) to grant money to Boston, Massachusetts for a

commercial complex on the ground that HUD did not sufficiently study the

negative effects the complex would have on the racial integration of neighborhoods

in the area. The district court held that the plaintiffs lacked standing to challenge

the agency action and dismissed their complaint for lack of subject matter

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jurisdiction without reaching the merits. Id. at 423. The court of appeals made

clear that ordinarily a district court can decide disputed factual questions relevant

to standing only at trial or at a pretrial evidentiary hearing. The First Circuit

explained:

Decisions of the Supreme Court and other federal courts suggest that

factual issues concerning the existence of “injury in fact” are to be

resolved much like any other factual issue. . . . Where “injury” and

“cause” are not obvious, the plaintiff must plead their existence in his

complaint with a fair degree of specificity. The defendant thereafter

can move for summary judgment, and obtain it unless affidavits or

other submissions indicate that a genuine issue of material fact exists

concerning standing. The court must resolve any genuine disputed

factual issue concerning standing, either through a pretrial evidentiary

proceeding or a trial itself.

Id. at 425 (emphasis added) (internal citations omitted).6

We find the logic of these cases persuasive and consistent with our general

conviction that in both the criminal and civil context, credibility determinations

generally are most reliable when the factfinder is able to observe the witness in

person. As Wigmore explained in the context of the Confrontation Clause of the

Sixth Amendment, in person confrontation of witnesses is important because it

ensures “the presence of the witness before the tribunal so that his demeanor while

6

The court went on to explain that although the district court in that case had rested its standing

conclusion on factual determinations made on the record alone, because neither party complained

on appeal about the district court’s decision to make factual findings or asked the court of appeals

to reconsider these findings, it would review the district court’s findings under the clearly erroneous

standard. Id. at 426.

15

testifying may furnish such evidence of his credibility as can be gathered

therefrom. . . . [This principle] is satisfied if the witness, throughout the material

part of his testimony, is before the tribunal where his demeanor can be adequately

observed.” 5 J. Wigmore, Evidence § 1399, p. 199 (J. Chadbourn rev. 1974). In

the civil context as well, the Supreme Court has recognized the importance of

direct witness observation for making determinations of credibility. According to

the Court, “[p]articularly where credibility and veracity are at issue . . . written

submissions are a wholly unsatisfactory basis for decision.” Goldberg v. Kelly,

397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (holding that

termination of benefits under the Aid to Families with Dependent Children

program must be preceded by a hearing). Thus, in a case where the evidence

relating to standing is squarely in contradiction as to central matters and requires

credibility findings, a district court cannot make those findings simply by relying

on the paper record but must conduct a hearing at which it may evaluate the live

testimony of the witnesses.

This is such a case. Here, the district court was presented with clearly

contradictory affidavits bearing directly on the central question of whether the

Plaintiffs suffered an injury in fact sufficient to establish standing. The affidavits

of Plaintiffs Bischoff and Stites were consistent as were those of Officers Edward

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Levine and George L. Griffin, Jr., but the two sets of affidavits plainly were in

direct conflict.

Plaintiffs stated: The Officers stated:

1. Bowman and Marschke were 1. Bowman and Marschke entered the

distributing fliers at the intersection. roadway and impeded the flow of

Bischoff, ¶ 8, Stites, ¶ 7. Bowman traffic. Levine, ¶ 6.

and Marschke stepped onto the

shoulder of the roadway but did not

enter the traffic lanes. Bischoff, ¶ 14,

Stites, ¶13.

2. Marschke and Bowman were arrested

2. Marschke, and Bowman did not because they entered the roadway and

obstruct the flow of traffic at the impeded the flow of traffic. Levine, ¶ 8.

intersection. Bischoff, ¶ 13, Stites, ¶

12.

3. Benham entered the roadway and

3. Benham stood in the grassy impeded the flow of traffic. Griffin, ¶ 4.

median prior to his arrest and had not

distributed any literature. Bischoff,

¶¶ 8, 14, Stites, ¶¶ 7, 13.

4. Benham was arrested because he

4. Benham did not obstruct the flow entered the roadway and impeded the

of traffic at the intersection. Bischoff, flow of traffic. Griffin, ¶ 6.

¶ 13, Stites, ¶ 12.

5. Only those persons who entered the

5. Benham stood in the grassy roadway and impeded the flow of traffic

median, did not obstruct traffic, did were arrested. Those persons who stood

not distribute literature, and was in the median were not arrested. Levine,

arrested. Bischoff, ¶ 5, Stites, ¶ 5. ¶ 8, Griffin, ¶ 6.

6. Bischoff and Stites were engaged

in “the exact same [handbilling]

activity” as Bowman and Marschke

but were not arrested. Bischoff ¶ 8,

Stites, ¶ 7.

17

7. Bischoff and Stites were each

specifically threatened with arrest by

an

officer who identified herself as

Officer Crawford. Bischoff, ¶ 17,

Stites, ¶ 16.

These affidavits are contradictory on several points essential to standing.

Thus, for example, while the officers state that only individuals who entered the

roadway and impeded traffic were arrested, Plaintiffs say that the individuals who

were arrested did not impede traffic and, notably, that Benham never left the grassy

median. In addition, while the officers’ affidavits suggest that Plaintiffs were not

really threatened with arrest because they did not enter the roadway or impede

traffic,7 the officers do not directly address or deny Plaintiffs’ unambiguous

averments that they were directly threatened with arrest despite the fact that they

neither entered the roadway nor impeded traffic. The question of whether the

Plaintiffs were in fact threatened with arrest for their activities is crucial to the

question of whether they suffered an injury in fact sufficient to establish standing.

7

In their opposition to Sheriff Croft’s Motion for Summary Judgment, Plaintiffs state that they

did not step into the roadway. Plaintiffs use the definition of roadway provided in Fla. Stat.

316.003(42): “Roadway - the portion of a highway improved, designed, or ordinarily used for

vehicular travel, exclusive of the berm or shoulder.” In light of this definition, Plaintiffs’ testimony

that they engaged in exactly the same activity as Bowman and Marschke is entirely consistent with

their statements that they did not enter the roadway, since they may have only entered the shoulder

of the roadway.

18

In light of the conflicting affidavits in this case, we conclude that the district

court erred by making disputed factual findings and judgments regarding witness

credibility that were essential to its determination of standing without holding an

evidentiary hearing. As a result, we cannot defer to the district court’s factual

findings. Instead, we must accept the evidence in the record as true and review the

district court’s order on standing as if it were made in response to a motion for

summary judgment.8

8

Plaintiffs contend that because the court ruled on standing sua sponte we should apply the

standard of review that is appropriate when such determinations are made at the motion to dismiss

stage--requiring only that Plaintiffs have adequately alleged standing without inquiring as to whether

they have presented actual evidence sufficient to demonstrate standing. Plaintiffs look for support

to Church v. City of Huntsville in which we considered “the ‘degree of evidence’ by which the

plaintiffs must have established their standing” at an early stage of litigation where a preliminary

injunction is being sought. Huntsville, 30 F.3d at 1336. In Huntsville we applied the same

evidentiary burden imposed in cases where standing is raised on a motion to dismiss and focused

only on the adequacy of the complaint. We explained:

It might well be unfair [] to impose a standing burden beyond the sufficiency of the

allegations of the pleadings on a plaintiff seeking a preliminary injunction, unless the

defendant puts the plaintiff on notice that standing is contested. . . . In these

particular circumstances, and for present purposes only, we think that the plaintiffs’

standing should be judged on the sufficiency of the allegations of the complaint, with

any preliminary hearing evidence favorable to the plaintiffs on standing treated as

additional allegations of the complaint.

Id. at 1336.

In Huntsville, we applied the more lenient standard of review because the standing issue was

decided by the district court so early in the case and without any notice to plaintiffs that standing

was at issue. In this case, although the Defendants did not make an issue of standing, the Plaintiffs

themselves raised the issue in their Opposition to Sheriff Croft’s Motion for Summary Judgment.

Moreover, this case had moved well beyond the preliminary stages at the time when the district court

made its sua sponte ruling regarding standing in response to the cross motions for summary

judgment. For these reasons, we review the district court’s ultimate conclusion regarding standing

19

B.

Accepting Plaintiffs’ affidavits as true (as we must at this stage), we

conclude that Plaintiffs have established standing. In order to prove standing,

Plaintiffs must satisfy the doctrine’s constitutional requirements. Huntsville, 30

F.3d at 1335-36. To satisfy the constitutional standing requirements, a plaintiff

must make three showings:

First, the plaintiff must have suffered an “injury in fact”--an invasion

of a legally protected interest which is (a) concrete and particularized,

and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”

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 . . . th[e] result [of] the

independent action of some third party not before the court.” Third, it

must be “likely,” as opposed to merely “speculative,” that the injury

will be “redressed by a favorable decision.”

Lujan, 504 U.S. at 560-561, 112 S.Ct. at 2136 (internal citations and footnote

omitted). See also Huntsville, 30 F.3d at 1335 (quoting Valley Forge, 454 U.S. at

472, 102 S.Ct. at 758); Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994).

The Supreme Court has also instructed courts to consider three prudential

principles which may counsel for judicial restraint in considering the plaintiff’s

claims. The prudential considerations include: “1) whether the plaintiff’s

as if it were made in response to a motion for summary judgment. In practice, our choice is

immaterial since Plaintiffs have presented sufficient allegations and evidence to survive either test.

20

complaint falls within the zone of interests protected by the statute or constitutional

provision at issue; 2) whether the complaint raises abstract questions amounting to

generalized grievances which are more appropriately resolved by the legislative

branches; and 3) whether the plaintiff is asserting his or her own legal rights and

interests rather than the legal rights and interests of third parties.” Saladin v. City

of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987) (citing Allen v. Wright, 468

U.S. 737, 751, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984)); see also Cone Corp.

v. Florida Dep’t of Transp., 921 F.2d 1190, 1203 n.43 (11th Cir. 1991).

The requirements for standing are somewhat more lenient for facial

challenges to statutes on the grounds of overbreadth. In the First Amendment

context, plaintiffs can challenge the constitutionality of a statute that has not been

unconstitutionally applied to them. See Secretary of State of Maryland v. Joseph

H. Munson Co., 467 U.S. 947, 955-57, 104 S.Ct. 2839, 2845-47, 81 L.Ed.2d 786

(1984); National Council for Improved Health v. Shalala, 122 F.3d 878, 882-83

(10th Cir. 1997); Bordell v. General Electric Co., 922 F.2d 1057, 1060-61 (2d Cir.

1991). That is, plaintiffs can challenge a statute as overbroad even if their

particular conduct is not constitutionally protected. As the Supreme Court

explained in Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915-16,

37 L.Ed.2d 830 (1973):

21

[T]he Court has altered its traditional rules of standing to permit--in

the First Amendment area--“attacks on overly broad statutes with no

requirement that the person making the attack demonstrate that his

own conduct could not be regulated by a statute drawn with the

requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. at 486,

35 S.Ct. at 1121. Litigants, therefore, are permitted to challenge a

statute not because their own rights of free expression are violated, but

because of a judicial prediction or assumption that the statute’s very

existence may cause others not before the court to refrain from

constitutionally protected speech or expression.

However, even under the more lenient requirements for standing applicable

to First Amendment overbreadth challenges, it still remains the law that plaintiffs

must establish that they have suffered some injury in fact as a result of the

defendant’s actions. See Virginia v. American Booksellers Assoc. Inc., 484 U.S.

383, 392, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (explaining that to facially

challenge the constitutionality of a statute on overbreadth grounds the plaintiff

must “establish at an irreducible minimum an injury in fact; that is, there must be

some ‘threatened or actual injury resulting from the putatively illegal action. . . .

.’”) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d

343 (1975) (internal quotation omitted)); Munson, 467 U.S. at 958, 104 S.Ct. at

2847 (emphasizing that plaintiff challenging the constitutionality of a statute as

overbroad, although it need not show that its own First Amendment rights have

been violated, must still show an “injury in fact” caused by the challenged statute);

22

National Council for Improved Health, 122 F.3d at 883 (noting that “although the

overbreadth doctrine allows one whose First Amendment rights have not been

violated to assert a facial challenge on behalf of others whose rights may be

infringed, it does not eliminate the need for the plaintiff to demonstrate its own

cognizable injury in fact”); Bordell, 922 F.2d at 1061 (explaining that “[t]his

slender exception to the prudential limits on standing [allowing litigants to seek

redress for violations of the rights of others] [] does not affect the rigid

constitutional requirement that plaintiffs must demonstrate an injury in fact to

invoke a federal court’s jurisdiction. Rather, the exception only allows those who

have suffered some cognizable injury, but whose conduct is not protected under the

First Amendment, to assert the constitutional rights of others.”) (citations omitted).

Plaintiffs’ evidence, taken as true, is sufficient to raise a genuine issue of

material fact regarding standing to defeat a motion for summary judgment on this

ground. First, Plaintiffs have asserted in their affidavits that they suffered a

specific and concrete injury in fact; namely, they were threatened with arrest for

their handbilling activities which were exactly the same activities as those for

which their co-demonstrators were arrested and charged under the statutes.

Plaintiff Bischoff states in her affidavit: “A female Osceola Sheriff’s department

officer, who identified herself as Officer Crawford, threatened to arrest all present

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and specifically sought to arrest Mr. Benham and me.” Bischoff Aff. ¶ 17.

Plaintiff Stites also testified that a female Sheriff’s department officer threatened to

arrest all present and specifically sought to arrest Stites and Benham. Stites Aff. ¶

16. Taken as true, Plaintiffs’ testimony that they were threatened with arrest for

engaging in free speech activities is evidence of an actual and concrete injury

wholly adequate to satisfy the injury in fact requirement of standing. See Steffel v.

Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974)

(holding that plaintiff had standing to challenge constitutionality of a Georgia

criminal trespass law because he was warned twice to stop handbilling and was

told that if he engaged in the activity again he would be arrested); Wilson v. State

Bar of Georgia, 132 F.3d 1422, 1428 (11th Cir. 1998) (explaining that “standing

exists at the summary judgment stage when the plaintiff has submitted evidence

indicating ‘an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and there exists a credible threat

of prosecution’”) (quoting Babbitt v. United Farm Workers Nat’l Unition, 442 U.S.

289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979)); Jacobs v. Florida Bar, 50

F.3d 901, 904 (11th Cir. 1995) (noting that a plaintiff may establish standing by

showing that he was threatened with prosecution, that prosecution is likely, or that

there is a credible threat of prosecution); Harris v. Evans, 20 F.3d 1118, 1125 (11th

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Cir. 1994) (describing the threat of prosecution as a concrete injury for purposes of

establishing standing).

Second, Plaintiffs have presented evidence showing a direct causal link

between the injury they suffered--the threat of arrest--and Defendants’ enforcement

of the challenged statutes. Both Plaintiffs testified that they were threatened with

arrest for engaging in the same handbilling conduct that resulted in the arrest and

charge under the challenged statutes of Bowman, and Marschke. Plaintiff Bischoff

testified that Bowman and Marschke were arrested for distributing fliers at the

intersection and that she was involved “in the exact same activity.” Bischoff Aff. ¶

8. Plaintiff Stites similarly testified that Bowman and Marschke were arrested

while distributing fliers at the intersection and she was involved “in the exact same

activity.” Stites Aff. ¶ 7. Finally, it is clear that a decision in Plaintiffs’ favor

declaring the chapters unconstitutional, either on their face or as applied to

Plaintiffs, would redress the injury of being threatened with arrest for engaging in

constitutionally protected activity.

Plaintiffs satisfy the prudential considerations of standing as well. First,

Plaintiffs’ Amended Complaint does “fall within ‘the zone of interests to be

protected or regulated by the statute or constitutional guarantee in question.’”

Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data

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Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d

184 (1970)). Plaintiffs’ Amended Complaint unambiguously alleges that the

statutes at issue and the Defendants’ enforcement of these statutes violates their

First Amendment rights. See Church of Scientology Flag Serv. Org., Inc. v. City

of Clearwater, 2 F.3d 1514, 1526 (11th Cir. 1993) (finding that “[a]ny citizen’s

interest in preventing violations of [her First Amendment] rights is more than

marginally related to the constitutional provision . . . .”). Second, the Amended

Complaint raises specific grievances regarding both the application and the breadth

of the statutes at issue. Plaintiffs’ grievances are not abstract and generalized but

are specific and concrete challenges to Defendants’ threatened enforcement of

these statutes against Plaintiffs. Third, and most notably, Plaintiffs are asserting

their own legal rights and interests rather than those of third parties. Although

Plaintiffs were not themselves arrested, as were their fellow demonstrators

Marschke, Bowman, and Benham, they have presented evidence that they were

specifically threatened with arrest, thereby giving them their own legally

cognizable interest in challenging the constitutionality of the statutes at issue. On

this record, the Plaintiffs have presented sufficient evidence to raise a genuine

issue of fact regarding whether they have standing to pursue their claims.

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Accordingly, we conclude that in this case, where the district court was

faced with warring affidavits on issues essential to standing, the court erred in

making findings of disputed facts and judgments regarding credibility, on which it

then based its standing conclusion, without holding an evidentiary hearing. As a

result, we cannot defer to the district court’s factual findings. Instead, we accept

Plaintiffs’ evidence as true and review de novo the district court’s determination

regarding standing as though it were made in response to a motion for summary

judgment. Here, the Plaintiffs have presented sufficient evidence of standing to

survive summary judgment. We therefore reverse the district court’s order

dismissing Plaintiffs’ action for lack of standing and remand to the district court

either to hold an evidentiary hearing on the question of standing or to rule on the

merits of Plaintiffs’ as applied challenge as raised in the parties’ cross motions for

summary judgment.9 We refrain from reviewing the district court’s ruling on the

merits of Plaintiffs’ facial challenge at this time.10

REVERSED AND REMANDED.

9

We add that the district court cannot grant summary judgment in favor of the Plaintiffs on their

as applied claim without first finding, after appropriate review, that they have standing to assert such

a claim.

10

We note that if the district court determines, either at an evidentiary hearing or at trial, that

the Plaintiffs were not actually threatened with arrest, then the Plaintiffs have not sustained a

specific injury in fact and plainly, therefore, cannot bring either their as applied or facial challenge

to the statutes.

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