Rebekah Charleston v. State of Nevada ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBEKAH CHARLESTON; ANGELA No. 19-17423
DELGADO-WILLIAMS,
D.C. No. 3:19-cv-00107-MMD-
Plaintiffs-Appellants, WGC
and LEAH ALBRIGHT-BYRD,
MEMORANDUM*
Plaintiff,
v.
STATE OF NEVADA et al.,
Defendants-Appellees,
and
LANCE GILMAN; et al.,
Movants.
Appeal from the United States District Court
For the District of Nevada
Miranda Du, Chief District Judge, Presiding
Submitted December 9, 2020**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Appellants, survivors of sex-trafficking and coerced prostitution in Nevada,
appeal the dismissal of their suit for lack of subject-matter jurisdiction. They argue
that federal laws that prohibit prostitution and sex trafficking in interstate commerce1
preempt Nevada Revised Statutes §§ 201.345(1) and 224.345(8) that give less-
populated counties the option to legalize brothels and also preempt local ordinances
regulating those brothels. Appellants seek (1) a declaratory judgment that the laws
and ordinances regulating brothels are unconstitutional and preempted by federal
law; (2) a preliminary and permanent injunction prohibiting Nevada and its counties
from implementing or enforcing those laws and ordinances; and (3) an order
requiring Nevada to pay at least $2,000,000 per year to an “exit fund” for survivors
of sex trafficking.
We review de novo a motion to dismiss for lack of subject-matter jurisdiction.
US West, Inc. v. Nelson, 146 F.3d 718, 721 (9th Cir. 1998).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
1
The Victims of Trafficking and Violence Protection Act (22 U.S.C. §§ 7101–14
(2018)), the Mann Act (18 U.S.C. §§ 2421–2424 (2018)), and 18 U.S.C. § 1591(2018). Appellants seek only declaratory and injunctive relief against the
government and do not seek damages under 18 U.S.C. § 2421A(c).
2
“The party invoking federal jurisdiction bears the burden of establishing”
standing to sue. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). To have
standing “[t]o seek injunctive relief, a plaintiff must show that [s]he is under threat
of suffering ‘injury in fact’ that is concrete and particularized; the threat must be
actual and imminent, not conjectural or hypothetical . . . .” Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009).
Appellants fail to show they are under threat of an actual and imminent injury.
They argue that they “suffer exponentially higher risk of revictimization” because
“people typically re-enter commercial sexual exploitation multiple times before
permanently leaving.” But the law requires Appellants to show that they, not
survivors of trafficking generally, are at risk of “actual and imminent” harm. See,
e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 110–12 (1983); Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). Further, an “exponentially
higher risk” is not the same as an “actual and imminent” risk. The Supreme Court
has “reiterated that ‘threatened injury must be certainly impending to constitute
injury in fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990)).
Appellants also argue that their injury is ongoing because “the physical and
psychological effects of sex trafficking and prostitution endure long after victims
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escape from their . . . exploitation.” But “[t]he emotional consequences of a prior act
simply are not a sufficient basis for an injunction absent a real and immediate threat
of future injury by the defendant.” Lyons, 461 U.S. at 107 n.8. Because Appellants
fail to show injury, we do not reach the remaining requirements for standing.
It is unclear if Appellants attempt to invoke third-party standing by
mentioning “others similarly situated.” The Supreme Court has “recogniz[ed] that
there may be circumstances where it is necessary to grant a third party standing to
assert the rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129–31 (2004).
Third-party standing may be the only practical way to assert the rights of enslaved
human beings. See, e.g., Neal Kumar Katyal, Note, Men Who Own Women: A
Thirteenth Amendment Critique of Forced Prostitution, 103 Yale L.J. 791, 815, 819
(1993). But we decline to construe Appellants’ arguments as invoking third-party
standing because they neither expressly do so nor cite any relevant cases.
AFFIRMED.
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