City of South Miami v. Governor of the State of Florida

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13657

____________________

CITY OF SOUTH MIAMI,

Plaintiff-Appellee,

FLORIDA IMMIGRANT COALITION, INC.,

FARMWORKER ASSOCIATION OF FLORIDA, INC.,

FAMILY ACTION NETWORK MOVEMENT, INC.,

QLATINX,

WECOUNT!, INC., et al.,

Plaintiffs-Appellees,

PHILLIP K. STODDARD,

Plaintiff,

versus

GOVERNOR OF THE STATE OF FLORIDA,

ATTORNEY GENERAL, STATE OF FLORIDA,

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2 Opinion of the Court 21-13657

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cv-22927-BB

____________________

Before WILLIAM PRYOR, Chief Judge, MARCUS, Circuit Judge, and

MIZELLE,* District Judge.

WILLIAM PRYOR, Chief Judge:

This appeal concerns whether several organizations may sue

the governor and attorney general of Florida in federal court to

challenge a state law that requires local law enforcement to coop-

erate with federal immigration officials. The state law provides that

local officials shall support the enforcement of federal immigration

law and cooperate with federal immigration initiatives and officials

and that local officials may transport aliens subject to an immigra-

tion detainer to federal custody. Several plaintiff organizations sued

the Florida governor and the Florida attorney general to enjoin en-

forcement of the law. The organizations alleged that the provisions

about support and cooperation were adopted with the intent to

* Honorable Kathryn Kimball Mizelle, United States District Judge for the

Middle District of Florida, sitting by designation.

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21-13657 Opinion of the Court 3

discriminate based on race and national origin in violation of the

Fourteenth Amendment. And they maintained that the transport

provision is preempted by federal law. After a bench trial, the dis-

trict court permanently enjoined the governor and attorney gen-

eral from enforcing compliance with these provisions.

This controversy is not justiciable because the organizations

lack standing. The organizations have not established a cognizable

injury and cannot spend their way into standing without an im-

pending threat that the provisions will cause actual harm. Moreo-

ver, the organizations’ alleged injury is neither traceable to the gov-

ernor or attorney general nor redressable by a judgment against

them because they do not enforce the challenged provisions. In-

stead, local officials, based on the state law, must comply with fed-

eral immigration law. We vacate and remand with instructions to

dismiss for lack of jurisdiction.

I. BACKGROUND

In 2019, the Florida Legislature passed Senate Bill 168, Ch.

2019-102, § 1, Laws of Fla. (codified at FLA. STAT. §§ 908.101–

908.109), to advance the state’s interest in “cooperat[ing] [with] and

assist[ing] the federal government in the enforcement of federal im-

migration laws within th[e] state.” Id. § 908.101. Among other

things, S.B. 168 prohibits so-called “sanctuary policies” by requiring

local law enforcement to assist federal authorities in enforcing fed-

eral immigration law.

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4 Opinion of the Court 21-13657

This appeal involves three provisions of S.B. 168. First, the

best-efforts provision, id. § 908.104(1), states that law enforcement

must “use best efforts to support the enforcement of federal immi-

gration law.” Second, the sanctuary provision forbids state and lo-

cal entities from adopting any “sanctuary policy.” Id. § 908.103.

The statute defines a “sanctuary policy” as “a law, policy, practice,

procedure, or custom . . . which prohibits or impedes a law en-

forcement agency from complying with” certain federal initiatives

and from cooperating with federal immigration officials regarding

access to prisoners and detainers. Id. § 908.102(6). And third, the

transport provision authorizes law enforcement officers to “se-

curely transport” an alien who is in their custody and “subject to

an immigration detainer” to a federal facility. Id. § 908.104(4).

Two other provisions of S.B. 168 are relevant. The statute

contains an explicit anti-discrimination provision that bars officers

from basing “actions under this chapter on the gender, race, reli-

gion, national origin, or physical disability of a person except to the

extent authorized by the United States Constitution or the State

Constitution.” Id. § 908.109. It also permits the governor and attor-

ney general to sue state and local officers to enjoin violations of the

statute. Id. § 908.107(1), (2).

Shortly after S.B. 168’s passage, a group of plaintiffs—includ-

ing a coalition of non-profit organizations devoted to immigrant

rights—sued to enjoin the governor and attorney general from en-

forcing S.B. 168. The organizational plaintiffs alleged that the best-

efforts requirement and the sanctuary provision were

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21-13657 Opinion of the Court 5

unconstitutional because they violated the Equal Protection

Clause. U.S. CONST. amend. XIV, § 1. The organizations argued

that these provisions, although neutral on their face, were enacted

with purposeful discriminatory intent. The organizations main-

tained that these provisions would have a disparate impact on their

members because local law enforcement would profile racial mi-

norities while enforcing federal law. The organizations also alleged

that the transport provision was preempted by federal law.

When the organizational plaintiffs moved for a preliminary

injunction, the district court ruled that the organizations had estab-

lished standing to mount an equal-protection challenge on their

own behalf and on behalf of their members. With respect to organ-

izational standing, the district court concluded that the organiza-

tions had sufficiently alleged that they diverted resources “to ad-

dress member concerns about the law and its implications.” For

instance, the organizations operated a toll-free hotline to address

member concerns, hosted community meetings, and conducted

“Know Your Rights” presentations. With respect to associational

standing, the district court found that the organizations sufficiently

alleged that “S.B. 168 has, and will continue to, injure their individ-

ual members.” Specifically, the district court credited the organiza-

tions’ claim that their members would suffer harm “from racial and

ethnic profiling, and unlawfully prolonged stops, arrests, and de-

tentions on suspicion of civil immigration violations.” The district

court also found that the members would suffer harm because the

enforcement of S.B. 168 would “discourage [them] from accessing

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6 Opinion of the Court 21-13657

essential . . . services, . . . enforcing their legal rights, . . . and apply-

ing to and enrolling in public schools.” For similar reasons, the dis-

trict court ruled that the organizations had standing to challenge

the transport provision. The district court ruled that the organiza-

tions established associational standing because they alleged that

their members faced a threat of “unlawful detention, transporta-

tion, and enforcement under S.B. 168.” And the district court con-

cluded that the organizations had organizational standing because

they had to divert resources “away from core activities in order to

respond to member inquiries about S.B. 168’s enactment, implica-

tions, and enforcement.” The district court granted a preliminary

injunction with respect to the transport provision on the ground

that it was likely preempted but denied the motion with respect to

the remaining provisions.

The parties filed competing motions for summary judg-

ment. After reviewing the factors set forth in Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S.

252 (1977), the district court denied summary judgment on the or-

ganizations’ equal-protection claims. But the district court ruled

that the transport provision was unconstitutional because it was

preempted by federal law and granted summary judgment in favor

of the organizational plaintiffs on their preemption claim. It made

permanent the injunction against enforcement of the transport

provision.

The case proceeded to a bench trial on the equal-protection

claims. After trial, the district court issued an opinion in which it

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ruled that the organizations had proved Article III standing for the

same reasons it had cited in its earlier order. That is, the organiza-

tions had to, and would continue to, “divert . . . limited resources

away from their core activities” and the members would “suffer[]

injuries relating to S.B. 168’s illegal enforcement and its chilling ef-

fect on immigrants’ willingness to access essential services.” And

the district court ruled that S.B. 168’s best-efforts provision and

sanctuary provisions violated the Equal Protection Clause because

they resulted in a racially disparate impact and were enacted with

discriminatory intent. Though the district court never addressed

whether the governor and attorney general were proper defend-

ants, the district court permanently enjoined the governor and at-

torney general from enforcing these provisions.

II. STANDARD OF REVIEW

We review issues of subject-matter jurisdiction de novo.

Brown v. Snow, 440 F.3d 1259, 1262 (11th Cir. 2006), overruled on

other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53 (2006).

III. DISCUSSION

This Court has “an independent obligation to ensure that

subject-matter jurisdiction exists before reaching the merits of a

dispute.” Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1245 (11th

Cir. 2020). Under Article III of the Constitution, our jurisdiction

encompasses only “Cases” and “Controversies.” U.S. CONST. art.

III, § 2. “To have a case or controversy, a litigant must establish

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8 Opinion of the Court 21-13657

that he has standing, which requires proof of three elements.” Ja-

cobson, 974 F.3d at 1245 (internal quotation marks and citation

omitted). “The litigant must prove (1) an injury in fact that (2) is

fairly traceable to the challenged action of the defendant and (3) is

likely to be redressed by a favorable decision.” Id. When, as here,

“plaintiffs seek prospective relief to prevent future injuries, they

must prove that their threatened injuries are ‘certainly impend-

ing.’” Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401

(2013)). The organizational plaintiffs failed to prove any of the

three elements of standing.

A. The Organizations Did Not Prove an Injury in Fact.

An organization cannot sue without proof of an actual in-

jury. That is, the organizations must establish that they have al-

ready been harmed by, or face “certainly impending” harm from,

S.B. 168. Clapper, 568 U.S. at 401. An organization can establish

Article III standing either “through its members [or] . . . through its

own injury in fact.” Ga. Ass’n of Latino Elected Offs., Inc. v. Gwin-

nett Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1114 (11th

Cir. 2022).

The organizations assert that they established both types of

standing. First, the organizations maintain that their members have

suffered, and will continue to suffer, racial profiling by law enforce-

ment complying with S.B. 168. Second, the organizations assert

that they have diverted resources from existing programs to re-

spond to S.B. 168. Neither theory holds water.

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1. The Organizations Do Not Have Standing Based on Their

Members’ Alleged Injuries.

The organizations lack standing based on their members’ al-

leged injuries. “To establish associational standing, an organization

must prove that its members would otherwise have standing to sue

in their own right.” Jacobson, 974 F.3d at 1249 (internal quotation

marks and citation omitted). All agree that racial profiling qualifies

as an injury in fact. But the organizations have not established that

their members face present harm or a “certainly impending” threat

of racial profiling as a result of S.B. 168. Clapper, 568 U.S. at 410.

The organizations’ alleged harm “rests on their highly spec-

ulative fear,” id., that: the federal government will target their

members for deportation; the federal government will enlist the

help of local authorities, even though street-level cooperation with

federal officials is exceedingly rare; local officials will invoke their

authority under S.B. 168 to justify cooperation; local authorities

will successfully target the organizations’ members; and local au-

thorities, following federal directives, will racially profile the organ-

izations’ members in the process despite S.B. 168’s explicit ban on

discrimination. This “highly attenuated chain of possibilities,” id.—

which “rest[s] on speculation about the decisions of independent

actors,” id. at 414 (noting the Supreme Court’s reluctance to en-

dorse such standing theories)—“does not satisfy the requirement

that threatened injury must be certainly impending,” id. at 410. It

is, if anything, improbable.

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10 Opinion of the Court 21-13657

The organizations resist this conclusion. They argue that

their members “have suffered injuries from racial and ethnic profil-

ing, unlawful or unfounded traffic stops, and illegal detentions by

law enforcement agencies that are attempting to comply with the

requirements of S.B. 168.” The organizations maintain that this ev-

idence “show[s] that [their] members have been and will be direct

targets of S.B. 168.”

We disagree. Forty years ago, the Supreme Court made

clear that past occurrences of unlawful conduct do not establish

standing to enjoin the threat of future unlawful conduct. See City

of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). The members’

generic allegations of previous racial profiling by Florida law en-

forcement do not prove that any future injury is imminent.

The organizations try to solve their imminence problem by

alleging actual present harm under S.B. 168. That is, they argue that

their members have already been profiled because of the new law.

But their proof is lacking.

The record does not establish that S.B. 168 caused their al-

leged profiling. For example, one witness conceded on cross-exam-

ination that the alleged profiling occurred before S.B. 168’s effec-

tive date. Another member acknowledged that she did not know

why a stop occurred. As in Clapper, the members can “only specu-

late” that the alleged profiling occurred because of S.B. 168. 568

U.S. at 412–13. Instead of suing immediately to enjoin enforcement

of S.B. 168, the organizations would have been better off waiting

for concrete evidence that the enforcement of S.B. 168 would lead

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to profiling. In this sense, their challenge is not ripe for judgment.

See Abbott Lab’ys v. Gardner, 387 U.S. 136, 149 (1967). Even if the

organizations could prove that local officers profiled their mem-

bers, they have not proved that the officers acted based on S.B. 168.

The organizations also argue that their members have suf-

fered present harm because the members have refused “essential

health, social, and government services” to avoid racial profiling

under S.B. 168. But Clapper forecloses this theory. “Where a ‘hy-

pothetical future harm’ is not ‘certainly impending,’ plaintiffs ‘can-

not manufacture standing merely by inflicting harm on them-

selves.’” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 931

(11th Cir. 2020) (en banc) (quoting Clapper, 568 U.S. at 416). And

we have rejected the argument that plaintiffs have standing based

on their “subjective fear of . . . harm” and its “chilling effect.” Cor-

bett v. Transp. Sec. Admin., 930 F.3d 1225, 1238–39 (11th Cir.

2019). Because the members’ feared racial profiling is not “certainly

impending,” their self-imposed harms do not create a cognizable

injury sufficient to support Article III standing.

2. The Organizations Do Not Have Standing in Their Own Right.

The organizations also have not proved that they suffered

an Article III injury “in their own right.” Jacobson, 974 F.3d at 1249.

To establish standing, an organization, like an individual, must

prove that it either suffers actual present harm or faces a threat of

imminent harm. Clapper, 568 U.S. at 409. An organization suffers

actual harm “if the defendant’s illegal acts impair [the organiza-

tion’s] ability to engage in its projects by forcing the organization

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to divert resources to counteract those illegal acts.” Fla. State Conf.

of NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008). In

Browning, for instance, the NAACP had standing to challenge a

new voting requirement because the NAACP “reasonably antici-

pate[d]” it would need to “divert personnel and time” from other

projects “to educating . . . voters on compliance with” the require-

ment. Id. at 1165–66; see also Common Cause/Ga. v. Billups, 554

F.3d 1340, 1350 (11th Cir. 2009). This Court recognized that be-

cause the NAACP does not have “limitless resources,” its diversion

of resources away from “registration drives and election-day . . .

monitoring” and in favor of voter education about the new law was

a “concrete injury” for purposes of Article III standing. Browning,

522 F.3d at 1165–66.

Although an organization can establish standing under a di-

version-of-resources theory, it cannot do so by inflicting harm on

itself to address its members’ “fears of hypothetical future harm

that is not certainly impending.” Clapper, 568 U.S. at 416. To prove

injury in fact based on an organization’s diversion of resources to

protect individuals from harm, the organizational plaintiff must

prove both that it has diverted its resources and that the injury to

the identifiable community that the organization seeks to protect

is itself a legally cognizable Article III injury that is closely con-

nected to the diversion. As our sister circuit has explained, “an or-

ganization can no more spend its way into standing based on spec-

ulative fears of future harm than an individual can.” Shelby Advocs.

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for Valid Elections v. Hargett, 947 F.3d 977, 982 (6th Cir. 2020). The

harm must be concrete and imminent.

Our precedent is instructive. In each of the cases in which

this Court has found standing based on a resource-diversion the-

ory, the organizations pointed to a concrete harm to an identifiable

community, not speculative fears of future harm. In Browning, the

organizations helped black voters comply with new voting rules

that went into effect before an election. Those rules applied to all

voters, “forcing” the organizations to divert resources to educate

these voters before the election. Browning, 522 F.3d at 1165. Simi-

larly, in Georgia Latino Alliance for Human Rights v. Governor of

Georgia, 691 F.3d 1250 (11th Cir. 2012), illegal immigrants faced a

“credible threat of detention” under a new immigration law. Id. at

1258. So the law “forc[ed]” the organizations to divert resources to

protect illegal immigrants from this imminent harm. Id. at 1260. In

sum, to establish an injury based on resource diversion, an organi-

zation must “present . . . concrete evidence to substantiate [its]

fears,” not commit resources based on “mere conjecture about pos-

sible governmental actions.” Clapper, 568 U.S. at 420.

Our sister circuits agree that to establish standing, an organ-

ization must prove both a diversion of resources and a cognizable

injury to an identifiable community that is closely tied to the diver-

sion. In Equal Rights Center v. Post Properties, Inc., the District of

Columbia Circuit rejected an argument that standing based on a

diversion of resources depends solely on whether the diversion was

voluntary. 633 F.3d 1136, 1140 (D.C. Cir. 2011). Instead, our sister

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14 Opinion of the Court 21-13657

circuit explained that to determine whether there was a concrete

injury the district court needed to consider two things: “first,

whether [the defendant’s] alleged discriminatory conduct injured

the [plaintiff organization’s] interest in promoting fair housing and,

second, whether the [plaintiff organization] used its resources to

counteract that harm.” Id. It held that because the organization

failed to prove an injury from the law’s actual application to the

community the organization sought to support, any diversion was

a “self-inflicted” injury that could not support standing. Id. at 1142.

The Third Circuit has also held that the diversion of re-

sources, standing alone, does not suffice to establish standing. In

Fair Housing Council v. Montgomery Newspapers, the plaintiff

took issue with a purportedly discriminatory newspaper advertise-

ment and alleged that it would need to divert resources to counter-

act the discriminatory impact of the advertisement through an ed-

ucation program. 141 F.3d 71, 77 (3d Cir. 1998). The court deter-

mined that the plaintiff could not establish standing because it

failed to prove any member of the public was denied housing or

deterred from seeking housing because of the advertisement. Id. In

essence, the organization failed to prove the education was neces-

sary to address an actual, non-speculative harm caused by the ad-

vertisement. Id. As in Equal Rights Center, the organization lacked

standing because it failed to prove a cognizable injury to the com-

munity it sought to protect. In similar fashion, the Fifth Circuit has

held that an organization cannot establish standing based on diver-

sion of resources when it diverted resources “due to fear” of the

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21-13657 Opinion of the Court 15

challenged activity instead of “any concern over the impacts of” the

activity itself. El Paso Cnty v. Trump, 982 F.3d 332, 344 (5th Cir.

2020).

Although the organizations diverted resources, they failed

to produce concrete evidence that S.B. 168 is an imminent threat

to their members or the immigrant community. The record is rife

with speculative fears of future harm. But the record fails to estab-

lish that local officers profiled anyone based on S.B. 168. Cf. Lyons,

461 U.S. at 102 (“Past wrongs [are] evidence bearing on whether

there is a real and immediate threat of repeated injury.” (internal

quotation marks and citation omitted)). And the threat of enforce-

ment is not imminent because it rests on a “highly attenuated chain

of possibilities.” Clapper, 568 U.S. at 410; cf. Ga. Latino All. for

Hum. Rts., 691 F.3d at 1258 (immigrants faced a “credible threat of

detention”). At best, the organizational plaintiffs have diverted re-

sources to address “fears of hypothetical future harm that is not

certainly impending.” Clapper, 568 U.S. at 416; El Paso Cnty., 982

F.3d at 344.

In the same way that the members could not “manufacture

standing,” Clapper, 568 U.S. at 402, by inflicting harm on them-

selves based on “highly speculative” fears, id. at 410, neither can

the organizations do so. The organizations’ commitment of re-

sources amounts to a self-imposed injury “based on speculative

fears of future harm.” Shelby Advocs., 947 F.3d at 982; see also

Equal Rts. Ctr., 633 F.3d at 1142. Speculative harms are no more

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16 Opinion of the Court 21-13657

cognizable dressed up as an organizational injury than as an associ-

ational one.

B. The Organizations Failed to Prove that Their Alleged Injuries

Are Traceable to Or Redressable by Relief Against the Florida

Governor or Attorney General.

It should come as no surprise, in a case that so profoundly

fails to establish an injury in fact based on highly speculative harm,

that traceability and redressability are also lacking. Indeed, it is hard

to imagine a circumstance where a plaintiff who could not establish

that he has suffered a legally cognizable injury in fact could never-

theless prove that an insufficient injury was traceable to a defend-

ant. This case is no exception.

The organizations’ alleged injuries are neither traceable to

the Florida governor or attorney general nor redressable by an in-

junction against these officials. To establish Article III standing, the

plaintiff “must show a ‘causal connection’ between [its] injury and

the challenged action of the defendant . . . , as opposed to the action

of an absent third party.” Lewis v. Governor of Ala., 944 F.3d 1287,

1296 (11th Cir. 2019) (en banc) (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992)). Similarly, “the plaintiff must show that it

is likely, not merely speculative, that a favorable judgment will re-

dress [its] injury.” Id. The named state officials meet neither of

these criteria. The organizations’ grievance lies with absent third

parties.

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The organizations maintain that S.B. 168 will injure their

members because it will “lead to the erosion of trust in law enforce-

ment . . . [and] racial profiling.” In other words, the organizations

say that officers will target their members—consciously or uncon-

sciously—based on their ethnicity. But this argument misses the

real issue.

When traceability and redressability are at stake, the key

questions are who caused the injury and how it can be remedied.

See Jacobson, 974 F.3d at 1253–54 (holding that there was no stand-

ing where the alleged injury was not caused by the defendants and

the effect of the court’s judgment on the defendant would not re-

dress the injury). To answer those questions, we begin with the

statute itself. And then we evaluate the organizations’ evidence in

the light of the statute.

The disputed provisions of S.B. 168 regulate local law en-

forcement officers and governments. For example, the sanctuary

provision requires cities and municipalities to give federal officials

access to detainees in their custody. FLA. STAT. §§ 908.102(6),

908.103. It operates on officials at the local level. In similar fashion,

the best-efforts provision and transport provision demand cooper-

ation with federal officials from local authorities. The state law re-

quires local law enforcement officials to use their “best efforts” to

comply with federal immigration law. Id. § 908.104(1). It applies to

officials who are “acting within the scope of [their] official duties”

as “official[s] . . . of the entity or agency.” Id. And it permits “law

enforcement agenc[ies],” namely “county correctional facilit[ies],”

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18 Opinion of the Court 21-13657

to transport detainees into federal custody after receiving federal

detainers. Id. § 908.104(4). In sum, the disputed provisions give lo-

cal officials the authority to detain and transport illegal aliens. Nei-

ther the governor nor the attorney general acts under S.B. 168 in

such a way that the organizations’ injury is traceable to them or

redressable by enjoining them.

The district court’s findings make clear that any injury stems

from local law enforcement. The district court admitted expert tes-

timony about how people of different races interact with law en-

forcement. Based on that testimony, the district court found that

“proactive policing measures, like the one[s] at issue here” lead to

racial profiling due to the “differential views, whether conscious or

not, that police have regarding the likely criminality of non-white

persons.” The district court then found that local officials, with “ex-

pansive discretion on when and how to use their ‘best efforts,’”

would discriminate based on race while enforcing S.B. 168. The dis-

trict court cited evidence that the organizations “receive[d] reports

of racial profiling in encounters with law enforcement,” “noticed

increased law enforcement presence,” “saw an increase in callers

. . . who feared going to law enforcement,” and “raised concerns

relating to the scope of law enforcement agencies’ responsibilities.”

These are all harms caused by local law enforcement. The district

court itself explained, “Plaintiffs demonstrated that their members

have suffered injuries from racial and ethnic profiling, unlawful or

unfounded traffic stops, and illegal detentions by law enforcement

agencies that are attempting to comply with [S.B. 168].” (Emphasis

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21-13657 Opinion of the Court 19

added.) And the organizational plaintiffs agree with this assess-

ment.

The organizations nevertheless insist that their injuries are

both traceable to the governor and attorney general and redressa-

ble by an injunction against those officials because those officials

have sufficient control over local law enforcement. But the organ-

izations failed to produce any evidence at trial to support this claim.

Indeed, they have offered nothing to prove that the governor or

attorney general has enforced or threatened to enforce S.B. 168, let

alone that they have threatened to do so in a racially discriminatory

way.

Lewis is similar in this respect. In Lewis, two workers sued

the Alabama attorney general to enjoin a state law that preempted

a local minimum-wage ordinance. 944 F.3d at 1293–94. We held

that any injury the plaintiff workers suffered from receiving lower

wages was not caused by the attorney general because he “had

never enforced or threatened to enforce the law[] and the law itself

contemplated no role for the attorney general.” Jacobson, 974 F.3d

at 1254 (citing Lewis, 944 F.3d at 1296, 1298–99).

On the ground, where it counts, local officials enforce S.B.

168. Local officials commit the alleged profiling. Local officials co-

operate with federal officials in enforcing federal immigration law.

Local officials transport detainees in their custody into federal cus-

tody. As in Lewis, the organizations have pointed to no evidence

that the governor or attorney general have “enforced or threatened

to enforce” S.B. 168 against them or their members. Id. (citing

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20 Opinion of the Court 21-13657

Lewis, 944 F.3d at 1296, 1298–99). And the record contains no evi-

dence that an injunction against the governor or the attorney gen-

eral will curtail or otherwise redress racial profiling by local officials

who are not parties to this action. Without this evidence, the or-

ganizations have failed to meet their burden as to traceability and

redressability.

The organizations offer two arguments that we rejected in

Lewis and Jacobson. First, they maintain that the governor and at-

torney general have sufficient control over local officials because

“S.B. 168 expressly authorizes Defendants to enforce S.B. 168

against local officials and governments by filing a lawsuit.” But the

organizations in Jacobson made an identical argument. Id. at 1253.

There, several voters and organizations sued the Florida Secretary

of State to enjoin the enforcement of a law governing the order in

which candidates appear on the ballot. Id. at 1242. Because he did

not control the ballot order, we held that the Secretary of State was

not a proper defendant. Id. at 1254. Florida law instead “expressly

g[ave] a different, independent official control over the order in

which candidates appear on the ballot.” Id. The organizations in-

sisted that the secretary had control over the supervisors of elec-

tions because he could “bring actions . . . to enforce the perfor-

mance of [their] duties.” Id. (internal quotation marks and citation

omitted). We rejected that argument. As we explained, “[t]hat the

Secretary must resort to judicial process if the Supervisors fail to

perform their duties underscores her lack of authority over them.”

Id. So it is here. The governor and attorney general are limited to

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21-13657 Opinion of the Court 21

coercive suits and do not “enforce” S.B. 168 against the organiza-

tions or their members.

The organizations maintained at oral argument that S.B. 168

is distinguishable from the law in Jacobson because it specifically

contemplates that the governor will “enforce” the law. To be sure,

the governor may sue local officers “to enforce compliance” with

the disputed provisions. FLA. STAT. § 908.107(1) (emphasis added).

But the same was true in Jacobson. The Florida Code expressly

confers on the secretary the power to “[b]ring and maintain . . . ac-

tions at law or in equity . . . to enforce the performance of any du-

ties of a county supervisor of elections.” FLA. STAT. § 97.012(14)

(emphasis added). A statute’s use of the magic word “enforce” does

not conjure up standing to challenge that law.

Second, the organizations assert that the governor has suffi-

cient control over local officials because S.B. 168 provides that local

officials may be “subject to action by the governor in the exercise

of his or her authority under the State Constitution and state law.”

FLA. STAT. § 908.107(1). The organizations speculate that the gov-

ernor will use this statutory grant of general authority together

with his preexisting authority under article IV of the Florida Con-

stitution to suspend local officials who refuse to enforce S.B. 168.

See FLA. CONST. art. IV, § 7(a). Again, Lewis stands in their way.

In Lewis, the plaintiffs attempted to establish traceability by

pointing to the attorney general’s “general authorization” to insti-

tute proceedings against local officials “to protect the rights and in-

terests of the state.” 944 F.3d at 1300 (citation omitted). But we

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22 Opinion of the Court 21-13657

ruled that this standing theory “prove[d] entirely too much” be-

cause it would make the attorney general “a proper party defend-

ant under innumerable provisions of the Alabama Code.” Id. The

same is true here. As the governor and attorney general argue, if

the governor’s ability to suspend officials for cause established

traceability, then the governor “would be a proper defendant in

any challenge to State or local policy.”

At oral argument, the organizations attempted to distin-

guish Lewis on the ground that S.B. 168 specifically recognizes the

governor’s constitutional powers and the challenged provision in

Lewis did not cite a corresponding constitutional authority. But

this distinction is not meaningful. To establish traceability and re-

dressability, the organizations had to prove that the governor’s en-

forcement would cause them injury and that a favorable judgment

would “likely” redress their injury. See Lewis, 944 F.3d at 1296 (em-

phasis added). Even indulging the unlikely assumption that the

boilerplate provision in S.B. 168 reminded the governor that he

could suspend officials for cause, the organizations still had to

prove that the governor’s ability to suspend officials for violations

of S.B. 168 would contribute to their alleged harm: racial profiling

by local officials. They failed to do so.

Local officials have an independent obligation to follow the

law. FLA. STAT. § 112.311(6) (local officials “are bound to uphold

. . . the State Constitution and to perform efficiently and faithfully

their duties under the laws of the . . . state”). So does the governor.

Id. And S.B. 168 explicitly prohibits discrimination. Id. § 908.109. In

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21-13657 Opinion of the Court 23

this pre-enforcement posture, the record does not establish that it

is likely that officers will discriminate based on race under S.B.

168—which would violate the law itself.

The record contains no evidence—none—that Governor

DeSantis would use his suspension authority to encourage racial

profiling. There was no evidence that, for instance, the governor

made any statement or in any way suggested that a state or local

official ought to use racial profiling in connection with enforcing

S.B. 168—a statute that requires race neutrality—or cooperating

with federal immigration priorities. Indeed, the organizations of-

fered no evidence that Governor DeSantis said anything about how

or under what circumstances he would enforce S.B. 168. If any-

thing, Governor DeSantis would presumably follow the law and

seek to curtail the discrimination that S.B. 168 expressly prohibits.

So, in the absence of contrary evidence, an injunction against the

governor’s enforcement of S.B. 168 ironically would harm the or-

ganizations because it would inhibit the governor’s oversight un-

der the antidiscrimination provision. The provision for gubernato-

rial enforcement does not establish traceability or redressability.

The organizations’ failure to produce any evidence to trace

any injury to the governor and attorney general does not foreclose

the possibility that these officials could be proper defendants on a

different record, as our precedents make clear. For example, in

Georgia Latino Alliance, the governor and attorney general of

Georgia were named defendants in a preenforcement challenge to

a state immigration law. 691 F.3d at 1256–57. The plaintiffs argued

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24 Opinion of the Court 21-13657

that federal law preempted the state law, which “authorize[d]

Georgia law enforcement officers to investigate the immigration

status of an individual if the officer ha[d] probable cause to believe

the individual ha[d] committed another crime and the individual

[could not] provide one of the pieces of identification listed in the

statute.” Id. at 1256. The district court entered a preliminary injunc-

tion against the state officials. Id. at 1257. On appeal, we held, based

on the plaintiffs’ allegations and declarations, that the state officials

had sufficient enforcement authority to establish traceability and

redressability because the governor had “sufficient, albeit indirect,

contact with the program’s enforcement.” See id. at 1260 n.5.

For that proposition, Georgia Latino Alliance relied on

Luckey v. Harris, a suit against the governor and state judges on

behalf of a class of indigent criminal defendants and their attorneys.

860 F.2d 1012, 1013 (11th Cir. 1988). The class alleged “systemic

deficiencies” in the provision of indigent criminal defense and

sought an injunction requiring state officials to meet “minimum

constitutional standards” in the provision of these services. Id. The

district court dismissed the suit at the pleading stage on the ground

that it was “in essence a suit against . . . Georgia and therefore was

barred by the eleventh amendment.” Id. We reversed.

We held that the governor was a proper defendant under Ex

parte Young, 209 U.S. 123 (1908), because “[a]ccording to the Geor-

gia constitution, the governor is responsible for law enforcement

in that state and is charged with executing the laws faithfully” and

“[t]he governor further has the residual power to commence

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21-13657 Opinion of the Court 25

criminal prosecutions and has the final authority to direct the at-

torney general to ‘institute and prosecute’ on behalf of the state.”

Luckey, 860 F.2d at 1016 (internal citation omitted). Part of the

Governor’s prosecutorial role included “furnish[ing] counsel” to in-

digent defendants. Id. We concluded that the class established

standing because the class members “alleg[ed] that they [we]re

presently being denied constitutional rights as a direct result of the

failure of [defendants] to furnish [constitutionally sufficient] coun-

sel.” Id. That is, they alleged an injury traceable to and redressable

by the governor.

Both Georgia Latino Alliance and Luckey establish that the

governor may be a proper defendant to enjoin the enforcement of

a state law when the governor has sufficient enforcement power to

remedy the plaintiff’s alleged harm. In the former, the plaintiffs al-

leged that they were injured by being subject to a state law that was

preempted by federal law. They established that a preliminary in-

junction redressed that injury because the governor had sufficient

contact with the state officers that implemented the law and would

presumably mandate its enforcement. Georgia Latino Alliance, 691

F.3d at 1256–57. In the latter, the plaintiff class alleged that it was

injured because state officials failed to provide it with constitu-

tional protections during criminal prosecutions. Luckey, 860 F.2d

at 1016. The class alleged that an injunction against the governor

would redress that injury, which was a “direct result” of the gover-

nor’s oversight of state prosecutions and his “failure . . . to furnish

[constitutionally sufficient] counsel.” Id. In both cases, an

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26 Opinion of the Court 21-13657

injunction against the governor at least partially remedied the

plaintiffs’ injury because the governor’s enforcement power at least

partially caused, or threatened to cause, that injury. See Lujan, 504

U.S. at 560.

In contrast with Georgia Latino Alliance and Luckey, this

appeal involves a permanent injunction following trial where the

organizations failed to present any evidence—as they must—that

the governor or attorney general would enforce S.B. 168, or that

any enforcement would cause them harm. Unlike both Georgia La-

tino Alliance and Luckey, the organizations’ case went to trial,

where they had the burden to establish each element of standing.

The organizations alleged a specific harm and bore the burden to

produce evidence tying that alleged harm to the governor or attor-

ney general. They failed to do so. This failure distinguishes our case

from Georgia Latino Alliance and Luckey.

The record lacks any evidence that links the governor or at-

torney general to racial profiling by local officers under S.B. 168.

That absence of proof makes sense because S.B. 168 provides the

governor with few, if any, tools to make the judgment calls that

might result in racial profiling. Federal officials tell local officials

which individuals are subject to a detainer. Federal officials request

cooperation. Local officials make the arrests. Local officials

transport detainees to federal custody. S.B. 168 does not involve

the governor or attorney general in incidents of racial profiling.

Moreover, the organizations will allegedly be harmed in the

same manner whether the governor or attorney general are

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21-13657 Opinion of the Court 27

enjoined or not. “[W]e have held traceability to be lacking if the

plaintiff would have been injured in precisely the same way with-

out the defendant’s alleged misconduct.” Walters v. Fast AC, LLC,

60 F.4th 642, 650 (11th Cir. 2023) (internal quotation marks and ci-

tation omitted). In other words, “a plaintiff lacks standing to sue

over a defendant’s action if an independent source would have

caused him to suffer the same injury.” Id. at 650–51 (internal quo-

tation marks and citation omitted). In this case, the source of the

organization’s alleged injury is local law enforcement. There is no

“remotely plausible causal chain,” Cordoba v. DIRECTTV, LLC,

942 F.3d 1259, 1272 (11th Cir. 2019), linking racial profiling by local

officials to the governor or attorney general of Florida.

The organizations failed to prove standing. They had to es-

tablish a concrete threat of enforcement by the governor or attor-

ney general that would lead to racial profiling. But, as in Lewis,

they conjured up only a “specter” of enforcement by these officials

that is unconnected to the harm that they have suffered. 944 F.3d

at 1298.

Because the organizations lack standing, we cannot opine on

the merits of this case. See Ex parte McCardle, 74 U.S. 506, 514

(1868). But our holding that the organizations lack standing should

not be read as suggesting that we agree with the district court on

the merits. Indeed, we have grave doubts about the merits, but the

district court lacked jurisdiction to rule on them.

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28 Opinion of the Court 21-13657

IV. CONCLUSION

We VACATE the judgment against the governor and attor-

ney general and REMAND with instructions to dismiss for lack of

jurisdiction.

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21-13657 MIZELLE, J., Concurring 1

KATHRYN KIMBALL MIZELLE, District Judge, Concurring:

The majority’s opinion correctly holds that the district court

lacks jurisdiction. This concurrence addresses a discrete issue with

the district court’s analysis.

In concluding that the Florida Legislature enacted S.B. 168

with discriminatory intent, the district court relied, in part, on the

fact that the committee staff analysis in support of the bill refer-

enced data from the Federation for American Immigration Reform

(FAIR) and the Center for Immigration Studies (CIS), organizations

labeled as “hate groups” by the plaintiffs’ counsel. The district court

reasoned that because the bill’s sponsor made “no effort to explain

why these groups’ research on the counties listed was reliable or

how their data was untainted by the racist, anti-immigrant views

that they espoused,” those discriminatory views necessarily in-

fected the entire legislative process.

This reasoning is not only legally flawed—there was no basis

to flip the burden of proof to the defendants to show that the data

the Legislature cited was trustworthy, rather than requiring the

plaintiffs to show that it was untrustworthy—but more problemat-

ically, it wrongly assumes that objectively verifiable facts and data

can be “tainted” solely because of the identity of the speaker.

Unlike subjective statements, which are “based on an indi-

vidual’s perceptions, feelings, or intentions,” see subjective, Black’s

Law Dictionary (11th ed. 2019), objective statements are “based on

externally verifiable phenomena,” and are “without bias or

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2 MIZELLE, J., Concurring 21-13657

prejudice,” see objective, Black’s Law Dictionary, supra. Whether

a dinner plate should be square or round (or some other shape)

might be subject to debate, with each advocate bringing his own

subjective views to the table; that a triangle has three sides is true

regardless of who says it. Put another way, an objective statement

is either true or false, and the speaker’s motive in offering it is irrel-

evant to the statement’s veracity.

Turning to the data here, the district court took issue with a

report produced by FAIR that defines “sanctuary jurisdiction” and

provides a list of jurisdictions that meet the definition. Each entry

contains the name of the city, the specific policy that satisfied the

definition, and hyperlinks to sources for that determination.

FAIR’s definition of a “sanctuary jurisdiction” is, of course,

subjective, because it is based on FAIR’s perception of what policies

and practices constitute such a jurisdiction. The term “sanctuary

jurisdiction” is used by all kinds of groups to describe all kinds of

local policies affecting immigration. As the committee staff analysis

of the bill notes, “organizations use different criteria for making

their determinations,” making it “difficult to determine how many

sanctuary jurisdictions exist” in Florida.

But whether a jurisdiction meets FAIR’s definition is an ob-

jective inquiry. It is either true that a city or county “fail[s] to honor

ICE detainers, prohibit[s] their employees from communicating

with ICE or CBP, or refus[es] to provide information in response

to federal requests,” or it is false. Because these determinations are

verifiable, they are either accurate or inaccurate. Thus, whether a

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21-13657 MIZELLE, J., Concurring 3

particular municipality satisfies that definition is an objective in-

quiry.

Of course, one can draw false conclusions from objective

statements. For example, one can use improper methods or mis-

read data to support a wrong conclusion. See generally, e.g.,

Thomas Sowell, Discrimination and Disparities (2018) (noting this

common error). An objective statement can also be offered with a

racist motive. But the motive of a speaker cannot undermine or

taint the truth of an objective statement. Thus, it was error for the

district court to assume that objectively verifiable data could be

tainted solely because of the alleged views of the speaker.

This does not end the problem. The district court went fur-

ther, imputing the alleged motive of the speaker—FAIR—to the

listener, the entire Florida Legislature, simply by virtue of the lis-

tener using the speaker’s data. This is a fallacy stacked on a fallacy.

Repeating the objective statement of a speaker indicates nothing

about whether the listener adheres to the subjective beliefs of the

speaker. A listener’s use of a fact implies only that the listener be-

lieves the fact to be true. Put in evidentiary terms, it makes it nei-

ther more nor less likely that the listener agreed with the subjective

motives for which the speaker offered the objective statement.

So what, if anything, could the data have proven? The dis-

trict court could have made two legitimate findings with respect to

the data. First, the court could have found the data simply inaccu-

rate. If the Legislature adopted demonstrably false statements in its

analysis (for example, that certain cities qualified as “sanctuary

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4 MIZELLE, J., Concurring 21-13657

jurisdictions” when they fell outside the proffered definition), that

might have been a relevant factor in an Arlington Heights analysis.

See generally Vill. of Arlington Heights v. Metro. Hous. Dev., 429

U.S. 252 (1977). But the record does not support this finding, and

the district court discerned no problem with FAIR’s conclusions

and identified no issues with its method.

Second, the district court could have taken issue with FAIR’s

definition of sanctuary jurisdiction by showing how certain ele-

ments of the definition were in fact pretext for racial bias and thus

any data derived from the definition was not reliable. Because it is

subjective, FAIR’s definition theoretically could be “tainted” by al-

leged animus. It is possible that, if the Legislature adopted that def-

inition, it also adopted the motivations behind it—though binding

precedent cautions against this kind of proof of motive in discrimi-

natory intent cases. See Thai Meditation Assoc. of Ala., Inc. v. City

of Mobile, Ala., 980 F.3d 821, 836 (11th Cir. 2020) (refusing to at-

tribute the bias of some community members to city officials); see

also Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2350

(2021) (“Under our form of government, legislators have a duty to

exercise their judgment and to represent their constituents. It is in-

sulting to suggest that they are mere dupes or tools.”). But the Leg-

islature did not adopt FAIR’s definition of sanctuary jurisdiction.

Instead, it created its own definition, which differed in several re-

spects from FAIR’s. See FLA. STAT. § 908.102(6). (While one might

think that definitional break severed any imputed animus, the dis-

trict court ruled that even consideration by the Legislature of the

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21-13657 MIZELLE, J., Concurring 5

definition and data “strongly suggests the existence of underlying

racial animus.”) Of course, the district court did not explain how

the elements of FAIR’s definition were discriminatory or why any

of the resulting data was tainted.

Instead of one of these legitimate findings, the district court

assumed that the data was suspect solely because of the alleged

views of FAIR and CIS. Then, the district court concluded that use

of the data was proof of racial animus by the Florida Legislature as

a whole. Such ad-hominem reasoning and compounding of atten-

uated inferences is error. The Florida Legislature is permitted to

use objectively verifiable data without being condemned because

of who collected the data. See Arizona v. United States, 567 U.S.

387, 398 (2012) (the Supreme Court relying on data compiled by

CIS without adopting all policy views of CIS). Or put more simply,

facts are facts, regardless of who says them.