OPINION OF THE COURT
AMBRO, Circuit Judge.
In 2008, the District Attorney of Wyoming County in Pennsylvania presented teens suspected of "sexting" with a choice: either attend an education program designed by the District Attorney in conjunction with two other agencies or face felony child pornography charges. Plaintiffs brought suit to enjoin the District Attorney from bringing criminal charges in retaliation for their refusal to attend the education program—an act they allege is constitutionally protected—and immediately filed a motion for preliminary injunctive relief. The District Court granted their motion. While the case was on appeal, the
I. Factual and Procedural Background
Plaintiffs MaryJo Miller, Jami Day, and Jane Doe, mothers of, respectively, plaintiffs Marissa Miller, Grace Kelly, and Nancy Doe,
"Sexting," as defined by plaintiffs, is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." In October 2008, school officials in the Tunkhannock, Pennsylvania, School District discovered photographs of seminude and nude teenage girls, many of whom were enrolled in their district, on several students' cell phones.
In November 2008, Skumanick stated publicly to local newspaper reporters and an assembly at Tunkhannock High School that students possessing "inappropriate images of minors" could be prosecuted under Pennsylvania law for possession or distribution of child pornography, 18 Pa. Cons.Stat. § 6312,
The education program was divided into a Female Group and Male Group. The "Female Group" syllabus lists among its objectives that the participants "gain an understanding of what it means to be a girl in today's society, both advantages and disadvantages."
In the first session, students are assigned to write "a report explaining why you are here," "[w]hat you did," "[w]hy it was wrong," "[d]id you create a victim? If so, who?," and how their actions "affect[ed] the victim[,][t]he school[, and] the community." The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled "Gender identity-Gender strengths," and the fifth "Self Concept," which includes a "Gender Advantages and Disadvantages" exercise.
At the group meeting scheduled by the letter, held on February 12, 2009, Skumanick repeated his threat to bring felony charges unless the children submitted to probation, paid a $100 program fee, and completed the education program successfully. One parent, whose daughter had appeared in a photo wearing a bathing suit, asked how his child could be charged with child pornography based on that picture. Skumanick responded that she was posing "provocatively." When plaintiff Marissa Miller's father asked Skumanick who decided what "provocative" meant, Skumanick refused to answer and reminded his audience he could charge all of the minors with felonies, but instead was offering the education program. He told Mr. Miller, "[T]hese are the rules[. I]f you don't like them, too bad."
He then asked the parents to sign an agreement assigning the minors to probation and to participation in the program. Only one parent did so. Skumanick gave the other parents one week to sign.
Before the meeting, Skumanick had shown plaintiff MaryJo Miller and her ex-husband the two-year-old photograph of their daughter, in which Marissa Miller and Grace Kelly, 12 or 13-years-old at the time, are shown from the waist up wearing white, opaque bras. Marissa was speaking on the phone, while Grace was making a peace sign. Despite Ms. Miller's protests that her daughter and friend were merely being "goof balls" and were not naked, Skumanick claimed the image constituted child pornography because they were posed "provocatively." He promised to prosecute them on felony child pornography charges if they did not agree to his conditions and attend the proposed program.
After the meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy, taken about a year earlier. In the photograph, Nancy is wrapped in a white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower.
Eleven days later, on February 23, an administrator from Juvenile Court Services wrote the parents to inform them of an appointment scheduled for the following Saturday, February 28, at the Wyoming County Courthouse, "to finalize the paper-work
Plaintiffs filed suit on March 25, 2009, and immediately sought a temporary restraining order ("TRO") enjoining the District Attorney from initiating criminal charges against plaintiffs for the photographs. The District Court held a hearing the following day with both sides represented, and allowed the District Attorney to file a post-hearing brief in opposition. The District Court granted the requested relief on March 30, 2009, and the District Attorney timely filed an interlocutory appeal.
While this case was on appeal, Skumanick was defeated by Jeff Mitchell in the November 2009 election. Mitchell took office in January 2010. We refer to Skumanick when detailing the events underlying the lawsuit.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. § 1331. We agree with the parties that the order titled a temporary restraining order by the District Court (a generally non-appealable order) was in effect a preliminary injunction (an appealable order) because it was entered for an indeterminate period of time after notice to the defendant and an adversary hearing. Under Fed.R.Civ.P. 65(b)(2), TROs expire 10 days
Ordinarily, we use a three-part standard to review a District Court's grant of a preliminary injunction: we review the Court's findings of fact for clear error, its conclusions of law de novo, and the ultimate decision to grant the preliminary injunction for abuse of discretion. McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.2009). However, when First Amendment rights are at issue, we "must conduct an independent examination of the factual record as a whole." Id.
III. Preliminary Considerations
Before reviewing the grant of the injunction, we address two threshold arguments raised by the District Attorney on appeal. First, he argues that, given the existence of an ongoing state juvenile informal adjustment proceeding, we must abstain from entertaining plaintiffs' suit. Second, he argues that his promise made on appeal not to prosecute Miller or Day renders their case moot. We address each argument in turn.
Under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), federal courts must abstain in certain circumstances from exercising jurisdiction over a claim where resolution of that claim would interfere with an ongoing state proceeding. We exercise plenary review over whether the requirements for
According to the District Attorney, the offer of the education program as an alternative to prosecution was proposed under the informal adjustment procedure in 42 Pa. Cons.Stat. § 6323, and therefore a state criminal proceeding was pending against plaintiffs when they filed their complaint in federal court. This argument fails on two grounds.
First, while informal adjustment had been offered by the District Attorney, it had not begun because informal adjustment requires the consent of the parents and the minor. See 42 Pa. Cons.Stat. § 6323(b)(2); Commonwealth v. J.H.B., 760 A.2d 27, 32 (Pa.Super.Ct.2000) ("Whatever [informal adjustment] procedure is undertaken flows from the consent of the child and his parent."); Commonwealth v. C.L., 963 A.2d 489, 493 (Pa.Super.Ct.2008) ("[T]he fee imposed could not be an informal adjustment as that term is intended by § 6323 because [the minor] did not consent to the fee."); see also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 238-39, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) ("Younger is not a bar to federal court action when state judicial proceedings have not themselves commenced.").
Second, even assuming an informal adjustment had begun, Younger abstention is appropriate "only when (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims." Kendall v. Russell, 572 F.3d 126, 131 (3d Cir. 2009) (citation omitted). That is not the case here.
Informal adjustment is not "judicial in nature," but a diversion away from the judicial system to a "public or private social agency." 42 Pa. Cons.Stat. § 6323(a)(1). It "invokes the court's social service and supervisory resources without implicating the court's formal and coercive powers, including the power to commit the child to custody or confinement." J.H.B., 760 A.2d at 32; see also id. (describing informal adjustment as "a preliminary pre-petition procedure to provide assistance, counseling[,] and supervision, where the behavior is either socially disruptive (but not criminal) or where the delinquency has not created major or serious consequences"). Most importantly, the informal adjustment procedures provide no opportunity to raise federal claims (or, for that matter, any legal challenges). Therefore, Younger abstention is inappropriate here.
In his appellate brief, Skumanick stated that he "has determined that he will bring no criminal charges against Appellees Miller and Kelly," and "[t]he claims
While it is curious that the District Attorney did not withdraw his appeal as to these two minors and their mothers and consent to a permanent injunction, Mitchell's counsel committed at oral argument to making formal the District Attorney's new position. Id. at 3-4. We accept counsel's representation to us, and agree that this appeal as to the minors Marissa Miller and Grace Kelly, and their mothers, MaryJo Miller and Jami Day, is mooted by the District Attorney's agreement to provide their requested relief. See DeJohn v. Temple Univ., 537 F.3d 301, 308-09 (3d Cir.2008). Thus, our analysis focuses only on the preliminary injunction as it applies to plaintiffs Nancy and Jane Doe.
A party seeking a preliminary injunction must satisfy the traditional four-factor test: (1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is denied; (3) granting relief will not result in even greater harm to the nonmoving party; and (4) the public interest favors such relief. Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir.2004).
We agree with the District Court's analysis of irreparable harm, harm to the non-moving party, and the public interest, see Miller v. Skumanick, 605 F.Supp.2d 634, 646-47 (M.D.Pa.2009), and therefore focus our discussion, as did the parties, on the first factor, likelihood of success on the merits.
A. Plaintiffs' Legal Theory of Relief
To state a claim under § 1983, plaintiffs must show that the defendant, under the color of state law, deprived them of a federal constitutional or statutory right. See Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000). Plaintiffs base their claims on retaliation for the exercise of constitutionally protected rights, which "is itself a violation of rights secured by the Constitution actionable under section 1983." White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir.1990). To prevail on a retaliation claim, a plaintiff must prove "(1) that he engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir.2004). At the preliminary injunction stage, plaintiffs need only show a reasonable probability that their retaliation claims will succeed on the merits. McTernan, 577 F.3d at 526.
The initial plaintiffs brought three causes of action in their complaint: (1)
The District Court granted injunctive relief based only on the second and third claims, and the parties did not brief the first claim before us. While we requested supplemental briefing on plaintiffs' first cause of action, we decline to consider it in the first instance. (Of course, plaintiffs may advance that cause of action on remand as the case proceeds on the merits.) Accordingly, we will consider only those causes of action addressed by the District Court and raised by the parties—the second and third claims.
Before going further, we focus on the act of retaliation urged by plaintiffs. We discern two possibilities based on plaintiffs' complaint and argument: (1) the District Attorney retaliated against plaintiffs when he threatened prosecution; and (2) any future prosecution would be an unconstitutional act of retaliation. As discussed below, only the second theory is viable.
The first theory—the theory accepted by the District Court—is that the District Attorney's "threatened prosecution is retaliation for the exercise of their First and Fourteenth Amendment rights for refusing to participate in the education program at issue here." Miller, 605 F.Supp.2d at 643. In other words, plaintiffs asserted a constitutionally protected right to refuse to participate in the education program, and the District Attorney responded to that assertion with threats to prosecute the minors for the sole purpose of coercing them to attend the program.
This claim presents a timing problem, as the District Attorney threatened to prosecute Doe before she refused to attend the program. Such a threat of prosecution was not retaliation "in response to" and "because of" the exercise of a right not to attend the program, as Doe had not yet asserted that right when the District Attorney made the threat to prosecute. Because this theory has a sequence flaw, we cannot affirm the District Court's grant of injunctive relief on this basis.
Plaintiffs' second theory—that a future prosecution would be the retaliatory act—does not suffer the same timing defect, as any prosecution will necessarily come after Doe's refusal to attend the program.
The District Court also recognized plaintiffs' second variation on their retaliation claim, stating:
Miller, 605 F.Supp.2d at 643 (emphases added).
In other words, plaintiffs seek injunctive relief to prevent a future retaliatory act— an actual prosecution that has not yet been brought—from occurring. As discussed below, we affirm the District Court on this
B. Elements of Retaliation
1. Constitutionally Protected Activity
Turning to the first element of a retaliation claim, we agree with the District Court that plaintiffs have shown a reasonable likelihood of establishing that coercing Doe's participation in the education program violated (a) Jane Doe's Fourteenth Amendment right to parental autonomy and (b) Nancy Doe's First Amendment right against compelled speech.
a. Parent's Fourteenth Amendment Right
Parents have a Fourteenth Amendment substantive due process right "to raise their children without undue state interference." Gruenke, 225 F.3d at 303.
Here, Jane Doe objects to the education program's lessons in why the minors' actions were wrong, what it means to be a girl in today's society, and non-traditional societal and job roles. Appellees' Br. at 18-19. She particularly opposes these value lessons from a District Attorney who has "stated publicly that a teenage girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania's child pornography statute." Id. at 19. The program's teachings that the minors' actions were morally "wrong" and created a victim contradict the beliefs she wishes to instill in her daughter.
We agree that an individual District Attorney may not coerce parents into permitting
Our case law and Pennsylvania's statutory law recognize that school officials have a "`secondary responsibility'" in the upbringing of children, and "in certain circumstances the parental right to control the upbringing of a child must give way to a school's ability to control curriculum and the school environment." C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir.2005) (quoting Gruenke, 225 F.3d at 307); 24 Pa. Stat. Ann. § 13-1317 ("Every teacher, vice principal and principal in the public schools shall have the right to exercise the same authority as to conduct and behavior over the pupils attending his school, during the time they are in attendance, including the time required in going to and from their homes, as the parents, guardians or persons in parental relation to such pupils may exercise over them."). We can say with assuredness, however, that the District Attorney is not imbued with that same "secondary responsibility." Indeed, we find no support for this proposition in any related statute, regulation, or case. The District Attorney is not a public education official, but a public law enforcement official. We do not express a view on the propriety of this program had it been offered as part of the school curriculum,
We conclude that Jane Doe is likely to succeed in showing that the education program required by the District Attorney impermissibly usurped and violated her fundamental right to raise her child without undue state interference.
b. Minor's First Amendment Right
Government action that requires stating a particular message favored by the government violates the First Amendment right to refrain from speaking. C.N., 430 F.3d at 187;
According to plaintiffs, the compelled speech arises from the program's requirement that the minors write a homework paper explaining "how [their] actions were wrong." Jane and Nancy Doe do not agree that appearing in the photograph was wrong, and they assert that requiring Nancy Doe to write an essay to that effect "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (holding that mandatory participation in Pledge of Allegiance violated children's First Amendment free speech rights). The compulsion here takes the form of the District Attorney's promise to prosecute Doe if she does not satisfactorily complete the education program.
We agree with the District Court at this preliminary stage that Nancy Doe likely can show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach, as Mitchell's counsel described at oral argument, "[w]hat it means to be a girl; sexual self-respect, [and] sexual identity." Oral Arg. Tr. at 14. We see a fundamental distinction between this requirement and the oft-used and constitutionally sound requirement in pre-indictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his or her criminal conduct or admit wrongdoing. "[W]hat it means to be a girl in today's society," while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program's participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.
2. Government Responded with Retaliation
Under the second element of a retaliation claim, plaintiffs must show the Government responded with a retaliatory act. The test in our Circuit for determining whether an action is treated as retaliation is whether it is "sufficient to deter a person of ordinary firmness from exercising his constitutional rights." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003) (internal quotation marks, citation, and alteration omitted). There is no doubt a prosecution meets this test, and the District Attorney does not argue otherwise. See Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (discussing retaliatory prosecution cases).
The third element of a retaliation claim connects the previous two—there must be a causal link between the protected activity (the first element) and the retaliatory act (the second element). Plaintiffs allege that there is no probable cause to prosecute
By agreeing not to prosecute the minors if they attended and completed the program, the District Attorney's only motive for bringing a prosecution against Doe would be, as he stated, a consequence of her not attending or completing it. In other words, it is uncontroverted that the District Attorney would not have brought criminal charges had Doe attended and completed the program. Of course, every offer of a pre-indictment diversionary program presents a choice potential defendants must make, and a prosecution brought after the offer of diversion is refused ordinarily is not considered retaliation. The difference here is the decision not to attend the program is constitutionally protected (at least at this stage plaintiffs have shown a reasonable likelihood this is so) for the reasons stated in Part IV.B.1.
That the District Attorney's motive in bringing a prosecution is likely retaliatory, rather than a good faith effort to enforce the law, is supported by the lack of evidence of probable cause. See Hartman, 547 U.S. at 265, 126 S.Ct. 1695 ("[A] retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision, see Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (emphasizing that `so long as the prosecutor has probable cause,' the charging decision is generally discretionary), and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor's decision to bring the charge."). Assuming that the sexual abuse of children law applies to a minor depicted in the allegedly pornographic photograph, and that the photo in question could constitute a "prohibited sexual act"
The District Court may revisit this determination at a later date, and the District Attorney is free to move to vacate the injunction if he thinks he has secured probable cause. In Hartman, the Supreme Court held that plaintiffs bringing retaliatory prosecution claims must allege and prove lack of probable cause as an element of causation. 547 U.S. at 252, 126 S.Ct. 1695. Therefore, if probable cause exists, the injunction must be lifted.
The suit in Hartman was brought against criminal investigators for inducing prosecution in retaliation for protected speech. A "distinct problem of causation" exists in retaliatory-inducement-to-prosecute cases, as a "causal gap" exists between the actor possessing the retaliatory animus (the government agent) and the other actor (the prosecutor) instituting the retaliation. Id. at 262-64, 126 S.Ct. 1695. This "distinct problem of causation" does not exist here, as the same actor (the District Attorney) possesses the retaliatory motive and would institute the prosecution. However, given Hartman's broad holding that probable cause must be pled and proven in retaliatory prosecution cases, and the Supreme Court's reliance on "the longstanding presumption of regularity accorded to prosecutorial decision making," id. at 263, 126 S.Ct. 1695, we eschew any attempt to distinguish Hartman from our case.
Given that the only items of evidence in the record of the District Attorney's motive, at least at this preliminary stage, are (1) the existence of the photograph on another student's phone, and (2) the District Attorney's threat to prosecute for nonattendance at the education program,
In sum, absent an injunction, the Does would have to choose either to assert their constitutional rights and face a prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution. On the facts before us, this Hobson's Choice is unconstitutional. While "the Government retains broad discretion as to whom to prosecute," "the decision to prosecute may not be deliberately based on ... arbitrary classification, including the exercise of protected statutory and constitutional rights." Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (internal quotation marks and citations omitted); see also United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ("For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.").
We realize that considerations of comity, federalism, and prosecutorial discretion are implicated by this injunction, and that "judicial intrusion into executive discretion of such high order should be minimal." Hartman, 547 U.S. at 263, 126 S.Ct. 1695. Indeed, there is a "presumption of regularity behind the charging decision," id. at 265, 126 S.Ct. 1695, and "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher, 434 U.S. at 364, 98 S.Ct. 663. Yet we "have a limited authority to affect prosecutorial actions when those actions are taken in violation of the Constitution," United States v. Santtini, 963 F.2d 585, 596 (3d Cir.1992), and there are rare instances where a federal court may assess the quantum of evidence underlying a threatened state prosecution. See Brady v. United States, 397 U.S. 742, 751 n. 8, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (suggesting that a prosecutor's broad authority may be questioned where "the prosecutor threatened prosecution on a charge not justified by the evidence"). This case presents one of those rare instances.
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At this preliminary stage we conclude that plaintiffs have shown a likelihood of success on their claims that any prosecution would not be based on probable cause that Doe committed a crime, but instead in retaliation for Doe's exercise of her constitutional rights not to attend the education program. Therefore, we affirm the grant of a preliminary injunction and remand for further proceedings.
A retaliation claim is different. It asks not whether the exercise of a right has been unconstitutionally burdened or inhibited (in other words, survives rational basis, intermediate scrutiny, or strict scrutiny review), but whether the Government is punishing the plaintiffs for exercising their rights. Under the doctrine of retaliation, "an otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech." Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.1997).