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Jamal v. Kane

United States District Court, M.D. Pennsylvania

April 28, 2015

MUMIA ABU JAMAL, et al., Plaintiffs,
v.
KATHLEEN KANE, Attorney General of Pennsylvania, Defendant. PRISON LEGAL NEWS, et al., Plaintiffs,
v.
KATHLEEN KANE, Attorney General of Pennsylvania, Defendant.

MEMORANDUM

CHRISTOPHER C. CONNER, Chief District Judge.

The case at bar presents a constitutional challenge to a state statute. The disputed enactment creates a right of action to enjoin the expressive conduct of violent criminals that causes mental anguish to victims or their families. Significantly, however, the fact that certain plaintiffs have been convicted of infamous or violent crimes is largely irrelevant to our First Amendment analysis. A past criminal offense does not extinguish the offender's constitutional right to free expression. The First Amendment does not evanesce at the prison gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive.

The court concludes that the challenged statute betrays several constitutional requirements; the enactment is unlawfully purposed, vaguely executed, and patently overbroad in scope. However well-intentioned its legislative efforts, the General Assembly fell woefully short of the mark. The result is a law that is manifestly unconstitutional, both facially and as applied to plaintiffs. Thus, the court is compelled to grant plaintiffs' requests for declaratory relief, declare the Revictimization Relief Act, 18 PA. CONS. STAT. § 11.1304, to be violative of the First and Fifth Amendments to the United States Constitution, and permanently enjoin its enforcement.

I. Background[1]

Before the court are two challenges to the Revictimization Relief Act, a 2014 amendment to Pennsylvania's Crime Victims Act, 18 PA. CONS. STAT. §§ 11.101 et seq. Plaintiffs attack the constitutionality of section 11.1304, which authorizes the Commonwealth's Attorney General, district attorneys, and "victims" of personal injury crimes to bring a civil action to obtain injunctive relief when an "offender" engages in "conduct which perpetuates the continuing effect of the crime on the victim." 18 PA. CONS. STAT. § 11.1304(a)-(b). Both plaintiff groups seek preliminary and permanent injunctive relief as well as a declaratory judgment that the Act violates the First and Fifth Amendments to the Constitution.

The full text of the Act provides:

(a) ACTION.- In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
(b) REDRESS ON BEHALF OF VICTIM.- The district attorney of the county in which a personal injury crime took place or the Attorney General, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.
(c) INJUNCTIVE RELIEF.- Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.
(d) DEFINITION.- As used in this section, the term "conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.

18 PA. CONS. STAT. § 11.1304. The Act's sponsor, State Representative Mike Vereb, announced the bill on October 2, 2014, just three days after Goddard College-a small liberal arts college in Vermont and plaintiff Mumia Abu-Jamal's alma mater - announced its selection of Abu-Jamal as its commencement speaker. (See Joint Stip. ¶¶ 1-2).[2] His cosponsor memorandum admonished an unidentified "convicted killer" for "traumatizing the victim's family." (Id. Ex. 2). The Act passed both chambers of the General Assembly in less than two weeks' time, unaltered from its original form. (See id. ¶¶ 6-7, 11).

During an October 21 bill-signing event near the intersection where Abu-Jamal's crime of conviction occurred, then-Governor Tom Corbett lauded the Act for its ability to enjoin offenders whose speech distresses victims. The Governor noted that the Act "is not about any one single criminal" but was "inspired by the excesses and hypocrisy of one particular killer, " (id. Ex. 7 at 1), transparently referencing Abu-Jamal. John Rafferty, a sponsoring senator, championed the Act as a means to prohibit "these rascals, these bad people from becoming entertainment values here in the Commonwealth of Pennsylvania." (Id. at 3). The law took effect immediately. See 2014 Pa. Laws 150, § 2.

Twenty days after the Act became law, the Abu-Jamal plaintiffs filed a complaint under 28 U.S.C. § 1983 naming Kathleen Kane, Attorney General of Pennsylvania, and R. Seth Williams, District Attorney for Philadelphia County, as defendants. (See Abu-Jamal Doc. 1).[3] Plaintiffs later amended their complaint to include several additional challengers. (See Abu-Jamal Doc. 12). The Prison Legal News plaintiffs followed suit shortly thereafter. (See PLN Doc. 1). Collectively, the plaintiff groups assert that the Act is impermissibly vague, substantially overbroad, and an unlawful, content-based regulation of speech. (See Abu-Jamal Doc. 12; PLN Doc. 1). The Prison Legal News plaintiffs also label the Act an unconstitutional prior restraint of speech. (See PLN Doc. 1 ¶¶ 169-74).

The court consolidated the actions for purposes of resolving plaintiffs' requests for preliminary injunctive relief and defendants' Rule 12 motions. (See Abu-Jamal Docs. 23, 29; PLN Docs. 10, 21). On January 23, 2015, both defendants moved to dismiss plaintiffs' claims, asserting that the court lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (See Abu-Jamal Docs. 30-31; PLN Docs. 24-25). Defendants argued that, because neither defendant has enforced the Act, no plaintiff can establish harm, or an imminent threat thereof, flowing from the legislation. (See Abu-Jamal Docs. 30-31; PLN Docs. 24-25). The court held argument limited to justiciability concerns on February 26, 2015, and thereafter issued a memorandum opinion resolving both Rule 12 motions. See Abu-Jamal v. Kane, No. 1:14-CV-2148, 2015 WL 999194 (M.D. Pa. Mar. 6, 2015). The court dismissed the District Attorney, finding that his guarantee to refrain from enforcement of the Act pending review of its constitutionality eliminated any threat of ...


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