Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 1 of 8 Civil Action No. 18-cv-1225-MSK-NYW RUTHIE JORDAN, and MARY PATRICIA GRAHAM-KELLY, Plaintiffs, v. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JEFF SHRADER, in his official capacity as the Sheriff of Jefferson County, Colorado, PATRICK FIRMAN, in his official capacity as the Sheriff of the city and County of Denver, Colorado, and CITY AND COUNTY OF DENVER, COLORADO, Defendants. DEFENDANTS REPLY IN SUPPORT OF PARTIAL MOTION TO DISMISS Defendants Jeff Shrader, Patrick Firman, and the City and County of Denver ( Sheriff Shrader, Sheriff Firman, and Denver, respectively; collectively, Defendants ) submit the following Reply in Support of Partial Motion to Dismiss: INTRODUCTION AND SUMMARY OF THE ARGUMENTS Defendants collectively filed a Partial Motion to Dismiss ( Motion ) on August 17, (Doc. No. 31.) In their Motion, Defendants argued that Plaintiffs do not have standing to pursue their claim for prospective injunctive relief under any of the claims asserted in their Amended Complaint. (Id.) Defendants argued that the Amended Complaint is devoid of any colorable facts sufficient to demonstrate a real and immediate threat of repeated injury in the future and that their claim of potential future harm is predicated on specific, alleged violations occurring in the past.

2 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 2 of 8 (Id.) Absent such facts, Plaintiffs are unable to establish Article III standing to pursue their claim for prospective injunctive relief. (Id.) Plaintiffs filed their Response on September 13, (Doc. No. 35.) In their Response, Plaintiffs argue that they alleged both a past and ongoing injury, and thus satisfy Article III standing requirements. (Id.) Plaintiffs state that the ongoing injury they suffer is their reasonable fear of being in or around Denver and Jefferson Counties resulting from their knowledge that Defendants do not enforce compliance with... Defendants policies related to providing effective communication to deaf individuals. (Id. at 4.) Plaintiffs state that those fears, even if they are never realized, are reasonable and thus they continue to be injured by Defendants. (Id.) ARGUMENT The law does not support Plaintiffs position. Rather, this Court has repeatedly held just the opposite: that a fear of harm which may potentially arise in the future is insufficient to establish a claim for prospective injunctive relief. Laratta v. Zavaras, 09-cv REB-MEH, 2010 WL , at *2 (D. Colo. Apr. 20, 2010) (citing Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)) ( Injunctive relief is only appropriate to avoid an existing threat of injury and cannot be employed to protect against an injury that is merely feared to be suffered at some indefinite future date. ); Parker v. Ritter, No. 08-cv MSK-KLM, 2009 WL , at *3 (D. Colo. Feb. 13, 2009); Malone v. Mukasey et al., 08-cv MSK, 2009 WL , at *1 (D. Colo. Nov. 20, 2009). Plaintiffs attempt to distinguish the instant case from the framework of City of Los Angeles v. Lyons, 461 U.S. 95 (1983), by comparing it to County of Riverside v. McLaughlin, which 2

3 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 3 of 8 distinguished Lyons. (Resp. at 2-3.) In the McLaughlin case, as Plaintiffs correctly state, the Supreme Court held that the plaintiffs had Article III standing where they alleged a personal injury that was fairly traceable to the County s allegedly unlawful conduct and likely to be redressed by the requested injunction. Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991). What Plaintiffs fail to discuss, however, is the reasoning underlying that ruling. The Supreme Court held that the McLaughlin plaintiffs had standing because, at the time the complaint was filed, some of the plaintiffs contained within the certified class were still in the defendants custody and were alleging a continuous injury because of their detention. Id. at 51. In this case, Plaintiffs have not sought class certification and there are no plaintiffs currently subject to an ongoing injury. Thus the McLaughlin holding, upon which Plaintiffs primarily rely in their Response, is inapplicable. Conversely, in Lyons, as in this case, the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint. Id. Here, Plaintiffs had been out of Defendants custody for over a year before they filed suit. There are no facts evidencing an imminent threat of any alleged discrimination in their Amended Complaint. However, Plaintiffs still attempt to carve out an exception to their Article III standing problem by stating they have a reasonable fear that these particular Defendants will continue to not provide them with interpreters should they enter Jefferson or Denver counties, and that this fear is ongoing. (Resp. at 9.) The Supreme Court has explicitly held that a reasonable fear of future harmful government conduct does not confer Article III standing. Clapper v. Amnesty Intern. USA, 568 U.S. 398, 407 (2013). In Clapper, respondents sought an injunction against surveillance authorized by the Foreign Intelligence Surveillance Act. Id. They argued that they established standing to pursue an injunction because they had a reasonable fear of being surveilled, since 3

4 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 4 of 8 there was an objectively reasonable likelihood that their communications with foreign individuals would be intercepted at some point in the future. Id. at 410. The Supreme Court reversed the Second Circuit s finding that the respondents had standing and held that respondents theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. Id. The Court went on to say that [t]he Second Circuit s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not fanciful, paranoid, or otherwise unreasonable. This improperly waters down the fundamental requirements of Article III. Id. at 416 (internal citations omitted). Here, Plaintiffs alleged fear of future injury is even more remote than the scenario in Clapper. Plaintiffs argue that they are afraid to enter into Denver or Jefferson counties because they fear Defendants will not comply with the ADA and will not provide them with interpreters when requested. This analysis requires the Court to believe that a highly attenuated chain of possibilities will come into effect: that is, that Plaintiffs will commit crimes in Denver and/or Jefferson counties, that they will be jailed for these crimes, and that the deputy sheriffs in each Denver and/or Jefferson county jails will refuse to comply with established policies requiring compliance with the ADA. The contingent (and unlikely) nature of these events illustrates why Plaintiffs do not have standing to pursue their claim for prospective injunctive relief. Plaintiffs allege that their fear is ongoing, and they avoid entering Denver and Jefferson counties because of this fear. They cite to Friends of the Earth to support this proposition. In Friends of the Earth, however, the Supreme Court distinguished Lyons by finding that the plaintiffs alleged that the defendant was actively discharging pollutants in excess of permit limits at the time 4

5 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 5 of 8 the complaint was filed. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). Here, conversely, it is undisputed that the illegal conduct alleged in Plaintiffs amended complaint ceased more than a year before the Complaint was filed, when Plaintiff Jordan was released from Defendants custody in 2016 and Plaintiff Graham was released from Sheriff Shrader s custody in early Plaintiffs also attempt to distinguish Lyons by stating that in Lyons, the Los Angeles Police Department had voluntarily changed its allegedly unconstitutional chokehold policy before suit was filed. As an initial matter, Plaintiffs do not challenge the constitutionality of Defendant s policies in this case. To the contrary, Plaintiffs specifically acknowledge that all Defendants have policies, practices and procedures in place which are consistent with Title II of the ADA. (Am. Compl. 2, 5.) Plaintiffs claim is that Defendants are not acting in compliance with these policies. (Id. 3, 6.) More importantly, Plaintiffs argument is irrelevant to the standing analysis. In Lyons, the Supreme Court discussed the changing chokehold policy only in the contest of mootness not standing. Lyons, 461 U.S. at 100 ( A few days later, on May 12, 1982, the Board of Police Commissioners imposed a six-month moratorium on the use of the carotid-artery chokehold... Based on these events... the City filed in this Court a Memorandum Suggesting a Question of Mootness. ). The Supreme Court rejected the argument that the cessation of the policy had any bearing on their standing determination, stating that [t]he equitable doctrine that cessation of the challenged conduct does not bar an injunction is of little help... for Lyons 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. Id. at

6 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 6 of 8 The other cases cited by Plaintiffs similarly do not support their position. In Sierra Club v. PacifiCorp, the United States District Court for the District of Wyoming conferred standing where the only question was whether the defendant s conduct was fairly traceable to the challenged action. Whether plaintiffs suffered a real and immediate threat of repeated future injury was not at issue. Sierra Club v. PacifiCorp, No. 07-CV-42-J, 2009 WL (D. Wyo. Aug. 24, 2009). In Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002), the Ninth Circuit Court of Appeals determined that a disabled plaintiff had standing to pursue injunctive relief against a store containing architectural barriers which made it difficult for him to move around. Pickern v. Holiday Quality Foods Inc., 293 F.3d The Court reached its conclusion that the plaintiff had standing because he stated that he preferred to shop at the store if it were accessible but was thwarted because of his personal knowledge that the barriers still existed. Id. at Unlike the instant case, the threat of repeated injury in Pickern was real and immediate because the barriers existed at the time the complaint was filed, and the plaintiff desired to enter the store but physically could not. Plaintiffs in the instant case do not allege similar facts showing an existing physical barrier. The courts in the cases cited by Plaintiffs which conferred Article III standing all did so because the plaintiffs in those cases alleged facts that showed that there was an ongoing harm or a real and immediate threat of repeated injury in the future. In contrast, Plaintiffs alleged fear that they will come back into contact with the Defendants and that Defendants will refuse to comply with the ADA is insufficient to confer standing. See, e.g., Lyons, 461 U.S. 95; O Shea v. Littleton, 414 U.S. 488 (1974); Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006). None of the cases cited by Plaintiffs support their argument that this reasonable fear is sufficient to establish a real and 6

7 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 7 of 8 immediate threat of future injury. Plaintiffs do not have standing to pursue their claim for injunctive relief. WHEREFORE, Defendants respectfully request that the Court dismiss Plaintiffs claim for injunctive relief. DATED this 27 th day of September, Respectfully submitted, s/ Katharine A. Jensen Lauren Schmidt Katharine Jensen Assistant City Attorneys Denver City Attorney s Office Civil Litigation 201 W. Colfax Avenue, Dept Denver, CO Telephone: (720) Facsimile: (720) lauren.schmidt@denvergov.org katharine.jensen@denvergov.org Attorneys for Defendants Firman and the City and County of Denver s/ Rebecca Klymkowsky Rebecca Klymkowsky, #41673 Rachel Bender, #46228 Assistant County Attorneys 100 Jefferson County Parkway, Suite 5500 Golden, Colorado Telephone: Facsimile: rklymkow@jeffco.us rbender@jeffco.us Attorneys for Sheriff Shrader 7

8 Case 1:18-cv MSK-NYW Document 36 Filed 09/27/18 USDC Colorado Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on September 27, 2018, I filed the foregoing DEFENDANTS REPLY IN SUPPORT OF PARTIAL MOTION TO DISMISS via the U.S. District Court CM/ECF System, which will send a true and correct copy to the following: Andrew Montoya Kevin Williams amontoya@ccdconline.org kwilliams@ccdconline.org COLORADO CROSS-DISABILITY COALITION Attorneys for Plaintiffs Rebecca Klymkowsky Rachel Bender JEFFERSON COUNTY ATTORNEY S OFFICE rklymkow@jeffco.us rbender@jeffco.us Attorneys for Sheriff Shrader s/ Katharine A. Jensen Katharine A. Jensen