AMNESTY INTERNATIONAL, USA, Plaintiff-Appellant, v. Louis BATTLE, Thomas Cannon, Defendants-Appellees.
No. 07-12442.
United States Court of Appeals, Eleventh Circuit.
Feb. 23, 2009.
559 F.3d 1170
John A. Greco, Henry Joseph Hunnefeld, Craig Edward Leen, Miami, FL, Os-
Before HULL, MARCUS and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
Amnesty International (“Amnesty“) appeals the dismissal of its complaint against police officers Louis Battle and Thomas Cannon brought pursuant to
I. BACKGROUND
The complaint alleges the following facts:
On November 20, 2003, Amnesty planned to hold a demonstration and rally near, and in protest against, a meeting of the Free Trade Association of the Americas in Miami.1 Amnesty obtained a permit from the City of Miami Police Department to conduct this demonstration on that date at the Torch of Friendship, a monument with a surrounding plaza within Bayfront Park in Miami.
Anticipating that a large number of people would assemble in downtown Miami to protest the Free Trade Association meeting, the City of Miami Police Department formulated a security plan to handle the demonstrations and enlisted the help of police entities from other jurisdictions, including the Miami-Dade County Police Department. Defendants Battle and Cannon were officers supervising subordinate police officers in the downtown area of Miami on November 20, 2003. Battle worked for the Miami-Dade Police Department and Cannon worked for the City of Miami Police Department.
Just after 10:00 am, Amnesty had gathered ten to twelve people in the Torch of Friendship area, most of whom were speakers and Amnesty members, and attempted to begin its demonstration. At around the same time, Defendants directed their subordinate officers to create a police cordon 50 to 75 yards from the Torch of Friendship and to allow no one to enter the area. “People in the area,” as stated in the complaint, attempted to attend the demonstration but the cordon prevented them from doing so. They also could not hear or see the people speaking at Amnesty‘s demonstration because the police cordon kept them at too great a distance. Amnesty members attempted to pass through the cordon to hand out Amnesty literature to the crowd beyond the cordon, invite people to attend their demonstration, and obtain media coverage for their rally, but the police cordon kept the Amnesty members inside the Torch of Friendship and prevented them from doing any of these above activities.
Specifically, the complaint alleges:
[t]he Defendants knew of Amnesty‘s First and Fourteenth Amendment rights, knew that these rights were clearly established, knew of Amnesty‘s permit, and knew that their actions would destroy these rights ... As the direct and proximate result of the ille-
gal and unconstitutional acts of the Defendants ... Amnesty‘s First and Fourteenth Amendment rights were destroyed, it was unable to have its message heard, people were unable to attend its rally/demonstration, people were unable to hear its speakers, it was unable to invite people to attend the rally/demonstration, it was unable to distribute literature to the people, it was unable to obtain media coverage of its rally/demonstration, it was unable to distribute literature to representatives of the media and it was unable to speak to representatives of the media.
Amnesty requested compensatory and punitive damages, a declaratory judgment that Defendant‘s actions violated Amnesty‘s First and Fourteenth2 Amendment rights, and attorney‘s fees and costs.
Defendants filed a motion to dismiss, asserting qualified immunity and arguing that Amnesty lacked standing. The district court granted the motion, finding that the allegations were not detailed enough to satisfy the heightened pleading standard for
The district court also found that, even assuming that the allegations were sufficiently pleaded, Amnesty had “failed to establish that its purported rights were clearly established” and thus failed to overcome Defendants’ qualified immunity from suit. The court distinguished the two main cases cited by Amnesty to support its asserted right to protest peacefully, Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) and Jones v. Parmley, 465 F.3d 46 (2d Cir.2006), by noting that both cases involved the arrest of protestors. Because no member of Amnesty was arrested, the court concluded that those cases could not clearly establish a violation of Amnesty‘s First Amendment rights. The court stated “Amnesty has failed to show that any reasonable official in Defendants’ position would have known that ordering the formation of a cordon of police officers near the sight of a permitted demonstration was a violation of the demonstrating organization‘s First Amendment rights.” Having found that Amnesty failed to overcome Defendants’ qualified immunity, the district court dismissed the complaint for failure to state a claim. The district court did not address standing. Amnesty timely appealed.
II. STANDARD OF REVIEW
We analyze standing de novo. Florida Ass‘n of Med. Equip. Dealers, Med-Health Care v. Apfel, 194 F.3d 1227, 1229 (11th Cir.1999).
We also review de novo an order granting a motion to dismiss, Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir.2003), and “accept all well-pleaded factual allegations as true and construe the facts in the light most favorable to the plaintiff.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.2003).
III. DISCUSSION
Standing
The district court erred in addressing the merits of Amnesty‘s claim and Defendants’ qualified immunity without first assuring itself that Amnesty had standing to bring this suit. “A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises.” Johansen v. Combustion Eng‘g, Inc., 170 F.3d 1320, 1328 n. 4 (11th Cir.1999).
The party invoking federal jurisdiction—in this case, Amnesty—bears the burden of establishing standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Each element of standing must be supported in the same manner as any other matter on which the plaintiff bears the burden of proof. Tanner Adver. Group LLC v. Fayette County, Ga., 451 F.3d 777, 791 (11th Cir.2006). “At the pleading stage, general factual allegations of injury resulting from the defendant‘s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
Other than the asserted violations of First Amendment rights, Amnesty has alleged no injury-in-fact to either itself or its members. Amnesty‘s complaint does not describe any injury flowing from the constitutional violations. Amnesty appears to argue on appeal that this court should infer an injury to Amnesty‘s ability to pressure countries to release political prisoners from Amnesty‘s inability to have a successful protest rally on November 20, 2003, but this injury is not set forth in the complaint. The complaint provides the mission statement of the organization and discusses the alleged violation of constitutional rights, but fails to describe a link explaining how the violations caused any injury. “It is not enough that the plaintiff‘s complaint sets forth facts from which we could imagine an injury sufficient to satisfy Article III‘s standing requirements, since we should not speculate concerning the existence of standing, nor should we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none.” Bochese, 405 F.3d at 976 (internal quotation and alteration omitted). Because Amnesty failed to allege an injury-in-fact, it lacks standing to bring a
Although Amnesty alleged sufficient facts to support its claims for nominal damages, there remain a few questions as to its standing. Amnesty asserted claims on two grounds: on behalf of its members and in its own capacity as a organization. We, however, conclude that Amnesty established standing only on the claim brought on its own behalf.
Amnesty‘s complaint states that its own First Amendment rights were violated because “it was unable to have its message heard, ... it was unable to distribute literature to the people, it was unable to obtain media coverage of its rally/demonstration ... and it was unable to speak to representatives of the media.” These statements allege violations of Amnesty‘s own constitutional rights, and establish Amnesty‘s standing to bring a
Regarding Amnesty‘s representational standing, Amnesty‘s complaint states that Amnesty members were prevented from distributing literature, from signing up new members, from obtaining media coverage, and from passing through the police cordon to gather an audience. “It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review.” Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Supreme Court has put limits, however, on the right of organizations to represent its injured members in litigation. The Court “recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). For the same reasons that Amnesty has standing to bring this claim on its own behalf for the violation of its own First Amendment rights, we conclude that those Amnesty members present at the attempted demonstration on November 20, 2003 would have standing to bring claims for the alleged violations of their rights that day. The complaint provides that “Amnesty is involved in securing the release of political prisoners throughout the world through rallies, demonstrations, letter writing, and other means.” The protection of Amnesty members’ rights to protest and distribute literature is clearly germane to this purpose. It is less clear whether this suit meets the third prong: whether it requires the participation of individual members in the lawsuit. Amnesty has not discussed this prong; it has provided no explanation or reasons why the members are not needed. Because Amnesty bears the burden of proof on standing, Lujan, 504 U.S. at 561, 112 S.Ct. 2130, we must therefore hold that Amnesty has not established standing to sue on behalf of its members.4
Pleading Requirements
On appeal, Amnesty claims that the district court erred in applying a
This court has established a heightened pleading standard applicable to
Defendants argue that Amnesty failed to satisfy the applicable heightened pleading standard because it did not allege sufficient facts to establish a violation of the organization‘s constitutional rights and overcome Defendants’ qualified immunity. Defendants also contend that Amnesty should have identified specific people who were unable to join or hear the demonstration and specific actions of each defendant, rather than lumping both together with only vague allegations.6
To state a claim under
Here, the district court conflated the issues of satisfying the heightened pleading with the need to overcome qualified immunity. To satisfy even the heightened pleading standard for
Although the complaint is concededly sparse, Amnesty has satisfied the heightened pleading standard. The complaint states that the police cordon created at Defendants’ direction “destroyed Amnesty‘s rally/demonstration” by preventing Amnesty members from being heard or seen by potential audience members and media representatives and from distributing literature to people in the area. The complaint asserts that “[a]s the direct and proximate result of the illegal and unconstitutional acts of the Defendants, set forth above, Amnesty‘s First and Fourteenth Amendment rights were destroyed....” Thus, the complaint makes clear Amnesty‘s allegation that its First and Fourteenth Amendment rights were violated because it was unable to have a successful protest rally and unable to pass out Amnesty literature as a result of Defendants’ creation of a police cordon. These facts provide sufficient detail for Defendants to understand what alleged rights were violated (the right to hold a peaceful protest with an audience and the right to pass out leaflets) and which of their actions allegedly violated those rights (Defendants’ actions ordering their subordinates to create a police cordon which interfered with the rally and the distribution of leaflets). These facts also provide enough information for the court to determine whether those facts indeed set out a violation of rights and whether those rights were clearly established when these incidents occurred.
As to Defendants’ second point, we disagree that Amnesty was required to identify, by name, the individual members affected. The district court relied on GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359 (11th Cir.1998) in concluding that pleadings were deficient because the complaint failed to name individual Amnesty members. In GJR Investments, the plaintiff brought a
Finally, we disagree with Defendants’ contention that Amnesty improperly pleaded a claim for supervisory liability against Defendants. It is well-established that
Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court developed a two-step analysis to determine if qualified immunity applies. Under Saucier, a court first determines whether the plaintiff was exercising a constitutional right and whether the defendant‘s action impermissibly burdened the exercise of that right. Id. If a constitutional violation occurred, the court then proceeds to determine whether that right was clearly established. Id. Although this two-step inquiry is no longer mandatory, we think it remains appropriate in this case. Pearson, 129 S.Ct. at 818 (“Although ... the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial.“).
1. Does the Complaint Allege a Violation of Constitutional Rights?
The alleged violations of constitutional rights occurred when Amnesty was prevented from (1) distributing literature to people attending the various protests in the area, and (2) conducting a successful demonstration with an audience and media coverage.
The Supreme Court has recognized that passing out leaflets is an activity protected by the First Amendment. Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). This right, however—like nearly every other constitutional right—is not without limitation. In Heffron v. Int‘l Soc‘y for Krishna Consciousness, the Supreme Court held that it was constitutionally permissible to restrict leafletting at a state fair to certain locations as part of a reasonable time, manner, and location restriction. 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Defendants argue that in light of the high profile Free Trade Association meeting and the “hundreds of people in the area,” a police presence was objectively reasonable. A police presence, however, is not the action which interfered with Amnesty‘s ability to distribute leaflets. According to the complaint, Defendants ordered a police cordon to form around and 50 to 75 yards away from Amnesty‘s demonstration preventing Amnesty from leaving the Torch of Friendship area and passing out literature. We see nothing indicating that this extreme action constituted a “reasonable time, manner, and location restriction.” We will not assume from the mere pres-
Amnesty also has a constitutional right to engage in peaceful protest on public land, such as in a city park. Frisby v. Schultz, 487 U.S. 474, 484, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (“In ... quintessential public fora, the government may not prohibit all communicative activity.“); Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 162, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (Harlan, J., concurring) (noting that the right to assemble peaceably to voice political protest is a basic right). Governments may not prevent protests, punish the exercise of the right to protest peacefully by arresting the demonstrators, nor unduly burden the right by forcing demonstrators to undergo excessive searches that violate the Fourth Amendment. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. State of Louisiana, 379 U.S. 536, 545, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Bourgeois, 387 F.3d at 1324-25.
This is not the end of our analysis, however, for Amnesty was not prevented from holding its demonstration or arrested for attempting to hold a protest rally. Rather, Amnesty alleges that its demonstration was rendered ineffective by Defendants’ actions because no one could attend, see, or hear the demonstration. “Our cases make clear [] that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.‘” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). So the question before this court is, essentially, whether the police may restrict the right to conduct a peaceful protest rally so completely that they prevent the rally from being seen or heard.
In Saia v. People of State of N.Y., the Supreme Court struck down an ordinance which gave the police unbridled discretion to ban the use of loud speakers. 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). The Court held that the First Amendment carried with it a “right to be heard” that should not be infringed upon by an ordinance in which “no standards [were] prescribed for the exercise of [police] discretion.” Id. at 560, 68 S.Ct. 1148. This court noted that a constitutional problem would arise were the government to deprive protestors of an audience by drowning-out those protestors with the government‘s own, louder communication. Warner Cable Commc‘ns, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir.1990) (“We agree that the government may not speak so loudly as to make it impossible for other speakers to be heard by their audience. The government would then be preventing the speakers’ access to that audience, and first amendment concerns would arise.“). In Ward v. Rock Against Racism, the Supreme Court reviewed a city‘s efforts to regulate the volume of amplified music at concerts held at an amphitheater in a public park. 491 U.S. at 784, 109 S.Ct. 2746. Although the Court upheld the
The Tenth Circuit faced a situation similar to this case wherein plaintiffs brought a
In this case, the restriction of Amnesty to a certain area away from its desired audience was similar to that in Citizens for Peace in Space, but the impact on the demonstration was far different. Here, according to the complaint, Amnesty was completely prevented from communicating its message to anyone because no one was allowed into the Torch of Friendship area to attend the rally, and no Amnesty speaker was allowed out to reach them through any other means, not even leafletting. Amnesty had a permit to hold a demonstration at the Torch of Friendship on November 20, 2003 and had previously held a similar protest in 1994 that occurred without any incidents of violence. And yet Defendants ordered the creation of a police cordon 50 to 75 yards away from Amnesty‘s demonstration, making it impossible for Amnesty‘s speakers to be seen or heard. This action is no different than if the City of Miami had given Amnesty a permit to hold a meeting in an auditorium and then barred the doors and windows such that no audience could enter and no sound could escape the building. Such action clearly fails to leave open “ample alternative channels for communication.”
We recognize that police may properly limit the exercise of free speech where necessary for the safety and protection of protestors and the community.
2. Were these rights “Clearly Established“?
Although Amnesty alleged violations of its constitutional rights, Defendants will still be entitled to qualified immunity unless those rights were “clearly established” at the time the violations took place. Andujar v. Rodriguez, 486 F.3d 1199, 1202-03 (11th Cir.2007). Under this analysis, we evaluate whether the right was “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In this Circuit, only the caselaw of the Supreme Court, the Eleventh Circuit or the law of the highest court of the state where the events took place—in this case, Florida—can “clearly establish” constitutional rights. Marsh v. Butler County, Ala., 268 F.3d 1014, 1032 n. 10 (11th Cir.2001).
Supreme Court caselaw makes clear that the First Amendment right to distribute pamphlets was clearly established prior to November 2003. Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480 (2000); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575 (1971). Thus, at this stage in litigation, Defendants are not entitled to qualified immunity on Amnesty‘s claim that its right to distribute leaflets was violated.
It is a closer question whether Amnesty‘s right to have an audience and be heard at its demonstration was clearly
Because Amnesty alleges violations of its clearly established constitutional rights, we hold that the district court erred in concluding that Defendants were entitled to qualified immunity based on the allegations contained in the complaint.
IV. CONCLUSION
We hold that Amnesty‘s complaint properly alleges a claim for nominal damages for the violation of its constitutional rights, and reverse the district court‘s dismissal of that portion of the complaint. Because Amnesty failed to allege an injury-in-fact and to establish standing to bring claims on behalf of its members, however, we affirm the dismissal of Amnesty‘s claims for compensatory damages and its claims brought on behalf of its members.
For the foregoing reasons, we REVERSE IN PART and AFFIRM IN PART the district court‘s dismissal of the Second Amended Complaint and REMAND for further proceedings consistent with this opinion.
MARCUS, Circuit Judge, specially concurring:
I join fully in the majority‘s thoughtful and thorough opinion but write separately to emphasize a few things.
As the majority opinion clearly explains, qualified immunity does not protect government officials from a
Under controlling Circuit law we are obliged, as the majority opinion suggests, to apply a heightened pleading standard to a
There can be absolutely no doubt that the First Amendment rights to assemble, petition the government for redress of grievances, and speak are among our most fundamental, deeply cherished and clearly established constitutional freedoms. Indeed, long-standing Supreme Court case law interpreting the First Amendment has made it abundantly clear that a municipality or its police department may not intentionally and systematically destroy the ability of individuals or groups to assemble, speak, and distribute literature in a public park. The Supreme Court has put police officers on clear notice for more than half a century that protestors on public property have a First Amendment right to peacefully assemble, express their views, and distribute their literature.
The First Amendment itself expressly provides that “Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
As far back as 1939, the Supreme Court made it clear that the rights to assemble and distribute literature—two of the primary acts Amnesty sought to undertake on November 20, 2003 at the Torch of Friendship—lie at the heart of the expressive freedoms protected by the First Amendment. Schneider v. New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (“Although a municipality may enact regulations in the interest of the public safety, health, welfare, or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print, or circulate information or opinion.“). In 1943 the Supreme Court again spoke on the subject, reminding us that an ordinance prohibiting leafletting cannot be sustained under the First Amendment, because “one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word.” Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943).
Again, in 1969, the Supreme Court made it abundantly clear that a protest march “if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment.” Gregory v. City of Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). Still again, in 1980, the Supreme Court reiterated that a peaceful demonstration, such as the one Amnesty allegedly sought to conduct, is expressive conduct plainly falling within the protections afforded by the First Amendment. Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). Indeed, Carey unequivocally said that the “streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Id. (alteration omitted) (quoting Hudgens v. NLRB, 424 U.S. 507, 515, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976)). If there was any lingering question about whether police officers could completely prohibit individuals or groups from assembling, speaking, and distributing literature, the Supreme Court put an end to it in 1983 when the Court decreed that “[t]here is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).
There can be no dispute that Amnesty‘s conduct—assembling, demonstrating, and distributing literature—constituted expressive activities squarely protected by the First Amendment. Nor can there be any doubt that the conduct alleged in Amnesty‘s complaint utterly and completely eviscerated Amnesty‘s ability to participate in such expressive activity. The injury expressly alleged is that the Defendants created a barrier to Amnesty‘s speech so great that it effectively denuded Amnesty of any ability to assemble, demonstrate, speak publicly, or distribute its literature in a public park. The Defendants may as well have locked all of Amnesty‘s members in a closed room far away from the Torch of Friendship between the hours of 10 a.m. and 2 p.m. on November 20, 2003; if they had been so isolated the members of Amnesty would have had the same opportunity to speak, assemble, and petition as they did from their actual positions on one side or the other of the police cordon allegedly thrown around the Torch of Friendship on November 20, 2003. The allegations detailed in the complaint suggest nothing
Of course, it is also well-established and long-standing constitutional law that there are circumstances when a reasonable time, place, and manner restriction on demonstrations and leafletting in a public park may be valid under the First Amendment. As the Supreme Court explained in Grace:
“[P]ublic places” historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be “public forums.” In such places, the government‘s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.
461 U.S. at 177, 103 S.Ct. 1702 (internal citations omitted).
But the conduct alleged in this complaint cannot constitute a valid time, place, and manner restriction on Amnesty‘s expressive rights. If the complaint is to be believed—and at this stage in the case we are obliged to accept it as true—the police did not set about to enforce a reasonable rule designed to ensure the public‘s safety. Rather, the Defendants are said to have effectively and completely closed off Amnesty‘s opportunity to speak, assemble, and leaflet in a public park. The police allegedly provided Amnesty with no alternative channel of communication by effectively foreclosing the only venue allowed under the permit. Compare Horton v. City of St. Augustine, 272 F.3d 1318, 1334 (11th Cir.2001); One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1288 (11th Cir.1999); ISKCON Miami, Inc. v. Metro. Dade County, 147 F.3d 1282, 1290 (11th Cir.1998).
There can be no doubt that it is the long-standing and clearly established law of this nation that the government may not grant a permit to a political group instructing it where and when it may assemble, speak and petition with one hand, and then, at the last moment, completely deny the organization the opportunity to utilize that very permit with the other hand. And there can be no doubt that police conduct knowingly designed to so utterly eviscerate fundamental expressive freedoms would violate clearly established constitutional law.
HULL, Circuit Judge, specially concurring:
I specially concur in the judgment reversing the district court‘s dismissal of Amnesty‘s Second Amended Complaint.