Benham v. City of Jackson

ORDER

HENRY T. WINGATE, UNITED STATES DISTRICT COURT JUDGE

BEFORE THIS COURT is the Motion to Dismiss as Moot [Docket no. 34] filed by Defendants City of Jackson, Mississippi (“the City”) and James E. Davis, Chief of Police for the Jackson, Mississippi Police Department (“Davis”) (hereinafter collectively referred to as “Defendants”). Defendants filed their motion under the auspices of Federal Rule of Civil Procedure 12(b)(6)^[1], alleging that a changed circumstance has rendered moot Plaintiff Philip Benham's (“Plaintiff” or “Benham”) Verified Complaint [Docket no. 1] and Petition for Preliminary Injunction [Docket no. 4].

Plaintiff's causes of action include a First Amendment^[2] violation and a Fourteenth Amendment^[3] violation under Title 42 U.S.C. § 1983^[4]. Plaintiff has further requested declaratory

relief under the authority of Title 28 U.S.C. §§ 2201^[5] and 2202^[6]. The gravamen of Benham's lawsuit is whether certain recently adopted City Ordinances unconstitutionally prevent anti-abortion demonstrators from voicing their opposition to abortions at Mississippi's only abortion clinic.

Plaintiff opposes the Defendants' motion to dismiss, arguing that the changed circumstance^[7] does not preclude this court from granting his requested relief for injunctive relief and nominal damages. Plaintiff contends further that, even if his request for injunctive relief is moot, he still has standing to maintain this suit based solely on his request for nominal damages.

This court has reviewed thoroughly the submissions of the parties and the relevant jurisprudence. Upon concluding its analysis, this court finds that it must GRANT the Defendants' Motion to Dismiss as Moot [Docket no. 34] for the reasons following.

I. PERTINENT FACTS

Benham is an Evangelical Christian and traveling missionary who believes that sharing his religious views is an important part of exercising his faith. Benham is the former leader of Operation Save America, a faith-based anti-abortion advocacy group. In furtherance of his anti-abortion religious views, Benham engages routinely in sidewalk protests on public accessways bordering abortion clinics throughout the United States of America. As part of their protests, Benham and his supporters display signage with controversial messaging and pass out religious literature with “a gospel message and abortion facts.” Benham also attempts to engage individuals in conversation or debate on the topic of abortion, often utilizing a voice amplification device to do so.

According to Benham, he intended to travel to the City of Jackson, Mississippi in 2020 to protest outside of the Jackson Women's Health Organization (hereinafter referred to as “JWHO”), the only abortion clinic in the State of Mississippi. Benham contends that he has visited the JWHO location on numerous previous occasions^[8] to share his pro-life views on public sidewalks outside the clinic, and that “in mapping out his schedule for 2020”, he “specifically plan[ned] to travel to Jackson and share [his] pro-life message outside the JWHO while there”. [Docket no. 4-1, p. 9].

On October 1, 2019, before Benham's planned trip to Jackson, Mississippi, actually materialized, the City, through its City Council, passed a series of ordinances, §§ 86-401, et seq (hereinafter referred to collectively as the “Ordinances”). The Ordinances, entitled “Prohibiting Certain Activities Near Health Care Facilities”, banned three (3) forms of action around any health care facility^[9], as follows:

(1) Persons are prohibited from approaching other persons to protest or engage in conversation with that person within one hundred (100) feet of the entrance to any health care facility closer than eight (8) feet without consent of that person. See Jackson, Miss., Code § 86-403; (2) Persons are also prohibited from protesting within fifteen (15) feet of the entrance of any health care facility. See § Jackson, Miss., Code 86-404; and (3) Persons are prohibited from shouting or using voice amplification devices within one hundred (100) feet of the entrance to any health care facility. See Jackson, Miss., Code § 86-405.

The Ordinances were to be enforceable only during the operating hours of a health care facility. See Jackson, Miss., Code § 86-406. Violation of the Ordinances amounted to a misdemeanor “punishable by a fine of not more than $1, 000.00, or by imprisonment for not more than 90 days, or both.” See Jackson, Miss., Code § 86-409.

Benham's Complaint alleges that the City's insistence on enforcing the Ordinances chilled his speech activities and deterred him from traveling to Jackson, Mississippi to protest outside the JWHO.

Aggrieved, Benham filed suit against the Defendants, alleging a pre-enforcement facial challenge to the Ordinances, arguing that he intends to engage in the exact, now-criminalized conduct that the Ordinances expressly prohibit.

II. PROCEDURAL HISTORY

On December 11, 2019, Benham filed his Verified Complaint against the Defendants, seeking declaratory and injunctive relief, as well as nominal damages.

The following are excerpts from Benham's Verified Complaint [Docket no. 1]:

76. As he has done on a regular basis in the past, Benham wants to go back to the public sidewalks next to the parking lot entrance of JWHO and share his life-affirming message, but § 86-401, et seq, prevents him from conveying his views to his desired audience in a number of overlapping ways, effectively censoring his pro-life message.

89. Benham ardently desires to return to the public sidewalks and streets outside of the JWHO abortion clinic, but he is presently chilled and deterred from returning to the area and sharing his views due to the passage of § 86-401, et seq. If he complies with the ordinance, his speech would be ineffective and fruitless. But if he does not comply, he would subject himself to criminal sanction and arrest.

Contemporaneously with his Complaint, Benham filed a Motion for Preliminary Injunction, requesting this court enjoin the City from enforcing City Ordinance § 86-401, et seq. against him. Benham served the Defendants on December 11, 2019. They answered the Complaint on January 7, 2020 and submitted their response to Benham's Motion for a Preliminary Injunction on January 11, 2020.

This court, on April 23, 2020, set a hearing date on the motion for preliminary injunction, ordering the parties to brief whether Benham possessed standing to bring his lawsuit. On May 3, 2020, the parties filed their supplemental briefs. Benham further filed an affidavit as on that day, confirming his planned intentions to engage in activities proscribed by § 86-401, et. seq. in 2020. Benham's Affidavit [Docket no. 23-1], filed well after this lawsuit had commenced, stated the following:

I want to return to the JWHO clinic this year of 2020 and have made plans to go there this year. I still have plans to visit this year, even with travel-related concerns surrounding the COVID-19 pandemic. Though I initially thought I would go in the summer, I now plan to go to Jackson and visit JWHO during the second week of September this year. I have it marked down on my calendar and have made specific plans to visit at that time.

On May 6, 2020, this court held an in-person hearing on Benham's motion for preliminary injunction. During that hearing, this court acknowledged receipt of the supplemental briefing, heard oral arguments, and granted the parties permission to submit additional legal authority.

This court also announced its interest in conducting an outside-site visit at the JWHO, since the Ordinances proscribed specific activities at various distances around the clinic. The parties did not object to the site visit; so, the court and the parties conducted the site visit on June 8, 2020. During this site visit by the court and the parties, this court took a number of photographs of the areas and distances under consideration on account of the Ordinances' prohibitions. This court, thereafter, held a telephone conference with the parties to determine if anyone had objections to the photographs. The parties expressed no objections.

On October 20, 2020, this court entered a Text Order announcing that it soon would issue a ruling on the pending motion for preliminary injunction. Taking note of Benham's alleged intention to come to Jackson, Mississippi, to engage in activity that would subject him to criminal punishment, this court sought to enter a ruling as soon as practicable.

On November 6, 2020, this court emailed the parties and explained that it had to alter the timing of the ruling on the preliminary injunction due to staff illness and that it would issue either a bench opinion or written opinion on November 11, 2020. On November 10, 2020, the day before the scheduled ruling, this court notified the parties that it had to delay its ruling on the

motion because the scheduled time fell on Veteran's Day, a federal holiday. This court rescheduled the telephone conference for the next, day, November 12, 2020, to render, orally, its ruling.

On Thursday, November 12, 2020, this court issued its ruling on the motion for preliminary injunction by reading its bench opinion to the parties. Because of a scheduling discrepancy, no court reporter was available to transcribe the telephonic proceeding; however, in view of the previous delays, this court decided to issue its ruling as scheduled. No party objected.

The court's bench opinion provided, as follows: this court orally granted Benham's Preliminary Injunction Motion and enjoined the...