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Reddy v. Foster

United States Court of Appeals, First Circuit

January 11, 2017

JOSEPH FOSTER, in his official capacity as Attorney General for the State of New Hampshire; D. CHRIS MCLAUGHLIN, in his official capacity as County Attorney for Cheshire County, NH; SCOTT W. MURRAY, in his official capacity as County Attorney for Merrimack County, NH; DENNIS HOGAN, in his official capacity as County Attorney for Hillsborough County, NH; PATRICIA CONWAY, in her official capacity as County Attorney for Rockingham County, NH; CITY OF MANCHESTER, NH; CITY OF CONCORD, NH; CITY OF KEENE, NH; TOWN OF GREENLAND, NH, Defendants, Appellees, THOMAS P. VELARDI, in his official capacity as County Attorney for Strafford County, NH; TOWN OF DERRY, NH, Defendants.


          Michael J. Tierney, with whom Wadleigh Starr & Peters PLLC, Matthew S. Bowman, Kevin H. Theriot, and Alliance Defending Freedom were on brief, for appellants.

          Elizabeth A. Lahey, Assistant Attorney General, New Hampshire Department of Justice, for appellee Joseph Foster.

          John T. Alexander, Garry R. Lane, Ransmeier & Spellman, P.C., Samantha D. Elliott, and Gallagher, Callahan & Gartrell, P.C. on brief for municipal appellees.

          Before Lynch, Lipez, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         The district court dismissed without prejudice, for lack of Article III standing, this pre-enforcement challenge to a New Hampshire statute that has not been activated or enforced since its enactment in mid-2014. We agree that the challenge is not ripe and that there is no present Article III case or controversy before the court. We affirm the dismissal without prejudice.

         The statute in question is New Hampshire Senate Bill 319, entitled "An Act relative to access to reproductive health care facilities" ("the Act"), which Governor Maggie Hassan signed into law on June 10, 2014. See N.H. Rev. Stat. Ann. ("RSA") §§ 132:37-132:40. The Act permits (but does not require) a reproductive health care facility to demarcate a zone extending "up to 25 feet" onto public property adjacent to any of the facility's private entrances, exits, or driveways. Id. § 132:38, I. If a facility has demarcated a zone by posting the required signs, following the procedure specified, then members of the public (with certain listed exceptions) may not "knowingly enter or remain on [the portion of the] public way or sidewalk" within that zone. Id. The Act is enforced civilly, by its terms. See id. § 132:39.

         McCullen v. Coakley, 134 S.Ct. 2518 (2014), which held unconstitutional a buffer zone statute in Massachusetts, was decided by the U.S. Supreme Court on June 26, 2014, shortly after the signing of the Act. Soon thereafter, the plaintiffs commenced this action in federal district court. Their complaint seeks to enjoin enforcement of the Act and to have the Act declared facially unconstitutional under McCullen. They filed the lawsuit before any facility[1] had demarcated a buffer zone, and it remains true that no facility has ever created one. The parties agreed to a protracted stay, during which they agreed to preserve the status quo, and which was in effect until they agreed to dissolve the stay in part on August 27, 2015.[2] See Reddy v. Foster, No. 14-cv-299-JL, 2016 WL 1305141, at *3 (D.N.H. Apr. 1, 2016). The district court ultimately granted the defendants' motion to dismiss for lack of standing. Id. at *1.

         We agree with the district court that this pre-enforcement facial challenge to the Act's constitutionality relies on overly speculative allegations of injury in fact and is "premature." Id. The plaintiffs have shown neither standing nor ripeness. First, the plaintiffs have not alleged that the Act has meaningfully altered their expressive activities, nor that it has objectively chilled their exercise of First Amendment rights. Because no facility in New Hampshire has yet demarcated a zone, and there is no present evidence that a zone will ever be demarcated, the plaintiffs' "alleged injury is . . . too speculative for Article III purposes." Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1147 (2013) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 565 n.2 (1992)). Second, the plaintiffs have failed to establish standing either by arguing that case law about prior restraint applies, see Van Wagner Bos., LLC v. Davey, 770 F.3d 33 (1st Cir. 2014), or by arguing from the fact that the Act authorizes private clinics to create buffer zones. The Act is not a prior restraint, and there are no factual allegations that a clinic has used its zone-drawing power as a tool to change the plaintiffs' behavior. Third, because the plaintiffs have not alleged a present chill, and because they have failed to allege the contours or location of any buffer zone, or why such a zone was created, we have no ripe case to adjudicate and no facts that would allow us to fashion judicial relief. See Texas v. United States, 523 U.S. 296, 300 (1998).



         Because the district court granted a motion to dismiss for lack of standing, see Fed. R. Civ. P. 12(b)(1), "'we accept as true all well-pleaded fact[s] . . . and indulge all reasonable inferences' in the plaintiff[s'] favor." Kerin v. Titeflex Corp., 770 F.3d 978, 981 (1st Cir. 2014) (first alteration in original) (quoting Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012)). The record properly before us consists of both the complaint and "other materials in the district court record, " whether or not the facts therein are consistent with those alleged in the complaint. Downing/Salt Pond Partners, L.P. v. Rhode Island, 643 F.3d 16, 17 (1st Cir. 2011).

         A. Legislative History of the Act

         In its "Statement of Findings and Purposes" accompanying the passage of the Act, the New Hampshire Legislature found that "[r]ecent demonstrations outside of reproductive health care facilities" had (1) "resulted in the fear and intimidation of patients and employees of the[] facilities, " (2) "caused patients and employees . . . to believe that their safety and right of privacy [we]re threatened, " and (3) "resulted in the fear and intimidation of residents and patrons seeking to enter or leave their homes or other private businesses adjacent to the . . . facilities." The Legislature simultaneously found, however, that "[t]he exercise of a person's right to protest or counsel against certain medical procedures is a First Amendment activity that must be protected." Accordingly, the Legislature concluded that

establishing a limited buffer zone outside of some reproductive health care facilities located in the state of New Hampshire [wa]s necessary to ensure that patients and employees of reproductive health care facilities ha[d] unimpeded access to reproductive health care services while accommodating the First Amendment right of people to communicate their message to their intended audience without undue burdens or restrictions.

         Aiming to accommodate those interests, the Act provides that "[n]o person shall knowingly enter or remain on a public way or sidewalk" within a buffer zone demarcated by a reproductive health care facility. RSA § 132:38, I. That prohibition does not apply to four classes of persons: a) Persons entering or leaving such facility.

b) Employees or agents of such facility acting within the scope of their employment for the purpose of providing patient escort services only.
c) Law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment.
d) Persons using the public sidewalk or the right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.

Id. § 132:28, I(a)-(d). The Act also provides that facilities must first consult with law enforcement[3] and with local authorities with authority over signage "[p]rior to posting the signage . . . to ensure compliance with local ordinances, " id. § 132:38, III, and then must "clearly demarcate" any zone they wish to create by means of signage bearing specified language, id. § 132:38, II. A zone created pursuant to the Act is "effective [only] during the facility's business hours." Id. § 132:38, IV.

         Law enforcement officers may not impose sanctions, which are civil sanctions, for violating the Act "unless the signage authorized in RSA 132:38, II was in place at the time of the alleged violation." Id. § 132:39, III. If that precondition is satisfied, an officer is restricted to giving a "written warning" for an individual's first violation of the Act, and then a citation for subsequent violations. Id. § 132:39, I. The citation carries with it "a minimum fine of $100, " and "the attorney general or the appropriate county attorney may bring an action for injunctive relief to prevent further violations." Id. § 132:39, II. The Act also has a severability clause. Id. § 132:40.

         In the past, some of New Hampshire's clinics have resolved or attempted to resolve disputes with protestors by asking local police officers to enforce generally applicable local civil ordinances relating to public peace, safety, and crowd control.

         B. McCullen v. Coakley

         Sixteen days after Governor Hassan signed the Act into law, the U.S. Supreme Court decided McCullen, and that decision affected the parties in this case. McCullen held unconstitutional a Massachusetts statute that "categorically excluded" most individuals from the area within a fixed 35-foot radius of "any portion of an entrance, exit or driveway of a reproductive health care facility" during the facility's business hours. 134 S.Ct. at 2526. The statute was enforceable both civilly and criminally, with fines, imprisonment, or both. Id.

         The Massachusetts statute, the Court said, was a content-neutral time, place, or manner regulation of speech. See id. at 2530-34. The Court applied the test for such regulations, as articulated in Wardv.Rock Against Racism, 491 U.S. 781 (1989), and concluded that the statute was not narrowly tailored, see McCullen, 134 S.Ct. at 2534-40, because it "burden[ed] substantially more speech than [wa]s necessary to further the government's legitimate interests, " id. at ...

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