                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0363n.06

                                           No. 10-1406

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                      FILED
FAITH BAPTIST CHURCH, et al.,                  )                                   Apr 11, 2013
                                               )                            DEBORAH S. HUNT, Clerk
       Plaintiffs-Appellants,                  )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
WATERFORD TOWNSHIP, et al.,                    )   EASTERN DISTRICT OF MICHIGAN
                                               )
       Defendants-Appellees.                   )
                                               )


BEFORE:        MERRITT and MOORE, Circuit Judges; and MAYS, District Judge.*

       Mays, District Judge. Plaintiffs Faith Baptist Church and Pastor James Combs appeal the

judgment of the district court denying their claims against Waterford Township, Carl Solden,

individually and in his official capacity as Waterford Township Supervisor, Daniel T. McCaw,

individually and in his official capacity as Chief of the Waterford Township Police Department,

Jeffrey James, individually and in his official capacity as Deputy Chief of the Waterford Township

Police Department, and Walter Bedell, individually and in his official capacity as Prosecuting

Attorney for Waterford Township.1 Plaintiffs seek relief under 42 U.S.C. § 1983 for Defendants’




       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
       1
         In the district court, the initial plaintiffs included Martin Woody, Jeffrey Johnson, Andrew
Olafsson, and two minors, K.H. and E.H. Their claims were dismissed without prejudice below, and
they are not parties to this appeal.
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

violation of Plaintiffs’ rights under the First, Fourth, and Fourteenth Amendments.2 They pray for

monetary damages, injunctive relief, and a declaration that Defendants’ actions are unconstitutional.

        This case arose when residents in Waterford complained to the Waterford Police Department

that the music at Faith Baptist Church was too loud. Officers responded and questioned several

worshipers and pastors at the church about the volume of the music. Bedell threatened to prosecute

church members for disturbing the peace. No charges were ever filed.

        On March 10, 2008, Plaintiffs filed suit. The relevant allegations for purposes of this appeal

are that Defendants: 1) violated Plaintiffs’ First Amendment right to free exercise of religion; 2)

violated their First Amendment right to freedom of speech; 3) violated their First Amendment right

to freedom of association; 4) conspired to deprive Plaintiffs of their First Amendment rights; 5)

violated their Fourth Amendment rights; 6) conspired to deprive Plaintiffs of their Fourth

Amendment rights; and 7) violated Plaintiffs’ right to Equal Protection under the Fourteenth

Amendment.

        The district court granted partial judgment on the pleadings, dismissing Plaintiffs’ claims of

conspiracy to violate their First and Fourth Amendment rights and violation of their equal protection

rights under the Fourteenth Amendment, and all claims against Bedell on qualified immunity

grounds.3 On summary judgment, the district court dismissed all of Plaintiffs’ First Amendment


       2
       The district court declined to exercise jurisdiction over Plaintiffs’ claims for violation of the
Michigan constitution. Plaintiffs do not appeal that decision.
        3
        Defendants asserted qualified immunity on behalf of Bedell only ; the district court never
decided, and neither party addresses, whether Solden, McCaw, or James is entitled to qualified
immunity.

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Faith Baptist Church, et al., v. Waterford Township, et al.

claims for lack of standing. The district court also concluded that Waterford police officers did not

violate the Fourth Amendment when they questioned church members or when they entered the

church.

          For the following reasons, we AFFIRM in part and REVERSE in part the district court’s

judgment.

                                                   I.

          Faith Baptist Church is a non-denominational church in Waterford, Michigan.               On

Wednesday evenings, it holds youth services where Christian musicians play contemporary religious

music. On or about September 11, 2007, Timothy Carlson, a neighbor, complained to the Waterford

Township Police Department about loud music at the church. Carlson had lived across the street

since 2004. He said he had complained in 2006, but the church was unresponsive. On September

26, 2007, police officers were dispatched to Carlson’s home after he complained that the church was

disturbing the peace. Because no music was playing when the officers arrived, they did not visit the

church. On October 7, 2007, Carlson complained again. When the officers arrived, the music was

so loud they could hear it in Carlson’s home. The officers went to the church and spoke with Pastor

Mark Kerr, who said the band in the auditorium was practicing for the evening service. Kerr said

the officers “talked for a bit . . . and they asked to see my driver’s license.” The police did not tell

Kerr or the musicians that they had to turn the music down.

          On October 10, 2007, the police were called to Faith Baptist Church again. No music was

playing when they arrived. Bedell, in his capacity as Waterford’s Prosecuting Attorney, had arrived

before them, and found the noise excessive. When he arrived, the music was so loud that the

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Faith Baptist Church, et al., v. Waterford Township, et al.

windows at Carlson’s residence were rattling, and Bedell could not use a normal speaking tone.

Before leaving the church, Bedell advised Combs, the youth pastor, that Bedell would obtain

misdemeanor warrants for the members of the band. Bedell also dropped off copies of twelve noise

complaints about the church’s music. Bedell had been in the church on unrelated matters twelve to

fifteen times before, and no one had told him he was unwelcome.

       On October 11, 2007, Bedell spoke with Pastor Martin Woody about the noise complaint.

Bedell told Woody “the church should not be playing rock music,” and Bedell “[was] going to

continue to issue tickets until it’s stopped.”   On October 15, 2007, Bedell sent letters to three

members of the band notifying them that the prosecutor’s office had received complaints against

them and that they had to make an appointment with Bedell to discuss the complaints. Bedell took

no further action, and no one was charged with a misdemeanor.

       On October 28, 2007, police officers were again dispatched to Carlson’s home because of

a noise complaint. When the officers arrived, the music coming from the church had already

stopped. The officers went to the church, identified the band members, and left. The officers did

not order the band to stop playing, and the band members did not receive tickets. An unidentified

church member videotaped the police. The police did not visit Faith Baptist Church again.

                                                 II.

       The issues on appeal were decided in two separate orders: a judgment on the pleadings and

a summary judgment. Although the district court decided the question of qualified immunity in its

judgment on the pleadings, we address qualified immunity separately.



                                                  4
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Faith Baptist Church, et al., v. Waterford Township, et al.

        “Qualified immunity is a question of law...to be reviewed de novo by this Court.” Flint v.

Kentucky Dep’t of Corr., 270 F.3d 340, 346 (6th Cir. 2001); see also Holzemer v. City of Memphis,

621 F.3d 512, 519 (6th Cir. 2010). A court need not accept unwarranted factual inferences as true.

Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006). When considering qualified immunity on

appeal from a motion to dismiss, the court must “treat[ ] all allegations in the complaint as true and

draw[ ] all inferences in favor of the non-moving party.” Cockrell v. City of Cincinnati, 468 F.

App’x 491, 494 (6th Cir. 2012). The court “‘review[s] an assertion of qualified immunity to

determine only whether the complaint adequately alleges the commission of acts that violated clearly

established law.’” Heyne v. Metro. Nashville Pub. Schools, 655 F.3d 556, 562 (6th Cir. 2011)

(quoting Back v. Hall, 537 F.3d 552, 555 (6th Cir. 2008) (internal quotations omitted)). The test on

appeal is “whether, reading the complaint in the light most favorable to the plaintiff, it is plausible

that an official’s acts violated the plaintiff’s clearly established constitutional right.” Id. at 562-63.

If the court determines that the conduct of a government official violated a statutory or constitutional

right of a plaintiff, the court must decide “whether the right was clearly established in light of the

specific context of the case.” Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir. 2007) (internal

quotation marks and citation omitted). A right is clearly established if “the contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Binay v. Bettendorf, 601 F.3d 640, 651 (6th Cir. 2010) (internal quotation marks omitted).

        This Court reviews a district court’s grant of judgment on the pleadings under Fed. R. Civ.

P. 12(c) de novo. Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 761 (6th Cir. 2006). The manner

of review is the same as a motion under Fed. R. Civ. P. 12(b)(6). Id.; see also Smith v. City of Salem,

                                                    5
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

378 F.3d 566, 570 (6th Cir. 2004). The court must “construe the complaint in the light most

favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine

whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle

[it to] relief.” Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998); see also JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). The “complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks omitted). A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007).

          This Court reviews a district court’s grant of summary judgment de novo. See Gen. Motors

Corp. v. Lanard Toys, Inc., 468 F.3d 405, 412 (6th Cir. 2006). The evidence and the reasonable

inferences therefrom are considered in the light most favorable to the non-moving party. Binay, 601

F.3d at 646; Evans v. Vinson, 427 F. App'x 437, 441 (6th Cir. 2011). This Court “must view the

evidence in the light most favorable to Plaintiffs to determine whether a genuine issue of material

fact exists.” Binay, 601 F.3d at 646. “The central issue is ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must prevail

as a matter of law.’” In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). When considering First Amendment claims

on summary judgment, appellate courts must “conduct an independent examination of the whole

record so as to assure [] that this judgment does not constitute a forbidden intrusion on the field of

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Faith Baptist Church, et al., v. Waterford Township, et al.

free expression.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.

557, 567-68 (1995) (internal quotation marks and alteration omitted); see also United Food &

Commer. Workers Union, Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 357

(6th Cir. 1998) (recognizing duty to engage in independent examination of the record in First

Amendment cases).

                                                III.

                                                 A.

       In their Motion for Judgment on the Pleadings, Defendants moved to dismiss Bedell on the

ground of qualified immunity. Qualified immunity is an affirmative defense that government

officials may raise to shield themselves from liability for civil damages when their conduct does not

violate clearly established statutory or constitutional rights. Flint, 270 F.3d at 346-47. Defendants

did not move to dismiss any other Township official on the ground of qualified immunity. The

district court concluded that Bedell was not entitled to absolute prosecutorial immunity but was

entitled to qualified immunity and dismissed all claims against him.

       Plaintiffs challenge the district court’s conclusion that Bedell was entitled to qualified
                                                                                            4
immunity from monetary, injunctive, and declaratory relief in his individual capacity           and its




       4
        Defendants moved only to dismiss Bedell on the ground of qualified immunity. They did
not move to dismiss Plaintiffs’ claims for violation of the Fourth Amendment. The district court
decided Plaintiffs’ Fourth Amendment claims against the other defendants on summary judgment
using the summary judgment standard and the more developed record available at that stage of the
case.

                                                 7
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

dismissal of the suit against Bedell in his official capacity.5 Defendants contend on appeal that

Bedell was entitled to absolute immunity because he was a prosecutor and his investigation was in

preparation for the initiation of a prosecution. They contend, in the alternative, that Bedell was

entitled to qualified immunity because his actions did not violate any clearly established statutory

or constitutional right.

        The district court’s denial of absolute immunity was proper. The Supreme Court has decided

that “[a] prosecutor’s administrative duties and those investigatory functions that do not relate to an

advocate’s preparation for the initiation of a prosecution are not entitled to absolute immunity.”

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). “When a prosecutor performs the investigative

functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable

that, for the same act, immunity should protect one and not the other.’” Id. (quoting Hampton v.

Chicago, 484 F.2d 602, 608 (7th Cir. 1973)). Here, Bedell was conducting the sort of preliminary

investigation routinely performed by law enforcement officers. As the district court concluded, he

was not entitled to absolute immunity.

        Plaintiffs’ objection to the district court’s ruling on Bedell’s qualified immunity in his official

capacity is a pure question of law. Plaintiffs’ claim that the district court improperly applied the

controlling law in a manner independent of the facts of the case is sufficient to bring this question

before us. Cf. United States v. Kelso, 468 F. App’x 551, 556-57 (6th Cir. 2012). Plaintiffs’ suit



        5
         The district court dismissed Bedell from the suit entirely without addressing the suit against
Bedell in his official capacity and did not discuss Plaintiffs’ request for declaratory or injunctive
relief. (J. On Pleadings 7.)

                                                    8
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

names Bedell and the other individual Defendants in both their individual and official capacities.

Qualified immunity protects officials from monetary damages in their individual capacities only and

cannot be the basis for dismissal of an official capacity suit. See Garcia v. Dykstra, 260 F. App’x

887, 895 (6th Cir. 2008). However, we “may affirm on any grounds supported by the record even

if different from the reasons of the district court.” Dixon v. Clem, 492 F.3d 665, 673 (6th Cir. 2007)

(internal quotation marks omitted). Here, Plaintiffs’ suit against Bedell in his official capacity was

properly dismissed. “‘Official-capacity suits represent only another way of pleading an action

against an entity of which an officer is an agent.’” Everson v. Leis, 556 F.3d 484, 493-94 n.3 (6th

Cir. 2009) (quoting Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)

(alterations omitted)). “An official capacity suit is, in all respects other than name, to be treated as

a suit against the entity.” Briner v. City of Ontario, 370 F. App'x 682, 699 (6th Cir. 2010) (internal

quotation marks and alterations omitted). Having sued Waterford Township, the entity for which

Bedell was an agent, the suit against Bedell in his official capacity was superfluous.

        Plaintiffs’ objection to the district court’s ruling on Bedell’s qualified immunity for

injunctive and declaratory relief is a pure question of law. Plaintiffs’ claim that the district court

improperly applied the controlling law in a manner independent of the facts of the case is sufficient

to bring this question before us. Cf. Kelso, 468 F. App’x at 556-57. The district court improperly

dismissed Plaintiffs’ claims for declaratory and injunctive relief against Bedell on the ground of

qualified immunity. An official’s qualified immunity does not preclude injunctive or declaratory

relief. See Smith v. Leis, 407 F. App'x 918, 930 (6th Cir. 2011) (“[A] court could award both

declaratory and injunctive relief in an action against a defendant protected by qualified immunity.”);

                                                   9
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

Collyer v. Darling, 98 F.3d 211, 222 (6th Cir. 1996) (“[I]mmunity only precludes claims for

monetary damages against officials in their individual capacities, and not claims for injunctive or

declaratory relief.”).

        Bedell’s qualified immunity for damages in his individual capacity is a mixed question of

law and fact. On appeal, “[i]ssues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995

(6th Cir. 1997). A bare recitation of the legal standard and the elements necessary to meet it is

insufficient to trigger review of a mixed question. See Clanton v. Comm’r, 491 F. App’x 610, 611

(6th Cir. 2012) (plaintiff “has waived review of nearly every argument he raises on appeal because

his pleadings are entirely conclusory, lack factual specificity, and do not clearly explain the basis of

his claims.”). When a party in its brief on appeal “merely set[s] out the standard of review and the

elements of the claim” and “[does] not argue or explain how that standard or those elements were

satisfied in [the instant] case,” the claim is considered waived. Kelso, 468 F. App’x at 556-57.

Plaintiffs describe the qualified immunity standard at length, but do not present any allegations that

might satisfy the standard. They offer only the conclusory statement that, “[i]n this case, it was

clearly established that government officials may not abuse their authority in an effort to suppress

speech that they disfavor.” Appellants’ Brief at 35. Because Plaintiffs have not sufficiently

addressed Bedell’s qualified immunity from damages in his individual capacity, that issue is deemed

waived.

        Plaintiffs’ claims against Bedell in his offical capacity were properly dismissed because they

were in actuality claims against the Township of Waterford, which is itself a defendant. Plaintiffs’

                                                  10
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

objection to the district court’s dismissal of their claims for monetary damages against Bedell in his

individual capacity on the ground of qualified immunity is waived. Plaintiffs’ claims against Bedell

in his individual capacity for injunctive and declaratory relief were improperly dismissed by the

district court on the ground of qualified immunity and are remanded to the district court.

                                                  B.

        In its judgment on the pleadings, the district court dismissed Plaintiffs’ civil conspiracy

claims because Defendants acted within the scope of their employment and the intra-corporate

conspiracy doctrine applied. The district court also dismissed Plaintiffs’ Equal Protection claim

under the Fourteenth Amendment.

        The district court dismissed Plaintiffs’ First and Fourth Amendment conspiracy claims on

the ground that the intra-corporate conspiracy doctrine applied under Michigan law and prevented

Defendants, as members of a single corporate entity, from conspiring with one another. We need

not address the application of the intra-corporate conspiracy doctrine. We may affirm the district

court’s determination on any ground supported by the record. Dixon, 492 F.3d at 673. Defendants

moved to dismiss Plaintiffs’ conspiracy claims in their Motion for Judgment on the Pleadings under

Federal Rule of Civil Procedure 12(c). Plaintiffs’ conspiracy claims can survive a Rule 12(c) motion

only if their Complaint alleges sufficient facts, accepted as true, to state a claim of entitlement to

relief that is plausible on its face. Iqbal, 556 U.S. at 677. “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. To plead

a § 1983 conspiracy successfully, Plaintiffs must allege sufficient facts to state a claim that “(1) a

single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of

                                                  11
No. 10-1406
Faith Baptist Church, et al., v. Waterford Township, et al.

their constitutional rights, and (3) an overt act was committed.” Revis v. Meldrum, 489 F.3d 273,

290 (6th Cir. 2007).

       Plaintiffs do not allege any facts to support their claim that Defendants engaged in a

conspiracy to violate Plaintiffs’ First or Fourth Amendment Rights. Plaintiffs merely make the

conclusory statements that, by “acts and omissions, and policies, practices, and/or customs, engaged

in under the color of state law, Defendants have conspired to unconstitutionally deprive Plaintiffs

of their rights[s] ... guaranteed under the First Amendment,” and “that Defendants agreed to and

engaged in overt acts that did unlawfully and unreasonably threaten Plaintiffs with criminal

action...because of their First Amendment activities.” Compl. ¶ 47. Plaintiffs make the same bare

assertions to support their Fourth Amendment conspiracy claims. Compl. ¶ 53. Plaintiffs’

conclusory allegations are insufficient to state a plausible claim that Defendants conspired to deprive

them of their constitutional rights in violation of 42 U.S.C. § 1983. The district court’s dismissal

of Plaintiffs’ conspiracy claims is affirmed.

       Plaintiffs also allege that they were discriminated against because their religious beliefs were

treated on “less than equal terms,” and that they were targeted for “discriminatory and arbitrary

enforcement of the laws on account of Plaintiffs[’] religious practices.” The district court dismissed

Plaintiffs’ Fourteenth Amendment claim because they did not allege they were treated differently

from any other religious group in Waterford.

       Plaintiffs’ argument can best be read as a claim that Waterford is selectively enforcing its

disturbing-the-peace ordinance and that they are being singled out for playing rock music. “Selective

enforcement claims are judged according to ordinary Equal Protection standards, which require a

                                                  12
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Faith Baptist Church, et al., v. Waterford Township, et al.

petitioner to show both a discriminatory purpose and a discriminatory effect.” Gardenhire v.

Schubert, 205 F.3d 303, 318 (6th Cir. 2000). Nonetheless, “[t]he threshold element of an equal

protection claim is disparate treatment; once disparate treatment is shown, the equal protection

analysis to be applied is determined by the classification used by the government decision-makers.”

Satawa v. Macomb Cnty. Road Comm’n, 689 F.3d 506, 528 (6th Cir. 2012) (internal quotation marks

omitted). Plaintiffs allege no facts that allow a reasonable inference that the ordinance was not

enforced against other persons or groups in similar situations and have thus failed to state a claim.

                                                  C.

       In its summary judgment order, the district court dismissed Plaintiffs’ First Amendment

claims for lack of standing and concluded that there had been no Fourth Amendment violation

because there was no concrete or particularized injury.

       We review dismissal for lack of standing de novo because it is a question of law. United

Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007). On summary

judgment, when First Amendment violations are at issue, this Court must “conduct an independent

examination of the whole record so as to assure [] that this judgment does not constitute a forbidden

intrusion on the field of free expression.” Hurley, 515 U.S. at 567.

       Standing is fundamental to determining “federal jurisdiction over a ‘case’ or ‘controversy’

as set forth in Article III of the Constitution.” Morrison v. Bd. Of Educ., 521 F.3d 602, 608 (6th Cir.

2008). “No principle is more fundamental to the judiciary’s proper role.” Raines v. Byrd, 521 U.S.

811, 818 (1997) (internal quotation marks omitted). “[It] is axiomatic that a litigant demonstrates



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Faith Baptist Church, et al., v. Waterford Township, et al.

Article III standing by tracing a concrete and particularized injury to the defendant[’s actions] . . .

and establishing that a favorable judgment would provide redress.” Morrison, 521 F.3d at 608.

        To establish standing a plaintiff must show that 1) it has suffered an actual or imminent

injury in fact that is concrete and particularized; 2) the injury is fairly traceable to the challenged

action of the defendant; and 3) the injury is redressable. Fieger v. Michigan Supreme Court, 553

F.3d 955, 962 (6th Cir. 2009); Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006). Standing is

relaxed in the First Amendment context “‘because of a judicial prediction or assumption that the

policy’s very existence may cause others not before the court to refrain from constitutionally

protected speech or expression.’” Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997) (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). If a plaintiff can “objectively establish an

imminent threat that chills protected activity,” that chill alone is a cognizable injury-in-fact.

Grendell v. Ohio Supreme Court, 252 F.3d 828, 832, 834 (6th Cir. 2001).

        Plaintiffs have shown they have a reasonable fear that their speech, free exercise of religion,

and freedom of association will be chilled. “In dealing with the chilling effect criminal statutes have

on First Amendment expression, the Supreme Court has previously noted that it is not necessary that

a plaintiff first expose himself to actual arrest or prosecution to be entitled to challenge a statute that

he claims deters the exercise of his constitutional rights.” Grendell, 252 F.3d at 834 (internal

quotation marks and alterations omitted).

        Defendants contend that Plaintiffs lack standing because no members of the Faith Baptist

Church were ultimately charged. That is not the test. This Court has found numerous government

actions sufficient to turn “an otherwise-subjective allegation of chill” into “a proper injury-in-fact”

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Faith Baptist Church, et al., v. Waterford Township, et al.

that creates standing. Morrison, 521 F.3d at 609. A “non-exhaustive list” includes: “the issuance

of a temporary restraining order, an eight-month investigation into the activities and beliefs of the

plaintiffs by Department of Housing and Urban Development officials, and numerous alleged

seizures of membership lists.” Id. (internal quotation marks and citations omitted). In this case,

Defendants admit Plaintiffs were threatened with prosecution. Bedell wanted the band members

and church leaders “to be on notice that there was an investigation, and that they could possibly be

subject to a misdemeanor charge if the violations continued.” The threat of criminal prosecution

is precisely “the exercise of governmental power that is regulatory, proscriptive, or compulsory in

nature” that this Court has found necessary to support an injury in fact based on chill. ACLU v. NSA,

493 F.3d 644, 663 (6th Cir. 2007). Waterford’s actions were designed to “regulate[], proscribe[],

or compel[] the plaintiffs.” Id. Although Defendants did not actually enforce the ordinance, they

credibly threatened to do so. As a result, Plaintiffs sustained a concrete and particularized injury.

See Morrison, 521 F.3d at 609 (“[F]or purposes of standing, subjective chill requires some specific

action on the part of the defendant in order for the litigant to demonstrate an injury-in-fact.”).

       Defendants also argue that there has been no harm because Faith Baptist Church has not

shown it has changed its conduct. Defendants’ argument gives them sole discretion about the future

of this matter. Nothing would stop them from filing charges. A“voluntary cessation of the allegedly

unlawful behavior is generally insufficient to moot a case determining the legality of that behavior.”

Am. Canoe Ass’n v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 543 (6th Cir. 2004)

(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 189 (2000)). A

defendant may not eliminate standing at will by ceasing to enforce a statute whenever it pleases.

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Dismissing Plaintiffs’ case would leave them in a legal penumbra, uncertain of the legality of their

actions and afraid that Waterford might enforce its ordinance at any time.

       The second requirement of standing is met because Plaintiffs’ injury is traceable to

Defendants’ conduct. There is no dispute that Bedell threatened criminal prosecution. The injury

“can be traced to the challenged action of the defendant.” Simon v. E. Ky. Welfare Rights Org., 426

U.S. 26, 41-42 (1976).

       The third requirement of standing is met because Plaintiffs’ claim is redressable. Plaintiffs

seek injunctive and declaratory relief. If Defendants were enjoined from enforcing Waterford’s

ordinance against Faith Baptist Church, Waterford would not be able to threaten Plaintiffs with

criminal charges for playing religious music. “It can scarcely be doubted that, for a plaintiff who is

injured or faces the threat of future injury . . . a sanction that effectively abates that conduct and

prevents its reoccurrence provides a form of redress.” Laidlaw, 528 U.S. at 185-86. Plaintiffs have

standing to bring their First Amendment claims.

       The district court dismissed Plaintiffs’ Fourth Amendment claims on summary judgment

because there was no seizure and because Plaintiffs had no reasonable expectation of privacy in Faith

Baptist Church during worship services open to the public.

       Plaintiffs’ Fourth Amendment claims are not properly before us. Plaintiffs claim that

Defendants violated their Fourth Amendment rights by detaining them and seizing their

identification information. When the case was before the district court, the Plaintiffs on appeal,

Faith Baptist Church and Pastor James Combs, were joined by five others, the band members and

the youth pastor, who were allegedly detained by the police. Those five plaintiffs were dismissed

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Faith Baptist Church, et al., v. Waterford Township, et al.

by stipulation and are not parties to the appeal. Combs was not present during any of the alleged

violations and does not allege that his individual Fourth Amendment rights were violated. Combs

is not entitled to assert the individual Fourth Amendment rights of the other members of the Church.

United States v. Pearce, 531 F.3d 374, 381 (6th Cir. 2008) (“The Supreme Court has found that

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not

be vicariously asserted .... In order to qualify as a person aggrieved by an unlawful search and seizure

one must have been a victim of a search or seizure, one against whom the search was directed ....”)

(internal quotations omitted). Faith Baptist Church does not assert that any violations of its Fourth

Amendment rights occurred. All plaintiffs entitled to assert the Fourth Amendment rights at issue,

and all of their claims, were dismissed without prejudice pursuant to the Stipulation and Order

entered by the district court on March 25, 2009. (R. 27.)

                                                  IV.

        The district court’s decision on Plaintiffs’ Fourth Amendment and Fourteenth Amendment

claims and on Plaintiffs’ § 1983 conspiracy claims is AFFIRMED. The district court’s dismissal of

Plaintiffs’ suit against Bedell in his official capacity and for monetary damages in his individual

capacity is AFFIRMED. The district court’s dismissal of Plaintiffs’ suit against Bedell in his

individual capacity for injunctive and declaratory relief and of Plaintiffs’ First Amendment claims

based on lack of standing is REVERSED.




                                                  17
