Council on American-Islamic Relations—Minnesota v. Atlas Aegis, LLC

497 F.Supp.3d 371

COUNCIL ON AMERICAN-ISLAMIC RELATIONS—MINNESOTA and League of Women Voters of Minnesota, Plaintiffs,

v.ATLAS AEGIS, LLC, Anthony Caudle, and John Does #1–10, Defendants.

Case No. 20-CV-2195 (NEB/BRT)

United States District Court, D. Minnesota.

Signed October 29, 2020

Amy Elizabeth Erickson, Julia Dayton Klein, Lathrop GPM LLP, Minneapolis, MN, Ben Clements, Pro Hac Vice, John C. Bonifaz, Pro Hac Vice, Ronald Fein, Pro Hac Vice, Free Speech For People, Newton, MA, Debra L. Greenberger, Pro Hac Vice, Jonathan S. Abady, Pro Hac Vice, Matthew Brinckerhoff, Pro Hac Vice, O. Andrew F. Wilson, Pro Hac Vice, Vivake Prasad, Pro Hac Vice, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, New York, NY, for Plaintiffs.

Carol R. M. Moss, Terrance W. Moore, Hellmuth & Johnson PLLC, Edina, MN, for Defendants.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

Nancy E. Brasel, United States District Judge Plaintiffs Council on American-Islamic Relations—Minnesota and League of Women Voters of Minnesota (collectively, the "Voter Organizations") filed this lawsuit seeking to enjoin Atlas Aegis, LLC, Anthony Caudle ("Defendants"), and unknown John Does #1–10¹ from placing armed agents at polling places in Minnesota for the upcoming general election. The Voter Organizations moved for a temporary restraining order and preliminary injunction. (ECF No. 4.) For the following reasons, the Court grants the motion for preliminary injunction.

BACKGROUND

The Voter Organizations are non-profit civic engagement organizations that work, among other things, to get out the vote. (ECF No. 1 ("Compl.") ¶¶ 8–9.) Atlas Aegis, LLC ("Atlas"), is a private security company that provides security services staffed by paramilitary personnel; Anthony Caudle is its chairman. (Id. ¶¶ 10–11.) John Doe 1 is an unknown Minnesota-licensed private security firm that has allegedly contracted with Atlas; John Does 2–10 are several unknown parties, members of a "consortium of business owners and concerned citizens," who hired John Doe 1. (Id. ¶¶ 12–13, 20.)

On October 6, 2020, Atlas created a job posting for former special forces personnel to "protect election polls, local businesses and residences from looting and destruction" in Minnesota. (Id. ¶¶ 14–23.) After the posting went live, Caudle conducted an interview with journalists where he discussed the posting and stated that he was planning to send a "large contingent" of armed agents to Minnesota, and that their goal would be to prevent "antifa" from destroying election sites. (Id. ¶¶ 25–26.) Caudle said that the armed agents would step in if there was "an issue," and that the goal was to prevent a repeat of property damage from protests that occurred in Minneapolis and Saint Paul following the death of George Floyd in May 2020. (Id. ¶¶ 27–28.) After publication of Caudle's interview, many Minnesota elected officials and members of the public criticized the plan. (Id. ¶¶ 32–36.) Caudle, despite this criticism, refused to change Atlas’ plans. The Voter Organizations have since diverted extensive resources to counter the perceived effects of Defendants’ actions. (Id. ¶¶ 50–56.) For example, the Minneapolis City Clerk attests that since news of Caudle's interview and Atlas’ plans broke: residents have expressed distress about security and harassment at polling places; polling site representatives have expressed concern over security, safety, and possible unrest at polling sites; public officials have sought information on the plans for polling site security; and two election judges have withdrawn due to concerns for their safety. (ECF No. 32 ¶ 8.) Likewise, the City of Saint Paul has articulated concern that, if Atlas is not enjoined from sending paramilitary personnel to the polls, voters will be intimidated, particularly because Saint Paul has a large population of minority voters who may be especially likely to be intimidated by Atlas’ armed agents. (ECF No. 24 at 5–7; ECF No. 25-1 at 1–2.)

After this motion was filed, but before the scheduled hearing, Minnesota Attorney General Keith Ellison entered into an Assurance of Discontinuance (the "Assurance") with Atlas (but not Caudle). (ECF No. 37-1 ("Assurance").) In the Assurance, Atlas stated that it had misunderstood the parameters of the request for security and that no party had sought security for the polls on Election Day. (Id. ¶¶ 2–7.) Atlas also admitted that Caudle had spoken incorrectly with the media and stated that its intent was not to intimidate, coerce, or threaten voters. (Id. ¶¶ 7–8.) Atlas said that neither it nor any of its officers or employees were engaged to work in Minnesota in November 2020, nor would they be present in Minnesota in November 2020; Atlas also stated that it was unaware of any groups or individuals that planned to provide election "security" at the polls. (Id. ¶¶ 9–11.) In the Assurance, Atlas (but not Caudle) agreed: (1) not to provide any protective services, as defined by Minnesota statute, from October 22, 2020, through January 1, 2022; (2) not to seek to intimidate voters in Minnesota or elsewhere; and (3) to clarify its job postings that election security was not part of the work. (Id. ¶¶ 13–15.) Atlas also agreed to a stayed $50,000 civil penalty for violations. (Id. ¶ 17.) Atlas did not admit to any wrongdoing or violation of any federal or state statute. (Id. ¶¶ 19–21.)

The Voter Organizations allege that Defendants’ actions have violated and will continue to violate Section 11(b) of the Voting Rights Act of 1965, which prohibits voter intimidation. 52 U.S.C. § 10307(b).

ANALYSIS

The Voter Organizations ask the Court to enjoin Defendants from: (1) deploying armed agents within 2,500 feet of Minnesota polling places or otherwise monitoring Minnesota polling places during the general election; (2) threatening to do so; and (3) intimidating, threatening, or coercing Minnesota voters. (ECF No. 9 at 2.) The Voter Organizations also seek the disclosure of the identities of the John Doe defendants. (Id. )

I. Mootness

At the outset, the Court must determine whether the Assurance in state court moots the request for injunctive relief here. The Court concludes that it does not.

Article III limits the Court's jurisdiction to cases and controversies under the United States Constitution. U.S. Const. Art. III, § 2. A case—or a claim for injunctive relief—is moot (and therefore no longer a case or controversy for Article III purposes) when the issues it presents are no longer "live" or when the parties no longer possess a "legally cognizable interest in the outcome." Teague v. Cooper , 720 F.3d 973, 976 (8th Cir. 2013) (internal quotation omitted).²

A claim for injunctive relief may become moot if challenged conduct permanently ceases. Comfort Lake Ass'n v. Dresel Contracting, Inc. , 138 F.3d 351, 354 (8th Cir. 1998). Generally, when there is no "reasonable expectation that the wrong will be repeated," a claim for injunctive relief is moot. Id. (internal quotation omitted). Although there is a higher standard when the defendant's own voluntary actions have mooted the controversy, such as when the change in the defendant's actions is prompted by the threat of enforcement, the question is whether there is a "realistic prospect that the violations alleged" will continue to occur notwithstanding the enforcement action. Id. at 355 ; Mo. Prot. & Advoc. Servs., Inc. v. Carnahan , 499 F.3d 803, 811 (8th Cir. 2007). "Mere voluntary cessation of a challenged action does not moot a case. Rather, a case becomes moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur." Strutton v. Meade , 668 F.3d 549, 556 (8th Cir. 2012) (internal quotation and citation omitted). In considering the issue of mootness, courts are skeptical of claims of mootness where the defendant "yields in the face of a court order" and argues that the case is moot, but does not admit that the complained-of conduct was unlawful. Hartnett v. Pa. State Educ. Ass'n , 963 F.3d 301, 306 (3d Cir. 2020).

Defendants argue that the Assurance moots the request for injunctive relief because of its breadth: it enjoins Defendants from "doing anything that could be potentially viewed as being voter intimidation" and from being physically present in Minnesota until 2022. (ECF No. 35 at 7.) At argument,³ Defendants asserted that the Assurance bound all Atlas employees, including Caudle,⁴ from seeking to intimidate voters in Minnesota or elsewhere. The Voter Organizations, on the other hand, argued that the Assurance does not necessarily bind Caudle, that his statements should be viewed with skepticism, and that he has not publicly disclaimed his earlier comments.

Here, the Court cannot conclude that Defendants have met their burden to demonstrate mootness. One Defendant, Atlas, has agreed to a certain scope of restrained conduct in an agreement with the Minnesota Attorney General. (Assurance ¶¶ 13–15.) The Assurance does not moot either the controversy before this Court or the Voter Organizations’ request for relief.

First, it is instructive to the Court that Atlas and Caudle had an opportunity for voluntary cessation when the public and elected officials criticized their planned conduct, and they chose to instead reaffirm their commitment to sending armed agents to Minnesota polling places. The behavior stopped only when faced with Attorney General action, and without any admission by Atlas that its conduct violated the law. "To be sure, the defendant's reason for changing its behavior is often probative of whether it is likely to change its behavior again." Hartnett , 963 F.3d at 306 ; see also id. (discussing the skepticism of courts when the defendant "assures us that the case is moot because the injury will not recur, yet maintains that its conduct was lawful all along").

Second, the Assurance binds only Atlas, not Caudle. (Assurance at 2.) Although Caudle has indicated that he will abide by the Assurance (ECF...