Case Information
*2 Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Alexander M. Sanders, Jr., Charleston, South Carolina, for Appellants. Terry B. Millar, Rock Hill, South Carolina; Donna Seegars Givens, WOODS & GIVENS, L.L.P., Lexington, South Carolina, for Appellees. ON BRIEF: Mark J. MacDougall, Heather J. Pellegrino, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, D.C.; William N. Nettles, John D. Delgado, Columbia, South Carolina; Hannibal G. Williams II Kemerer, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Baltimore, Maryland, for Appellants. Darra J. Coleman, WOODS & GIVENS, L.L.P., Lexington, South Carolina, for Appellee Terrell Harris.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
PER CURIAM:
The Western York County Branch of the National Association for the Advancement of Colored People and four of its members (collectively, “the NAACP”) filed this § 1983 action to enjoin four individuals in the York County, South Carolina, Solicitor’s Office and the York County Police Department (collectively, “the defendants”) from depriving the NAACP and its members of their First Amendment rights. The NAACP alleges that the defendants engaged in a campaign of intimidation by questioning NAACP members at their homes about the substance of an NAACP meeting, following them in police cars, and attempting to exclude them from the courtroom during the retrial of an African-American charged with murder. The district court awarded summary judgment to the defendants. We conclude that the NAACP has produced insufficient evidence of the likelihood of future irreparable harm and therefore affirm.
I.
We review the facts in the light most favorable to the
NAACP, the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp.,
The next day, January 10, 2002, Brackett and Pope learned that the NAACP was planning to meet that night to discuss the Spann case. They directed Marvin Brown, head of the York County Multi- Jurisdictional Drug Enforcement Unit, to “get somebody to go over” to the meeting to “hear what they had to say.” J.A. 232-33. Brackett told Brown that he “wanted a black person, a black male or female, a black officer,” and Brown ordered Officer Terrell Harris, who is African-American, to attend and observe the meeting in plainclothes. J.A. 328. At the meeting either Spann or an investigator on Spann’s defense team discussed the polygraph evidence. The following day, Harris gave a written report about the meeting to Brackett and Pope.
Nearly one month later, on February 5, 2002, Brackett again contacted Brown and told him to locate and question NAACP members who attended the January 10 meeting. For the next several *5 days, certain of the defendants visited the homes of seven or eight NAACP members, including plaintiffs Josie Lowry, the NAACP Branch Membership Chairperson; Steve Love, the Political Action Chair; and Phyllis Ward, the Freedom Fund Chair. These visits were usually made without prior notification and sometimes occurred in the evening. Harris wore a “Drug Enforcement Unit” badge around his neck during all of his visits. J.A. 340-41. One of the visits occurred on February 6, 2002, when Harris and Brown appeared at Lowry’s home unannounced at approximately 8:20 p.m. Due to the late hour, Lowry asked the officers to come back the next day. When the officers returned the next afternoon, they told Lowry that they needed to question her “to be sure that no laws had been broken at the [January 10] meeting.” J.A. 471. Solicitor Pope himself questioned Ward, asking her if the NAACP “felt like th[e Spann] case was a racial thing.” J.A. 599.
Many NAACP members believed that the defendants’ investigation was creating an “atmosphere of intimidation.” J.A. 574. Longtime NAACP member Ernestine Wright compared it to a time when “[y]ou were almost afraid to say that you were a member of the NAACP.” J.A. 687. Several members expressed their concerns to the Reverend Keith Hunter, the Branch President. Hunter and Love arranged a meeting with Pope and Brackett on February 11, 2002. At the meeting Hunter and Love formally asked the defendants to stop intimidating NAACP members. Pope and Bracket replied that the *6 questioning was a necessary part of their investigation into “issues of jury tampering or a violation of a gag order,” J.A. 245, and asked Hunter and Love whether they were trying “to stack the court room with African-Americans” or “intimidate the jury” in the Spann retrial, J.A. 440-41. Pope and Brackett said they would continue to send the police to interview NAACP members and that an officer had been dispatched to interview a member that same evening.
About one week after this meeting, two NAACP members began to observe police vehicles following them. Branch Treasurer Dorothy Williams noticed a marked Sheriff’s car following her after she left the Wesley United Methodist Church where she had been working on NAACP business. Hunter saw a black sedan following him for extended distances on three occasions. J.A. 422-23. On the third occasion Hunter pulled over to write down the sedan’s license plate number. The number belonged to a black, four-door Crown Victoria assigned to Detective Timothy Smith of the York County Sheriff’s Office.
The defendants’ investigation of the NAACP made it more difficult for the Branch to recruit new members. One prospective member said one reason she did not join the NAACP was that she “didn’t want to join because . . . [of] the police coming to NAACP members’ houses.” J.A. 711. In the wake of the investigation, the *7 Branch has suffered a decrease in membership and a decline in attendance at general meetings.
On March 4, 2002, the venire was assembled for jury selection in Spann’s retrial. During preliminary questioning, Pope and Brackett asked the court to require potential jurors to specify whether they were NAACP members. The court denied the request, and thereafter an employee in the solicitor’s office placed Hunter, Love, and Ward on the potential witness list. Neither Hunter, Love, nor Ward had any personal knowledge of the facts of the Spann case, and none of them had been served with a subpoena or questioned by any law enforcement officer about the case. Subpoenas were issued for all of the other witnesses on the state’s witness list. Pope and Brackett maintain that they do not know or remember who placed Hunter, Love, and Ward on the witness list. The only explanation the defendants offer for why these three were placed on the state’s witness list is that “[i]t may have had something to do with the change of venue motion or mitigation evidence in the penalty phase of the trial.” Brief for Appellees at 23. Once on the witness list, Hunter, Love, and Ward would have been excluded from the courtroom for the duration of the Spann retrial. (There was no retrial because Spann pled guilty.)
The NAACP, Hunter, Love, Lowry, and Ward invoked 42 U.S.C. § 1983 to sue Brackett, Pope, Brown, and Harris, in their official and personal capacities. The plaintiffs seek a permanent *8 injunction prohibiting the defendants from questioning, threatening, or detaining NAACP members in connection with lawful activities protected by the First Amendment. The district court granted summary judgment to the defendants on the basis that the NAACP had not produced sufficient evidence (1) that the defendants had violated their constitutional rights or (2) that the NAACP might suffer future irreparable harm. The NAACP appeals.
II.
Summary judgment is appropriate when there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). We review a
grant of summary judgment de novo. Higgins v. E.I. DuPont De
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). The NAACP
argues that the defendants, by monitoring its meetings and
interviewing and tailing its members, engaged in a campaign of
harassment and intimidation that violated the First Amendment
rights of the organization and its membership to free association
and to recruit new members. The defendants reply, in essence, that
their actions were part of a legitimate investigation into the
possible violation of a court order. The NAACP also argues that
the office of the solicitor’s placement of Hunter, Love, and Ward
on the state’s witness list for the Spann retrial deprived these
individuals of their First Amendment right to attend criminal
*9
trials. The solicitor’s office responds to this troubling incident
by saying that someone in the office, whose identity is unknown,
placed these names on the list, and “[i]t may have had something to
do with the change of venue motion or mitigation evidence in the
penalty phase of the trial.” Brief for Appellees at 23. These
disputes need not be resolved, however, because the NAACP has not
proffered evidence to demonstrate that future violations of the
constitutional rights of the organization and its members are
likely to occur, and such a showing is a prerequisite for obtaining
injunctive relief. See City of Los Angeles v. Lyons,
First, while it is a given that the NAACP will continue to advocate for the rights of African-American defendants in criminal cases, the organization has not shown that it is likely that it will again find itself in circumstances the same as or similar to this case. There is a dispute over whether the defendants’ investigation was part of a legitimate law enforcement effort or was used as a pretext to harass the NAACP, but it is undisputed that the defendants’ conduct began in response to the court order prohibiting Spann’s defense team from discussing the results of a polygraph examination. The Western York County Branch of the NAACP’s advocacy for the rights of an African-American defendant in a case involving a gag order presents an unusual circumstance. The NAACP has produced no evidence that it has been subjected to harassment or investigation due to its advocacy in other cases.
The defendants have offered a dubious explanation for the
placement of the names of Hunter, Love, and Ward on the witness
list for Spann’s retrial, but (this case aside) there is no
evidence that the solicitor’s office has manipulated witness lists
in the past, or is likely to manipulate them in the future, to keep
*11
interested NAACP members from attending trials. The NAACP has made
only one allegation of police misconduct occurring after the Spann
case concluded, and this allegation is insufficient to create a
genuine issue of material fact. Specifically, the organization
alleges that on January 9, 2003, a police officer parked in an
unmarked vehicle at the Wesley United Methodist Church for at least
an hour. When NAACP (and church) members approached the car to
determine why it was in the church parking lot, the officer said he
was “trying to clean up the drugs in [the] community.” J.A. 722A.
Deputy Sheriff J. M. Ligon stated in an affidavit that he was the
officer parked in the church lot that day, and he was there waiting
to assist in a search with his drug dog. He said, “I did not know
the name of the church at the time . . . . The only reason I was
at the church parking lot was to be in close proximity to the
location where the narcotics surveillance team was going to execute
a search warrant.” J.A. 723. There is no evidence suggesting that
Deputy Ligon’s account is inaccurate, and, in light of Ligon’s
reason for parking in the church lot, his statement that was
“trying to clean up the drugs” is a straightforward explanation for
his presence; it does not suggest an attempt to intimidate. In
sum, the NAACP has not produced evidence that it is likely to find
itself in future circumstances similar to those in this case. See,
Lyons,
*12 Second, there is a lack of evidence that the NAACP will continue to be subjected to the alleged unconstitutional conduct. Although Pope and Brackett said they would continue to interview NAACP members, their statement was limited to interviews relating to the NAACP meeting involving the Spann retrial. Because the NAACP can not show a sufficient likelihood that it and its members will be subjected to future violations of their constitutional rights, the defendants are entitled to summary judgment.
Accordingly, the district court’s order awarding summary judgment to the defendants is affirmed.
AFFIRMED