                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1059



NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, Western York County Branch;
KEITH HUNTER, Reverend; STEVE LOVE; JOSIE
LOWRY; PHYLLIS WARD,

                                          Plaintiffs - Appellants,

          versus

KEVIN BRACKETT, sued in his official capacity
as Deputy Solicitor of York County and in his
personal capacity; TOMMY POPE, sued in his
official capacity as Solicitor of York County
and in his personal capacity; MARVIN BROWN,
sued in his official capacity as an officer of
the York County Police Department and in his
personal capacity; TERRELL HARRIS, sued in his
official capacity as an officer of the York
County Police Department and in his personal
capacity,

                                           Defendants - Appellees,

          and

YORK COUNTY, SOUTH CAROLINA; UNKNOWN OFFICERS
1 THROUGH 20 OF THE YORK COUNTY POLICE
DEPARTMENT, sued in their official capacities
as officers of the York County Police
Department and in their individual capacities,

                                                       Defendants.

---------------------------------------------

NICHOLE BELL; KATHY ROBERTS,

                                                          Movants.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.    Joseph F. Anderson, Jr., Chief
District Judge. (CA-02-2329)


Argued:   February 2, 2005                    Decided:   May 16, 2005


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Alexander M. Sanders, Jr., Charleston, South Carolina, for
Appellants.   Terry B. Millar, Rock Hill, South Carolina; Donna
Seegars Givens, WOODS & GIVENS, L.L.P., Lexington, South Carolina,
for Appellees.      ON BRIEF: Mark J. MacDougall, Heather J.
Pellegrino, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington,
D.C.; William N. Nettles, John D. Delgado, Columbia, South
Carolina; Hannibal G. Williams II Kemerer, NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, Baltimore, Maryland, for
Appellants. Darra J. Coleman, WOODS & GIVENS, L.L.P., Lexington,
South Carolina, for Appellee Terrell Harris.



Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

           The    Western      York    County       Branch    of   the    National

Association for the Advancement of Colored People and four of its

members (collectively, “the NAACP”) filed this § 1983 action to

enjoin   four    individuals    in     the   York    County,    South     Carolina,

Solicitor’s      Office   and    the     York   County        Police     Department

(collectively, “the defendants”) from depriving the NAACP and its

members of their First Amendment rights.               The NAACP alleges that

the defendants engaged in a campaign of intimidation by questioning

NAACP members at their homes about the substance of an NAACP

meeting, following them in police cars, and attempting to exclude

them from the courtroom during the retrial of an African-American

charged with murder.      The district court awarded summary judgment

to the defendants.          We conclude that the NAACP has produced

insufficient evidence of the likelihood of future irreparable harm

and therefore affirm.



                                        I.

           We review the facts in the light most favorable to the

NAACP, the nonmoving party.           Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).                On January 10, 2002,

the NAACP held an open meeting to discuss the pending retrial of

Sterling Spann, an African-American York County resident whose 1981

capital murder conviction and death sentence had been overturned by


                                         3
the South Carolina Supreme Court in 1999.             Spann, who had been

released on bond pending retrial, attended the meeting along with

three members of his legal team.             The night before the NAACP

meeting, York County Solicitor Tommy Pope and his deputy Kevin

Brackett sought a gag order in a telephone hearing to prevent Spann

and his lawyers from publicly disclosing information about a

polygraph test that Spann had taken.          The presiding judge in the

Spann case verbally ordered both sides to refrain from publicly

discussing the polygraph information.

            The next day, January 10, 2002, Brackett and Pope learned

that the NAACP was planning to meet that night to discuss the Spann

case.   They directed Marvin Brown, head of the York County Multi-

Jurisdictional Drug Enforcement Unit, to “get somebody to go over”

to the meeting to “hear what they had to say.”                 J.A. 232-33.

Brackett told Brown that he “wanted a black person, a black male or

female, a black officer,” and Brown ordered Officer Terrell Harris,

who is African-American, to attend and observe the meeting in

plainclothes.        J.A. 328.     At the meeting either Spann or an

investigator    on    Spann’s    defense   team   discussed   the   polygraph

evidence.    The following day, Harris gave a written report about

the meeting to Brackett and Pope.

            Nearly one month later, on February 5, 2002, Brackett

again contacted Brown and told him to locate and question NAACP

members who attended the January 10 meeting.          For the next several


                                      4
days, certain of the defendants visited the homes of seven or eight

NAACP members, including plaintiffs Josie Lowry, the NAACP Branch

Membership Chairperson; Steve Love, the Political Action Chair; and

Phyllis Ward, the Freedom Fund Chair.          These visits were usually

made without prior notification and sometimes occurred in the

evening.   Harris wore a “Drug Enforcement Unit” badge around his

neck during all of his visits.           J.A. 340-41.    One of the visits

occurred on February 6, 2002, when Harris and Brown appeared at

Lowry’s home unannounced at approximately 8:20 p.m.              Due to the

late hour, Lowry asked the officers to come back the next day.

When the officers returned the next afternoon, they told Lowry that

they needed to question her “to be sure that no laws had been

broken at the [January 10] meeting.”           J.A. 471.    Solicitor Pope

himself questioned Ward, asking her if the NAACP “felt like th[e

Spann] case was a racial thing.”         J.A. 599.

           Many   NAACP   members     believed    that     the   defendants’

investigation was creating an “atmosphere of intimidation.”            J.A.

574.   Longtime NAACP member Ernestine Wright compared it to a time

when “[y]ou were almost afraid to say that you were a member of the

NAACP.” J.A. 687. Several members expressed their concerns to the

Reverend Keith Hunter, the Branch President.               Hunter and Love

arranged a meeting with Pope and Brackett on February 11, 2002.          At

the meeting Hunter and Love formally asked the defendants to stop

intimidating NAACP members.         Pope and Bracket replied that the


                                     5
questioning was a necessary part of their investigation into

“issues of jury tampering or a violation of a gag order,”                   J.A.

245, and asked Hunter and Love whether they were trying “to stack

the court room with African-Americans” or “intimidate the jury” in

the Spann retrial, J.A. 440-41.         Pope and Brackett said they would

continue to send the police to interview NAACP members and that an

officer    had   been   dispatched     to   interview   a   member   that   same

evening.

            About one week after this meeting, two NAACP members

began to observe police vehicles following them.             Branch Treasurer

Dorothy Williams noticed a marked Sheriff’s car following her after

she left the Wesley United Methodist Church where she had been

working on NAACP business.          Hunter saw a black sedan following him

for extended distances on three occasions.              J.A. 422-23.    On the

third occasion Hunter pulled over to write down the sedan’s license

plate number.      The number belonged to a black, four-door Crown

Victoria assigned to Detective Timothy Smith of the York County

Sheriff’s Office.

            The defendants’ investigation of the NAACP made it more

difficult for the Branch to recruit new members.              One prospective

member said one reason she did not join the NAACP was that she

“didn’t want to join because . . . [of] the police coming to NAACP

members’ houses.”       J.A. 711.    In the wake of the investigation, the




                                        6
Branch has suffered a decrease in membership and a decline in

attendance at general meetings.

               On March 4, 2002, the venire was assembled for jury

selection in Spann’s retrial. During preliminary questioning, Pope

and Brackett asked the court to require potential jurors to specify

whether they were NAACP members. The court denied the request, and

thereafter an employee in the solicitor’s office placed Hunter,

Love, and Ward on the potential witness list.                     Neither Hunter,

Love, nor Ward had any personal knowledge of the facts of the Spann

case,    and    none    of   them   had   been    served   with   a   subpoena   or

questioned       by    any   law    enforcement    officer    about    the   case.

Subpoenas were issued for all of the other witnesses on the state’s

witness list.         Pope and Brackett maintain that they do not know or

remember who placed Hunter, Love, and Ward on the witness list.

The only explanation the defendants offer for why these three were

placed on the state’s witness list is that “[i]t may have had

something to do with the change of venue motion or mitigation

evidence in the penalty phase of the trial.”                Brief for Appellees

at 23.   Once on the witness list, Hunter, Love, and Ward would have

been excluded from the courtroom for the duration of the Spann

retrial.       (There was no retrial because Spann pled guilty.)

               The NAACP, Hunter, Love, Lowry, and Ward invoked 42

U.S.C. § 1983 to sue Brackett, Pope, Brown, and Harris, in their

official and personal capacities.             The plaintiffs seek a permanent


                                          7
injunction      prohibiting   the      defendants       from   questioning,

threatening, or detaining NAACP members in connection with lawful

activities protected by the First Amendment.            The district court

granted summary judgment to the defendants on the basis that the

NAACP had not produced sufficient evidence (1) that the defendants

had violated their constitutional rights or (2) that the NAACP

might suffer future irreparable harm.         The NAACP appeals.



                                     II.

           Summary judgment is appropriate when there is no genuine

issue of material fact, and the moving party is entitled to

judgment as a matter of law.        Fed. R. Civ. P. 56(c).      We review a

grant of summary judgment de novo.            Higgins v. E.I. DuPont De

Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).               The NAACP

argues   that   the   defendants,    by    monitoring    its   meetings   and

interviewing and tailing its members, engaged in a campaign of

harassment and intimidation that violated the First Amendment

rights of the organization and its membership to free association

and to recruit new members. The defendants reply, in essence, that

their actions were part of a legitimate investigation into the

possible violation of a court order.          The NAACP also argues that

the office of the solicitor’s placement of Hunter, Love, and Ward

on the state’s witness list for the Spann retrial deprived these

individuals of their First Amendment right to attend criminal


                                      8
trials. The solicitor’s office responds to this troubling incident

by saying that someone in the office, whose identity is unknown,

placed these names on the list, and “[i]t may have had something to

do with the change of venue motion or mitigation evidence in the

penalty phase of the trial.”      Brief for Appellees at 23.       These

disputes need not be resolved, however, because the NAACP has not

proffered evidence to demonstrate that future violations of the

constitutional rights of the organization and its members are

likely to occur, and such a showing is a prerequisite for obtaining

injunctive relief.   See City of Los Angeles v. Lyons, 461 U.S. 95,

111 (1983). Specifically, the plaintiffs must show “(1) that it is

likely that they again will find themselves in the same or similar

circumstances   giving   rise   to   the   allegedly    unconstitutional

conduct; and (2) that it is likely that they again will be

subjected to the allegedly unconstitutional conduct.”          Travelers

Social Club v. Pittsburgh, 685 F. Supp. 929, 932 (W.D. Pa. 1988).

In addition, “the need for a proper balance between state and

federal authority counsels restraint in the issuance of injunctions

against state officers engaged in the administration of the States’

criminal laws in the absence of irreparable injury which is both

great and immediate.”    Lyons, 461 U.S. at 112.       The NAACP contends

that the evidence establishes an issue of material fact with

respect to the likelihood of future irreparable harm because the

organization will continue to take an active role in advocating for


                                     9
the rights of African-American defendants in criminal cases and

because Pope and Brackett have said that they would continue to

interview NAACP members.   These facts, however, are not enough to

demonstrate that future harm is likely.

          First, while it is a given that the NAACP will continue

to advocate for the rights of African-American defendants in

criminal cases, the organization has not shown that it is likely

that it will again find itself in circumstances the same as or

similar to this case.      There is a dispute over whether the

defendants’ investigation was part of a legitimate law enforcement

effort or was used as a pretext to harass the NAACP, but it is

undisputed that the defendants’ conduct began in response to the

court order prohibiting Spann’s defense team from discussing the

results of a polygraph examination. The Western York County Branch

of the NAACP’s advocacy for the rights of an African-American

defendant in a case involving a gag order presents an unusual

circumstance.   The NAACP has produced no evidence that it has been

subjected to harassment or investigation due to its advocacy in

other cases.

          The defendants have offered a dubious explanation for the

placement of the names of Hunter, Love, and Ward on the witness

list for Spann’s retrial, but (this case aside) there is no

evidence that the solicitor’s office has manipulated witness lists

in the past, or is likely to manipulate them in the future, to keep


                                10
interested NAACP members from attending trials. The NAACP has made

only one allegation of police misconduct occurring after the Spann

case concluded, and this allegation is insufficient to create a

genuine issue of material fact.        Specifically, the organization

alleges that on January 9, 2003, a police officer parked in an

unmarked vehicle at the Wesley United Methodist Church for at least

an hour.   When NAACP (and church) members approached the car to

determine why it was in the church parking lot, the officer said he

was “trying to clean up the drugs in [the] community.”     J.A. 722A.

Deputy Sheriff J. M. Ligon stated in an affidavit that he was the

officer parked in the church lot that day, and he was there waiting

to assist in a search with his drug dog.     He said, “I did not know

the name of the church at the time . . . .      The only reason I was

at the church parking lot was to be in close proximity to the

location where the narcotics surveillance team was going to execute

a search warrant.”   J.A. 723.   There is no evidence suggesting that

Deputy Ligon’s account is inaccurate, and, in light of Ligon’s

reason for parking in the church lot, his statement that was

“trying to clean up the drugs” is a straightforward explanation for

his presence; it does not suggest an attempt to intimidate.        In

sum, the NAACP has not produced evidence that it is likely to find

itself in future circumstances similar to those in this case. See,

Lyons, 461 U.S. at 111.




                                  11
          Second, there is a lack of evidence that the NAACP will

continue to be subjected to the alleged unconstitutional conduct.

Although Pope and Brackett said they would continue to interview

NAACP members, their statement was limited to interviews relating

to the NAACP meeting involving the Spann retrial.     Because the

NAACP can not show a sufficient likelihood that it and its members

will be subjected to future violations of their constitutional

rights, the defendants are entitled to summary judgment.

          Accordingly, the district court’s order awarding summary

judgment to the defendants is affirmed.

                                                           AFFIRMED




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