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Kenny v. Wilson

United States Court of Appeals, Fourth Circuit

March 15, 2018

NIYA KENNY, on behalf of herself and all others similarly situated; TAUREAN NESMITH, on behalf of himself and all others similarly situated; GIRLS ROCK CHARLESTON INC, on behalf of themselves and all others similarly situated; D.S., by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated; S.P., by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated, Plaintiffs-Appellants,
v.
ALAN WILSON, in his official capacity as Attorney General of South Carolina, on behalf of himself and others similarly situated; J. ALTON CANNON, JR., in his official capacity as the Sheriff of Charleston County, SC; on behalf of himself and others similarly situated; GREGORY G. MULLEN, in his official capacity as the Chief of the Police Department of the City of Charleston, SC; on behalf of himself and others similarly situated; EDDIE DRIGGERS, JR., in his official capacity as the Chief of the Police Department of the City of North Charleston, SC; on behalf of himself and others similarly situated; CARL RITCHIE, in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself and others similarly situated; LEON LOTT, in his official capacity as the Sheriff of Richland County, SC; on behalf of himself and others similarly situated; W.H. HOLBROOK, in his official capacity as the Chief of the Police Department of the City of Columbia, SC; on behalf of himself and others similarly situated; STEVE LOFTIS, in his official capacity as the Sheriff of Greenville County, SC; on behalf of himself and others similarly situated; KEN MILLER, in his official capacity as the Chief of the Police Department of the City of Greenville, SC; on behalf of himself and others similarly situated; LANCE CROWE, in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; on behalf of himself and others similarly situated; MICHAEL D. HANSHAW, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of himself and others similarly situated; M. BRYAN TURNER, in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; on behalf of himself and others similarly situated; DAN REYNOLDS, in his official capacity as the Chief of the Police Department of the City of Greer, SC; on behalf of himself and others similarly situated; A. KEITH MORTON, in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of himself and others similarly situated, Defendants - Appellees.

          Argued: December 6, 2017

         Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, Senior District Judge. (2:16-cv-02794-CWH)

         ARGUED:

          Sarah Hinger, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York, for Appellants.

          James Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina for Appellees Alan Wilson, M. Bryan Turner, and A. Keith Morton; Sandra J. Senn, SENN LEGAL, LLC, Charleston, South Carolina, for Appellees J. Alton Cannon, Jr., Gregory G. Mullen, and Eddie Driggers, Jr.

         ON BRIEF:

          Dennis D. Parker, Lenora M. Lapidus, Galen L. Sherwin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York; Susan K. Dunn, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA, Charleston, South Carolina, for Appellants.

          Alan Wilson, Attorney General, Robert D. Cook, Solicitor General, Columbia, South Carolina, for Appellees Alan Wilson, M. Bryan Turner, Lance Crowe, A. Keith Morton and Michael D. Hanshaw.

          W. Michael Hemlepp, Jr., CITY OF COLUMBIA ATTORNEY'S OFFICE, Columbia, South Carolina, for Appellee W.H. Holbrook.

          Anne R. Culbreath, WILLSON JONES CARTER AND BAXLEY, Greenville, South Carolina, for Appellee Steve Loftis.

          Michael S. Pitts, Logan M. Wells, CITY OF GREENVILLE, OFFICE OF THE CITY ATTORNEY, Greenville, South Carolina, for Appellee Ken Miller.

          Andrew F. Lindemann, DAVIDSON AND LINDEMANN PA, Columbia, South Carolina, for Appellee Carl Ritchie.

          Robert D. Garfield, Steven R. Spreeuwers, DAVIDSON and LINDEMANN PA, Columbia, South Carolina, for Appellee Leon Lott.

          Before DUNCAN and DIAZ, Circuit Judges, and Paula XINIS, United States District Judge for the District of Maryland, sitting by designation.

          DIAZ, Circuit Judge:

         In this case, a group of former and current South Carolina students and a nonprofit organization filed suit under 42 U.S.C. § 1983 challenging S.C. Code Ann. § 16-17-420 (the "Disturbing Schools Law") and S.C. Code Ann. § 16-17-530 (the "Disorderly Conduct Law") as unconstitutionally vague. The district court dismissed the complaint for lack of standing. It reasoned that plaintiffs' fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact.

         But at least some of the named plaintiffs do not rely on conjecture or speculation, but rather, on the fact that they attend school where they were previously arrested and criminally charged under the two South Carolina statutes, and they don't know which of their actions at school will be interpreted to violate the statutes in the future. Further, plaintiffs allege that the two laws chill their exercise of free expression, forcing them to refrain from exercising their constitutional rights or to do so at the risk of arrest and prosecution. In our view, that is sufficient to plead both a future and ongoing injury in fact. We therefore vacate the district court's judgment and remand for further proceedings.

         I.

         Before turning to the merits, we set out the relevant statutes. We then describe the plaintiffs involved, the allegations of the complaint, and the basis for the district court's decision.

         A.

The Disturbing Schools Law, which all plaintiffs challenge, states:
(A) It shall be unlawful:
(1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or
(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the ...

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