UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) RAYMING CHANG, et al., ) ) Plaintiffs, ) ) v. ) Civ. Action No. 02-2010 (EGS) ) UNITED STATES, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Pending before the Court is [574] Defendant District of

Columbia’s (the “District”) motion for partial summary judgment

on plaintiffs’ claims for all equitable relief other than the

expungement of their individual arrest records. The District

moves for summary judgment on two alternative grounds. First,

the District argues plaintiffs lack standing to seek prospective

injunctive relief. Second, defendant claims plaintiffs are

unable to seek this relief because they are bound by the proposed

class settlement in the related case of Barham v. Ramsey, Civ.

Action No. 02-2283 (“Barham”). On September 8, 2010, the Court

ruled on the record in open court that plaintiffs were not bound

by any of the provisions of the Barham class settlement. This

Memorandum Opinion, therefore, addresses the remaining issue in

the District’s motion for partial summary judgment: whether

plaintiffs have Article III standing to seek equitable relief.

Upon consideration of the motion, the response and reply thereto, the parties’ supplemental briefing, the arguments of counsel at

the September 8, 2010 motions hearing, the applicable law, the

entire record, and for the reasons set forth below, the

District’s motion for partial summary judgment is GRANTED.

I. BACKGROUND

This case is one of several which arose from events on

September 27, 2002, during demonstrations in the District of

Columbia protesting the policies of the World Bank, the

International Monetary Fund, and the United States government.

Chang Third Am. Compl. ¶¶ 42-43, 46.1 On that date, plaintiffs,

seven students from George Washington University, were among the

approximately 400 people arrested at or near a demonstration

taking place in General John Pershing Park (“Pershing Park”),

located on Pennsylvania Avenue, N.W., between 14th and 15th

Streets, N.W. Third Am. Compl. ¶¶ 20-27, 75-82. Plaintiffs were

present at Pershing Park either as observers for the National

Lawyers Guild or as journalists or photographers for The Hatchet,

a George Washington University student newspaper. Third Am.

Compl. ¶¶ 15, 18, 75-82. Plaintiffs allege that they were not

engaged in any unlawful activity. Third Am. Compl. ¶¶ 75-82.

1 Plaintiffs filed their Third Amended Complaint on July 19, 2005. Doc. No. 153. Plaintiffs moved for leave to file a fourth amended complaint late in 2009; however, in June 2010 they moved to stay their motion pending finalization of ongoing special master proceedings and resolution of sanctions issues. See Doc. No. 572; Minute Order June 7, 2010. Accordingly, the Third Amended Complaint is still operative.

2 Nevertheless, police officers surrounded them and hundreds of

others in Pershing Park, gave them no warning or order to

disperse, and arrested them. Third Am. Compl. ¶¶ 76-82; see also

Barham v. Ramsey,

(D.C. Cir. 2006) (finding

that police gave no order to disperse, did not warn persons in

Pershing Park that arrest was imminent, cordoned off the park,

and arrested 386 people inside). Plaintiffs allege they were

subsequently handcuffed, held on buses for up to 13 hours, and

later detained at the Metropolitan Police Academy for up to 18

hours with one wrist cuffed to the opposite ankle. Third Am.

Compl. ¶¶ 93-99.

Hundreds of other individuals were arrested and detained at

various locations in the city during the September 27, 2002

protests, and several lawsuits followed. In addition to the

Chang case, this Court presided over Abbate v. Ramsey, Civ.

Action No. 03-767; Barham v. Ramsey, Civ. Action No. 02-2283; and

Jones v. Dist. of Columbia, Civ. Action No. 02-2310, all stemming

from arrests on that day. On September 24, 2003, this Court

issued an Opinion and Order certifying a class action in the

Barham case and acceding to the Chang, Jones, and Abbate

plaintiffs’ requests that they be permitted to opt out of the

Barham class.

In the ensuing years, the plaintiffs in these other cases

have settled their claims with the District. The Jones

3 plaintiffs settled in 2004. See Jones, Civ. Action No. 02-2310,

Doc. Nos. 36, 40. The Abbate plaintiffs settled in January 2005.

The Abbate settlement provides for monetary relief as well as

equitable relief including, inter alia, revisions to the

District’s mass demonstration policing policies and practices.

See Abbate, Civ. Action No. 03-767, Doc. No. 99. The Barham

class reached a settlement agreement with the District in

February 2010, which was preliminarily approved by this Court on

March 30, 2010. See Barham, Civ. Action No. 02-2283, Doc. Nos.

595, 599. Among the equitable relief negotiated in the Barham

settlement is the District’s creation and implementation of a

document management and retention system, which is intended to

“ensure the preservation of records and documents arising from

mass demonstrations and protests[.]” Barham, Civ. Action No. 02-

2283, Settlement Agreement, Doc. No. 595-3 at 9.

There have been other changes impacting police policies and

procedures during mass demonstrations over the last eight years

as well. In 2005, the District of Columbia City Council passed

the First Amendment Rights and Police Standards Act (“FARPSA”).

See

, et seq. FARPSA includes provisions

which (1) require the police to give clear and audible warnings

to disperse at future protests and provide opportunities to exit

protest areas; (2) prohibit arrest for parading or demonstrating

without a permit; (3) prohibit wrist-to-ankle restraint of

4 persons arrested in connection with a First Amendment assembly;

and (4) require that persons arrested in connection with a First

Amendment assembly be released within four hours. See

Finally, in June 2010 another federal judge approved a class

action settlement in an additional protest case, Becker v. Dist.

of Columbia, Civ. Action No. 01-811. The Becker settlement also

contains equitable relief provisions, including mandatory

training for all District police regarding First Amendment

assemblies and mass demonstrations. See Becker v. Dist. of

Columbia, Civ. Action No. 01-811, Doc. No. 358-5 at 8-10.

In sum, while the other mass demonstration actions against

the District have settled, the Chang case continues. The

plaintiffs do not and never have sought preliminary injunctive

relief; instead, they seek permanent injunctive relief,

declaratory relief, and damages. Only the requests for

declaratory and injunctive relief, not including the expungement

of plaintiffs’ individual arrest records, are at issue in this

motion.2 Plaintiffs’ requests for relief include: (1) an order

2 The District does not move for summary judgment on plaintiffs’ claims for monetary damages. In addition, the Court granted expungement of the Chang plaintiffs’ arrest records in 2008. Specifically, the Court ordered that “[t]he arrests of the Chang Plaintiffs on September 27, 2002 are hereby declared null and void. Each of the Chang Plaintiffs are authorized to deny the occurrence of his or her arrest that day, without being subject to any penalty of perjury, fraud or other offense premised upon misrepresentation or deception in response to any query, whether posed orally or in writing[.]” See Doc. No. 381.

5 declaring that the arrest and confinement procedures utilized are

unconstitutional; and, (2) a requirement that clear and audible

warnings to disperse be given at future protests, with

opportunities for individuals to exit areas of protest. See

Third Am. Compl., Prayer for Relief ¶¶ a, b. Elsewhere in their

complaint, plaintiffs seek injunctive relief “to protect the

plaintiffs and the public from the policy, custom and/or practice

of using excessive force to prevent individuals from leaving

trap-and-arrest zones,” and “to protect the plaintiffs and the

public from a policy, custom and/or practice of keeping arrested

individuals in restraints or handcuffed for excessive periods[.]”

Third Am. Compl. ¶¶ 3-4. In their opposition to the District’s

motion for partial summary judgment, plaintiffs describe the

relief they seek as “a consent decree that would provide an

enforcement mechanism for illegal arrest practices.” Pls.’ Opp’n

at 22-23.

Since the commencement of the lawsuit, plaintiffs’ numbers

have dwindled to four. See Doc. No. 147 (dismissing plaintiff

Enright’s claims against the District); Doc. No. 190 (reflecting

the acceptance of the District’s offer of judgment by plaintiffs

Chastain and Young); Minute Order April 4, 2006 (entering

judgment on the claims of Chastain, Young, and Enright against

the District); Minute Order May 10, 2006 (granting the motion of

plaintiffs’ counsel to withdraw as counsel for Chastain, Young,

6 and Enright). In December 2009, the District filed a motion for

partial summary judgment regarding the remaining plaintiffs’

claims for prospective injunctive and equitable relief. The

parties conducted limited additional briefing and presented oral

argument in early September 2010. The District’s motion is now

ripe for determination by the Court.

II. STANDARD OF REVIEW

The standards for summary judgment motions regarding

standing are the same as the standards for summary judgment

motions generally. See Lujan v. Defenders of Wildlife,

(1992)(“Since [the elements of standing] are not mere

pleading requirements but rather an indispensable part of the

plaintiff’s case, each element must be supported in the same way

as any other matter on which the plaintiff bears the burden of

proof, i.e., with the manner and degree of evidence required at

the successive stages of the litigation.”)

Under Federal Rule of Civil Procedure 56, a motion for

summary judgment shall be granted if the pleadings, depositions,

answers to interrogatories, admissions on file and affidavits

show that there is no genuine issue of material fact, and that

the moving party is entitled to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc.,

(1986).

Summary judgment must be entered “against a party who fails to

make a showing sufficient to establish the existence of an

7 element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v.

Catrett,

(1986). The Celotex court explained:

In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

at 322-23 (quoting Fed. R. Civ. P. 56(c)).

III. ANALYSIS

Defendant argues that the four remaining plaintiffs lack

standing to seek prospective injunctive and declaratory relief

because they cannot show a real and immediate danger that they

will be subjected to the challenged conduct in the future. See

Def.’s Mem. at 1-4; Def.’s Reply at 6-19. Plaintiffs make two

substantive arguments in support of standing.3 First, plaintiffs

3 Plaintiffs also make an argument which can be characterized as procedural: they claim it is unnecessary for the Court to decide whether they have standing at this point in the litigation. Plaintiffs make two contradictory arguments on this point. First, they claim that the Court has already decided they have standing, and that this decision should be considered law of the case. Inexplicably, they then argue the opposite position and claim it would be premature for the Court to decide whether plaintiffs are entitled to equitable relief now ; instead, the Court should wait until after trial. Compare Pls.’ Opp’n at 5-10 (claiming the Court has already found plaintiffs have standing) with Pls.’ Opp’n at 28-31 (claiming “the Court is not required to address standing at this stage of the litigation”). Neither argument has merit. First, the Court has never addressed, much less decided, the standing issue. Standing arose

8 claim there is a genuine issue of material fact as to whether the

District continues to have a policy of permitting illegal mass

arrests which remains in place. See Pls.’ Opp’n at 12-24.

Second, they claim there is a genuine issue of material fact that

they, personally, face a real and immediate threat of being

subjected to this policy in the future. See Pls.’ Opp’n at 25-

27.

After careful consideration, and for the reasons set forth

below, the Court concludes that the four remaining plaintiffs

have not demonstrated that they are likely to suffer the same

injury again. Plaintiffs’ arguments regarding ongoing District

in two motions at the outset of this litigation, both of which were denied without opinion and without prejudice in order to move forward with other matters in this case as well as the other protest cases described above. See Minute Order Sept. 29, 2003 and Doc. No. 68. Assuming arguendo that the Court had decided the standing issue, such decisions are not law of the case - the doctrine does not apply to interlocutory orders such as the ones on which plaintiffs rely. See Langevine v. Dist. of Columbia,

(D.C. Cir. 1997) (interlocutory decisions not law of the case). The Court also rejects plaintiffs’ second procedural argument: that the Court should wait to decide if plaintiffs have standing to seek equitable relief until after trial. Standing is “an essential and unchanging predicate to any exercise” of the Court’s jurisdiction. Florida Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996) (quoting Lujan,

). Accordingly, the Court is obligated to satisfy itself that it has jurisdiction over plaintiffs’ claims for equitable relief. See, e.g., Davis v. Fed. Election Comm’n,

(2008) (“Standing is not dispensed in gross. Rather, a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought[.]” (quotations and citations omitted)); City of Los Angeles v. Lyons,

(1983) (ruling plaintiff had standing to pursue claims for damages but not for prospective equitable relief).

9 policy are simply not determinative: without evidence that these

plaintiffs, personally, are likely to be subjected to that policy

again, they cannot meet the standing requirements for prospective

relief. Accordingly, the District’s motion for partial summary

judgment is hereby GRANTED.

A. Constitutional Standing Requirements

In order to meet the “irreducible constitutional minimum of

standing,” a plaintiff must establish three elements. Lujan,

. Specifically, a plaintiff must demonstrate that (1) he

or she has suffered an injury in fact; (2) the injury is

traceable to the defendant’s conduct; and (3) a federal court

decision is likely to redress the injury. See Northeastern

Florida Contractors v. City of Jacksonville,

(1993).

Plaintiffs seeking injunctive relief must establish a fourth

element to have standing. They must show a “real and immediate

threat of repeated injury” demonstrated by more than “past

exposure to illegal conduct.” City of Los Angeles v. Lyons,

(quoting O’Shea v. Littleton,

(1974)). Unless a plaintiff can show he is “realistically

threatened by a repetition of his experience [giving rise to the

injury] . . . he has not met the requirements for seeking an

injunction in federal court[.]” Id. at 109.

10 The parties agree that Lyons controls plaintiffs’ request

for equitable relief. See Def.’s Mem. at 2; Pls.’ Supplemental

Submission at 6. In Lyons, plaintiff alleged that he was stopped

by the police, seized without provocation and put in a chokehold

which caused him to lose consciousness and suffer permanent

damage to his larynx.

-98. He sought both damages

and an injunction barring the city from using chokeholds except

in limited circumstances. Id. The Supreme Court found that Mr.

Lyons’ standing to seek prospective injunctive relief depended on

“whether he was likely to suffer future injury from the use of

chokeholds by police officers.” Id. at 105. In support of his

claim of standing, Mr. Lyons asserted that (1) he had been choked

in the past; (2) city police regularly and routinely apply

chokeholds with no provocation; (3) there had been at least 15

chokehold-related deaths; and (4) he “justifiably fear[ed] that

any contact he ha[d] with Los Angeles police officers may result

in his being choked[.]” Id. at 98. After consideration of these

assertions, the Court concluded that plaintiff had failed to

establish standing for prospective equitable relief. Id. at 108-

109.

The Lyons court set forth several reasons in support of its

determination that Mr. Lyons’ allegations regarding the

likelihood of a future encounter with the police were too remote

to show standing. First, the Court noted, Mr. Lyons could not

11 have standing for injunctive relief unless he could show a

likelihood of future injury to himself as an individual. See id.

at 107-08 (citing Rizzo v. Goode,

(1976); O’Shea v.

Littleton,

(1974)). Accordingly, whether other

people might be victims of an unconstitutional chokehold in the

future was irrelevant to the standing inquiry if the evidence

provided by Mr. Lyons gave rise to “no more than speculation . .

. that Lyons himself will again be subjected to one of these

unfortunate instances.” Id. at 108 (emphasis added).

Similarly, the Court found that Mr. Lyons could not

establish standing based solely on evidence of a police practice

of applying chokeholds absent evidence that he himself was likely

to again be subject to that policy. See id. at 109 (“Lack of

standing does not rest on the termination of the police practice

but on the speculative nature of his claim that he will again

experience injury as the result of that practice even if

continued.”).

Finally, the Court found that the evidence plaintiff

provided regarding the likelihood that he would again be placed

in a chokehold did not support standing. Specifically, the Court

found that this likelihood rested on contingent events occurring

at some time in the future: namely, that plaintiff himself would

again be stopped by the police and would again be choked without

any provocation or legal excuse. See id. at 106, 106 n.7. The

12 Court found this combination of events too speculative to support

standing for injunctive relief. Id.; see also, e.g., United

Transp. Union v. Interstate Commerce Comm’n,

(D.C. Cir. 1989) (“[W]hen considering any chain of allegations

for standing purposes, we may reject as overly speculative those

links which are predictions of future events (especially future

actions to be taken by third parties) and those which predict a

future injury that will result from present or ongoing

actions[.]”).

B. Plaintiffs Have Not Established a Genuine Issue of Material Fact that They Would Suffer Repeated Injury

Defendants argue that, as in Lyons, plaintiffs here have not

established that they, personally, are likely to again be subject

to the same conduct.4 As a threshold matter, plaintiffs largely

ignore this personal injury requirement and focus almost

exclusively on whether the District had a policy of permitting

illegal mass arrests, and whether that policy remains in place.

4 The exact standard for judging likelihood of future injury is unresolved in this Circuit. See Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp.,

(D.C. Cir. 1994) (noting that standard for future injury has been formulated as “likely,” “fairly probable,” and “certainly impending,” among others) (citations omitted), see also Haase v. Sessions,

(D.C. Cir. 1987) (“real and immediate” or “realistic”) (citations omitted). For the purposes of consistency, the Court will use the term “likely” or “likelihood” here; however, this is not meant as an endorsement of one standard over another. As discussed throughout, plaintiffs cannot establish standing under any of the above formulations.

13 The Court finds plaintiffs’ discussions of the District’s

purported mass arrest policy to be largely misplaced. Even

assuming that plaintiffs have demonstrated a genuine issue of

material fact with respect to a prior and/or ongoing policy, that

is insufficient, without more, to demonstrate standing. As

discussed above, Lyons and its progeny clearly hold that,

regardless of the existence of an unlawful policy, a plaintiff

must show that he is sufficiently likely to be personally

subjected to the challenged conduct again in order to have

standing. See Lyons,

(even assuming illegal

policy exists, plaintiff cannot establish likelihood that he will

again experience injury as a result; accordingly, “he is no more

entitled to an injunction than any other citizen of Los

Angeles”); Haase v. Sessions,

(“plaintiffs must

not only demonstrate [a policy’s] existence but that they are

likely to be subjected to the policy again”); cf. Friends of the

Earth v. Laidlaw,

(2000) (if plaintiff can

establish that he is likely to experience future injury at the

time the lawsuit is filed, he has standing regardless of whether

the defendant has ceased its practice or policy since the suit

was filed). The existence of a policy, by itself, therefore,

cannot substitute for a showing that a plaintiff faces a real

threat that the policy will again be applied to him.

14 For the reasons discussed below, the Court finds that the

four remaining plaintiffs in this case fail to make this crucial

showing. Specifically, plaintiffs fail to create a genuine issue

of material fact that they, personally, face a likelihood of

additional injury similar to that alleged in their complaint.5

In their opposition to the motion for partial summary judgment,

plaintiffs provide a declaration from only one of the remaining

plaintiffs, Chris Zarconi. Mr. Zarconi provides no information

regarding his actions in 2002; his affidavit focuses solely on

his life in 2010. He alleges that he “has worked, in addition to

other jobs, as a professional photographer in the District of

Columbia.” Ex. 14 to Pls.’ Opp’n, Declaration of Christopher

Zarconi ¶ 3 (“Zarconi Decl.”). He states that he is “often

required to photograph events that take place throughout the

District . . . very often these events occur at or near the

5 In their pleadings and at oral argument, both parties focused almost exclusively on events that have occurred since the lawsuit was filed. See, e.g., Def.’s Mem. at 3-4; Pls.’ Opp’n at 15-25; Def.’s Reply at 6-19. The Court is not persuaded that standing analysis should take into account, much less rest on events subsequent to the filing of the lawsuit. See, e.g., Davis,

(“while the proof required to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed” (citing Laidlaw,

; Arizonans for Official English v. Arizona,

(1997))). However, as set forth herein, the Court concludes plaintiffs have failed to create a genuine issue of material fact that they had standing to seek prospective injunctive relief at any point in time, including when the suit was filed. It is therefore unnecessary to examine this issue further.

15 various national monuments or the various parks located

throughout the City.” Zarconi Decl. ¶ 5. He states “if I

observe or am made aware that a newsworthy event is taking place,

I will often seek to take photographs of the event.” Zarconi

Decl. ¶ 6. He then describes one of his current assignments.

I was recently hired to photograph the university view book for The George Washington University. For this job, I will be required to take photographs of 4-6 students over an extended period of time. Each of the students is involved politically, socially, academically, and otherwise with the university and the community extensively. I expect to be out on assignment with them in the early spring [2010] at demonstrations or rallies for causes they support or with which they are involved.

Zarconi Decl. ¶ 7. He concludes: “based on what happened to me

in Pershing Park in September 2002, and what I know about the

lack of true reform instituted by [the District] I think it is

entirely likely that I could be arrested again at a large

demonstration, despite my having committed no unlawful act.”

Zarconi Decl. ¶ 9.

The kinds of assertions offered by Mr. Zarconi have been

rejected by Lyons and its progeny as insufficient to establish

standing. His assertions regarding his presence at additional

demonstrations as a professional photographer require the

occurrence of several contingent, future events: that Mr. Zarconi

will be working as a photographer, that his clients will attend

demonstrations or rallies and ask him to accompany them, and that

he will be trapped and arrested without committing any illegal

16 activity or being afforded an opportunity to disperse.6 This

sequence of hypothetical future events is indistinguishable from

that found insufficient to establish standing in Lyons.

His remaining assertions are similarly deficient. Mr.

Zarconi cannot establish standing to seek an injunction based on

“what happened to me in Pershing Park in 2002,” Zarconi Decl. ¶

9; it is beyond dispute that “past exposure to illegal conduct

does not in itself show a present case or controversy regarding

injunctive relief . . . if unaccompanied by any continuing,

present adverse effects.” Lyons,

(quoting

O’Shea,

). Nor is his assertion that the

District has failed to institute “true reform” since 2002

sufficient to establish standing - again, it is no more than Mr.

Zarconi’s conjecture of future injury resulting from what he

allegedly knows of present or ongoing actions within the police

department. His remaining assertions are vague, unspecified, and

unsupported statements that, when he is aware “newsworthy events”

6 Mr. Zarconi’s one semi-specific reference to future activity – that he “expects” to be “on assignment” in spring 2010 with students “at demonstrations or rallies for causes they support or with which they are involved,” does not establish standing. Zarconi Decl. ¶ 7. Assuming that Mr. Zarconi’s expectation that he will attend unidentified demonstrations or rallies for unidentified causes that unidentified students support or are involved with is sufficiently concrete, the Court declines to find standing because, so far as the Court is aware, this is the first and only such reference to possible repeated injury made by any of the plaintiffs in nearly eight years. Moreover, assuming Mr. Zarconi did attend such events in the spring, they appear to have come and gone without incident.

17 are occurring, he often takes photographs of those events, and

that he “plan[s] to continue to photograph various events” within

the District. Zarconi Decl. ¶¶ 6, 8. These claims are simply

insufficient to survive summary judgment. See Lujan,

(“Such some day intentions, without any description of

concrete plans, or indeed any specification of when the some day

will be - do not support a finding of the actual or imminent

injury that our cases require.” (internal quotations and emphasis

omitted)).

The Court is also troubled that plaintiffs’ entire repeated

injury argument rests on Mr. Zarconi’s affidavit: none of the

other plaintiffs provided an affidavit, declaration, or any other

evidence to show they have standing. Plaintiffs point out that

if standing “can be shown for at least one plaintiff, [the court]

need not consider the standing of other plaintiffs to raise that

claim.” Pls.’ Supplemental Submission at 7 (quoting Mountain

States Legal Found. v. Glickman,

(D.C. Cir.

1996)). While this is undeniably true, in view of the

demonstrated insufficiency of Mr. Zarconi’s claims, the lack of

evidence from any other plaintiff is fatal.

C. The Authority Cited by Plaintiffs Cannot Overcome their Fundamental Failure to Demonstrate a Likelihood of Repeated Injury.

Plaintiffs cite a number of cases from outside this Circuit

where courts have found standing to seek equitable relief, and

18 they urge the Court to apply those cases here. However, the

authority cited by plaintiffs is easily distinguishable from the

facts of this case. First, the vast majority of cases cited by

plaintiffs are class actions. See, e.g., Riggs v. City of

Albequerque,

(10th Cir. 1990) (lawyers, political

activists and politically active organizations subject to

surveillance by Albuquerque police department); Illinois Migrant

Counsel v. Pilliod,

(7th Cir. 1976) (Mexican

migrant agricultural workers in Illinois); Franklin v. Chicago,

(N.D. Ill. 1984) (all persons arrested by Chicago

police and transported in squadrols). Establishing repeated

injury for a class is obviously different than establishing it

for four individuals.

Second, the threat of repeated injury in most of the cases

cited by plaintiffs rested on their status, not on their

behavior. See, e.g., Thomas v. County of Los Angeles,

(9th Cir. 1992)(repeated injury based on race and national

origin); Pilliod,

(persons subject to repeated

injury “simply because they appear to be of Mexican ancestry”);

Nat’l Cong. of Puerto Rican Rights v. City of New York,

(S.D.N.Y. 1999)(repeated injury based on race

and national origin); Maryland State Conference of NAACP Branches

v. Maryland Dept. of State Police,

(D. Md.

1999) (repeated injury based on race and need to drive on

19 Interstate 95). In these cases, the likelihood of repeated

injury did not depend on a series of contingent future events,

including some taken by third parties; it existed by virtue of an

immutable characteristic.

Finally, the type of relief sought by the Chang plaintiffs

is easily distinguishable from the relief at issue in the cases

they cite. In this case, plaintiffs seek, inter alia, “a consent

decree that would provide an enforcement mechanism for illegal

arrest practices.” Pls.’ Opp’n at 22-23. The Supreme Court has

made it clear that this type of relief against a local police

department is strongly disfavored. See, e.g., O’Shea,

(“A major continuing intrusion of the equitable power of

the federal courts into the daily conduct of state criminal

proceedings is in sharp conflict with the principles of equitable

restraint[.]”). By contrast, in many of the cases cited by

plaintiffs, the courts emphasized the narrowness of the relief

requested. See, e.g., LaDuke v. Nelson,

(9th

Cir. 1985) (negative injunction which merely prohibited an

unlawful behavior did not “entangle federal courts in the

operations of state law enforcement and criminal justice

institutions.”); Pilliod,

(requested injunctive

relief was a cease-and-desist order, and did not attempt to

impose “mandatory, comprehensive relief” that would inject the

Court “into the day to day affairs or discretionary authority” of

20 the local government). In sum, the Court cannot conclude that

plaintiffs’ authority is persuasive or that it allows the Court

to disregard the plaintiffs’ failure to prove an element of

standing necessary for the type of relief they seek.

IV. CONCLUSION

For the foregoing reasons, it is hereby ordered that the

District of Columbia’s motion for partial summary judgment is

GRANTED. An appropriate Order accompanies this Memorandum

Opinion.

SIGNED: Emmet G. Sullivan United States District Court Judge September 19, 2010

21