Opinion
Case No. 22-cv-1206 (CRC)
2023-03-27
Matthew NOBLE et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
Michael Alan Yoder, Yoder Laveglia LLP, Washington, DC, for Plaintiffs. Richard P. Sobiecki, Pamela A. Disney, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Washington, DC, for Defendant.
Michael Alan Yoder, Yoder Laveglia LLP, Washington, DC, for Plaintiffs. Richard P. Sobiecki, Pamela A. Disney, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Washington, DC, for Defendant. OPINION AND ORDER CHRISTOPHER R. COOPER, United States District Judge
Plaintiffs are sixteen individuals who travelled to the Washington, D.C. area in March 2022 to protest the Biden administration's COVID-19 policies. They claim they were stymied in that effort by police roadblocks on three highways leading to D.C. They sue the District of Columbia for alleged violations of their constitutional rights to due process, free speech, and interstate travel. Finding plaintiffs' factual allegations too general to establish a causal relationship between the roadblocks and their intended First Amendment activities in the city, the Court will grant the District's motion to dismiss plaintiffs' free-speech claims for lack of standing. It will also dismiss plaintiffs' interstate-travel claims because they fail to allege any infringement of that right. The Court will, however, allow plaintiffs an opportunity to amend their complaint to cure the present deficiencies.
I. Background
In early 2022, a group of Canadian truckers embarked on a self-described "Freedom Convoy" to protest COVID-19 vaccination mandates. The convoy ended in the capital, Ottawa, where it paralyzed downtown traffic for three weeks, leading to the declaration of a state of emergency. Scores of protesters were arrested.
On February 9, 2022, numerous media outlets reported that the Department of Homeland Security had warned local law enforcement that copycat protests were planned in the United States. Sure enough, it was reported later in the month that groups of U.S. truckers had organized a similar caravan, called the "People's Convoy," that was heading from California to Washington, D.C. One report estimated that upwards of 1000 trucks were involved. On March 4, the convoy began arriving at a staging area in Hagerstown, Maryland. Over the next two weeks, the convoy periodically circled the city on the Interstate 495 beltway. On March 14, however, trucks reportedly entered the District via the 14th Street Bridge on Interstate 395 and continued to Interstate 695 before crossing the Anacostia River and returning to the beltway. In response, the Metropolitan Police Department ("MPD") reportedly blocked certain interstate exits into downtown D.C.
The account above is drawn from reporting by the Washington Post on the "Freedom Convoy" in Ottawa and the "People's Convoy" in the D.C. area. See Amanda Coletta et al., A Self-described "Freedom Convoy" of Canadian Truckers Opposed to Vaccine Mandate Arrives in Ottawa, Wash. Post, Jan. 28, 2022; Amanda Coletta et al., Canada's Capital is Jammed, its Border Crossings are Blockaded, and There's No End in Sight, Wash. Post, Feb. 9, 2022; Miriam Berger, Police in Control of Nearly All Ottawa Streets After Dispersing Protesters, Wash. Post, Feb. 21, 2022; Ellie Silverman et al., Convoys of Protesters Set Sights on D.C. Region, Wash. Post, Feb. 24, 2022; Ellie Silverman et al., Convoy Circles the Beltway, Wash. Post, Mar. 7, 2022; Ellie Silverman et al., In a First Since Convoy's Arrival, Truckers Drive Through D.C., Wash. Post, Mar. 15, 2022; Ellie Silverman et al., Some "People's Convoy" Drivers Splinter Off Into Downtown and the Mall, Wash. Post, Mar. 17, 2022. The Court may take judicial notice of these articles. See, e.g., Wash. Post v. Robinson, 935 F.2d 282, 291-92 (D.C. Cir. 1991) (taking notice of the existence of newspaper articles in the Washington, D.C. area publicizing the criminal investigation of former D.C. mayor Marion Barry). It may also consider facts outside the pleadings in assessing standing.
The sixteen plaintiffs in this case hail from nine different states. From a gathering point in Hagerstown, Maryland, where the People's Convoy also convened, plaintiffs allege that they unsuccessfully attempted to enter Washington D.C., in a fleet of trucks, four times mid-March 2022. Compl. ¶¶ 23-32. Like the truckers in the People's Convoy, plaintiffs came to D.C. to protest the Biden administration's "continued state of emergency declaration and COVID-19 related policies." Id. at 3. Yet, plaintiffs seek to divorce themselves from the larger convoy: They say they also wished to honor thirteen service members who lost their lives in Afghanistan in August 2021. Id. They thus dub their caravan "13 trucks for 13 fallen soldiers." Id.
According to the complaint, the fleet of trucks tried entering the District four separate times, beginning on March 14. Compl. ¶¶ 23-32. On their first try, plaintiffs took Interstate 395, but were unsuccessful. Id. ¶ 23. The next day, they tried Interstate 295, but encountered MPD police officers who redirected them to Maryland highway 201. Id. ¶¶ 25-26. On March 16, plaintiffs traveled on Interstate 695, but were stopped on the access ramp "leading into the District." Id. ¶¶ 27-28, 31. Plaintiffs say they were denied entry a fourth time two days later, id. ¶ 32, but they provide no details on this attempt.
Plaintiffs filed a four-count complaint in May 2022. It alleges violations of the due process clauses of both the Fifth and Fourteenth Amendments, the equal protection clauses of the Fifth and Fourteenth Amendments, the free speech clause of the First Amendment, and 42 U.S.C. § 1983, which prohibits deprivations of constitutional rights under color of state law. Compl. at 8-17. All the claims are premised on the allegation that the MPD roadblocks, and the purported municipal policy or directive that led to them, violated plaintiffs' First Amendment rights and right to travel freely between states. Id. Plaintiffs seek declaratory relief, an injunction barring the District from preventing them from entering the city in the future, and nominal, compensatory and punitive damages, as well as attorneys' fees. Id. at 18, Prayer for Relief.
Plaintiffs have since withdrawn their equal protection claim. See Opp'n Mot. Dismiss at 1 n.1. As for their due process claim, the District of Columbia is not a state, so the due process clause of the Fifth Amendment, rather than that of the Fourteenth Amendment, applies to it. See Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct. 693, 98 L.Ed. 884 (1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955).
The District moved to dismiss the complaint for lack of subject matter jurisdiction on standing grounds and for failure to state a claim. Mot. Dismiss ("Mot.") at 1. The Court will mostly confine its analysis to standing.
II. Analysis
A "challenge to standing is properly raised" under Federal Rule of Procedure 12(b)(1). Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of Am. v. U.S. Dep't of Agric., 573 F. Supp. 3d 324, 332 (D.D.C. 2021) (noting that a defect of standing is considered a "defect[ ] in subject matter jurisdiction" (cleaned up)). To establish standing, the party invoking federal jurisdiction should establish: (1) an "injury in fact" (2) that is "fairly . . . trace[able] to the challenged action of the defendant" and (3) that can be "redressed by a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the pleading stage, plaintiffs must clearly "allege facts demonstrating each element." Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The Court must "accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff[s'] favor." Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). But "[t]hreadbare recitals of the elements of [standing], supported by mere conclusory statements, do not suffice." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (cleaned up).
The District argues that plaintiffs lack standing to bring their First Amendment claim (and, derivatively, their due process and § 1983 claims based on violations of their rights to free speech) because, even if they have pled an injury-in-fact, they have not satisfied the causation requirement of standing. Mot. at 11-12. That is, they have not pled that their alleged injury is "fairly traceable" to the District's complained-of conduct. On the present complaint, the Court agrees.
To be sure, a "low standard of causation . . . governs [the standing inquiry] at the pleading stage of a case." Pierce v. Yale Univ., No. 17-CV-02508 (CRC), 2019 WL 162029, at *4 (D.D.C. Jan. 10, 2019), aff'd on other grounds, 788 F. App'x 1 (D.C. Cir. 2019). A plaintiff need not identify the "most immediate cause, or even a proximate cause, of [their alleged] injuries." Id. (citing Attias v. Care First, Inc., 865 F.3d 620, 629 (D.C. Cir. 2017)) (cleaned up). But a court does "not assume the truth of legal conclusions" nor "accept inferences that are unsupported by the facts set out in the complaint." Arpaio, 797 F.3d at 19 (cleaned up). In other words, plaintiffs must allege facts from which a court can infer that their claimed injury is "fairly traceable" to the defendant's conduct.
The factual allegations in the current complaint do not permit that inference. Plaintiffs claim that their First Amendment rights were violated because they were denied "access to the District" in order to "speak on" COVID-19-related federal policies and to "show solidarity" with thirteen soldiers who were killed in Afghanistan. Compl. at 3; id. ¶¶ 21, 35. That denial of access consisted of roadblocks on three highways leading to (or further into) Washington, on three different days. Id. ¶¶ 23-32. Though restated in similar formulations throughout the complaint, that is the sum and substance of the relevant factual allegations. Absent from the complaint is any indication of how plaintiffs intended to carry out their protest or show of support. They don't specify where they intended to go within the District. (The National Mall? Freedom Plaza? Some major thoroughfare?) They don't indicate what any protest would entail. (Simply tooling around city streets? A rally at a specific destination?) And they don't say how, if at all, the use of commercial trucks was integral to their speech. (Did they intend to display banners off the sides? Or, park and give speeches or hand out leaflets?)
The complaint's highly generalized allegations make it difficult to infer how the closure of several highway exits prevented plaintiffs from entering the District as a whole to engage in some unexplained form of expression. As the District emphasizes, the Court can take judicial notice that there were scores of alternative routes into the District available to the plaintiffs other than the three noted in the complaint. The complaint does not allege that all routes into the city were blocked to traffic, including to commercial trucks, on the days in question. Nor does it suggest how travelling through the blocked exits (on Interstates 295, 395, and 695) was necessary, or even just helpful, for their planned First Amendment activities. Indeed, the most direct routes into the District from Hagerstown, Maryland do not pass any of the exits MPD allegedly blocked. And one of the routes, Interstate 695, lies entirely within the District, so a blocked exit there could not have impeded plaintiffs from travelling "into the District" at all. If plaintiffs could enter the District through other routes, and since plaintiffs have not alleged that the MPD-blocked routes bore any relationship to their planned protest, then the Court cannot—at least without a better understanding of the nature of plaintiffs' intended expressive activities—discern a causal relationship between MPD's conduct and plaintiffs' free speech interests.
For example, according to Google Maps, the distance from Hagerstown to The Ellipse in Washington, D.C. travelling via the George Washington Memorial Parkway and Interstate 66 is 72.7 miles, see Google Maps, available at https://tinyurl.com/3sf5ydhs, and the distance via 16th Street Northwest is 70.8 miles, id., available at https://tinyurl.com/bd6t8xwy. By contrast, the route plaintiffs allege they tried to take via Interstates 295 and 695 covers 85.6 miles. Id., available at https://tinyurl.com/2p9xfnaa.
In response to the District's argument that the availability of numerous other routes into the District prevents an inference of causation, plaintiffs include a link in their opposition brief to an internet video clip reflecting a purported conversation between one of the plaintiffs and an MPD officer stationed at one of the blocked exits. Opp'n Mot. Dismiss at 4. The Court was not able to access the link, which is no longer active. But based on excerpts from the video quoted in the opposition (the accuracy of which the Court accepts), plaintiff "Kelly" (presumably, Allen Kelly or Bonnie Kelly) asked the officer: "Is there another way in [to D.C.] other than this exit?" Id. The officer is said to have replied: "There is absolutely not—not with your commercial vehicles." Id. Plaintiffs suggest that this interaction reasonably led them to believe "there [was] no means by which the District [could] be accessed." Id. at 5.
While the Court may look to materials outside the complaint in assessing standing, Garnett v. Zeilinger, 323 F. Supp. 3d 58, 65 (D.D.C. 2018), the appropriate way of putting evidence before the court in this context is through a sworn declaration. See, e.g., Ctr. for Biological Diversity v. U.S. Int'l Dev. Fin. Corp., 585 F. Supp. 3d 63, 70 (D.D.C. 2022) (noting that courts can consider "declarations or affidavits provided by a plaintiff to support standing"). Plaintiffs have not submitted a declaration explaining the relevant facts surrounding the video clip, such as when it was shot and whether any plaintiff—beside Mr. or Ms. Kelly—heard or was otherwise made aware of what the officer said. Moreover, the government cites excerpts from other parts of the same clip (the accuracy of which the Court also accepts) where another officer states that travelers were simply unable to enter the city driving commercial trucks using a specific route. Reply Mot. Dismiss at 5. At another stage of the video, an officer is said to have advised drivers that they could enter the city in RVs and four-wheeled trucks, just not in commercial trucks. Id. Given the lack of a sworn declaration and the parties' citations to apparently conflicting segments of the video clip, as well as the fact that the Court cannot access the inactive link provided by plaintiffs, the Court declines to consider the video for purposes of this motion.
Considering just the complaint allegations, then, the Court cannot reasonably infer that plaintiffs' generally alleged First Amendment injury is fairly traceable to MPD's blockage of three routes in anticipation of the larger People's Convoy. Plaintiffs therefore have not established standing.
Plaintiffs also lack standing to seek prospective relief on their First Amendment claim because the complaint fails to plead "an ongoing injury" or an "immediate threat of injury." Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). The complaint baldly alleges that the District continues to deny plaintiffs access to the city and that, absent an injunction, they would continue to suffer irreparable harm. Compl. ¶¶ 35, 49, 109 (emphasis added). But plaintiffs do not express any intent to return to the District imminently, nor do they suggest that the police would restore any roadblocks were they to do so. Intentions to return "some day" without a "description of concrete plans, or indeed even any specification of when the some day will be" are insufficient for standing. Dearth, 641 F.3d at 503 (citing Lujan, 504 U.S. at 564, 112 S.Ct. 2130) (cleaned up). Plaintiffs thus lack standing for prospective relief. See Valentine v. Wash. Nat'ls Baseball Club, LLC, No. CV 22-1299 (TJK), 2023 WL 346099, at *4 (D.D.C. Jan. 20, 2023) (holding that "allegations that Defendants could reinstate" a mask policy failed to show "immediate threat of injury" (emphasis added)); cf. A.N.S.W.E.R. Coal. v. Kempthorne, 493 F. Supp. 2d 34, 45 (D.D.C. 2007) (finding an allegation of future injury where plaintiff had concrete plans to demonstrate on a specific date (emphasis added)).
There is also another legal deficiency in the present complaint: It does not allege a violation of the right to interstate travel, which is one of the bases for the due process claim in Count One and the § 1983 claim in Count Four. Compl. ¶¶ 32, 35, 42, 105. As discussed above, plaintiffs do not allege that they were impeded from entering the District altogether, only that their access on commercial vehicles was obstructed along certain routes. Yet, there is no right to travel interstate via truck. As numerous courts have held, an "incidental restriction on [a] single [ ] mode of transportation does not implicate the constitutional right to travel." Robinson v. Huerta, 123 F. Supp. 3d 30, 45 (D.D.C. 2015) (noting that "right to travel" did not encompass "a right to pilot an individual's aircraft of choice") (collecting cases). Moreover, as noted above, plaintiffs appear to have entered the District while on Interstate 695, contradicting their claim that the District prohibited interstate travel.
Finding that plaintiffs have not pled sufficient facts to establish causation of their free speech injury, nor asserted a cognizable infringement on their right to interstate travel, the Court will dismiss the complaint without prejudice. Should they wish to, plaintiffs may file an amended complaint, accompanied by any necessary supporting declarations, within 30 days of the issuance of this ruling. If no amendment is forthcoming, the dismissal will be with prejudice.
III. Conclusion
For these reasons, it is hereby
ORDERED that [11] Defendant's Motion to Dismiss the complaint is GRANTED without prejudice to the refiling of an amended complaint. It is further
ORDERED that Plaintiffs file any amended complaint by April 26, 2023.
SO ORDERED.