Wade Steven Gardner v. William Mutz

W
          USCA11 Case: 20-13980      Date Filed: 05/24/2021    Page: 1 of 7



                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 20-13980
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:18-cv-02843-VMC-JSS



WADE STEVEN GARDNER,
MARY JOYCE STEVENS,
RANDY WHITTAKER,
In Official Capacity at Southern War Cry,
VETERANS MONUMENTS OF AMERICA, INC.,
Andy Strickland, US Army Ret., President,
PHIL WALTERS,
In his Official Capacity as 1st Lt. Commander of the Judah P. Benjamin
Camp # 2210 Sons of Confederate Veterans,
KEN DANIEL,
In his Official Capacity as Director of Save Southern Heritage, Inc. Florida,
RANDY WHITTAKER,
Individually,

                                                    Plaintiffs-Appellants,

                                       versus

WILLIAM MUTZ,
In his Official Capacity as Mayor of the City of Lakeland, Florida,
TONY DELGADO,
In his Official Capacity as Administrator of the City of Lakeland, Florida,
DON SELVEGE,
In his Official Capacity as City of Lakeland, Florida Commissioner,
          USCA11 Case: 20-13980       Date Filed: 05/24/2021    Page: 2 of 7



JUSTIN TROLLER,
In his Official Capacity as City of Lakeland, Florida Commissioner,
PHILLIP WALKER,
In his Official Capacity as City of Lakeland, Florida Commissioner, et al.,

                                                     Defendants-Appellees.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                   (May 24, 2021)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

      The facts of this case are familiar to the parties and were discussed at length

in this Court’s earlier decision, Gardner v. Mutz, 

962 F.3d 1329

 (11th Cir. 2020).

      In short, the City of Lakeland, Florida, decided to relocate a Confederate

monument from one public park to another. 

Id. at 1334

–35. A coalition of people

and groups dedicated to honoring the Confederacy sued the City. 

Id. at 1334

.

They argued, as relevant here, that the relocation violated their First and

Fourteenth Amendment rights. 

Id.

 They argued that the City’s action injured them

for Article III standing purposes because of their interests in preserving the history

of the South, expressing their free speech, vindicating the cause of the

Confederacy, and protecting and preserving memorials. 

Id. at 1341

. The district

court dismissed the First Amendment claim on the merits and dismissed the

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          USCA11 Case: 20-13980       Date Filed: 05/24/2021    Page: 3 of 7



Fourteenth Amendment claim for lack of standing. 

Id. at 1335

–36. The plaintiffs

appealed but didn’t seek a stay pending appeal. 

Id. at 1336

. The City then

relocated the monument while the case was on appeal. 

Id.

      We held that the plaintiffs lacked standing to bring either federal claim. 

Id.

at 1343

. We reasoned that the plaintiffs’ alleged injuries were insufficiently

concrete and particularized to establish standing. 

Id. at 1341

–43. We declined to

decide whether the case had also become moot when the City moved the

monument during the course of the appeal. 

Id. at 1338

. We remanded to the

district court with instructions to dismiss the case without prejudice for lack of

jurisdiction. 

Id. at 1344

.

      On remand, the plaintiffs moved to amend their complaint to allege more

facts about their injuries. In their proposed amended complaint, they alleged the

following facts:

   • Multiple organizational plaintiffs include members who visit the monument

      to pay their respects to those it memorializes. The members intend to

      continue to gather, and their political speech is rendered less effective by the

      removal of the monument.

   • Multiple organizational plaintiffs include members who regularly gather at

      the monument to engage and educate the public.




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             USCA11 Case: 20-13980       Date Filed: 05/24/2021     Page: 4 of 7



    • One plaintiff’s ancestors collected donations for and erected the monument.

       She also honors the war dead at the monument and wishes to continue to do

       so.

    • One plaintiff gathered at the monument when it was at the old park, and

       spoke there.

    • Multiple plaintiffs publish literature about the monument.

The plaintiffs sought an injunction against the City requiring it to return the

monument to its original location. The district court denied the motion to amend.

The district court explained that amendment was futile because the plaintiffs failed

to allege sufficiently concrete injuries. The district court also held that even if the

plaintiffs did allege sufficiently concrete injuries, it would deny the motion to

amend because the facts that the plaintiffs alleged didn’t amount to a meritorious

First or Fourteenth Amendment claim.

       The plaintiffs appealed.1

                                             I

       To establish Article III standing, a plaintiff must allege (1) an “injury in

fact,” which means “an invasion of a legally protected interest that is both (a)

concrete and particularized and (b) actual or imminent, not conjectural or



1
 We review an order denying a motion to amend for futility de novo. Hollywood Mobile Estates
Ltd. v. Seminole Tribe of Fla., 

641 F.3d 1259

, 1264 (11th Cir. 2011).
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          USCA11 Case: 20-13980        Date Filed: 05/24/2021    Page: 5 of 7



hypothetical”; (2) a “causal connection” between the “injury and the challenged

action of the defendant”; and (3) a likelihood that a favorable judgment will

“redress [the] injury.” Lewis v. Governor of Ala., 

944 F.3d 1287

, 1296 (11th Cir.

2019) (en banc) (quotation marks omitted); see also Lujan v. Defs. of Wildlife, 

504

U.S. 555

, 560–61 (1992). Because standing implicates jurisdiction, “a court must

satisfy itself that the plaintiff has standing before proceeding to consider the merits

of her claim, no matter how weighty or interesting.” Lewis, 

944 F.3d at 1296

.

      On appeal, the City argues that the plaintiffs’ injuries remain insufficiently

“concrete” and “particularized.” An injury is “concrete” when it is “de facto” and

“real,” rather than merely “abstract.” Gardner, 

962 F.3d at 1341

. An injury may

be real even when it injures only the plaintiff’s interest in observing or using

something. See Lujan, 

504 U.S. at 562

–63. If a plaintiff seeks injunctive relief,

like here, the plaintiff must demonstrate a plan to observe or use that space in the

near future that is obstructed by the challenged action. 

Id. at 563

–64. An injury is

“particularized” when it “affect[s] the plaintiff in a personal and individual way.”

Id. at 560 n.1

. It must be distinct to the plaintiff rather than “undifferentiated.”

Gardner, 

962 F.3d at 1342

.

      Here, some of the plaintiffs’ newly alleged injuries are sufficiently

“concrete” and “particularized” to meet Article III’s demands. Namely, multiple

plaintiffs allege that they visit the monument regularly and have concrete plans to


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          USCA11 Case: 20-13980        Date Filed: 05/24/2021    Page: 6 of 7



visit the monument again in the future. They allege that their planned future use

and enjoyment of the monument is obstructed by the City’s relocation of it. These

are the sorts of future injuries that were missing in Lujan and that are concrete for

Article III purposes. The injuries are also particularized because they injure only

those people who regularly visit the monument and plan to do so in the near future,

rather than the undifferentiated public. These plaintiffs also satisfy the other two

elements of standing doctrine because they allege that the City caused the injury by

moving the monument and because their injury can be redressed via the requested

injunction to have it returned.

                                           II

      But those plaintiffs who have standing must also demonstrate that the district

court erred in holding that they failed to state a claim on the merits. And we think

the district court correctly concluded that they failed to state a claim, as to both

their First and Fourteenth Amendment claims.

      The plaintiffs’ First Amendment claim alleges that the City’s relocation of

the monument violated their rights under the Free Speech Clause. Monuments in

public parks, even when funded by private parties, constitute government speech.

Pleasant Grove City v. Summum, 

555 U.S. 460

, 470–73 (2009). Government

speech doesn’t violate the Free Speech Clause of the First Amendment. 

Id. at 467

.




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           USCA11 Case: 20-13980          Date Filed: 05/24/2021      Page: 7 of 7



On the facts alleged, then, the City’s relocation of the monument didn’t violate the

plaintiffs’ rights under the Free Speech Clause of the First Amendment.2

       The plaintiffs’ Fourteenth Amendment claim alleges that the City’s

relocation deprived them of a liberty interest without due process of law. When

the government doesn’t deprive someone of a constitutionally protected liberty or

property interest, it doesn’t violate the Due Process Clause of the Fourteenth

Amendment. See AFL-CIO v. City of Miami, 

637 F.3d 1178

, 1186 (11th Cir.

2011). The plaintiffs here didn’t allege that the City deprived them of any

constitutionally protected liberty or property interest by relocating the monument.

Therefore, on the facts alleged, the City didn’t violate the Due Process Clause of

the Fourteenth Amendment.

                                              III

       Because the plaintiffs’ only two federal-law claims would fail on the merits,

we agree with the district court that amendment was futile. Accordingly, we

AFFIRM.




2
  The plaintiffs also invoke the First Amendment’s “endorsement” test, a concept borrowed from
Justice O’Connor’s concurrence in Lynch v. Donnelly, 

465 U.S. 668

 (1984). But that test—
regardless of its viability after Town of Greece v. Galloway, 

572 U.S. 565

 (2014), and American
Legion v. American Humanist Association, 

139 S. Ct. 2067

 (2019)—proscribes only government
speech that “endorse[s] or disapprov[es] of religion.” Lynch, 

465 U.S. at 688

 (O’Connor, J.,
concurring) (emphasis added); see also Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter,

492 U.S. 573

, 592–94 (1989). The plaintiffs haven’t alleged that the City’s relocation of the
monument expressed endorsement or disapproval of any religion.
                                               7

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