USCA11 Case: 18-12679 Date Filed: 07/22/2022 Page: 1 of 9
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-12679
____________________
ART ROJAS,
LUCINDA HALE,
Plaintiffs-Appellees,
versus
CITY OF OCALA, FLORIDA,
Defendant-Appellant,
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:14-cv-00651-TJC-PRL
____________________
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2 Opinion of the Court 18-12679
Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
In response to a shooting spree that caused injuries to sev-
eral children, the City of Ocala’s Police Chief, along with some of
his employees and volunteer police chaplains, worked with a com-
munity activist to organize and sponsor a prayer vigil in the town
square.
The police department posted a letter on its Facebook page,
urging citizens to attend the vigil and fervently pray. The letter,
which was jointly signed by the Chief and the community activist,
was on the department’s letterhead. The top of the page had an
image of a police badge with “OCALA POLICE DEPARTMENT” under-
neath that image, and the department’s address and phone number
were at the bottom of the page.
After seeing the department’s Facebook posting, several
Marion County residents who are humanists or atheists attended
the vigil where police chaplains appeared onstage praying and sing-
ing while wearing their department-issued uniforms. Those resi-
dents later filed a lawsuit against the chief of police, the mayor, and
the City, alleging a First Amendment Establishment Clause viola-
tion. They sought nominal damages, costs, and attorney’s fees.
The district court granted summary judgment to the plain-
tiffs, and the City appealed. The issues are whether the plaintiffs
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18-12679 Opinion of the Court 3
have standing and, if so, whether the City violated the Establish-
ment Clause. We conclude the answers are “yes,” and “maybe.” 1
1 Before addressing those two issues, we need to specify which original parties
to this lawsuit are no longer parties to this appeal, and explain why. Jean Por-
gal was originally one of the plaintiffs, but she died while the case was pro-
ceeding in the district court. Plaintiff Daniel Hale died while this appeal was
pending. The two plaintiffs who remain parties in this appeal are Art Rojas
and Lucinda Hale, who is Daniel Hale’s widow.
Mayor Reuben “Kent” Guinn was a defendant, but the district court granted
summary judgment in his favor, and the plaintiffs have not challenged that.
Chief of Police Greg Graham, who was a defendant, died while the appeal was
pending. The parties filed a “Joint Notice Regarding Suggestion of Death of
Select Parties and Impact on this Appeal,” which asserted that none of the par-
ties’ deaths had any impact on the appeal, including the death of Chief Gra-
ham. The joint notice also stated that the proper party defendant was Chief
Graham’s successor as chief of police, citing for that proposition Federal Rule
of Appellate Procedure 43(c)(2): “When a public officer who is a party to an
appeal or other proceeding in an official capacity dies, . . . [his] successor is
automatically substituted as a party.” (emphasis added).
A motions panel issued an order indicating that for purposes of this appeal,
there are two remaining defendants: the City of Ocala and its police chief, who
is unnamed but is sued in his official capacity. There’s a problem with that
ruling. The district court dismissed with prejudice the official capacity claims
against Chief Graham, agreeing with a magistrate judge’s recommendation
that those claims were, in effect, claims against the City. (The remaining
claims against Chief Graham were in his individual capacity. The plaintiffs did
not object to the magistrate judge’s report, did not appeal the dismissal of the
official capacity claims against Chief Graham, and did not substitute any party
for Graham even after the district court gave them a deadline for doing so. As
a result, there are no official capacity claims against the current Ocala chief of
police, and he is not a party to this appeal. To the extent an earlier motions
panel order held otherwise, we vacate that order. See 11th Cir. R. 27-1(g) (“A
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4 Opinion of the Court 18-12679
I. Standing
“Standing to sue is a doctrine rooted in the traditional under-
standing of a case or controversy.” Spokeo, Inc. v. Robins,
578 U.S.
330, 338 (2016). It “ensure[s] that federal courts do not exceed their
authority as it has been traditionally understood.”
Id. And it “lim-
its the category of litigants empowered to maintain a lawsuit in fed-
eral court to seek redress for a legal wrong.”
Id.
Because it is jurisdictional and implicates the authority of a
federal court to decide a case, we must consider standing first. See
Gardner v. Mutz,
962 F.3d 1329, 1338–39 (11th Cir. 2020). The fa-
miliar requirements for Article III standing are: “(1) an injury in fact
— an invasion of a legally protected interest that is both (a) con-
crete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) a causal connection between the plaintiff’s in-
jury and the challenged action of the defendant; and (3) a likeli-
hood, not merely speculation, that a favorable judgment will re-
dress the injury.” Id. at 1338 (cleaned up); see also Lujan v. Defs.
of Wildlife,
504 U.S. 555, 560–61 (1992); Lewis v. Governor of Ala.,
ruling on a motion or other interlocutory matter, whether entered by a single
judge or a panel, is not binding upon the panel to which the appeal is assigned
on the merits, and the merits panel may alter, amend, or vacate it.”). The
bottom line is that the City is the only remaining defendant involved in this
appeal.
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18-12679 Opinion of the Court 5
944 F.3d 1287, 1296 (11th Cir. 2019) (en banc). In the present case,
the standing requirement at issue is injury.
“For Establishment Clause claims based on non-economic
harm, the plaintiffs must identify a ‘personal injury suffered by
them as a consequence of the alleged constitutional error, other
than the psychological consequence presumably produced by ob-
servation of conduct with which one disagrees.’” Glassroth v.
Moore,
335 F.3d 1282, 1292 (11th Cir. 2003) (quoting Valley Forge
Christian Coll. v. Ams. United for Sep. of Church & State, Inc.,
454
U.S. 464, 485 (1982)). “In this type of case, plaintiffs have standing
if they are directly affected by the laws and practices against which
their complaints are directed.”
Id. (alteration adopted and quota-
tion marks omitted).
Lucinda Hale has alleged that she was directly affected by
the prayer vigil and suffered an injury sufficient to confer standing
to bring an Establishment Clause claim against the City of Ocala.
See Pelphrey v. Cobb Cnty.,
547 F.3d 1263, 1279–80 (11th Cir. 2008)
(holding that a plaintiff had standing based on “direct contact” with
an allegedly offensive invocational prayer practice at Planning
Commission meetings after he voluntarily attended three meetings
in person and “watched numerous meetings” on the internet).
These are the facts at this stage of the proceedings. Hale
lives in Marion County (where Ocala is located) and had visited the
Ocala downtown square “a number of times” before the prayer
vigil took place, including going to the farmer’s market there. She
heard about the prayer vigil when someone informed her and her
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6 Opinion of the Court 18-12679
late husband about the Ocala Police Department’s Facebook post-
ing, and they then looked at that posting. She testified that “[c]rime
creates an environment that’s negative for all citizens,” but she felt
that the invitation to a community prayer vigil did not include her
or others who do not pray.
Hale attended the prayer vigil and later testified that it was
similar to a Christian revival. She is concerned about alleviating
crime but felt unable to participate in the vigil because the speakers
invited the audience only to pray and sing. Hale had attended the
vigil because she wanted to observe it and also because she has an
interest in being part of the community and is concerned about
crime.
The district court determined that Hale had alleged “more
than a mere interest in the matter,” and because she was injured,
she has standing to bring this lawsuit. See ACLU of Ga. v. Rabun
Cnty. Chamber of Com., Inc.,
698 F.2d 1098, 1108 (11th Cir. 1983)
(“Injury in fact serves to distinguish a person with a direct stake in
the outcome of a litigation—even though small—from a person
with a mere interest in the problem.”) (quoting United States v.
SCRAP,
412 U.S. 669, 689 n.14 (1973)) (cleaned up). We agree.
Hale’s “contact is sufficient to establish the personal and in-
dividualized injury necessary for standing.” Pelphrey,
547 F.3d at
1280. She voluntarily attended the prayer vigil and knew she
would encounter religious practices she found offensive, but under
Supreme Court precedent that does not mean she lacks standing to
bring an Establishment Clause claim. See Fed. Election Comm’n
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18-12679 Opinion of the Court 7
v. Cruz,
142 S. Ct. 1638, 1647 (2022) (“[W]e have made clear that
an injury resulting from the application or threatened application
of an unlawful enactment remains fairly traceable to such applica-
tion, even if the injury could be described in some sense as willingly
incurred.”). Because Hale has standing, we need not decide
whether Rojas also does. See Pelphrey,
547 F.3d at 1280 (“Because
one plaintiff has standing, we need not consider whether the other
plaintiffs had sufficient contact with the offensive practice to estab-
lish standing.”).
II. The Merits
When the district court granted summary judgment, it be-
lieved that the analytical framework articulated in Lemon v. Kurtz-
man,
403 U.S. 602 (1971), was the controlling law. Even though
many Justices soured on Lemon over the years, the Court seem-
ingly could not rid itself of that much-maligned decision. Justice
Scalia colorfully described Lemon as “[l]ike some ghoul in a late-
night horror movie that repeatedly sits up in its grave and shuffles
abroad, after being repeatedly killed and buried.” Lamb’s Chapel v.
Ctr. Moriches Union Free Sch. Dist.,
508 U.S. 384, 398 (1993)
(Scalia, J., concurring in the judgment, joined by Thomas, J.). Be-
cause the district court and the parties believed that Lemon was
still shuffling about at the time, the court applied it in concluding
that there was an Establishment Clause violation in this case. See
Doc. 88-1 at 31 (noting that the parties all agreed that Lemon ap-
plied);
id. at 31–38, 60 (applying Lemon, concluding that the prayer
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8 Opinion of the Court 18-12679
vigil “failed each of [its] three prongs,” and then addressing
whether the prayer vigil was a government-sponsored event).
After this appeal was filed, however, the Supreme Court
drove a stake through the heart of the ghoul and told us that the
Lemon test is gone, buried for good, never again to sit up in its
grave. Finally and unambiguously, the Court has “abandoned
Lemon and its endorsement test offshoot.” Kennedy v. Bremerton
Sch. Dist.,
142 S. Ct. 2407, 2427 (2022). In the course of doing so,
the Court asserted that it had already done it — “long ago,”
id. —
which was news to a third of the Court’s Justices, see id. at 2434
(Sotomayor, J., dissenting, joined by Breyer and Kagan, JJ.) (“To-
day’s decision . . . overrules Lemon . . . .”).
Regardless of exactly when the ghastly decision was dis-
patched for good, the Supreme Court has definitively decided that
Lemon is dead — long live historical practices and understandings.
See id. at 2428 (majority opinion) (“In place of Lemon and the en-
dorsement test, this Court has instructed that the Establishment
Clause must be interpreted by reference to historical practices and
understandings.”) (quotation marks omitted).
We remand this case to the district court to give it an oppor-
tunity to apply in the first instance the historical practices and un-
derstandings standard endorsed in Kennedy. See Nat’l R.R. Passen-
ger Corp. v. State of Fla.,
929 F.2d 1532, 1538 (11th Cir. 1991) (re-
manding for the district court to consider the effect of recent
changes in the law).
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18-12679 Opinion of the Court 9
VACATED AND REMANDED.
