Facebook 12c Reponse

7/27/2019 Facebook 12c Reponse

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RICHARD L HOLCOMB (HI Bar No. 9177)

BRIAN BRAZIER (HI Bar No. 9177) (Of Counsel)Holcomb Law, A Limited Liability Law Corporation1136 Union Mall, Suite 808Honolulu, HI 96813Telephone: (808) 545-4040Facsimile: (808) 356-1954Email:[email protected] Counsel; Brian BrazierALAN BECK (HI Bar No. 9145)Attorney at Law4780 Governor DriveSan Diego, California 92122Telephone: (619) 971-0414Email: [email protected] for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

Hawaii Defense Foundation,Christopher Baker,and Derek Scammon

Plaintiffs,vs.

City and County of Honolulu;Andrew Lum, in his personal andofficial capacity;John Does 1-10 in their personal and

official capacities.

Defendants._________________________

)))))))))))

)))))

CASE NO. CV 12-00469JMS-RLP

PLAINTIFFS RESPONSE TO DEFENDAMOTION FOR JUDGMENT ON THEPLEADINGS [DOC. 36]; EXHIBIT ONE;DECLARATION OF CHRISTOPHER BACERTIFICATE OF SERVICE

HEARING:

Date: January 21, 2013Time: 9:00 a.m.Judge: Honorable J. Michael Seabright

Case 1:12-cv-00469-JMS-RLP Document 43 Filed 01/03/14 Page 1 of 24 PageID #: 299
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Armster v. U.S. Dist. Court, 806 F.2d 1347 (9th Cir. 1986) . . . 13

Barnes v. Healy, 980 F.2d 572 (9th Cir. 1992) . . . . . . . . . . . . . 7, 15-16, 17

Canez v. Guerrero,707 F.2d 443 (9th Cir.1983) . . . . . . . . . . . 14

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . 9, 10, 11-12

City of Mesquite v. Aladdin's Castle, Inc.,455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16-17

Dan Caputo Co. v. Russian River County Sanitation District,

749 F.2d 571 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) . . . . . . . . . . . 14-15

Enrico's, Inc. v. Rice,730 F.2d 1250 (9th Cir.1984) . . . . . . . . . 14

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 n. 3, 15

F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . 5-6

Church of Scientology Flag Service Organization, Inc.

v. City of Clearwater,2 F.3d 1514 (11th Cir.1993) . . . . . . . . . 5

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) . 5

E.E.O.C. v. KarenKim, Inc., 698 F.3d 92 (2d Cir. 2012) . . . . . . 16

F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) . . . . 16



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F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . 6-7

Garcia v. Lawn, 805 F.2d 1400 (9th Cir. 1986) . . . . . . . . . . . . . 13-14

Maine Human Rights Comm'n v. City of Auburn,425 A.2d 990 (Me. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20

Matter of Combined Metals Reduction Co.,

557 F.2d 179 (9th Cir.1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

N.A.A.C.P. v. City of Evergreen, Ala.,

693 F.2d 1367 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

Philips v. Pennsylvania Higher Education Assistance Agency,

657 F.2d 554 (3rd Cir.1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007) . . . . . . . . . . . . 13

Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency,

581 F.3d 1169 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Solomon v. City of Gainesville,763 F.2d 1212 (11th Cir.1985) . 5

Southern Oregon Barter Fair v. Jackson County,

372 F.3d 1128 (9th Cir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Swift & Co. v. United States, 276 U.S. 311 (1928) . . . . . . . . . . . 15

United States v. Oregon State Medical Society,

343 U.S. 326 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. W. T. Grant Co., 345 U.S. 629 (1953) . . . . . . . 5, 7, 9, 15,16



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PLAINTIFFS RESPONSE TO DEFENDANTS

MOTION FOR JUDGMENT ON THE PLEADINGS [DOC. 36]

Plaintiffs concede to the dismissal of John Doe Defendants. Because

the Defendants admitted that the City had delegated responsibility for

administration of the HPD Facebook page to Defendant Lum, additional

discovery is not required to identify other culprits. Also, Plaintiffs concede

to the dismissal of Defendant Lum in his official capacity. It is unclear what

the Defendants stands to gain from such dismissals. But, Plaintiffs agree

generally that Defendant Lum, in his official capacity, is in effect the City.

Plaintiffs do object to the remainder of the Defendants request, i.e.,

an outright dismissal of any claims requesting injunctive relief. The Citys

argument is essentially that this case is moot. Yet, it was only because this

Court compelled the City to correct its illegal conduct at the status

conference held August 22, 2012,1that Defendants, to counsels knowledge,

1Specifically, the day after the Complaint was filed, this Court held a statusconference. The Court informed the City that if the allegations in the

Complaint were true, this Court would have no choice but to issue aTemporary Restraining Order as requested by the Plaintiffs. Thus, this

Court admonished the City to remedy the issue. While counsel cannotremember the exact language the Court chose, it appears that a transcript of

that status conference was preserved and counsel will order the transcript.

Nevertheless, after some discussion between the parties, including the Citys

initial inclination to remove the HPD Facebook page altogether, the Citydecided that no posts would be removed until such time as a policy

*Footnote continued



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first refrained from removing posts from the HPD Facebook page. And, the

policy that was agreed upon by the parties in lieu of formal injunctive relief

was not adopted until some months later.

It clearly took the authority of this Court to effectuate this change.

Indeed, the day that the Complaint in this case was filed, the allegations of

this Complaint appeared on the local evening news. Approximately twenty

minutes later, Defendants (presumably Defendant Lum) posted the following

on the HPD Facebook page:

Aloha HPD Facebook users. We hope the information this site

provides is useful and has value to you as members of thiscommunity. The intent of this site was to utilize current

technology to build law enforecement partnerships with youtoward making Honolulu the safest place to live, work, and

play.

Sharing your experiences with us, either good or bad, is

encouraged. However, misrepresentations calculated to harmthe reputation of the HPD, or others, are considered defamatory

and will be deleted as a violation of the posting guidelines.

We appreciate the opportunities Facebook technology allows us

in sharing information with you. Aloha.

This posting is attached as Exhibit One. In other words, as of August 21,

2013, following the filing of the Complaint, it was the intent of the Citys

governing the removal of speech from the HPD Facebook page wasnegotiated with the assistance of the ACLU and approved by the Plaintiffs.



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delegate, Defendant Lum, to continue to remove any and all posts criticizing

the HPD. That post was unsurprisingly removed following the Status

Conference of August 22, 2013.

Moreover, it was only following the status conference and the Citys

resulting decision to decline to remove anyinterim postings (during the time

the policy was being negotiated) that the ban was lifted, allowing Mr.

Baker and Mr. Scammon to again participate in the public forum, i.e., the

HPD Facebook page. The Citys current contention that Plaintiffs had

several of their postings removed and were temporarily unable to post on

HPDs Facebook Page . . . harms [that] ended before they filed the instant

action is simply untrue. [Doc. 36-1, p. 6] It is unclear to the undersigned

how the City interprets the statements in the Complaint and/or the Concise

Statement of Facts [Doc. 35] that Mr. Scammon and Mr. Baker were

banned for some time prior to the filing of the Complaint as some

admission that the ban was lifted before the filing of the Complaint.2 [See

2

Paragraph 8 of Doc. 35 states: HPD Banned Plaintiff Christopher Bakerfrom Posting on its facebook page for a period of time prior to the filing of

Plaintiffs Complaint. Paragraph 10 states the same for Plaintiff Scammon.

Paragraphs 20 and 22 of the Complaint [Doc. 1] state essentially the same.

And, the City admitted that Mr. Baker was banned from participating in theforum. Doc. 35-3, pp. 7-8 (Request for Admission Number 15). The City

*Footnote continued



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Doc. 36, p. 6] Such was certainly not the case. See Declaration of

Christopher Baker, attached. Indeed, the lifting of the ban was specifically

requested in both the Motion for Temporary Restraining Order [Doc. 6, p. 2]

and the Motion for Preliminary Injunction. [Doc. 7, p. 2; Doc. 7-1, p. 15]

Further, in order to resolve the preliminary injunction, the parties,

with the assistance of the ACLU, negotiated a policy to govern the removal

of Facebook posts. That is why the Court deemed the Preliminary

Injunction Motion moot solely because the parties agreed to

implementation of the policy in lieu of burdening the Court with deciding

the extent of preliminary injunctive relief to which Plaintiffs were entitled.

[Compare Doc. 36-1, p. 6] This has absolutely no effect on the standing,

mootness, or merits of the controversy before this Court.3

It is longstanding and undeniable that the instant lawsuit presents a

case in controversy, Plaintiffs have standing, and the claims are not moot.

admitted the same as to Plaintiff Scammon. Doc. 35, p. 11 (Request for

Admission Number 23).

3Notably, even if this Court denied the Motion for Preliminary Injunction on

the merits, which it certainly did not, it would make no differencewhatsoever. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),Inc., 528 U.S. 167, 192-93 (2000) (Denial of injunctive relief does not

necessarily mean that the district court has concluded there is no prospect offuture violations for civil penalties to deter.).



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The Citys argument is essentially that its voluntary cessation of this

illegal activity (despite this cessation clearly being compelled by this Court

as evidenced by the record of this case and the HPD Facebook post of

August 21, 2012) somehow renders Plaintiffs claims moot. This argument

has been squarely rejected by our appellate courts for decades:

Both sides agree to the abstract proposition that voluntary

cessation of allegedly illegal conduct does not deprive thetribunal of power to hear and determine the case, i.e., does not

make the case moot. A controversy may remain to be settled in

such circumstances, a dispute over the legality of the challengedpractices. The defendant is free to return to his old ways. This,together with a public interest in having the legality of the

practices settled, militates against a mootness conclusion. For tosay that the case has become moot means that the defendant is

entitled to a dismissal as a matter of right, The courts haverightly refused to grant defendants such a powerful weapon

against public law enforcement.

United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (citations

omitted); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289

(1982) (It is well settled that a defendants voluntary cessation of a

challenged practice does not deprive a federal court of its power to

determine the legality of the practice.); Philips v. Pennsylvania Higher

Education Assistance Agency, 657 F.2d 554, 56970 (3rd Cir.1981), cert.

denied,455 U.S. 924 (1982); Solomon v. City of Gainesville,763 F.2d 1212

(11th Cir.1985); Church of Scientology Flag Service Organization, Inc. v.

City of Clearwater,2 F.3d 1514 (11th Cir.1993).



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Thus, the Ninth Circuit has rightfully observed that while the actions

of a victim may render injunctive relief moot, it is much more difficult for a

perpetrator to render injunctive relief moot:

The Andersons contend that [v]oluntary cessation of anunlawful course of conduct precludes the issuance of an

injunction if there is no cognizable danger of recurrent

violations. Appellants' Opening Brief at 28. Contrary to the

Andersons' assertion, however, it is actually well-settled that

an action for an injunction does not become moot merelybecause the conduct complained of was terminated, if there is a

possibility of recurrence,since otherwise the defendant's would

be free to return to [their] old ways. FTC v. AmericanStandard Credit Systems, Inc. 874 F.Supp. 1080, 1087(C.D.Cal.1994) (quoting Allee v. Medrano,416 U.S. 802, 811,

94 S.Ct. 2191, 40 L.Ed.2d 566 (1974)) (internal citationsomitted) (emphasis added).

In part, the Andersons' misunderstanding may involve a

misunderstanding of the difference between the effect of theperpetrator's conduct, as compared to the victim's conduct, on

the need for injunctive relief. The difference is that the victim

can moot her need for injunctive relief by her own conduct, butthe alleged wrongdoer cannot moot the need for injunctive

relief as easily. This confusion becomes apparent from the cases

upon which the Andersons rely. If an employee leaves theemploy of an employer, she cannot obtain injunctive relief to

prevent her former employer from engaging in future retaliationin the workplace. See Taylor v. Resolution Trust Corp.,56 F.3d

1497, 1502 (D.C.Cir.1995). It would obviously be a differentcase if an employerclaimed that an injunction to prevent future

retaliation against current employees was no longer necessarybecause the employer had stopped retaliating against its

employees in the workplace.

It is possible, of course, that a defendant's conduct can moot theneed for injunctive relief, but the test for mootness in cases

such as this is a stringent one.United States v. Concentrated



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Phosphate Export Ass'n., Inc.,393 U.S. 199, 203, 89 S.Ct. 361,

21 L.Ed.2d 344 (1968). The reason that the defendant's conduct,in choosing to voluntarily cease some wrongdoing, is unlikely

to moot the need for injunctive relief is that the defendant could

simply begin the wrongful activity again: Mere voluntarycessation of allegedly illegal conduct does not moot a case; if it

did, the courts would be compelled to leave [t]he defendant ...free to return to his old ways. Id. (quoting United States v.W.T. Grant Co.,345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303

(1953)).

F.T.C. v. Affordable Media, 179 F.3d 1228, 1237-38 (9th Cir. 1999).

In fact, voluntary cessation of illegal conduct only renders a claim

moot if the defendant can demonstrate that there is no reasonable

expectation that the wrong will be repeated. W.T. Grant Co., 345 U.S. at

633; Barnes v. Healy, 980 F.2d 572 at 580 (9th Cir. 1992) (citations

omitted). The defendants burden is a heavy one, Id., and one that the

Defendants in this case have not even attempted to satisfy in its motion. The

Ninth Circuit has adopted the following formulation of the law in this

regard:

Voluntary cessation of an illegal course of conduct does notrender moot a challenge to that course of conduct unless (1)

there is no reasonable expectation that the wrong will berepeated, and(2) interim relief or events have completely and

irrevocably eradicated the effectsof the alleged violation.

Barnes, 980 F.2d at 580 (citations omitted) (emphases added).

Defendants could not show under the circumstances of this case that

interim relief or events have completely and irrevocably eradicated the

Case 1:12-cv-00469-JMS-RLP Document 43 Filed 01/03/14 Page 10 of 24 PageID #:308


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effects of the alleged violation. Defendants are simply requesting to be left

to their old ways.

Defendant Lum, who expressed his intent to continue deletions of

postings and/or banning of posters even after the filing of this lawsuit,

apparently still administers the HPD Facebook page. There is no evidence

of so much as a reprimand for his conduct in this case. Moreover, the policy

that was negotiated to dispose of the Preliminary Injunction was simply a

Memorandum sent to All Departments outlining the types of comments

that may be removed and directing the agency to review the proposed

deletion with the Department of Corporation Counsel. There is no

indication of a formal adoption of this policy by City Council or any other

formal administrative promulgation procedures. Thus, Defendants are free

to simply continue to remove posts and ban participation in the forum once

this lawsuit is resolved. And, most importantly, the harm suffered continues

even today as Plaintiffs deleted posts were never restored as specifically

requested in the Motion for Preliminary Injunction, [Docs. 7, 7-1] which,

along with the lifting of the ban represent the crux of this lawsuit. The

effects of the illegal conduct simply have not been completely or irrevocably

eradicated and there is a clear risk of the harm continuing and being



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repeated. Clearly, this Court should not deem Plaintiffs claims for

injunctive relief moot as asserted by the Defendants.

The City relies solely on two cases for its assertion of mootness.

First, the City relies on City of Los Angeles v. Lyons, 461 U.S. 95, 101

(1983). There, a police officer had allegedly choked Mr. Lyons following a

traffic stop. Id. at 97-98. Mr. Lyons sought broad injunctive relief against

the use of chokeholds by all LAPD officers except in very limited

circumstances. Id. at 98. During litigation, five more deaths occurred as a

result of LAPD chokeholds. Id. at 100. And, the Board of Police

Commissioners instated a six month moratorium on the use of chokeholds.

Id.

The United States Supreme Court clearly found (agreeing with the

City Defendant in that case) that a mere moratorium on potentially

unconstitutional behavior did not render the claims moot: [w]e agree with

the City that the case is not moot, since the moratorium by its terms is not

permanent. Intervening events have not irrevocably eradicated the effects of

the alleged violation. Lyons, 461 U.S. at 101 (citations omitted).

However, the Court found there was no case or controversy because there

was no indication that Mr. Lyons would ever again be stopped by a police

officer who would illegally choke him:



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In order to establish an actual controversy in this case, Lyons

would have had not only to allege that he would have anotherencounter with the police but also to make the incredible

assertion either, (1) that all police officers in Los Angeles

always choke any citizen with whom they happen to have anencounter, whether for the purpose of arrest, issuing a citation

or for questioning or, (2) that the City ordered or authorizedpolice officers to act in such manner.

Id. at 105-06.

In contrast, the facts of this case are that the Defendants were at the

very least informally compelled by this Court to correct the wrongdoing only

after the filing of this lawsuit. That fact, alone, cuts heavily against the

Defendants instant argument. It is the duty of the courts to beware of

efforts to defeat injunctive relief by protestations of repentence and reform,

especially when abandonment seems timed to anticipate suit, and there is

probability of resumption. United States v. Oregon State Medical Society,

343 U.S. 326, 333 (1952). To accept such protestation and cessation at face

value free to return to his [or her] old ways. W.T. Grant, supra,345 U.S.

at 632.

Nevertheless, following this Courts admonishment of August 22,

2012, the City has apparently sent a memorandum to various City

Departments requesting compliance with the negotiated policies, citing

potential legal exposure as the reason for the request. The same offending

administrator (i.e., Defendant Lum), who expressed his intent to continue to



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engage in the illegal conduct even after the filing of this lawsuit, is believed

to continue to administer the HPD Facebook page, with no known corrective

action taken against him. And, there is nothing requiring continued

compliance with the policy. Thus, if Plaintiffs post on City Facebook pages,

as they intend to do, they are subject to unconstitutional action by the same

actors. Thus, the risk of such action occurring after the resolution of this

lawsuit remains very real. Moreover (and again), not only is future harm

foreseeable, but it is continuing today. Plaintiffs posts have not been

restored. This alone distinguishes this case from those relied upon by the

Defendants.

The Lyons Court also discussed the second case relied upon by the

City as follows:

In O'Shea v. Littleton,414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d674 (1974), we dealt with a case brought by a class of plaintiffs

claiming that they had been subjected to discriminatory

enforcement of the criminal law. Among other things, a countymagistrate and judge were accused of discriminatory conduct in

various respects, such as sentencing members of plaintiff's classmore harshly than other defendants. The Court of Appeals

reversed the dismissal of the suit by the District Court, rulingthat if the allegations were proved, an appropriate injunction

could be entered.

We reversed for failure of the complaint to allege a case or

controversy. Although it was claimed in that case that particular

members of the plaintiff class had actually suffered from thealleged unconstitutional practices, we observed that [p]ast

exposure to illegal conduct does not in itself show a present



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case or controversy regarding injunctive relief ... if

unaccompanied by any continuing, present adverse effects.Past wrongs were evidence bearing on whether there is a real

and immediate threat of repeated injury. But the prospect of

future injury rested on the likelihood that [plaintiffs] will againbe arrested for and charged with violations of the criminal law

and will again be subjected to bond proceedings, trial, orsentencing before petitioners. The most that could be said for

plaintiffs' standing was that if[plaintiffs] proceed to violate an

unchallenged law and ifthey are charged, held to answer, and

tried in any proceedings before petitioners, they will be

subjected to the discriminatory practices that petitioners arealleged to have followed. We could not find a case or

controversy in those circumstances: the threat to the plaintiffs

was not sufficiently real and immediate to show an existingcontroversy simply because they anticipate violating lawfulcriminal statutes and being tried for their offenses.... It was to

be assumed that [plaintiffs] will conduct their activities withinthe law and so avoid prosecution and conviction as well as

exposure to the challenged course of conduct said to befollowed by petitioners.

Lyons, 461 U.S. at 102-03. In other words, because those Plaintiffs were

expected to comply with valid criminal law, they should never again be

subject to the discrimination claimed in their lawsuit.

In contrast, in this case, Plaintiff Baker has attached a Declaration

evidencing his intent to engage in future conduct that epitomizes legal and,

indeed, closely protected conduct in American society i.e., political

dissent. Declaration of Christopher Baker. Clearly, unlike the Plaintiffs in

OShea, supra., Mr. Baker is entitled to engage in the desired conduct.

Moreover, unlike the Plaintiffs inLyons,supra., the likelihood of encounters



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with the same offending actors is not only likely but inevitable. Notably,

such stated intent is all that the Ninth Circuit requires before flatly rejecting

a Defendants claim that voluntary cessation renders claims for injunctive

relief moot. Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581

F.3d 1169, 1174 (9th Cir. 2009) (the burden is not on [Plaintiff] to show it

will file another complaint. The burden is on the [Defendant] to show that

[Plaintiff] will notdo so. The Defendants attempt to reverse this burden is

insufficient to show mootness. . . . More importantly, when there is an

argument about whether a plaintiff will again encounter a challenged

activity, this court has required little more than what [Plaintiff] has already

supplied: a stated intention to resume the actions that led to the litigation.);

see also Porter v. Bowen, 496 F.3d 1009, 1014-15 (9th Cir. 2007); Southern

Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir.2004). On

the other hand, a mere stated intention that this situation will not recur . . .

[is not] sufficient to deprive this Court of its constitutional power to

adjudicate this case. Armster v. U.S. Dist. Court, 806 F.2d 1347, 1359 (9th

Cir. 1986).

Indeed, it appears that the Ninth Circuits willingness to hold that a

lawsuit is moot due to cessation of conduct is limited to circumstances

where the action which rendered the lawsuit moot was irreversible, and no



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effective relief was available. Garcia v. Lawn, 805 F.2d 1400, 1403-04

(9th Cir. 1986) (finding that a case where a DEA Agent claimed his transfer

was illegal retaliation to past litigation was not moot despite the DEA Agent

having been terminated since the commencement of the lawsuit)

(distinguishingDan Caputo Co. v. Russian River County Sanitation District,

749 F.2d 571, 574 (9th Cir.1984) (action to enjoin performance of contract

mooted by virtue of the completion of the contract); Enrico's, Inc. v. Rice,

730 F.2d 1250, 1254 (9th Cir.1984) (issue on appeal mooted by virtue of

intervening decision by a California state court interpreting California state

law); Canez v. Guerrero, 707 F.2d 443, 446 (9th Cir.1983) (action as to

procedures used in a union election mooted because the election had

occurred and the complainants had been victorious); Matter of Combined

Metals Reduction Co., 557 F.2d 179, 192 (9th Cir.1977) (action as to the

appropriate disposition of property of a bankrupt company mooted because

the sale and lease of the property in question had been completed pursuant to

a valid order of the district court)). In sum, absent some extraordinary

showing by the Defendants, [o]nce a defendant has engaged in conduct the

plaintiff contends is unlawful and the courts have devoted resources to

determining the dispute, there is Article III jurisdiction to decide the case as

long as the parties [do not] plainly lack a continuing interest....Demery v.



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Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004) (quoting Friends of the Earth,

Inc,528 U.S. at 192)). Defendants Motion should be denied.

Not only are the claims clearly viable at present, but the injunctive

relief should be granted via Plaintiffs pending Motion for Summary

Judgment or upon finding of facts at trial. The purpose of an injunction

deals primarily, not with past violations, but with threatened future ones;

and that an injunction may issue to prevent future wrong, although no right

has yet been violated. Swift & Co. v. United States, 276 U.S. 311, 326

(1928). Accordingly, [a]long with its power to hear the case, the court's

power to grant injunctive relief survives discontinuance of the illegal

conduct. W.T. Grant Co., 345 U.S. at 633. However, Plaintiffs must

satisfy the court that relief is needed. The necessary determination is that

there exists somecognizable danger of recurrent violation, something more

than the mere possibility which serves to keep the case alive. Id. (emphasis

added).

Here, there is not merely some cognizable danger of recurrent

violation, the violation has continued throughout this litigation. Specifically,

Plaintiffs protected speech has remained deleted from the HPD Facebook

page with no known efforts by the Defendants to restore the protected

speech. Moreover, Defendant Lum apparently continues to administer the



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page and a mere memorandum, with no known formal adoption by City

Council or otherwise, requests compliance with the policy to which the

parties agreed to satisfy the requested preliminary injunctive relief. Clearly,

a denial of Plaintiffs requested injunctive relief leaves Defendantsfree to

return to his [or its] old ways. W.T. Grant Co.,345 U.S. at 633.

Such injunctions have been issued by a number of courts, including:

The Second Circuit found an abuse of discretion in denying an

injunction in a sexual harassment case despite the termination of the

lone sexual harasser where the offender was a store manager in arelationship with the owner of the store. As in this case, nothingprevented the Store owner from rehiring the offender. E.E.O.C. v.

KarenKim, Inc., 698 F.3d 92, 100-01 (2d Cir. 2012);

The Tenth Circuit upheld an issued injunction where a companys

telephone record search activities were challenged by the Federal

Trade Commission. Despite the company having ceased offeringtelephone records before litigation commenced and having expressed

a willingness to disgorge profits gained by the challenged acts, thecompany remained in the information brokerage business [and,

therefore] had the capacity to engage in similar unfair acts or

practices in the future. F.T.C. v. Accusearch Inc., 570 F.3d 1187,

1201-02 (10th Cir. 2009);

The United States Supreme Court refused to overturn injunctive relief

issued by the lower court despite the Defendants claims of cessation,

finding:

It is well settled that a defendant's voluntary cessation of achallenged practice does not deprive a federal court of its power

to determine the legality of the practice. Such abandonment is

an important factor bearing on the question whether a court

should exercise its power to enjoin the defendant fromrenewing the practice, but that is a matter relating to the

exercise rather than the existence of judicial power. In this case



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the city's repeal of the objectionable language would not

preclude it from reenacting precisely the same provision if theDistrict Court's judgment were vacated.

Aladdin's Castle, 455 U.S. at 289; and

In a case where injunctive relief was granted to one class but notanother, the Ninth Circuit specifically held that the issuance of such

injunctive relief was not moot despite the Defendants voluntary

agreement to comply with the terms of the injunction in regards to allclasses. Although we commend Healy for his willingness to comply

voluntarily with the preliminary injunction, we do not regard thisissue as moot. Absent resolution of the court's conflicting orders, DSS

might find it convenient at any time to dispense with notice to non-

AFDC custodial parents. The entire class is entitled to the protectionof an enforceable order to ensure that past due process violations will

not be repeated. Barnes, 980 F.2d at 580.

This case presents the precise issue as that in Barnes, supra. Specifically,

the City might at any time find it convenient to dispense with the

requirements of the memorandum and dispense with any or all constitutional

safeguards. This would result in the past First Amendment violations being

repeated. And, unless an aggrieved member of the public, willing to bear

the burden of federal litigation, the wrong might never be resolved.

Interestingly, albeit in racial discrimination cases rather than

discrimination based on political viewpoints as presented by this case, courts

have been even more willing to issue injunctive relief despite cessation and

promises of future good behavior. In fact, courts have found a self-imposed

duty to right the wrongs of past discrimination. For example, inN.A.A.C.P.



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v. City of Evergreen, Ala., 693 F.2d 1367, 1370-71 (11th Cir. 1982), the

Eleventh Circuit based its decision to fashion equitable injunctive relief

entirely on the history of Evergreens discrimination against African

Americans in supervisory positions:

But in cases presenting abundant evidence of consistent past

discrimination, injunctive relief is mandatoryabsent clear and

convincing proof that there is no reasonable probability of

further noncompliance with the law. James v. Stockham Valves& Fittings Co.,559 F.2d 310, 354 (5th Cir.1977), cert. denied,

434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Although

the court found that discrimination no longer exists, the powerto issue an injunction survives discontinuance of the illegalconduct sought to be enjoined. W.T. Grant, supra,345 U.S. at

633, 73 S.Ct. at 897. The district judge clearly erred in statingthat [i]t is insignificant whether this change is due to the filing

of the EEOC charge and this suit. Courts should keep in mindthe oft-repeated observation that reform timed to anticipate or

blunt the force of a lawsuit offer[s] insufficient assurance thatthe practice sought to be enjoined will not be repeated. James

v. Stockham Valves, supra,559 F.2d at 35455. Moreover, even

absent the threat of future discriminatory behavior, the courtshave a duty to correct and eliminate the present effects of past

discrimination.Albemarle Paper Co. v. Moody,422 U.S. 405,

418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); Morrow v.Crisler,491 F.2d 1053, 1056 (5th Cir.) (en banc), cert. denied,

419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); NAACP v.Allen, 340 F.Supp. 703, 705 (M.D.Ala.1972), aff'd, 493 F.2d

614 (5th Cir.1974). Considering the district court's finding andthe abundant evidence in the record of consistent past

discrimination, we hold that the denial of injunctive relief wasan abuse of discretion. This case must therefore be remanded

for the district court to fashion an appropriate decree which will

be designed to increase the number of blacks in supervisory

positions in Evergreen's agencies and departments.

Evergreen, 693 F.2d at 1370-71.



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Further where, as here, there has been no evidence that the remedial

measure upon which a Defendant relies in attempting to demonstrate

cessation is, itself, constitutional, other courts have issued injunctive relief

despite cessation of conduct:

At oral argument, counsel for the City contended that the orderenjoining further use of the 1978 oral interview process and

directing them to devise and implement a nondiscriminatoryexamination and hiring procedure for its police department has

been mooted because it has changed that oral interview process.

The fact that the defendant in an equity case has ceased itsunlawful conduct does not deprive the equity court of power tohear and determine the case. United States v. W. T. Grant Co.,

345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).

Since one of the purposes, if not the principal purpose, of an

injunction is to prevent future violations, the power of a courtof equity to grant such an order survives discontinuance of the

unlawful action.Id. at 633, 73 S.Ct. at 897. In any event, thereis no showing that even the modified oral examination complies

with the law; and furthermore, the Maine Human Rights

Commission, having proved that unlawful discrimination has

existed in the Auburn police hiring process, is entitled topositive action on the City's part to assure the future elimination

of any unlawful bias anywhere in that process. An equity courtshould proceed with restraint in issuing an injunctive order

against a governmental body. See Waite v. Macy, 246 U.S. 606,609, 38 S.Ct. 395, 396, 62 L.Ed. 892 (1918) (Holmes, J.).

Oftentimes a mere declaration of legal rights or of legal ruleswill suffice to govern future official action. Cf. Kelly v. Curtis,

Me., 287 A.2d 426 (1972). There is nothing here to suggest,however, that the Superior Court was not sensitive to those

established equitable principles; and since it retained full powerto issue the injunction even though some modification in the

City's interview process apparently had occurred, no error existsin the first paragraph of the Superior Court's judgment that is

here under review.



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Maine Human Rights Comm'n v. City of Auburn, 425 A.2d 990, 994-95 (Me.

1981).

CONCLUSION

Although failing to decipher what Defendants stand to gain from their

request, Plaintiffs concede to the dismissal of John Doe Defendants and

Defendant Lum in his official capacity. All other relief requested in the

motion should be denied.

DATED: Honolulu, HI; January 3, 2014.

s/Richard L. HolcombRichard L. Holcomb 9177

Attorney for Plaintiffs

CERTIFICATE OF SERVICEOn this, the 3rd of January, 2014, I served the foregoing pleading by electronicallyfiling it with the Courts CM/ECF system, which generated a Notice of Filing and

effects service upon counsel for all parties in the case. I declare under penalty of

perjury that the foregoing is true and correct. Executed this the 3rd day of January,

2014.

s/Richard L. HolcombRichard L. Holcomb 9177



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