2:16-cv-02794-CWH Date Filed 11/28/16 Entry Number 86 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Kenny, et al., Plaintiffs
v.
Wilson, et al., Defendants.

: : : : : CIVIL ACTION NO. 2:16-2794-CWH : : : : :

STATEMENT OF INTEREST OF THE UNITED STATES The United States, through undersigned counsel, submits this Statement of Interest regarding Defendants’ Motions to Dismiss [ECF Nos. 27, 28, 28(1), 34, 34(1), 36, 36(1), 41, 42, 42(1), 44, 44(1)].
OVERVIEW A proposed class of students and a non-profit youth services organization challenge two South Carolina statutes, the Disturbing Schools statute, S.C. Code Ann. § 16-17-420, and the Disorderly Conduct statute, S.C. Code Ann. § 16-17-530, on the grounds that they are unconstitutionally vague. Compl. ¶¶ 1, 5 Aug. 11, 2016, ECF No. 1 (Compl.). Plaintiffs allege that the statutes do not provide students with notice of what conduct is prohibited and that the absence of definite standards facilitates arbitrary and discriminatory enforcement. They further assert that enforcement of these vague statutes drives large numbers of young people into the juvenile and criminal justice systems, criminalizes common youthful behavior, results in racial

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disparities and likely disparities on the basis of disability in arrest and justice system referrals, and subjects students to punishment that is disproportionate to their alleged misconduct.
On August 11, 2016, plaintiffs filed the complaint that initiated this matter, and then on August 16, they filed a motion for a preliminary injunction to enjoin enforcement of the statutes pending a final decision on the merits. On September 30, defendants filed motions to dismiss and responses to the plaintiffs’ motion for a preliminary injunction. On October 19, plaintiffs filed oppositions and replies to defendants’ motions and responses. On November 4, defendants filed replies in support of their motions to dismiss.
Taking plaintiffs’ assertions as true and considering the pleadings in their entirety,1 plaintiffs have properly stated a claim under the Due Process Clause of the Fourteenth Amendment.2 As set out more fully below, provisions of the statutes at issue in this case raise significant concerns, particularly in light of the allegations of arbitrary and discriminatory enforcement.3 As the United States’ experience in enforcing civil rights laws elsewhere has demonstrated, significant racial disparities in the enforcement of a criminal statute may indicate
1 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“First, faced with a Rule 12(b)(6) motion to dismiss a § 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true . . . Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”) (emphasis in original); Zak v. Chelsea Therapeutics Intern., Ltd., 780 F.3d 597, 601 (4th Cir. 2015) (citing the Tellabs standard). 2 The United States takes no position on any other issues raised in the Motions to Dismiss, or on Plaintiffs’ motion for a preliminary injunction. 3 In their motion for preliminary relief, plaintiffs challenge the Disturbing School Statute, S.C. Code Ann. § 16-17-420(A)(1) and (A)(2), and the Public Disorderly Conduct Statute, S. C. Code Ann. § 16-17-530(a) (second clause) and (b)).
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that the statute is unconstitutionally vague.4 As the agency tasked by Congress with enforcing the nation’s federal civil rights laws, the United States Department of Justice (Department) has addressed arbitrary and discriminatory enforcement in matters across the country (see Section C).
INTERESTS OF THE UNITED STATES The United States files this Statement of Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of the United States” in any case “pending in a court of the United States, or in a court of a State.” The issues in this case – alleged violations of the Due Process Clause in the administration of juvenile justice – fall squarely within the ambit of the United States’ enforcement authority. Under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (Section 14141), the United States is charged with protecting children’s statutory and constitutional rights in the administration of juvenile justice and with ensuring that people are free from police practices that violate the Constitution or statutory law.5 As discussed more fully in Section C below, the United States’ civil rights enforcement experience in other matters has demonstrated that the arbitrary or discriminatory enforcement of unconstitutionally vague standards can deprive
4 The evidence of systemic discriminatory enforcement in the record thus far concerns the challenged provisions of the Disturbing Schools statute. The plaintiffs have introduced some evidence that the Disturbing Schools statute and the Disorderly Conduct statute are enforced interchangeably, see, e.g., Compl. ¶¶ 86, 94, which suggests that both statutes may be enforced in an arbitrary and discriminatory manner. If the Court allows plaintiffs’ claims to proceed to discovery, the discovery process will reveal whether this is, in fact, the case. 5 The statute provides, in relevant part: “It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141(a) (1994).
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individuals of their civil rights and disproportionately affect minority populations. The United
States therefore has a strong interest in ensuring that laws provide adequate guidance to law
enforcement officers so that they are enforced consistently, without discrimination.
The United States has previously invoked its authority under Section 14141 and other
federal civil rights statutes6 to address the cycle of harsh school discipline leading to law
enforcement and justice system involvement known as the “school-to-prison pipeline.”7 The
6 These include Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq. (Title IV); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (Title VI) and its implementing regulations, 28 C.F.R. §§ 42.101-112; the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (Safe Streets Act) and its implementing regulations, 28 C.F.R. § 42.201-215; the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq. (EEOA); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C, § 794 (Section 504) and its implementing regulations, 28 C.F.R. § 42.501-540; and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. (Title II) and its implementing regulations, 28 C.F.R. Pt. 35. These statutes and regulations collectively protect students in public schools from discrimination on the basis of race, color, national origin, sex, religion, language status, and disability. Moreover, Title VI, the Safe Streets Act, Section 504, and Title II prohibit police departments and other law enforcement agencies from discriminatory conduct in their activities.
7 Loretta Lynch, Att’y Gen., Remarks at the White House Convening on School Discipline (Jul. 22, 2015) (Lynch School Discipline Remarks), available at: http://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-whitehouse-convening-school-discipline (noting the Department of Justice’s determination to end the “unjust status quo” of youth being “suspended, expelled or even arrested as a result of unnecessarily harsh school discipline policies and practices that essentially criminalize minor infractions”). Members of Congress and juvenile court judges have also expressed alarm and surprise about the school-to-prison pipeline, and their support for efforts to end it. See, e.g., Testimony of Senator Richard Durbin, Chairman, Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, “Ending the School-toPrison Pipeline” at 1, Dec. 12, 2012, available at: https://www.judiciary.senate.gov/download/statement-of-senator-durbin-pdf-2012-12-12 (noting that “[a] schoolyard fight that used to warrant a visit to the principal’s office can now lead to a trip to the booking station and a judge,” and explaining how various justice system stakeholders were engaging in reform efforts to “meet this challenge”) (STPP Hearing); Testimony of Judge Steven Teske, STPP Hearing, at 1-2, available at: https://www.judiciary.senate.gov/imo/media/doc/12-12-12TeskeTestimony.pdf (“When I took the bench in 1999, I was shocked to find that approximately one-third of the cases in my courtroom were school-related, of which most were low risk misdemeanor offenses.”).
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school-to-prison pipeline disproportionately affects students of color and students with
disabilities.8 As part of its efforts to stop the discriminatory funneling of students into this
pipeline, the United States has entered into settlement agreements that prevent schools and law
enforcement agencies from using the juvenile and criminal justice systems to address routine
student misbehavior.9
The United States has also worked to address the school-to-prison pipeline through other
Statements of Interest, enforcement actions, and non-regulatory guidance,10 and through its
8 Lynch School Discipline Remarks.
9 Consent Order Between the United States and the Meridian Municipal Separate School District, Barnhardt v. Meridian Mun. Sep. Sch. Dist, No. 4:65-cv-01300-HTW-LRA (S.D. Miss. May 30, 2013), available at: https://www.justice.gov/sites/default/files/crt/legacy/2013/06/30/meridianconsentdecree.pdf; Consent Order Between the United States and Huntsville Board of Education, Hereford & United States v. Huntsville Board of Education, No. 5:63-cv-00109-MHH (N.D. Ala. Apr. 24, 2015), available at: http://www.justice.gov/sites/default/files/crt/legacy/2015/07/13/huntsvilleconsentorder.pdf; Settlement Agreement Between the United States and the City of Meridian, United States v. City of Meridian, et. al, No. 3:13-CV-978-HTW-LRA (S.D. Miss. Sept. 18, 2015), available at: http://www.justice.gov/crt/file/778016/download; Settlement Agreement Between the United States and the School District of Palm Beach County (Feb. 26, 2013); available at: https://www.justice.gov/sites/default/files/crt/legacy/2013/04/21/palmbeachagreement.pdf. See also Voluntary Resolution Agreement Between the United States Department of Justice and the Richland County Sheriff’s Department (RCSD) ¶ 3 (August 10, 2016) (Richland County Agreement), available at: http://ojp.gov/about/ocr/pdfs/RCSD-SRO-ComplianceReview08102016.pdf. Among other things, the agreement requires the RCSD to create precise guidelines that limit charging students under the Disturbing Schools statute to instances in which a student presents a “serious, real, and immediate threat to the safety of the school and its community,” and to develop guidance to ensure that students are protected from arrest for public order offenses such as disorderly conduct and loitering, which should be “considered school discipline issues” and “addressed by school personnel rather than [school-based law enforcement officers].” Richland County Agreement ¶ 55.
10 See, e.g., Statement of Interest of the United States at 13, S.R. & L.G. v. Kenton County, et.al., No. 2:15-cv-00143-WOB-JGW (E.D. Ky. Oct. 2, 2015), available at: https://www.justice.gov/crt/file/780706/download (asserting that the role of School Resource Officers should be carefully circumscribed to ensure that law enforcement officers do not become involved in routine disciplinary matters or criminalize behavior that educators can
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federal financial assistance to law enforcement agencies.11 In each of these activities, the United
States has made clear that school-based law enforcement officers (often called School Resource
Officers, or SROs) should take law enforcement actions, such as arresting students, only for
serious criminal conduct or when necessary to protect students and staff from a threat of
immediate harm. The United States has also emphasized the importance of policies, training,
and other aspects of law enforcement and juvenile and criminal justice operations to protect
against the arbitrary and discriminatory enforcement of law.12
properly handle); Consent Decree Between the United States and the City of Ferguson, United States. v. City of Ferguson, No. 4:16-cv-000180-CDP at ¶ 212 (E.D. Mo. April 19, 2016), available at: https://www.justice.gov/opa/file/833431/download (City of Ferguson, Missouri, agreeing to ensure that School Resource Officers (SROs) and other Ferguson Police Department Officers “participate only in [school] situations where police involvement is necessary to protect physical safety and do not participate in any situation that can safely and appropriately be handled by a school’s internal disciplinary procedures.”) (Ferguson Consent Decree); U.S. Dep’t of Education and U.S. Dep’t of Justice, Dear Colleague Letter: Nondiscriminatory Administration of School Discipline 27 (Jan. 8, 2014), available at: https://www.justice.gov/sites/default/files/crt/legacy/2014/01/08/dcl.pdf (Discipline Dear Colleague Letter) (stating that the appropriate response to student behavior is to adopt effective, evidence-based practices that help students remain in their schools, and to ensure fidelity to the distinct roles and legal responsibilities of educators and law enforcement officials).
11 The Department’s Office of Community Oriented Policing Services (COPS Office) provides millions of dollars in grant funding to community-based policing programs, including to SRO programs in South Carolina. See, e.g., COPS Office, COPS Hiring Program (CHP), available at: http://cops.usdoj.gov/default.asp?Item=2367. Agencies receiving funding must commit to limit the role of the SROs to ensure that they are not used to “resolve routine discipline problems involving students,” since those issues should be handled by school administrators. See COPS Office, Memorandum of Understanding Fact Sheet, available at: http://cops.usdoj.gov/pdf/2016AwardDocs/chp/2016_CHP_MOU_FactSheet_v4.pdf; see also COPS Office, Pre-Award Frequently Asked Questions (FAQ) for 2016 COPS Office Hiring Program (CHP) at 7-8, available at: http://cops.usdoj.gov/pdf/2016AwardDocs/chp/2016_CHP_FAQs_v2_508.pdf (as a requirement of receiving Department of Justice grant funds for SROs, law enforcement officers “cannot be involved in the administrative discipline of students”).
12 See, e.g., Ferguson Consent Decree; Dep’t of Justice, St Louis County Family Court Findings Letter 55-58 (July 31, 2015), available at: https://www.justice.gov/sites/default/files/crt/legacy/2015/07/31/stlouis_findings_7-31-15.pdf;
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The United States’ agreements referenced above are guided in part by the recognition that student behavior is often a natural outgrowth of children’s diminished maturity and their lack of “experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” J.D.B. v. North Carolina, 564 U.S. 261, 273 (2011) (noting, in the context of a custodial police interrogation, children’s lack of capacity to “exercise mature judgment”).13 Many students who are or will become productive members of society could be characterized as behaving in an “obnoxious” or “boisterous” manner, each of which is prohibited under the criminal statutes challenged in this case. Protecting children’s developmentally appropriate behavior from being inappropriately, arbitrarily, and discriminatorily criminalized is an important duty of the Department under Section 14141 and other federal civil rights statutes.
In light of the interests articulated above, the United States files this Statement of Interest.
Compl. at ¶ 186, U.S. v. City of Meridian, et al., No. 3:13-cv-00978 (S.D. Miss. Oct. 24, 2012), available at: https://www.justice.gov/sites/default/files/crt/legacy/2012/10/24/meridian_complaint_10-2412.pdf (City of Meridian Compl.); Dep’t of Justice, Baltimore Police Department Findings Letter 39 (Aug. 10, 2016), available at: https://www.justice.gov/crt/file/883296/download (Baltimore Police Department Findings). 13 Indeed, several Supreme Court decisions consider children’s relative maturity and developing cognitive abilities as a dispositive feature in a range of justice system issues. See, e.g., J.D.B., 564 U.S. at 274 (“[E]ven where a “reasonable person” standard otherwise applies, the common law has reflected the reality that children are not adults”) (custodial interrogation); In re Gault, 387 U.S. 1, 26-27 (1967) (“It is not suggested that juvenile court judges should fail appropriately to take account, in their demeanor and conduct, of the emotional and psychological attitude of the juveniles with whom they are confronted.”) (due process in juvenile court proceedings).
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BACKGROUND
Plaintiffs challenge the Disturbing Schools statute, which provides:
(A) It shall be unlawful:
(1) for any person wilfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or
(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
S.C. Code Ann. § 16-17-420. They also challenge the Public Disorderly Conduct statute, which
provides:
Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church or (c) while under the influence or feigning to be under the influence of intoxicating liquor, without just cause or excuse, discharge any gun, pistol or other firearm while upon or within fifty yards of any public road or highway, except upon his own premises, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
S.C. Code Ann. § 16-17-530. Plaintiffs allege that students are often referred to the Department
of Juvenile Justice for violating these statutes,14 with more than 9,500 students aged 16 and
younger referred for violations of the Disturbing Schools statute since 2010—including children
14 “Referral” indicates, at a minimum, arrest and temporary custody, and for some students, may involve longer-term custody in a juvenile or adult facility while awaiting a trial. Researchers have found that long-term negative consequences can result when a youth’s conduct is met with “official sanctions” such as arrest. See Robert J. Sampson & John H. Laub, A Life Course Theory of Cumulative Disadvantage and the Stability of Delinquency, in DEVELOPMENTAL THEORIES OF CRIME AND DELINQUENCY 15 (Terence P Thornberry ed., 1997). (“The theory specifically suggests a ‘snowball’ effect – that adolescent delinquency and its negative consequences (e.g., arrest, official labeling, incarceration) increasingly ‘mortgage’ one’s future, especially later life chances molded by schooling and employment”).
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as young as seven years old.15 Compl. ¶¶ 70, 72; Pls’ Mot. for Prelim. Inj. Attach. 7, Marcelin Decl. ¶ 15, Aug. 16, 2016, ECF No. 5. They contend that the statutes make an undefined array of childhood behaviors punishable by up to 90 days of incarceration and $1,000 in fines.16
The terms of the statutes are broad enough that they may permit arrest for disturbing schools or disorderly conduct if a student asks to speak to a school mentor after being tardy to class;17 jokes repeatedly in class; takes photographs of friends in a group;18 remains on the school grounds after class; engages in a conversation while sitting outside of class;19 or practices a loud breakdance routine.
ARGUMENT
A. The Constitution Requires Statutes to be Specific Enough to Avoid Discriminatory and Arbitrary Enforcement
15 Students who are 17 or older are currently subject to prosecution as adults; thus, plaintiffs allege, the 9,500 referrals “provides only a partial picture of the law’s impact.” Compl. ¶ 71. Beginning in July 2019, 17-year-olds who are charged with these offenses will be considered juveniles. See S.C. LEGIS 268 (2016), 2016 South Carolina Laws Act 268 (S.916). 16 Even when students are not subject to a loss of their liberty through incarceration, the impact of fines can be significant. They can have a considerable, enduring impact on students’ economic prospects, as fees levied for citations, diversion programs, public defender applications, or court costs, as well as fines imposed by courts or state law, can be economically debilitating to the student and family. See, e.g., Jessica Feierman et al., DEBTORS’ PRISONS FOR KIDS? THE HIGH COST OF FINES AND FEES IN THE JUVENILE JUSTICE SYSTEM, Juvenile Law Center (Sept 6, 2016), available at: http://www.jlc.org/system/files/topic_related_docs/JLC_debtorsPrison_9-6v2.pdf?download=1; see also U.S. Dep’t of Justice “Dear Colleague Letter on Fines and Fees” (March 14, 2016), available at: https://www.justice.gov/crt/file/832461/download. 17 See Pls’ Mot. for Prelim. Inj. Attach. 5-6, K.B. Decl. ¶¶ 3-15 (K.B. Decl.). 18 See Pls’ Mot. for Prelim. Inj. Attach. 5-3, Carpenter Decl. ¶ 19(A) (Carpenter Decl.). 19 See id. ¶ 19(C).
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The prohibition on vague statutes is rooted in the Due Process Clause and the “ordinary notions of fair play” it embodies. Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926). “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Id.; see also City of Chicago v, Morales, 527 U.S. 41, 56 (1999); S.C. Med. Ass’n v. Thompson, 327 F.3d 346, 354 (4th Cir. 2003) (explaining that a statute violates due process if “it is so unclear with regard to what conduct is prohibited that it may trap the innocent by not providing fair warning, or it is so standardless that it enables arbitrary and discriminatory enforcement”) (internal quotation marks omitted). Nonetheless, facial challenges are held to a high standard. City of Los Angeles, Calif. v. Patel, 135 S.Ct. 2443, 2449 (2015). Plaintiffs have alleged that the challenged statutory language does not put school children on notice as to what conduct is illegal and does not provide sufficient guidance for police officers to avoid arbitrary and discriminatory enforcement.
Under the vagueness doctrine, a statute fails if its language is so standardless as to “necessarily entrust[] lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender v. Lawson, 461 U.S. 352, 360 (1983) (citations omitted). This lack of guidance for law enforcement can turn statutes into “a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (internal quotation marks omitted). Thus for punishment to be fair, it is axiomatic that that law enforcement must have sufficient guidance in the law to protect against arbitrary and discriminatory enforcement.20
20 The requirement that statutes be unambiguous and establish clear standards of behavior is particularly critical in the criminal and juvenile justice contexts. In contrast, the Supreme Court has provided greater latitude to public schools in the development and enforcement of a school
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The Supreme Court has “recognized . . . that the more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement” because “[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358 (internal quotation marks omitted); see also Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843, 868 (4th Cir. 1998) (“Although due process requires that a statute satisfy both requirements,” the requirement about avoiding arbitrary and discriminatory enforcement is “of special importance”). And the Court has cautioned that “[w]ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” Baggett v. Bullitt, 377 U.S. 360, 373 (1964). “The law itself must draw a sufficiently clear line between the legal and the illegal for both our police and our citizens.” Schleifer by Schleifer, 159 F.3d at 868.
The Supreme Court has repeatedly struck down statutes that fail to provide the necessary direction to law enforcement. For example, when a statute criminalized standing on the sidewalk in a group of three or more people and acting “in a manner annoying to persons passing by,” the Court found it unconstitutionally vague because it left the determination of what is annoying to the subjective assessment of the police officer. Coates v. Cincinnati, 402 U.S. 611, 614-15 (1971). Similarly, the Court found unconstitutionally vague a statute that criminalized “treat[ing] contemptuously the flag of the United States,” because the statute did not draw “reasonably clear lines” between innocent and criminal conduct and permitted “selective enforcement.” Smith v. Goguen, 415 U.S. 566, 567-69, 574-76 (1974).
discipline code, and has held that school disciplinary rules “need not be as detailed as a criminal code which imposes criminal sanctions.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (upholding a school discipline code that was challenged as unconstitutionally vague).
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In Papachristou, the Court invalidated a statute that made it criminal to be, among other things,
persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business …[and] persons able to work but habitually living upon the earnings of their wives or minor children. 405 U.S. at 162. The Court explained that the generality of the terms in the statute set the stage for the “easy roundup of so-called undesirables.” Id. at 171. Likewise, the Court found unconstitutionally vague a law that criminalized “a gang member loitering in any public place with one or more other person” because it required police officers to determine if people standing on the street had an “apparent purpose.” City of Chicago, 527 U.S. at 47 n.2, 60-61. In each of these cases, the Supreme Court found due process was violated by vague statutory language that cast a broad net and created too great a risk of discriminatory and/or arbitrary enforcement. B. The Facts Alleged in Plaintiffs’ Complaint Suggest That There May Be Arbitrary and Discriminatory Enforcement of the Statutes At Issue In This Case The statutes at issue in the instant case appear to “reach a substantial amount of innocent conduct” and to rely on the “moment-to-moment” decisions of law enforcement officers. See City of Chicago, 527 U.S. at 60. The question for the court is whether, like the loitering statute held unconstitutional in City of Chicago and the vagrancy statute held to violate Due Process in Papachristou, the laws at issue here fail to provide sufficient guidance to police. In the absence of adequate guidance, students “may be punished for no more than vindicating affronts to police authority,” and get caught in a “net” so large that it captures even those “who are vaguely undesirable in the eyes or police and prosecution.” Papachristou, 405 U.S. at 165-67.
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At this stage of the case, plaintiffs have sufficiently alleged that certain groups of students may be targeted for enforcement of the Disturbing Schools and Disorderly Conduct statutes. Law enforcement officers who lack clear guidelines regarding what conduct is criminal and when enforcement is appropriate may not apply the law equitably, whether or not the differences in enforcement are intentional. See Kolender, 461 U.S. at 358.
Plaintiffs put forward statistics alleging that black students were 3.93 times more likely than their white peers to be referred to the Department of Juvenile Justice for Disturbing Schools in the 2014-2015 school year across the state, with even higher disparities evidenced in some counties. Compl. ¶¶ 4, 76-78. For example, they allege that in Charleston, black students were more than six times as likely as white students to be referred for charges. Compl. ¶ 4. Plaintiffs further allege that such racial disparities in the school context are not explained by differences in behavior across racial groups. Compl. ¶ 62.21
A stricter enforcement regime of an imprecise statute against black students than against white students is exactly the type of harm the Supreme Court cautioned against when it invalidated the vagrancy law at issue in Papachristou. See 405 U.S. at 166-67. The significant racial disparities alleged here are the sort that the Supreme Court has stated would be relevant to a vagueness challenge. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 (1982) (rejecting vagueness challenge to ordinance where “no evidence has been, or could be, introduced to indicate whether the ordinance has been enforced in a discriminatory manner”). And the allegations easily distinguish the plaintiffs’ claim from other cases where the harms are merely far-fetched hypotheticals. See Martin v. Lloyd, 700 F.3d 132, 137 (4th Cir.
21 In addition to alleging disparate enforcement, plaintiffs have also adduced evidence documenting this disparity. See Pls’ Mot. for Prelim. Inj. Attach. 7, Marcelin Decl. ¶¶ 19, 23, 24.
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2012) (noting that in the 81-year history of enforcing the challenged statute and its predecessor, “Appellants could not refer the Court to a single instance demonstrating that South Carolina had enforced these statutes” in the manner they envisioned). If accurate, the disparities in enforcement alleged by plaintiffs in the instant case are indicators that the underlying statutes may be unconstitutionally vague, and thus can be useful in the court’s determination of whether the risk of discriminatory enforcement is too great.
The defendants have failed to address the alleged disparity in enforcement. None of their multiple motions to dismiss, responses, or replies substantively address plaintiffs’ claim that black students and students with disabilities are subject to arbitrary and discriminatory enforcement. This is the crucial second element of any vagueness analysis, one which cannot be ignored, as the Department of Justice’s extensive enforcement experience indicates. See Kolender, 461 U.S. at 357-58.
C. The Department of Justice’s Enforcement Experience Underscores the Connection Between Vague Standards and Arbitrary or Discriminatory Enforcement The Department of Justice recently considered the tight link between vague standards and
arbitrary enforcement in its investigation of juvenile justice practices in Lauderdale County, Mississippi. In Lauderdale County, students on probation were being incarcerated for alleged, often minor, school discipline infractions, including profanity and disrespect, because local probation contracts stated that all school suspensions and expulsions constituted probation violations, and that all school suspensions would be served in detention.22 Because the probation
22 Dep’t of Justice, City of Meridian, Lauderdale County Youth Court and State of Mississippi Findings Letter 9 (Aug. 10, 2012), available at: https://www.justice.gov/sites/default/files/crt/legacy/2012/08/10/meridian_findletter_8-10-12.pdf (Lauderdale Findings).
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contracts lacked any additional information about what type of behavior could lead to suspension or what types of underlying allegations about a child’s suspension could lead to his or her detention, the Department found that the probation contract did not provide sufficient notice to youth about the behavior that would result in incarceration.23 Moreover, as the Department’s 2012 findings explained, “The vagueness of Lauderdale County’s probation contracts, combined with the lack of procedural protections in the probation revocation process, vest the probation officer with complete discretion to determine whether a probation violation has occurred and what the punishment should be.”24 These and other probation practices, the Department found, allowed for “selective and abusive government action” by those involved in the administration of juvenile justice in Lauderdale County.25
As another example, in August 2016, the Department found that the Baltimore City Police Department’s (BPD) enforcement of ordinances criminalizing loitering, trespassing, and failing to obey was unconstitutional. Because police officers did not provide “clear warning about the specific types of conduct that will result in . . . arrests,” BPD practice did not meet the requirements of due process “and risk[ed] arbitrary and discriminatory enforcement.”26 The Department also found that “BPD’s warrantless arrests for discretionary misdemeanor offenses exhibit[ed] substantial racial disparities.”27 In particular, “African Americans comprise 91
23 Id.; see also City of Meridian Compl. at ¶¶ 115-119, 186-188. 24 Lauderdale Findings at 9; see also City of Meridian Compl. at ¶ 186 (“The policies, practices and procedures employed by Defendants to incarcerate children for suspensions from school, rooted in the written probation contract used in Lauderdale County, are void for vagueness.”). 25 Lauderdale Findings at 10. 26 Baltimore Police Department Findings at 39. 27 Id. at 55.
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percent of trespassing charges [and] 91 percent of failure to obey charges” though they make up only 63 percent of Baltimore’s population.28 Moreover, reviewing officials declined to charge African Americans arrested for these misdemeanor street offenses at higher rates than charges against non-African Americans. The Department concluded that the vagueness of the charges facilitated discriminatory enforcement: “the large racial differences in the proportion of dismissed charges” for these offenses, the Department found, “demonstrate that, where officers have wider discretion to make arrests, they exercise it in a discriminatory manner.”29
The Department’s findings underscore the importance of the Supreme Court’s admonitions about the dangers of enforcing unclear laws. Both the Department’s civil rights enforcement experience and scholarly research30 have demonstrated that when law or policy is unclear, the implicit or explicit bias of decision-makers can lead to discriminatory enforcement.
28 Id. 29 Id. at 57. 30 See Rosemary Sarri et al., Decision Making in the Juvenile Justice System: A Comparative Study of Four States 274-75 (2001), available at: https://www.ncjrs.gov/pdffiles1/nij/grants/198620.pdf (finding an “overprocessing of youth in the juvenile justice system” due, inter alia, to “increased ambiguity in state laws with respect to selected offenses,” and noting that when vague laws exist, “[i]n many cases, there are discriminatory consequences for the poor, immigrants, and youth of color when these laws are enforced.”); Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court 171‐72 (1999) (criticizing “status offenses” – conduct that is prohibited for youth but would not be unlawful for adults – as vague and inviting “arbitrary and capricious enforcement,” and noting concerns that the “exercise of standardless discretion to regulate noncriminal misconduct disproportionately affected poor, minority and female juveniles.”); Johanna Wald, CAN “DEBIASING” STRATEGIES HELP TO REDUCE RACIAL DISPARITIES IN SCHOOL DISCIPLINE 2-3 (2014) available at: http://www.indiana.edu/~atlantic/wp-content/uploads/2014/03/ImplicitBias_031214.pdf (“The more subjective the category of the offense – i.e., insubordination, disobedience, disruption, defiance – the greater the risk that bias (either explicit or unconscious) will seep into the process.”).
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Thus, significant racial disparities in the enforcement of an imprecise criminal statute, such as the statutes challenged by plaintiffs here, may indicate that the statute is impermissibly vague in violation of the Due Process Clause.

CONCLUSION

For the foregoing reasons, the United States files this Statement of Interest regarding

defendants’ Motion to Dismiss.

Respectfully submitted,

November 28, 2016

BETH DRAKE Acting United States Attorney District of South Carolina

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division

s/Robert Sneed ROBERT SNEED (#07437) Assistant United States Attorney Wells Fargo Building 1441 Main Street, Suite 500 Columbia, SC 29201 Tel: (803) 929-3000 Email: robert.sneed@usdoj.gov

ROBERT MOOSSY Deputy Assistant Attorney General Civil Rights Division
CHIRAAG BAINS Senior Counsel Civil Rights Division
STEVEN H. ROSENBAUM Chief Civil Rights Division Special Litigation Section

SHELLEY R. JACKSON Deputy Chief Civil Rights Division Special Litigation Section

DEENA FOX Trial Attorney Special Litigation Section

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2:16-cv-02794-CWH Date Filed 11/28/16 Entry Number 86 Page 18 of 21 ZOE SAVITSKY Policy Counsel Policy and Strategy Section Civil Rights Division 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Telephone: (202) 305-1361 Email: deena.fox@usdoj.gov Attorneys for the United States
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2:16-cv-02794-CWH Date Filed 11/28/16 Entry Number 86 Page 19 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

KENNY, et al.
v. WILSON, et al.

Plaintiffs, Defendants,

)

Civil Action No 2:16-2794-CWH

)

)

)

)

)

)

)

)

)

)

CERTIFICATE OF SERVICE BY THE COURT’S OFFICAL ELECTRONIC CASE FILING SYSTEM

The undersigned hereby certifies that on November 28 2016, he caused the attached UNITED STATES’ STATEMENT OF INTEREST to be filed and served on Counsel via the Court’s e-noticing system as indicated below:

Susan King Dunn ACLU SC National Office PO Box 20998 Charleston, SC 29403 843-720-1425 843-720-1428 (fax) sdunn@aclusouthcarolina.org ATTORNEY FOR PLAINTIFFS

Sarah Ann Hinger Lenora Michelle Lapidus Dennis David Parker Galen Leigh Sherwin American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-519-7882 shinger@aclu.org, dparker@aclu.org, gsherwin@aclu.org ATTORNEYS FOR PLAINTIFFS

Anne R. Culbreath Willson Jones Carter and Baxley

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2:16-cv-02794-CWH Date Filed 11/28/16 Entry Number 86 Page 20 of 21
872 S Pleasantburg Drive Greenville, SC 29607 864-672-3713 864-235-6015 (fax) ARCulbreath@wjlaw.net ATTORNEY FOR DEFENDANT Steve Loftis
Robert David Garfield Davidson Morrison and Lindemann PO Box 8568 Columbia, SC 29202-8568 803-806-8222 803-806-8855 (fax) rgarfield@dml-law.com ATTORNEY FOR DEFENDANT Leon Lott
Steven Richard Spreeuwers Davidson and Lindemann Po Box 8568 Columbia , SC 29202-8568 803-806-8222 Sspreeuwers@dml-Law.Com ATTORNEY FOR DEFENDANT Leon Lott
William Michael Hemlepp, Jr City of Columbia Attorney's Office PO Box 667 Columbia, SC 29202 803-737-4242 803-737-4250 (fax) wmhemlepp@columbiasc.net ATTORNEY FOR DEFENDANT W. H. Holbrook
Andrew F. Lindemann Davidson Morrison and Lindemann PO Box 8568 Columbia, SC 29202-8568 803-806-8222 803-806-8855 (fax) alindemann@dml-law.com ATTORNEY FOR DEFENDANT Carl Ritchie
Sandra Jane Senn Senn Legal PO Box 12279 Charleston, SC 29422
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2:16-cv-02794-CWH Date Filed 11/28/16 Entry Number 86 Page 21 of 21
843-556-4045 843-556-4046 (fax) Sandy@sennlegal.com ATTORNEY FOR DEFENDANTS J. Alton Cannon, Jr., Eddie Driggers, Jr., Gregory G Mullen
James Emory Smith, Jr SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803-734-3970 803-734-3677 (fax) esmith@scag.gov ATTORNEY FOR DEFENDANTS Lance Crowe, Ken Miller, Steve Moore, A. Keith Morton, M. Bryan Turner, Alan Wilson
Michael Stuart Pitts Collins and Lacy (GVL) Po Box 1746 Greenville , SC 29601 864-282-9119 Mpitts@greenvillesc.Gov ATTORNEY FOR DEFENDANT Ken Miller
Logan McCombs Wells City of Greenville Po Box 2207 Greenville , SC 29602 864-467-4354 Lmwells@greenvillesc.Gov ATTORNEY FOR DEFENDANT Ken Miller
Robert P Coler City of Greenville Po Box 2207 Greenville , SC 29602 864-467-5758 Rcoler@greenvillesc.Gov ATTORNEY FOR DEFENDANT Ken Miller
s/Robert Sneed ROBERT SNEED (#7437) Assistant United States Attorney
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 2:16-cv-02794-CWH Date Filed 08/11/16 Entry Number 1 Page 1 of 29

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

NIYA KENNY; TAUREAN NESMITH; GIRLS ROCK CHARLESTON, INC.; D.S., by and through her next of kin Juanita Ford, and S.P., by and through her next of kin Melissa Downs, on behalf of themselves and all others similarly situated,
Plaintiffs
v.
ALAN WILSON in his official capacity as Attorney General of South Carolina; J.ALTON CANNON, JR. in his official capacity as the Sheriff of Charleston County, SC; GREGORY G. MULLEN in his official capacity as the Chief of the Police Department of the City of Charleston, SC; EDDIE DRIGGERS, JR in his official capacity as the Chief of the Police Department of the City of North Charleston, SC; CARL RITCHIE in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; LEON LOTT in his official capacity as the Sheriff of Richland County, SC; W.H.HOLBROOK in his official capacity as the Chief of the Police Department of the City of Columbia, SC; STEVE LOFTIS in his official capacity as the Sheriff of Greenville County, SC; KEN MILLER in his official capacity as the Chief of the Police Department of the City of Greenville, SC; LANCE CROWE in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; STEVE MOORE in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; M.BRYAN TURNER in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; DAN REYNOLDS in his official capacity as the Chief of the Police Department of the City of Greer, SC; A. KEITH MORTON in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of themselves and others similarly situated,
Defendants.

2:16-cv-2794-CWH COMPLAINT

2:16-cv-02794-CWH Date Filed 08/11/16 Entry Number 1 Page 2 of 29
PRELIMINARY STATEMENT 1. Plaintiffs challenge as unconstitutional S.C. Code § 16-17-420, commonly referred to
as the “Disturbing Schools” statute, which sweeps within the purview of criminal law and the court system a broad swath of adolescent behavior. The Disturbing Schools statute violates fundamental concepts of fairness and the most basic tenets of due process. 2. By broadly labeling as criminal any “interference,” or “disturbance” of a school, any act of “loitering” and any “obnoxious” action, the Disturbing Schools statute creates an impossible standard for school children to follow and for police to enforce with consistency and fairness. The Disturbing Schools statute also chills the ability of students to speak out against abuses and to participate in conversations about policing of their own classrooms and campuses.
3. South Carolina Code § 16-17-420 was enacted almost 100 years ago and there is no indication that it was intended to apply, or was applied at the time, to students rightfully attending their own school. More recently, however, the law’s broad terms have been invoked to draw thousands of adolescents into the juvenile and criminal justice systems. The Disturbing School charge is consistently among the leading sources of referrals to the South Carolina Department of Juvenile Justice.
4. While the Disturbing Schools statute impacts hundreds of adolescents each year, some students in South Carolina feel the burdens of the law more than others. Statewide in 2014-2015, Black students were nearly four times as likely to be referred for charges of Disturbing Schools as were their white classmates. In Charleston County, young people were more likely to be referred to the juvenile justice system 1

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for Disturbing Schools than for any other reason and Black students were more than six times as likely as their white peers to be referred for this offense.
5. When applied to school students, the Disorderly Conduct statute, which prohibits conducting oneself “in a disorderly or boisterous manner,” is similarly vague. S.C. Code §16-17-530. It fails to provide notice to students or guidance to those charged with determining which adolescent behavior falls under the terms of the law. Adolescents are also commonly referred to the Department of Juvenile Justice for Disorderly Conduct.
6. The types of incidents that lead to Disturbing Schools and Disorderly Conduct charges cannot be distinguished by any objective standard from the types of behaviors schools address regularly without resort to the criminal justice system. These include minor school infractions like cursing, refusing to follow directions, and involvement in a physical altercation that did not result in significant injuries and where the student was not the initiator. Students as young as seven have been charged with Disturbing Schools. At times, students have been arrested when they react to disruptions caused by those who are supposed to protect them.
7. School Codes of Conduct from across the state reflect the inability to distinguish criminal Disturbing Schools or Disorderly Conduct from minor school infractions. According to Codes of Conduct, students may experience consequences ranging from a verbal warning to criminal charges for the same behaviors.
8. The resort to charging students criminally occurs despite the substantial role played by school employees in shaping student behavior and the classroom environment. 2

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Research demonstrates that teachers and schools can employ a range of effective approaches to prevent disruption, and to de-escalate disruption and conflicts when they do occur. In contrast, research also shows that educators who employ punitive approaches create negative experiences for all students and may escalate disruptions.
9. Referral to law enforcement during school greatly diminishes the likelihood that a student will graduate. Young people who are charged with crimes may feel stigma and fear, making it more difficult to engage with school. They may also face disciplinary consequences that can include years in alternative settings that fail to offer complete access to course work necessary to graduate.
10. Plaintiffs are individuals and a nonprofit organization whose members are directly impacted by and face ongoing risk of arrest or referral under S.C. Code § 16-17-420. Plaintiffs seek a declaratory judgment that S.C. Code § 16-17-420 violates their constitutional right to due process, as well as an injunction preliminarily and permanently enjoining enforcement of and reliance upon S.C. Code § 16-17-420 by Defendants.
11. Plaintiffs D.S. and S.P. are individuals who face an ongoing risk of arrest or referral under S.C. Code § 16-17-530 while attending school. Plaintiffs seek declaratory judgment that S.C. Code § 16-17-530 violates their constitutional right to due process when applied to elementary and secondary school students, as well as an injunction preliminarily and permanently enjoining enforcement of and reliance upon S.C. Code § 16-17-530 as applied to students by Defendants.
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JURISDICTION AND VENUE 12. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of
state law of rights secured by the United States Constitution. 13. This Court has original jurisdiction over the subject matter of this action pursuant to
28 U.S.C. §§ 1331 and 1343(a)(3)-(4). 14. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2). 15. This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 f the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
PARTIES A. Plaintiffs 16. Plaintiff Niya Kenny (“Plaintiff Kenny” or “Ms. Kenny”) is a nineteen year-old
African-American female who resides in Richland County, South Carolina. Ms. Kenny obtained her G.E.D. Diploma from Richland County School District Two in June, 2016. 17. Ms. Kenny was arrested and charged under S.C. Code § 16-17-420 while a student at Spring Valley High School in Richland School District Two. Ms. Kenny fears future arrest and prosecution under the Disturbing Schools statute if, while on or around the grounds of a school, her actions are interpreted to fall under any of the broad terms of the statute.
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18. Plaintiff D.S. is a seventeen year-old African-American female who resides in Charleston, South Carolina. She brings this case through her grandmother and next of kin, Juanita Ford. D.S. was enrolled at Stall High School in the Charleston County School District during the 2015-2016 school year. D.S. plans to enroll at Summerville High School in Dorchester County School District Two in August 2016. D.S. experienced lead poisoning as a young child and has an Individualized Education Plan.
19. D.S. was charged under S.C. Code § 16-17-420 while attending school. D.S. fears being charged under the Disturbing Schools or Disorderly Conduct statutes in the future if, while on or around the grounds of a school, her actions are interpreted to fall under any of the broad terms of the statutes.
20. Plaintiff S.P. is a fifteen year-old Caucasian female who resides in Travelers Rest, South Carolina. She brings this case through her mother and next of kin, Melissa Downs. S.P. was enrolled at Travelers Rest High School in the Greenville County School District during the 2015-2016 school year. She plans to continue school at Travelers Rest High School in the 2016-2015 school year. S.P. has been diagnosed with mood and conduct disabilities. She has requested special education services to address her disability and has had a behavior intervention plan.
21. S.P. was referred under S.C. Code § 16-17-0530 (disorderly conduct) while attending school. S.P. fears being charged under the Disturbing Schools or Disorderly Conduct statutes in the future if, while on or around the grounds of a school, her actions are interpreted to fall under any of the broad terms of the statutes.
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22. Plaintiff Girls Rock, Charleston (“Girls Rock”) is a non-profit organization with its principal office in Charleston, SC. Girls Rock provides mentorship, music and arts education, and leadership development to young people in Charleston, South Carolina. Girls Rock operates an afterschool program serving at-risk youth and youth who have been involved in the justice system. Girls Rock is guided by core principles that include challenging criminalization and promoting collective accountability for behavior.
23. Girls Rock sues on behalf of its members, students who risk arrest or referral under S.C. Code § 16-17-420 or S.C. Code § 16-17-530 while attending school. Girls Rock also sues on its own behalf. Girls Rock is substantially burdened in its mission by the continued practice of charging students under S.C. Code § 16-17-420.
24. Plaintiff Taurean Nesmith (“Plaintiff Nesmith” or Mr. Nesmith”) is a twenty-one year-old African American male who resides permanently in Kingstree, South Carolina. Mr. Nesmith is a student at Benedict College in Columbia, South Carolina.
25. Mr. Nesmith was arrested and charged with Disturbing Schools under S.C. Code § 16-17-420 at his college-owned apartment building. Mr. Nesmith fears future arrest and prosecution under the Disturbing Schools statute in the future if, while on or around the grounds of a school, his actions are interpreted to fall under any of the broad terms of the statute.
B. Defendants 26. Defendant Alan Wilson (“Defendant Wilson” or “Mr. Wilson”) is sued in his official
capacity as the Attorney General of South Carolina. Pursuant to the South Carolina 6

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Constitution, it is Defendant Wilson’s duty in his capacity as Attorney General of South Carolina to assist and represent the Governor in the faithful execution of the laws. S.C. Const. art. IV § 15. Further, pursuant to South Carolina law, “[h]e shall appear for the State in the Supreme Court and the court of appeals in the trial and argument of all causes, criminal and civil, in which the State is a party or interested, and in these causes in any other court or tribunal when required by the Governor or either branch of the General Assembly.” S.C. Code § 1-7-40, and “[i]n all cases wherein the right of the State may be involved, the persons claiming under the State shall call on the Attorney General . . . to defend the right of the State.” S.C. Code § 17-710. Mr. Wilson is a person within the meaning of 42 U.S.C. § 1983 and acts under color of state law in all circumstances relevant to this complaint.
Charleston Defendants
27. Defendant J. Alton Cannon, Jr. (“Defendant Cannon” or “Mr. Cannon”) is sued in his official capacity as the Sheriff of Charleston County, S.C. The jurisdiction of the Charleston County Sheriff’s Office includes schools within Charleston County.
28. Defendant Gregory G. Mullen (“Defendant Mullen” or “Mr. Mullen”) is sued in his official capacity as the Chief of the City of Charleston, S.C. Police Department. The jurisdiction of the Charleston Police Department includes schools within Charleston County.
29. Defendant Eddie Driggers, Jr. (“Defendant Driggers” or “Mr. Driggers”) is sued in his official capacity as Chief of the North Charleston, S.C. Police Department. The jurisdiction of the North Charleston Police Department includes schools within Charleston County. 7

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30. Defendant Carl Ritchie (“Defendant Ritchie” or “Mr. Ritchie”) is sued in his official capacity as Chief of the Mount Pleasant, S.C. Police Department. The jurisdiction of the Mount Pleasant Police Department includes schools within Charleston County.
Columbia Defendants
31. Defendant Leon Lott (“Defendant Lott” or “Mr. Lott”) is sued in his official capacity as the Sheriff of Richland County, S.C. The jurisdiction of the Richland County Sheriff’s Department includes schools within Richland County.
32. Defendant W.H. Holbrook (“Defendant Holbrook” or “Mr. Holbrook”) is sued in his official capacity as Chief of the Columbia, S.C. Police Department. The jurisdiction of the Columbia Police Department includes schools within Richland County.
Greenville Defendants
33. Defendant Steve Loftis (“Defendant Loftis” or “Mr. Loftis”) is sued in his official capacity as the Sheriff of Greenville County, S.C. The jurisdiction of the Greenville County Sheriff’s Department includes schools within Greenville County.
34. Defendant Ken Miller (“Defendant Miller” or “Mr. Miller”) is sued in his official capacity as Chief of the City of Greenville, S.C. Police Department. The jurisdiction of the Greenville Police Department includes schools within Greenville County.
35. Defendant Lance Crowe (“Defendant Crowe” or “Mr. Crowe”) is sued in his official capacity as Chief of the Travelers Rest, S.C. Police Department. The jurisdiction of the Travelers Rest Police Department includes schools within Greenville County.
36. Defendant Steve Moore (“Defendant Moore” or “Mr. Moore”) is sued in his official capacity as Interim Chief of the Simpsonville, S.C. Police Department. The 8

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jurisdiction of the Simpsonville Police Department includes schools within Greenville County. 37. Defendant M. Bryan Turner (“Defendant Turner” or “Mr. Turner”) is sued in his official capacity as Chief of the Mauldin, S.C. Police Department. The jurisdiction of the Mauldin Police Department includes schools within Greenville County. 38. Defendant Dan Reynolds (“Defendant Reynolds” or “Mr. Reynolds”) is sued in his official capacity as Chief of the City of Greer, S.C. Police Department. The jurisdiction of the Greer Police Department includes schools within Greenville County. 39. Defendant A. Keith Morton (“Defendant Morton” or “Mr. Morton”) is sued in his official capacity as Chief of the Fountain Inn, S.C. Police Department. The jurisdiction of the Fountain Inn Police Department includes schools within Greenville County. 40. Defendants, through their respective duties and obligations, are responsible for enforcing S.C. Code § 16-17-420 and S.C. Code § 16-17-530. Each Defendant, and those subject to their direction, supervision, and control, has or intentionally will perform, participate in, aide and/or abet in some manner the acts alleged in this complaint, has or will proximately cause the harm alleged herein, and has or will continue to injure Plaintiffs irreparably if not enjoined. Accordingly, the relief requested herein is sought against each Defendant, as well as all persons under their supervision, direction, or control, including but not limited to their officers, employees, and agents.
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STATUTORY FRAMEWORK 41. South Carolina Code § 16-17-420 provides:
It shall be unlawful: (1) for any person wilfully or unnecessarily (a) to interfere with or to disturb in any
way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge. S.C. Code § 16-17-420(A). 42. A violation of S.C. Code § 16-17-420 is punishable by fine of not more than $1,000 or ninety days imprisonment. S.C. Code § 16-17-420(B).
43. Section 16-17-420, now commonly referred to as the “Disturbing Schools” statute, was enacted in 1919 and as originally drafted, applied to “any school or college in the State attended by women or girls.” 1919 S.C. Acts 239 (Appendix 1).
44. The Disturbing Schools statute was amended in 1968 to apply to “any school.” 1968 S.C. Acts 2308 (Appendix 2). It was subsequently applied to arrest protestors on a college campus. See Bistrick v. Univ. of S. Carolina, 324 F. Supp. 942 (S.C. 1971); Herman v. Univ. of S. Carolina, 341 F. Supp. 226, 229 (D.S.C. 1971), aff’d, 457 F.2d 902 (4th Cir. 1972). In 1972, the statute was amended to increase the applicable penalties. 1972 S.C. Acts 1426 (Appendix 3).
45. A Westlaw search generated cases referencing juveniles charged under § 16-17-420 beginning in 1989. See Matter of Johnny J., 387 S.E.2d 251, 252 (S.C. 1989)(indefinite commitment for probation violation and status offenses was
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inappropriate); In Interest of Doe, 458 S.E.2d 556, 560 (Ct. App. 1995)(conviction for Disturbing Schools upheld; S.C. Code § 20-7-2170 precluded residential evaluation for children ten years old and younger); In re Amir X.S., 639 S.E.2d 144 (S.C. 2006)(statute not overbroad or vague as applied); In re Joelle T., No. 2010-UP-547, 2010 WL 10088227, at *1 (S.C. Ct. App. Dec. 16, 2010) (Appendix 4).
46. In 2010, the law was amended to remove mandatory minimum sentences and fines and to expressly vest jurisdiction in summary courts or for juveniles, in family court. 2010 South Carolina Laws Act 273 (S.B. 1154).
47. Section 16-17-420 contains no intent requirement before imposing criminal penalties.
48. The terms “interfere,” “disturb,” “loiter,” and “act in an obnoxious manner” are not further defined by the statute.
49. South Carolina Code § 16-17-530 provides: Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church or (c) while under the influence or feigning to be under the influence of intoxicating liquor, without just cause or excuse, discharge any gun, pistol or other firearm while upon or within fifty yards of any public road or highway, except upon his own premises, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
S.C. Code § 16-17-530. 50. The terms “disorderly” and “boisterous” are not further defined by the statute.
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51. A series of South Carolina Attorney General’s Opinions discuss the reach of both the Disturbing Schools and Disorderly Conduct statutes to address student conduct.
52. Attorney General’s Opinions conclude that the Disturbing Schools statute and the Disorderly Conduct statute may both be applied to prohibit “[u]se of foul or offensive language toward a principal, teacher, or police officer,” or “[u]se of obscene or profane language near a ‘schoolhouse.’” 1994 S.C. Op. Att’y Gen. 25, 1994 WL 199757 (Appendix 5).
53. The Attorney General’s Office also concludes that “[f]ailure by a student . . . to leave a school campus or school bus, when requested to do so,” id., “fighting,” id., and becoming “uncooperative and disruptive,” each may constitute Disturbing Schools. Letter from Robert D. Cook, S.C. Assistant Att’y Gen., to Hon. John W. Holcombe, Sheriff, Chester Co., 1999 WL 626642 (July 12, 1999) (Appendix 6).
54. Moreover, Attorney General’s Opinions observe that “[n]o express limitations on the time of applicability of [§16-17-420’s] prohibition are set forth,” 1990 S.C. Op. Att’y Gen. 61, 1990 WL 482448 (Appendix 7), and reason that the law might “apply to any part of the campus regardless of whether students or other students [sic] or faculty were present.” 1994 S.C. Op. Att’y Gen. 25.
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FACTUAL ALLEGATIONS A. The Impact of Educator Practices on Student Behavior 55. Normal adolescent development includes the development of behavioral and social
skills. 56. Addressing student behavior is a regular part of school administration. 57. Research indicates that the ways in which schools and teachers approach student
behavior and the school climate can shape student behavior for better or worse. 58. There are many techniques shown to reduce incidences of disruption and discipline
when employed by educators. Evidence based practices exist to respond to a continuum of student needs, and effective approaches exist including for students requiring higher levels of support. 59. In contrast, schools and classrooms that are characterized by a punitive approach with high levels of discipline and fewer positive supports are experienced negatively by students and teachers. 60. Some educator practices and responses can escalate student misbehavior and conflict. 61. Black students and students with disabilities are disproportionately likely to be subjected to exclusionary discipline such as out-of-school suspension as well as referral to law enforcement and arrest at school. 62. Research does not suggest that racial disparities in discipline can be explained by differences in behavior across students of different races.
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63. Disparities are most prevalent in categories of discipline that require subjective determination of whether the rule was violated, such as offenses of “disruption” or “excessive noise.”
64. Students who experience punitive discipline miss valuable educational time and may enter a cycle of negative consequences.
65. Students are frequently disciplined more harshly when their behavior is characterized as criminal, and their educational opportunities are diminished through expulsion, suspension, placement in an alternative program, or a combination of these consequences.
66. Disciplinary consequences can have lasting impact on a student’s ability to access educational opportunities. For example, students may be placed into alternative programs without significant support services, providing only computer based instruction, and with no fixed end period, from which they must instead earn their way out. These programs may not even provide the course work required to obtain a high school diploma, placing the prospect of educational reentry further and further out of reach.
67. Students may also experience stigma and increased negative feelings about school which may impact their ability to reengage with school.
68. Students who experience referral to law enforcement have significantly reduced likelihood of graduating from high school, even after a first referral.
69. Without a high school education, a young person’s future prospects are also dimmed. 14

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B. Enforcement of S.C. Code § 16-17-420 and § 16-17-530 Across South Carolina 70. Between the 2010-2011 school year and March, 2016, over 9,500 young people in
South Carolina were referred to the Department of Juvenile Justice on charges of Disturbing Schools. 71. This number provides only a partial picture of the law’s impact. Students 17 and older are charged and prosecuted as adults. 72. Students as young as seven have been charged with Disturbing Schools. 73. Students have been charged with Disturbing Schools in every county in the state except for Chester County. 74. Disturbing Schools and Disorderly Conduct charges are consistently among the leading reasons that young people enter the juvenile justice system. 75. Although referrals for Disturbing Schools have decreased over time in some counties, Disturbing Schools charges have increased statewide from the 2012-2013 school year to the 2015-2016 school year. 76. Rates of racial disparity in referrals for Disturbing Schools have also increased. In the 2014-2015 school year, Black students statewide were nearly 4 times as likely as their white classmates to be charged with Disturbing Schools. 77. Substantial racial disparities in Disturbing Schools referrals exist in large and small counties and in counties that are more and less racially homogenous.
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78. Across the state, there are wide discrepancies in how charges of Disturbing Schools are handled, including whether they will be dismissed, diverted, or prosecuted. In about twenty percent of cases in which DJJ recommended diversion, solicitor’s offices moved forward with prosecution.
79. School Codes of Conduct from across South Carolina reflect the impossibility of attempting to distinguish criminal Disturbing Schools or Disorderly Conduct from behaviors that should be addressed through school responses, including responses as minimal as a verbal warning or a parent conference.
80. Infractions including “disruption,” “behavior that significantly interrupts the learning environment,” “fighting,” “excessive noise,” “boisterous play or pranks,” and “profanity” have all been listed as behaviors that can be addressed through lesser school interventions. Yet the same behaviors may lead students to be charged with the crimes of Disturbing Schools or Disorderly Conduct.
81. The prior experiences of named Plaintiffs exemplify the arbitrary and discriminatory application of the Disturbing Schools and Disorderly Conduct statutes to charge or refer students.
82. Students have been arrested and charged with Disturbing Schools when expressing concern over police actions.
83. On October 26th, 2015, Niya Kenny was a student at Spring Valley High School when she was arrested under S.C. Code § 16-17-420. Ms. Kenny was in her math class. Students were instructed to work on their laptops on a practice math lesson. Ms.
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Kenny was working on her lesson when she noticed her teacher whispering to a student a couple desks away. She thought that the teacher must have been helping the other student with her work until she saw him walk over to his desk and call for someone to escort the student from the class. Ms. Kenny wondered what the girl could have done wrong, because she had not noticed anything out of the ordinary.
84. Shortly thereafter, a School Resource Officer (“SRO”), a sworn police officer of the Richland County Sheriff’s Office, known among students as “Officer Slam” entered the room. Ms. Kenny witnessed her classmate forcefully pulled from her desk by the SRO, dragged on the floor, and handcuffed. Deeply frightened by the officer’s actions, Ms. Kenny attempted to document the incident and called out for someone to do something to stop the violent treatment of her classmate.
85. In response, Ms. Kenny was herself arrested. She was handcuffed in front of her classmates, berated by the police officer and the school administrator for voicing her concern and distress, held in an adult detention center for several hours, patted down, finger printed and photographed.
86. The police incident report described her offense as a crime of disorderly conduct and she was charged with Disturbing Schools.
87. Throughout her experience, Ms. Kenny was scared and humiliated. Although she would have liked to complete her senior year with friends and classmates, due to the humiliation and anxiety she experienced, Ms. Kenny did not feel that she could return to Spring Valley High School. She withdrew and entered a GED program.
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88. Taurean Nesmith was arrested and charged with Disturbing Schools at his collegeowned apartment building. A campus police officer who had repeatedly stopped and searched Mr. Nesmith and his friends was patrolling in the apartment complex parking lot as Mr. Nesmith and friends left the building and got into their cars. The officer approached Mr. Nesmith’s friend and proceeded to ask him for his identification.
89. Mr. Nesmith complained to another friend that the officer was again stopping them because of their race. The Officer then turned his attention to Mr. Nesmith and asked for his identification. Mr. Nesmith asked why the officer needed to see his identification and continued to question the officer’s actions. Other residents came out to their balconies to see what was happening.
90. Mr. Nesmith was eventually handcuffed and transported to a detention center where he remained overnight. He was charged with Disturbing Schools and Disorderly Conduct. His charges were later dropped.
91. In other instances, students have been charged with Disturbing Schools as the result of behaviors that could just as possibly have met with less severe school discipline or other interventions.
92. In Richland School District One, an eight-year-old African-American student was charged with Disturbing Schools and assault when, after being directed to leave class, the student attempted to slam the classroom door and the teacher’s arm was caught.
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93. In Charleston, an African American student was charged with Disturbing Schools and adjudicated delinquent after she and a group of other students were reported for taking photographs of themselves and other students in the girls’ restroom. The student was referred to Girls Rock as a condition of her probation.
94. When K.B., a Latina student in Charleston, was thirteen years old, she was charged with Disturbing Schools and adjudicated delinquent after an incident that started with her late arrival to gym class. A School Resource Officer was called when K.B. began to loudly protest being made to leave the gym class and being followed to the “tardy sweep” room. The police officer physically restrained K.B., taking her to the ground and causing bruises, and placed her in handcuffs. She was searched before being released to her mother. The police incident report indicated that K.B. would be charged with Disorderly Conduct. She was subsequently charged with Disturbing Schools.
95. K.B. was sentenced to probation and referred to Girls Rock by her probation officer. K.B. took honors courses in middle school. When K.B. returned to her high school after being charged, she was placed in a program called “Twilight,” through which she was provided no more than three hours of computer-based education per day, and which did not provide access to the courses necessary to obtain a high school diploma. Because K.B. was only permitted to be on campus during program hours, which were shorter than the normal school day, K.B. had to find her own transportation to school, which was a costly expense for K.B. and her mother.
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96. K.B. and her mother may move to Texas soon. Although K.B. believes she will be able to return to her regular classes if she begins school in South Carolina, she believes that she will no longer be on track to graduate from high school.
97. D.D., an African American female who has struggled with homelessness, was charged with Disturbing Schools after an incident at her Charleston middle school. D.D. was sent out of class for talking. While she was seated on a bench outside of the classroom, another girl walked past her and began speaking to her. A School Resource Officer noticed her speaking to another student and she was detained, handcuffed, and charged with Disturbing Schools. She was placed on probation and became involved with Girls Rock.
98. When D.D. left the alternative middle school and started high school, she was placed in the Twilight program. Although she has remained in the Twilight program for two years, she continues to attend school and struggle to obtain an education. D.D. must find her own transportation to and from Twilight. Her family does not own a car and navigating the bus system was difficult. D.D. was detained for violating the terms of her probation after being picked up for truancy. While attending Twilight, D.D. also does not have access to the school lunch services that she would receive if attending school regularly.
99. S.P. was charged with Disorderly Conduct as a freshman in the Greenville County School District. S.P. has diagnosed disabilities that impact her mood and conduct and has seen a therapist for several years. S.P. had a Behavior Intervention Plan with her school. On the day that S.P. was charged with Disorderly Conduct, she had an
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ongoing altercation with a girl who had been making fun of her throughout the morning. S.P. encountered the girl in the library and told her to stop talking about her before sitting down at a table with friends. The principal came to the library and told S.P. that she needed to leave with him. When she refused and complained that the girl who was making fun of her did not get in trouble, the principal told S.P. he was addressing her because she could be arrested for not leaving with him. An SRO came to the library and S.P. eventually agreed to leave the library with him. As she was leaving, S.P. cursed at the student who had been teasing her. Other students in the library also began to clap as S.P. was escorted out of the library, and S.P. cursed at them.
100. Several months later, S.P. was charged with Disorderly Conduct for these actions.
101. D.S., an African American student in Charleston, was charged with Disturbing Schools after becoming involved in a physical altercation which she did not initiate and in which she was the only person who sustained an injury, a lump on her head.
102. Charged as adults, D.S., her friend, and the other two students involved in the altercation plead guilty to Disturbing Schools without legal representation. D.S. received a suspended sentence of a $400 fine or 20 days imprisonment conditioned on completion of a Pretrial Intervention program (PTI). D.S. subsequently learned that participation in PTI costs $300 or more, a cost that she could not afford. D.S. was rejected from the PTI program and spent many stressful weeks fearing that she would be sent to jail before she obtained a public defender who was able to reopen her case, which was eventually dismissed.
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103. Enforcement of the Disturbing Schools and Disorderly Conduct laws has also impacted Girls Rock as an organization. Recognizing that Disturbing Schools charges are a primary cause of youth involvement with the justice system, Girls Rock has taken up efforts to challenge the Disturbing Schools statute and bring awareness to the statute’s negative impact on Charleston area young people. For example, Girls Rock teen leaders have engaged in an organizing apprenticeship in which they learned about school-based referrals to law enforcement and the Disturbing Schools law and spoke about these issues at public events, Girls Rock After School Program (“GRASP”) participants performed a skit on the issue during the program’s annual showcase, and created a short video about their advocacy.
104. Girls Rock volunteers have also expended significant time and resources to address the impacts of Disturbing Schools adjudications through mentorship and support of young people in the GRASP program. Girls Rock volunteers also attended hearings with members. They present testimony to speak on a participant’s character and her progress in GRASP. Volunteers have spent hours, at times across multiple days, to attend these hearings.
105. Girls Rock is a primarily volunteer run organization with limited resources. The significant time and resources that Girls Rock staff members spend in mentoring and supporting young people who have been caught up in the justice system for charges of Disturbing Schools detracts from Girls Rock’s ability to help other young people. In addition, time spent addressing ongoing court involvement and other collateral consequences of a Disturbing Schools adjudication detract from the positive mentorship activities that Girls Rock seeks to provide. Time spent at court hearings 22

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would otherwise be spent developing programming and providing direct services to young people and attending to administrative business necessary to sustain the operations of the organization, such as writing grant proposals and conducting fundraising activities. 106. The experiences of named Plaintiffs and other students in South Carolina reflect the Disturbing Schools and Disorderly Conduct statutes’ broad reach and arbitrary and discriminatory enforcement. The terms of § 16-17-420 are vague and fail to provide notice to students and others expected to comply with its terms or to provide sufficient guidance to those charged with its enforcement, permitting arbitrary and discriminatory enforcement. When applied to elementary and secondary school students, the terms of §16-17-530 are equally vague. 107. Plaintiffs have an objectively reasonable fear that they will be charged with Disturbing Schools under § 16-17-420 or Disorderly Conduct under § 16-17-530. 108. Plaintiffs have no adequate remedy at law.
CLASS ALLEGATIONS Plaintiff Class
109. Plaintiffs D.S and S.P. bring this action on behalf of themselves and on behalf of all elementary and secondary public school students in South Carolina (“Plaintiff Class”), each of whom faces a risk of arrest or juvenile referral under the broad and overly vague terms of the challenged statutes.
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110. The class is so numerous that joinder of all members is impracticable. F. R. Civ. P. 23(a)(1). Upon information and belief, there are over 750,000 elementary and secondary public school students residing South Carolina. Each of these students faces a risk of arrest or juvenile referral under the broad and overly vague terms of S.C. Code § 16-17-420 or S.C. Code § 16-17-530.
111. Plaintiffs’ claims share common issues of law and fact, including but not limited to whether each of the challenged statutes is overly vague and violates the Due Process Clause of the Fourteenth Amendment. Fed. R. Civ. P. 23(a)(2).
112. The claims or defenses of the named Plaintiffs are typical of the claims of members of the Plaintiff Class. All Plaintiffs’ claims arise from S.C. Code § 16-17420 and S.C. Code § 16-17-530 and are based on the same constitutional provisions and arguments.
113. The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. The named Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Named Plaintiffs and the Plaintiff Class both seek to enjoin enforcement of S.C. Code § 16-17-420 and S.C. Code § 1617-420 and to obtain a declaration that each law violates the due process guarantees of the Fourteenth Amendment. The attorneys representing the Plaintiffs are experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation.
114. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2). Class certification is also proper because S.C. Code § 16-17-420 and S.C. Code § 1624

2:16-cv-02794-CWH Date Filed 08/11/16 Entry Number 1 Page 26 of 29
17-530 each apply generally to the class, thereby making final injunctive and declaratory relief appropriate as to the whole.
The Defendant Class 115. Plaintiffs bring this action against named Defendants individually and, pursuant to
Rules 23(a) and 23(b)(1) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of all South Carolina law enforcement agencies who may enforce S.C. Code §§ 1617-420 and 16-17-530 against Plaintiffs. The proposed Defendant Class consists of all South Carolina law enforcement agencies with authority to enforce S.C. Code § 1617-420 and S.C. Code § 16-17-530 against Plaintiffs.
116. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). Upon information and belief, there are more than 200 state and local law enforcement agencies in South Carolina, employing over 11,000 personnel. S.C. Code § 16-17-420 has been enforced against Plaintiffs in each county in South Carolina, apart from Chester County.
117. There are questions of law and fact common to the members of the class, including but not limited to whether the challenged statutes are overly vague and violate the Due Process Clause of the Fourteenth Amendment. Fed. R. Civ. P. 23(a)(2).
118. The claims against the named Defendants are typical of the claims against the Defendant Class, particularly because this is a facial challenge to the statute. All claims arise from S.C. Code § 16-17-420 and S.C. Code § 16-17-530 and are based on the same constitutional provisions and arguments. The Defenses expected to be 25

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asserted by the named Defendants likewise are common to the members of the Defendant Class. 119. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1). Prosecution of separate actions against individuals would create the risk of inconsistent and varying adjudications. 120. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2). Plaintiffs’ claims to enjoin enforcement of S.C. Code § 16-17-420 and S.C. Code § 530 apply generally to the class, thereby making final injunctive and declaratory relief appropriate as to the whole.
CLAIMS FOR RELIEF First Cause of Action
S.C. Code § 16-17-420 Violates Due Process Under the United States Constitution, 42 U.S.C. § 1983 121. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 122. S.C. Code § 16-17-420’s vague terms violate Plaintiffs’ rights to due process guaranteed by the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, § 1.
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Second Cause of Action S.C. Code § 16-17-530 Violates Due Process Under the United States Constitution as Applied to Elementary and
Secondary Students, 42 U.S.C. § 1983
123. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein.
124. S.C. Code § 16-17-530’s vague terms as applied to elementary and secondary school students violate Plaintiffs’ rights to due process guaranteed by the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, § 1.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court: A. Issue a declaratory judgment that S.C. Code § 16-17-420 is unconstitutional; B. Issue a declaratory judgment that S.C. Code § 16-17-530 is unconstitutional; C. Issue injunctive relief:
1. preliminarily and permanently enjoining enforcement by Defendants of S.C. Code § 16-17-420;
2. preliminarily and permanently enjoining enforcement by Defendants of S.C. Code § 16-17-530 against elementary and secondary school students;
3. enjoining Defendants from considering any Plaintiffs’ records relating to being taken into custody, charges filed, adjudication, or disposition under S.C. Code § 16-17420 or S.C. Code § 16-17-530, and from retaining such records except as would be permissible following expungement under S.C. Code § 17-1-40;
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3. enjoining Defendants from considering any Plaintiffs’ records related to arrest, booking record, associated bench warrants, mug shots, fingerprints, charges filed, proceedings, or sentencing under S.C. Code § 16-17-420 or S.C. Code § 16-17-530, and from retaining such records except as would be permissible following expungement under S.C. Code § 17-1-40; D. Award Plaintiffs costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and E. Grant such other, further, and different relief as the Court deems just and proper. F. The declaratory and injunctive relief requested in this action is sought against each Defendant; against each Defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with any Defendant, or under any Defendant’s supervision, direction, or control.
Pursuant to Local Rule 3.01(B), undersigned counsel hereby endorses and certifies that this action is properly filed in the Charleston Division.

Dated: Aug. 11, 2016

Respectfully submitted,

s/Susan K. Dunn_________ SUSAN K. DUNN (Fed. Bar #647) American Civil Liberties Union Foundation of South Carolina P.O. Box 20998 Charleston, S.C. 29413-0998 Tel: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org

SARAH HINGER* GALEN SHERWIN* DENNIS D. PARKER* LENORA LAPIDUS* American Civil Liberties Union Foundation 125 Broad Street 18th FL New York, NY 10004 shinger@aclu.org
*Pro Hac Vice Motions to be submitted ATTORNEYS FOR PLAINTIFFS

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

NIYA KENNY; TAUREAN NESMITH; GIRLS ROCK CHARLESTON, INC.; D.S., by and through her next of kin Juanita Ford, and S.P., by and through her next of kin Melissa Downs, on behalf of themselves and all others similarly situated,

Case No. 2:16-cv-2794-CWH

Plaintiffs,
VS.

ORDER

ALAN WILSON in his official capacity as Attorney General of South Carolina; J. ALTON CANNON, JR. in his official capacity as the Sheriff of Charleston County, SC; GREGORY G. MULLEN in his official capacity as the Chief of the Police Department of the City of Charleston, SC; EDDIE DRIGGERS, JR in his official capacity as the Chief of the Police Department ofthe City ofNorth Charleston, SC; CARL RITCHIE in his official capacity as the Chief of the Police Department ofthe City ofMt. Pleasant, SC; LEON LOTT in his official capacity as the Sheriff of Richland County, SC; W.H. HOLBROOK in his official capacity as the Chief of the Police Department of the City of Columbia, SC; STEVE LOFTIS in his official capacity as the Sheriff of Greenville County, SC; KEN MILLER in his official capacity as the Chief of the Police Department of the City of Greenville, SC; LANCE CROWE in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; STEVE MOORE in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; M. BRYAN TURNER in his official capacity as the Chief of the Police Department ofthe City of Mauldin, SC; DAN REYNOLDS in his official capacity as the Chief of the Police Department ofthe City of Greer, SC; A. KEITH MORTON in his official capacity as the Chief ofthe Police Department ofthe City of Fountain Inn, SC; on behalf of themselves and others similarly situated,

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Page 1 of21

2:16-cv-02794-CWH Date Filed 03/03/17 Entry Number 91 Page 2 of 21
The plaintiffs Niya Kenny ("Kenny"), Taurean Nesmith ("Nesmith"), Girls Rock Charleston, Inc. ("Girls Rocks"), D.S. by and through her next of kin Juanita Ford ("D.S."), and S.P. by and through her next of kin Melissa Downs ("S.P.") (collectively, the "plaintiffs") bring this case pursuant to 18 U.S.C. § 1983 to redress alleged deprivation of rights secured by the United States Constitution under color of state law, challenging S.C. Code§ 16-17-420 (the "Disturbing Schools Law") as unconstitutionally vague. (Compl. ~~ 1, 12, 15, ECF No. 1). The plaintiffs D.S. and S.P. also challenge S.C. Code§ 16-17-530 (the "Disorderly Conduct Law") as unconstitutionally vague when applied to elementary and secondary school students, seeking to bring a class action on behalf of all elementary and secondary school students "who face an ongoing risk of arrest or referral under [the Disorderly Conduct Law] while attending school." (Compl. ~ 11 ). 1
The plaintiffs seek solely equitable relief. They request that the Court use its authority under Rule 57 ofthe Federal Rules of Civil Procedure and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, to issue: (1) a declaratory judgment that the challenged laws violate their constitutional right to due process Uflder the Fourteenth Amendment of the United States Constitution; (2) a preliminary injunction enjoining enforcement of the challenged laws by the defendants; (3) a permanent injunction enjoining the same; and (4) an order enjoining the defendants from considering the plaintiffs' records relating to arrests, charges filed, bookings, mugshots, fingerprints, associated bench warrants, judicial proceedings, adjudications, dispositions, and sentencings under the challenged laws, and from retaining such records except
1 The Complaint is conflicting as to whether D.S. and S.P. seek to bring a class action challenging only the Disorderly Conduct Law or also the Disturbing Schools Law. For example, in the "Class Allegations" section of the
Complaint, Paragraphs 109 through 120 refer to challenging both laws. (Compl. -,r-,r 109-120). Conversely, in the
"Claims for Relief' section setting forth two causes of action, the Second Cause of Action refers only to the Disorderly Conduct Law, stating that the Disorderly Conduct Law's "vague terms as applied to elementary and
secondary school students violate Plaintiffs' right to due process ...." (Compl. -,r, 123-124). Likewise, in the
"Prayer for Relief' section, the only relief requested as to elementary and secondary students are the preliminary and permanent injunctions enjoining enforcement of the Disorderly Conduct Law. (Compl. at 27).
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as would be permissible following expungement under S.C. Code§ 17-1-40. (CompL at 27-28; see also Compl. ~~ 10-11, 15). The declaratory and injunctive relief requested is sought against each defendant, each defendant's officers, employees, and agents, and any person acting in concert or participation with any defendant or under any defendant's supervision, direction, or
control. (Compl. at 28). This matter is before the Court on seven motions to dismiss by thirteen defendants. (ECF
Nos. 27, 28, 34, 36, 41, 42, and 44). I. FACTUAL BACKGROUND2
A. The Challenged Laws The Disturbing Schools Law states in pertinent part:
(A) It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
S.C. Code§ 16-17-420(A). A violation of the Disturbing Schools Law is a misdemeanor, punishable by a fine of not
more than $1,000 or ninety days imprisonment. S.C. Code§ 16-17-420(B). Furthermore, "[t]he summary courts are vested with jurisdiction to hear and dispose of cases involving a violation of this section. If the person is a child as defined by Section 63-19-20, jurisdiction must remain vested in the Family Court." S.C. Code§ 16-17-420(C).

2 These facts are as alleged in the Complaint.

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The Disorderly Conduct Law provides in pertinent part that "[a]ny person who shall (a) be found . .. at any public place ... conducting himself in a disorderly or boisterous manner, [or] (b) use obscene or profane language ... at any public place ... or in hearing distance of any schoolhouse ... shall be deemed guilty of a misdemeanor[.]" S.C. Code§ 16-17-530. A violation is punishable by a fine of not more than $100 or thirty days imprisonment. Id. B. The Plaintiffs
Keill1y is a nineteen-year-old African-American female who resides in Richland County, South Carolina. (Compl. ~ 16). On October 26,2015, Keill1y was in math class at Spring Valley High School in Richland School District Two when she was arrested and charged under the Disturbing Schools Law. (Compl. ~~ 17, 83). While the students practiced a math lesson on their laptops, Keill1y noticed the teacher whispering to another student and thought the teacher was helping that student with the lesson until the teacher called for someone to escort the student from the classroom. (Compl. ~ 83). Ke1U1y wondered what the student could have done wrong because nothing seemed out of the ordinary. (Id.). Shortly thereafter, a school resource officer ("SRO")-a sworn police officer of the Richland County Sheriffs Office-entered the classroom. (Compl. ~ 84). Ke1U1y witnessed the SRO forcefully pull the student from her desk, drag her on the floor, and handcuff her. (Id.). Deeply frightened by the SRO's actions, Keill1y attempted to document the incident and called out for someone to stop the violent treatment of her classmate. (Id.). In response, Keill1y was also arrested, handcuffed in front of her classmates, berated by the SRO and a school administrator for voicing her concern and distress, and taken to an adult detention center where she was patted down, fingerprinted, photographed, and held for several hours. (Compl. ~ 85). The police incident report described her offense as a crime of disorderly conduct, but she was charged under the Disturbing Schools Law. (Compl. ~
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~.

86). Throughout her experience, Kenny was scared and humiliated. (Compl. ~ 87). Although she desired to complete her senior year at Spring Valley High School, due to the humiliation and anxiety she experienced, Kenny felt she could not return. (ld.). She obtained her G.E.D. diploma in June 2016. (Compl. ~~ 16, 87). Kenny fears future arrest and prosecution under the Disturbing Schools Law if her actions, while on or around the grounds of a school, are interpreted to fall under any of the broad terms of the statute. (Compl. ~ 17).
Nesmith is a twenty-one-year-old African-American male who resides in Kingstree, South Carolina. (Compl. ~ 24). He is a student at Benedict College in Columbia, South Carolina. (ld.). On a date not alleged, a campus police officer was patrolling in the parking lot ofNesmith's college-owned apartment building as Nesmith and his friends left the building and got into their cars. (Compl. ~ 88). The officer approached one ofNesmith's friends and asked him for identification. (Id.). Nesmith complained to another friend that the officer was stopping them because of their race as the officer had done previously. (Compl. ~ 89). When the officer asked Nesmith for his identification, he asked the officer why he needed to see it and continued to question the officer's actions. (Id.). Nesmith was eventually handcuffed and transported to a detention center where he remained overnight. (Compl. ~ 90). He was charged under both the Disturbing Schools and Disorderly Conduct Laws, but those charges were later dropped. (Compl. ~~ 25, 90). He fears future arrest and prosecution under the Disturbing Schools Law if his actions, while on or around the grounds of a school, are interpreted to fall under any of the broad terms ofthe statute. (Compl. ~ 25).
D.S. is a seventeen-year-old African-American female who resides in Charleston, South Carolina. (Compl. ~ 18). D.S. experienced lead poisoning as a young child and has an "Individualized Education Plan." (Id.). During the 2015- 2016 school year, she was enrolled at
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Stall High School in the Charleston County School District, and at the time of filing the Complaint, she had plans to enroll at Summerville High School in Dorchester County School District Two in August 2016. (Id.). While attending school on a date not alleged, she was involved in a physical altercation that she did not initiate. (Compl. ~ 101). D.S., her friend, and two other students involved in the altercation were charged as adults under the Disturbing Schools Law and pleaded guilty without legal representation. (Compl. ~ 102). D.S. received a suspended sentence of a $400 fine or twenty days imprisonment conditioned on completion of a pretrial intervention program ("PTI"). (Id.). She was unable to afford the $300 or more cost of PTI participation, and D.S. was subsequently rejected from the PTI program. (Id.). She obtained a public defender who reopened her case, and her charges were eventually dismissed. (Id.). She fears being charged under the Disturbing Schools and Disorderly Conduct Laws if her actions, while on or around the grounds of a school, are interpreted to fall under any of the broad terms of the statutes. (Compl. ~ 19).
S.P. is a fifteen-year-old Caucasian female who resides in Travelers Rest, South Carolina. (Compl. ~ 20). During the 2015-2016 school year, she was enrolled at Travelers Rest High School in Greenville County and plans to continue her enrollment there. (Compl. ~~ 20, 99). Because S.P. has been diagnosed with mood and behavior disabilities, she receives special education services and has a behavior intervention plan. (Id.). While attending school on a date not alleged, she was referred to law enforcement for disorderly conduct because of an altercation with another female student who had been making fun of her. (Compl. ~~ 21, 99). S.P. encountered the other student in the library and told her to stop talking about her. (Compl. ~ 99). The school principal came to the library and told S.P. to leave with him. (Id.). When she refused and complained that the other student did not get in trouble, the principal told S.P. he was
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addressing only her because she could be arrested for refusing to leave with him. (Id.). When an SRO arrived, S.P. agreed to leave the library. (Id.). As she was escorted, S.P. cursed at students who began clapping and the student who teased her. (ld.). Several months later, S.P. was charged under the Disorderly Conduct Law for these actions. (Compl. ~ 100). She fears being charged under the Disturbing Schools and Disorderly Conduct Laws if her actions, while on or around the grounds of a school, are interpreted to fall under any of the broad terms of the statutes. (Compl. ~ 21 ).
Girls Rock is a nonprofit organization with its principal office in Charleston, South Carolina. (Compl. ~ 22). Girls Rock provides mentorship, music and arts education, and leadership development to young people in Charleston and operates an afterschool program serving at-risk youth and minors who have been involved in the justice system. (Id.). ·Its core mission includes "challenging criminalization and promoting collective accountability for behavior." (ld.). Girls Rock is suing on behalf of its members-students who risk arrest or referral under the Disturbing Schools and Disorderly Conduct Laws-and on its own behalf because it is "substantially burdened in its mission by the continued practice of charging students under [the Disturbing Schools Law]." (Compl. ~ 23). Girls Rock "has taken up efforts to challenge the [Disturbing Schools Law] and bring awareness to the statute's negative impact on Charleston area young people." (Compl. ~ 103). Girls Rock volunteers have expended significant time and resources to address the impacts of disturbing schools adjudications through mentorship and support of young people in the Girls Rock After School Program ("GRASP"), such as by attending hearings where they testify to a participant's character and progress in GRASP. (Compl. ~ 104). As a primarily volunteer-run organization with limited resources, the time and resources Girls Rock spends supporting young people charged under the Disturbing
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Schools Law detract from its ability to help other young people. (Compl. ~ 105). Additionally, the time it spends addressing ongoing court involvement and other collateral consequences of disturbing schools adjudications detracts from the positive mentorship activities Girls Rock seeks to provide because it would otherwise expend its efforts "developing programming and providing direct services to young people and attending to administrative business necessary to sustain the operations of the organization, such as writing grant proposals and conducting fundraising activities." (Id.). C. Allegations Related to Enforcement of the Challenged Laws Across South Carolina
The plaintiffs contend that their experiences and those of other students in South Carolina reflect the arbitrary and discriminatory enforcement and broad reach of the Disturbing Schools and Disorderly Conduct Laws. (Compl. ~~ 81, 106). They argue that the terms of the Disturbing Schools Law are vague and fail to provide notice to students and others expected to comply with its terms or to provide sufficient guidance to those charged with its enforcement, permitting arbitrary and discriminatory enforcement. (Compl. ~ 106). They also contend that the Disorderly Conduct Law is equally vague when applied to elementary and secondary school students. (Id.). They claim that infractions including "disruption," "behavior that significantly interrupts the learning environment," "fighting," "excessive noise," "boisterous play or pranks," and "profanity" are behaviors that can be addressed through school interventions, yet these behaviors may lead to charges of disturbing school or disorderly conduct. (Compl. ~ 80).
School Codes of Conduct across South Carolina allegedly reflect the impossibility of distinguishing criminal behavior under the challenged laws from behavior that should be addressed through school responses, such as verbal warnings and parent conferences. (Compl. ~ 79). The plaintiffs allege that black students and students with disabilities are disproportionately
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more likely to be subjected to exclusionary discipline, such as out-of-school suspension, referral to law enforcement, and arrest at school. (Compl. ~ 61 ). Disparities are allegedly most prevalent in categories of discipline that require subjective determination of whether a school rule was violated, such as offenses of "disruption" or "excessive noise." (Compl. ~ 63).
The Complaint additionally details alleged experiences by other students who have been referred to Girls Rock but who are not named as plaintiffs. (Compl. ~~ 93-98). In Richland School District One, an eight-year-old African-American student was charged with disturbing school and assault when the student, after being directed to leave class, "attempted to slam the classroom door and the teacher's arm was caught." (Compl. ~ 92). In Charleston, an AfricanAmerican student was charged with disturbing school, subsequently adjudicated delinquent, and referred to Girls Rock as a condition of her probation after she and a group of other students were reported for taking photographs of themselves and other students in the girls' restroom. (Compl. ~ 93).
Also in Charleston, a thirteen-year-old Latina student was charged with disturbing school and later adjudicated delinquent after an incident that began with her late arrival to gym class. (Compl. ~ 94). When the student started to loudly protest her removal from class, an SRO was called. (ld.). The SRO physically restrained the student, took her to the ground, caused bruises, then handcuffed and searched her before releasing the student to her mother. (Id.). She was sentenced to probation and referred to Girls Rock by her probation officer. (Compl. ~ 95). When she returned to her high school after being charged, she was placed in a program called "Twilight" through which she was provided no more than three hours of computer-based education per day and which did not provide access to the courses necessary to obtain a high
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school diploma. (ld.). Because she was permitted to be on campus only during program hours, she had to find her own transportation to school, which was a costly expense. (Id.).
As a final example, an African-American student was charged with disturbing school after an incident at her Charleston middle school where she was sent out of class for talking. (Compl. ~ 97). While she sat on a bench outside the classroom, another student walked by and began speaking to her. (Id.). When an SRO noticed the conversation, she was detained, handcuffed, charged with disturbing school, subsequently placed on probation, and re~erred to Girls Rock. (ld.). When she started high school, she was placed in the Twilight program. (Compl. ~ 98). After being picked up for truancy, she was detained for violating the terms of her probation. (ld.). D. Class Allegations
D.S. and S.P. bring this action on behalfofthemselves and all elementary and secondary public school students in South Carolina, each of whom risks arrest or juvenile referral under the allegedly broad and overly vague terms of the Disorderly Conduct Law (the "plaintiff class"). (Compl. ~ 109). There are allegedly over 750,000 elementary and secondary public school students residing in South Carolina. (Compl. ~ 11 0).
This class action is brought against the named defendants individually and against all South Carolina law enforcement agencies that might enforce the Disturbing Schools and Disorderly Conduct Laws against the plaintiff class (the "defendant class"). (Compl. ~ 115). There are allegedly more than 200 state and local law enforcement agencies in South Carolina, employing over 11,000 personnel. (Compl. ~ 116).
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II.RELEVANTPROCEDURALBACKGROUND
The defendants filed seven motions to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure.3 (ECF Nos. 27, 28, 34, 36, 41, 42, 44). The grounds raised are: (1) the plaintiffs lack standing to bring this lawsuit; (2) the defendants are not proper; (3) this action is not ripe; (4) abstention forecloses this action; (5) the Rocker-Feldman doctrine and res judicata necessitate dismissal of claims by any plaintiff who has been convicted of or pleaded guilty to charges of violating the Disturbing Schools or Disorderly Conduct Laws; and (6) the challenged laws are not vague. The plaintiffs filed two responses in opposition, and the moving defendants filed several replies thereto. On December 8, 2016, the Court heard oral argument on all pending motions.
This Order addresses the issue of standing. The Court applies the standard under Rule 12(b)(l) ofthe Federal Rules of Civil Procedure to determine whether dismissal for lack of standing is warranted. See Taubman Realty Gro. Ltd. P'ship v. Mineta, 320 F.3d 475, 480 (4th Cir. 2003) (applying 12(b)(1) standard to dismissal for lack of standing).
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(l) allows a party to challenge a federal court's jurisdiction over the subject matter of the complaint. See Fed. R. Civ. P. 12(b)(1). The plaintiff invoking the Court's jurisdiction bears the burden of establishing that the Court has the requisite subject-matter jurisdiction to grant the relief requested. Richmond, Fredricksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citation omitted). When ruling on a 12(b)(1) motion, the Court "should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to
3 The defendant Chief Reynolds has not filed a motion to dismiss or other responsive pleading. He has no counsel of record in this case.
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show that a genuine issue of material fact exists." Id. (citation omitted). The Court "may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." ld. (citation omitted). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation omitted).
IV. ANALYSIS Although some elements of standing are "merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of [Article III's] case-or-controversy requirement[,]" which limits the Court's subject-matter jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60 (1992) (citation omitted). Standing sets apart the "cases" and "controversies" that are the justiciable sort referred to in Article III, "'serv[ing] to identify those disputes which are appropriately resolved through the judicial process."' Id. at 560 (alteration in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Ifthe plaintiffs lack Article III standing, then the Court lacks subject-matter jurisdiction to entertain their claims. Standing must be established by individual and organizational plaintiffs alike. White Tail Park, Inc. v. Straube, 413 F.3d 451,458 (4th Cir. 2005) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)). "An organizational plaintiff may establish standing to bririg suit on its own behalf when it seeks redress for an injury suffered by the organization itself." Id. (citation omitted). Additionally, an organizational plaintiff may establish "associational standing" on behalf of its members "when: (1) its members would otherwise have standing to sue as individuals; (2) the interests at stake are germane to the group's purpose; and (3) neither
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the claim made nor the relief requested requires the participation of individual members in the suit." Id. (citation omitted).
There are three constitutional requirements for standing: (1) an "injury-in-fact," which means "invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (2) a causal relationship where the injury is fairly traceable to the defendant's conduct; and (3) a favorable court decision is likely to redress the injury. Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 663-64 (1993) (citations omitted). The elements of standing are not merely pleading requirements but are "an indispensable part of the plaintiffs' case," and the plaintiffs bear the burden of proof. Lujan, 504 U.S. at 561. Standing "depends not upon the merits ... but on whether the plaintiff is the proper party to bring [the] suit." White Tail Park, 413 F.3d at 460 (alteration in original) (citations omitted).
To demonstrate injury-in-fact, a plaintiff"must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct[,] and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." City of L.A. v. Lyons, 461 U.S. 95, 101-02 (1983) (citations omitted). However, a plaintiff seeking injunctive and declaratory relief must demonstrate a sufficient likelihood of future injury from the unconstitutional conduct to warrant such equitable relief. See id. at 105, 111 (citation omitted) (holding allegation of prior incident of chokehold use by police as insufficient to confer standing to sue for equitable relief); see also Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 122 (1974) (requiring allegations to show a substantial controversy of sufficient immediacy and reality to warrant declaratory relief); see also Fed. R. Civ. P. 57 advisory committee's note to 1937 adoption (quoting Ashwander v. Tenn. Valley Auth., 297
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U.S. 288 (1936)) ("The 'controversy' must necessarily be 'ofajusticiable nature, thus excluding an advisory decree upon a hypothetical state of facts."').
In the present case, the plaintiffs do not seek relief for past arrests under the challenged laws; rather, they seek equitable relief from future injury. Thus, this case is a pre-enforcement challenge to the Disturbing Schools and Disorderly Conduct Laws. Courts "have permitted preenforcement review under circumstances that render the threatened enforcement [of a law] sufficiently imminent. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014). "[A] plaintiff satisfies the injury-in-fact requirement where he alleges 'an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder."' Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
Accordingly, to satisfy the injury-in-fact requirement of standing, the plaintiffs in this case must allege an intention to engage in a course of conduct proscribed by the challenged laws, affecting their Fourteenth Amendment due process rights, and a credible threat of prosecution. Because the plaintiffs seek injunctive and declaratory relief from future injury, not pecuniary damages for past wrongs, their alleged injuries cannot be "conjectural" or "hypothetical[,]" Lyons, 461 U.S. at 102; "remote[,]" Warth v. Seldin, 422 U.S. 490, 507 (1975); "specl.llative[,]" Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,42-46 (1976); or "[a]bstract[,]" O'Shea v. Littleton, 414 U.S. 488,494 (1974). Rather, they must be "certainly impending." Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (citation omitted).
Lyons is an illustrative case where the plaintiff failed to show a likelihood of future harm. In that case, during the course of a traffic stop, the plaintiff was handcuffed by police and subsequently choked without provocation or justification until he blacked out. 461 U.S. at 97.
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He later sued to enjoin as unconstitutional the use of chokeholds by the Los Angeles Police Department in instances where an officer was not threatened with deadly force. ld. at 98. The United States Supreme Court held that the plaintiff did not have standing to seek injunctive relief; although he could bring suit seeking damages for his injuries, the plaintiff lacked standing to enjoin the police because he failed to demonstrate the likelihood that he would be choked again in the future. ld. at 105. A conversely comparative case is County of Riverside v. McLaughlin, where the plaintiff pleaded likelihood of future harm sufficient to withstand a motion to dismiss. 500 U.S. 44, 51 (1991) (denying motion to dismiss in lawsuit challenging county's arraignment policy allowing long delays over weekends and holidays before arraignments because plaintiffs were under arrest and in custody upon filing complaint, alleging that they would "continue to suffer that injury until they received the probable cause determination to which they were entitled.").

As a final illustration, in Lujan, the United States Supreme Court considered a challenge to a federal regulation exempting government activities outside the United States from the Endangered Species Act. 504 U.S. at 557-60. The plaintiffs claimed that the regulation's noncompliance with the Act "with respect to certain funded activities abroad increase[es] the rate of extinction of endangered and threatened species." Id. at 562 (alteration in original) (citation omitted). Two of the plaintiffs made allegations describing their trips abroad to observe endangered species. ld. at 563. Applying Lyons, the Supreme Court held that the plaintiffs lacked standing because they failed to demonstrate the likelihood of future injury by destruction of endangered species abroad. Id. at 564 (alteration in original) (citation omitted) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects."). The

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allegations that the plaintiffs made trips in the past "prove[d] nothing," and their intent to return in the future "some day" was insufficient for standing "without any description of concrete plans or indeed any specification of when the some day will be ...." Id. A. Standing of Kenny, Nesmith, D.S., S.P., and Girls Rock on behalf of its members
In the present case, the pleaded facts of past exposure to allegedly unconstitutional conduct are likewise insufficient to support equitable relief; the plaintiffs must allege impending harm or at least "an intention to engage in a course of conduct arguably affected with a constitutional interest" accompanied by "a credible threat of prosecution[.]" Driehaus, 134 S. Ct. at 2342. With regard to future injury, the individual plaintiffs-Kenny, Nesmith, D.S., and S.P.-each allege the same: they "fear[] future arrest and prosecution" under either or both the Disturbing Schools and Disorderly Conduct Laws "if, while on or around the grounds of a school," his or her "actions are interpreted to fall under any of the broad terms" of the laws. (Compl. ~~ 17, 19, 21, 25). The proposed plaintiff class members-"all elementary and secondary public school students in South Carolina" represented by D.S. and S.P.-allegedly "face[] a risk of arrest or juvenile referral under the broad and overly vague terms of the challenged statutes." (Compl. ~ 109). Finally, for the suit it brings on behalf of its members, Girls Rock similarly states that its members are "students who risk arrest or referral under [the Disturbing Schools Law] or [Disorderly Conduct Law] while attending school." (Compl. ~ 23).
The question thus becomes whether the allegations of "fear" or "risk" of future arrest, prosecution, or referral under the challenged laws constitute injuries-in-fact necessary to confer standing to these plaintiffs. These future injury allegations are insufficient to confer standing because they fail to state facts showing imminent harm, an intention to engage in conduct proscribed by the challenged laws, or a credible threat of prosecution. Although imminence is "a
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somewhat elastic concept, it cannot be stretched beyond its purpose ... - that the injury is certainly impending." Clapper v. Amnesty lnt'l USA, 133 S. Ct. 1138, 1147 (2013) (quoting Lujan, 504 U.S. at 564 n.2). The Supreme Court has "repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact and that allegations of possible future injury are not sufficient." Id. (quoting Whitmore, 495 U.S. at 158).
In the present case, like the plaintiff in Lyons, Kenny, Nesmith, D.S., and S.P. allege past injuries to their constitutional right to due process, which may endow them with standing to seek monetary damages; yet they seek equitable relief like the plaintiffs in Lujan, which requires that they plead a likelihood of future injury that is certainly impending and not merely possible. The allegations of "fearing future arrest and prosecution" under the challenged laws followed by a conditional clause-"if, while on or around the grounds of a school" a plaintiffs "actions are interpreted to fall under any ofthe broad terms" of the laws-do not demonstrate a likelihood of future injury, an intention to engage in proscribed conduct, or a credible threat of prosecution. (See Compl. ~~ 17, 19, 21, 25). The same is true of the claims that Girls Rock brings on behalf of its members "who risk referral under [the Disturbing Schools Law] or [Disorderly Conduct Law] while attending school. (See Compl. ~ 23). The allegations pertaining to Kenny, Nesmith, D.S., S.P., and Girls Rock's members do not rise above speculation, and thus the Court cannot provide the injunctive and declaratory relief requested.
Absent allegations of a sufficient likelihood that these students will be charged under the challenged laws again or that a credible threat of prosecution looms, these plaintiffs are no more entitled to equitable relief than any other citizen of South Carolina, and the Court may not entertain a constitutional challenge to a state criminal statute merely because a citizen desires to have it struck down or even because she may some day act in a manner that violates it. See
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Lyons, 461 U.S. at Ill ("Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional."). The speculative and hypothetical nature of the individual plaintiffs' alleged future injuries is insufficient to confer standing where only equitable relief is sought. Girls Rock likewise lacks associational standing to sue on behalf of its members because they lack standing to sue as individuals due to the speculative and hypothetical nature oftheir allegations. See White Tail Park, 413 F.3d at 458 (requiring organizational plaintiffs members to have standing individually in order for their organization to sue on their behalf). Therefore, the Court dismisses the claims of Kenny, Nesmith, D.S., S.P., and Girls Rock on behalf of its members for lack of standing. B. Standing of Girls Rock on its own behalf
With respect to the suit Girls Rock brings on its own behalf, the organization states that it "is substantially burdened in its mission by the continued practice of charging students under [the Disturbing Schools Law]." (Campi.~ 23). It further alleges that enforcement of the Disturbing Schools Law "has ... impacted Girls Rock as an organization[]" and that it "has taken up efforts to challenge the Disturbing Schools statute and bring awareness to the statute's negative impact on Charleston area young people." (Campi. ~ 103). These efforts include: (1) "operat[ing] an
.•
afterschool program serving at-risk youth and youth who have been involved in the justice system[,] ... guided by core principles that include challenging criminalization and promoting collective accountability for behavior[,]" (Campi. ~ 22); (2) "provid[ing] mentorship, music and arts education, and leadership development to young people in Charleston, South Carolina[,]"' (id.); and (3) advocating "on behalf of individual students who have been charged under the
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challenged statutes, foster[ing] leadership and community involvement in the young people it serves, and help[ing] create opportunities for them to advocate for their own rights- including the right to be free from enforcement of [the challenged laws]." (Mem. in Opp'n to Defs.' Mots. to Dismiss 3, ECF No. 54). For the following reasons, these allegations are insufficient to confer standing on Girls Rock to sue on its own behalf because it lacks two requirements of injury-infact: imminence of harm and invasion of a legally protected interest.
1. Injury-in-fact: Imminence When a plaintiff"is not [it]selfthe object of the government action ... [it] challenges,
standing is not precluded, but it is ordinarily 'substantially more difficult' to establish." Lujan, 504 U.S. at 562 (citation omitted). Like the other plaintiffs' injuries sought to be redressed with equitable relief, Girls Rock's alleged injury of being substantially burdened in its mission by the continued practice of charging students under the Disturbing Schools Law is insufficient to confer standing because it depends on the future action of law enforcement officers who may or may not be before the Court. See id. Such future action by law enforcement would have to further arise from the future conduct of non-party students whose behavior results in disturbing schools prosecution, sentencing, and subsequent referral to Girls Rock. See id. Girls Rock's injury is premised on hypothetical circumstances and lacks impendency. Moreover such injury is too attenuated from the claims before the Court: that the challenged laws violate students' Fourteenth Amendment due process. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154-55 (4th Cir. 2000) (requiring courts to consider attenuation between the illegal conduct and injury when examining allegations related to Article III standing). Therefore, the imminence requirement is not satisfied.
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2. Injury-in-fact: Invasion of a Legally Protected Interest "Proper regard for the complex nature of our constitutional structure" does not require the
Court to avoid confrontation with other branches of government, "nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered a cognizable injury." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). Accordingly, the Court refrains from determining the constitutionality of the challenged laws "unless obliged to do so in the proper performance of ... judicial function, when the question is raised by a party whose interests entitle him to raise it." Id. (quoting Blair v. United States, 250 U.S. 273,279 (1919)).
Generally, a plaintiff"must assert his own legal rights and interests" and may not rely on the legal rights or interests of third parties. Id. (citation omitted). An exception exists "in the First Amendment context" where litigants may "challenge a statute not because their own rights of free expression are violated, but because ... the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392-93 (1988) (citation omitted). However, this exception does not apply in the present case because the Complaint does not allege infringement of First Amendment rights. Another exception has been allowed in cases challenging abortion laws, also not applicable to the case at hand. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844-45 (1992) (allowing abortion providers to bring pre-enforcement challenge to Pennsylvania law requiring husband's consent prior to his wife's abortion).
A complaint must fall within the zone of interests protected by the statute or constitutional provision in question. Valley Forge, 454 U.S. at 475 (citation omitted). · Here, the Complaint contains no allegations demonstrating that Girls Rock's interests fall within the zone
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of interests protected by the constitutional provision in question-the Due Process Clause of the Fourteenth Amendment-to render its interests at stake in this case. Therefore, the requirement of invasion of a legally protected interest is not satisfied. In summation, Girls Rock does not have standing to sue on its own behalf because it lacks the injury-in-fact requirements of imminence of harm and invasion of a legally protected interest. Accordingly, the Court dismisses Girls Rock's claim on its own behalf.
V. CONCLUSION For the foregoing reasons, the plaintiffs lack Article Ill standing. Therefore, the Court lacks subject-matter jurisdiction to hear their claims. The Court grants the motions to dismiss (ECF Nos. 27, 28, 34, 36, 41, 42, and 44). Accordingly, the case is dismissed without prejudice. AND IT IS SO ORDERED.

February~, 2017
Charleston, South Carolina

UNITED STATES DISTRICT JUDGE

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 Appeal: 17-1326:716-cvD-o0c2:75984-MBS FiDleadt:e0F3i/l1e5d/20031/185/18PgE: 1ntoryf 1N8umber 102 Page 1 of 18
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1367
NIYA KENNY, on behalf of herself and all others similarly situated; TAUREAN NESMITH, on behalf of himself and all others similarly situated; GIRLS ROCK CHARLESTON INC, on behalf of themselves and all others similarly situated; D.S., by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated; S.P., by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated,
3ODLQWLIIVí$SSHOODQWV,
v.
ALAN WILSON, in his official capacity as Attorney General of South Carolina, on behalf of himself and others similarly situated; J. ALTON CANNON, JR., in his official capacity as the Sheriff of Charleston County, SC; on behalf of himself and others similarly situated; GREGORY G. MULLEN, in his official capacity as the Chief of the Police Department of the City of Charleston, SC; on behalf of himself and others similarly situated; EDDIE DRIGGERS, JR., in his official capacity as the Chief of the Police Department of the City of North Charleston, SC; on behalf of himself and others similarly situated; CARL RITCHIE, in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself and others similarly situated; LEON LOTT, in his official capacity as the Sheriff of Richland County, SC; on behalf of himself and others similarly situated; W.H. HOLBROOK, in his official capacity as the Chief of the Police Department of the City of Columbia, SC; on behalf of himself and others similarly situated; STEVE LOFTIS, in his official capacity as the Sheriff of Greenville County, SC; on behalf of himself and others similarly situated; KEN MILLER, in his official capacity as the Chief of the Police Department of the City of Greenville, SC; on behalf of himself and others similarly situated; LANCE CROWE, in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; on behalf of himself and others similarly situated; MICHAEL D. HANSHAW, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of himself and others similarly situated; M. BRYAN TURNER, in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; on behalf of himself and others similarly situated; DAN REYNOLDS, in his official capacity as

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the Chief of the Police Department of the City of Greer, SC; on behalf of himself and others similarly situated; A. KEITH MORTON, in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of himself and others similarly situated,
Defendants – Appellees.

Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, Senior District Judge. (2:16-cv-02794-CWH)

Argued: December 6, 2017

Decided: March 15, 2018

Before DUNCAN and DIAZ, Circuit Judges, and Paula XINIS, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Xinis joined.

ARGUED: Sarah Hinger, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York, for Appellants. James Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina for Appellees Alan Wilson, M. Bryan Turner, and A. Keith Morton; Sandra J. Senn, SENN LEGAL, LLC, Charleston, South Carolina, for Appellees J. Alton Cannon, Jr., Gregory G. Mullen, and Eddie Driggers, Jr. ON BRIEF: Dennis D. Parker, Lenora M. Lapidus, Galen L. Sherwin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York; Susan K. Dunn, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA, Charleston, South Carolina, for Appellants. Alan Wilson, Attorney General, Robert D. Cook, Solicitor General, Columbia, South Carolina, for Appellees Alan Wilson, M. Bryan Turner, Lance Crowe, A. Keith Morton and Michael D. Hanshaw. W. Michael Hemlepp, Jr., CITY OF COLUMBIA ATTORNEY’S OFFICE, Columbia, South Carolina, for Appellee W.H. Holbrook. Anne R. Culbreath, WILLSON JONES CARTER AND BAXLEY, Greenville, South Carolina, for Appellee Steve Loftis. Michael S. Pitts, Logan M. Wells, CITY OF GREENVILLE, OFFICE OF THE CITY ATTORNEY, Greenville, South Carolina, for Appellee Ken Miller. Andrew F. Lindemann, DAVIDSON AND LINDEMANN PA, Columbia, South Carolina, for Appellee Carl Ritchie. Robert D. Garfield, Steven R. Spreeuwers, DAVIDSON and LINDEMANN PA, Columbia, South Carolina, for Appellee Leon Lott.
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DIAZ, Circuit Judge: In this case, a group of former and current South Carolina students and a nonprofit
organization filed suit under 42 U.S.C. § 1983 challenging S.C. Code Ann. § 16-17-420 (the “Disturbing Schools Law”) and S.C. Code Ann. § 16-17-530 (the “Disorderly Conduct Law”) as unconstitutionally vague. The district court dismissed the complaint for lack of standing. It reasoned that plaintiffs’ fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact.
But at least some of the named plaintiffs do not rely on conjecture or speculation, but rather, on the fact that they attend school where they were previously arrested and criminally charged under the two South Carolina statutes, and they don’t know which of their actions at school will be interpreted to violate the statutes in the future. Further, plaintiffs allege that the two laws chill their exercise of free expression, forcing them to refrain from exercising their constitutional rights or to do so at the risk of arrest and prosecution. In our view, that is sufficient to plead both a future and ongoing injury in fact. We therefore vacate the district court’s judgment and remand for further proceedings.
I. Before turning to the merits, we set out the relevant statutes. We then describe the plaintiffs involved, the allegations of the complaint, and the basis for the district court’s decision.
A. The Disturbing Schools Law, which all plaintiffs challenge, states:
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(A) It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
S.C. Code Ann. § 16-17-420(A).1 The Disorderly Conduct Law, which two plaintiffs (D.S. and S.P.) challenge on
behalf of a class of elementary and secondary public school students, states: Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
S.C. Code Ann. § 16-17-530. B.
Plaintiffs include four individuals and one organization—minors D.S. and S.P., Niya Kenny, Taurean Nesmith, and Girls Rock Charleston. D.S. and S.P. represent the proposed class of elementary and secondary public school students in South Carolina. Girls Rock is suing on behalf of its members and itself.
1 The offense is a misdemeanor punishable by up to ninety days in jail or a fine of up to $1,000. S.C. Code Ann. § 16-17-420(B).
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D.S. and S.P are high school students. D.S. (who is black and has learning disabilities) was charged with violating the Disturbing Schools Law “after becoming involved in a physical altercation which she did not initiate and in which she was the only person who sustained an injury, a lump on her head.” Compl. ¶ 101. S.P. (who is white and suffers from mood and conduct disabilities) was charged with violating the Disorderly Conduct Law after she cursed at a student who had been teasing her and refused to leave the library with the principal as instructed.
Kenny and Nesmith are young adults who were previously arrested and charged with violating the Disturbing Schools Law when they expressed concerns about police conduct. When Kenny (who is black) was in high school, she saw a school resource officer pull a female student from her desk, drag her on the floor, and handcuff her. Kenny “attempted to document the incident and called out for someone to do something to stop the violent treatment of her classmate.” Compl. ¶ 84. In response, Kenny was arrested and charged with violating the Disturbing Schools Law. The experience left Kenny scared and humiliated, and she withdrew from high school. She later obtained her G.E.D.
Nesmith (who is also black) attends Benedict College. He alleges that a campus police officer arrested him on suspicion of violating both statutes after he complained that the officer was engaged in racial profiling and questioned the officer’s request that he produce identification.
Girls Rock is a nonprofit organization that “provides mentorship, music and arts education, and leadership development to young people in Charleston, South Carolina.” Compl. ¶ 22. Girls Rock “operates an afterschool program serving at-risk youth” and is
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“guided by core principles that include challenging criminalization.” Compl. ¶ 22. The complaint describes two members of Girls Rock—K.B. and D.D.
K.B. is Latina and was charged with violating the Disturbing Schools Law at age thirteen after she arrived late to gym class and loudly protested when she was asked to leave and go to the “tardy sweep” room. Compl. ¶ 94. K.B. was sentenced to probation and referred to Girls Rock. When K.B. returned to school, she was placed in a program called “Twilight,” through which “she was provided no more than three hours of computerbased education per day.” Compl. ¶ 95. The Twilight program “did not provide access to the courses necessary to obtain a high school diploma.” Compl. ¶ 95.
D.D. is black and was charged with violating the Disturbing Schools Law at her Charleston middle school after she was sent out of class for talking and then proceeded to speak with another student in the hallway. She too was placed on probation and ordered to participate in the Twilight program.
C. The plaintiffs’ complaint outlines two § 1983 claims. First, all plaintiffs challenge the Disturbing Schools Law as unconstitutionally vague on its face and, second, D.S. and S.P. also challenge the Disorderly Conduct Law as unconstitutionally vague as applied to elementary and secondary public school students in South Carolina. Both claims allege (in sum and substance) that the statutes violate plaintiffs’ right to due process under the Fourteenth Amendment because they fail to provide sufficient notice of prohibited conduct and encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357 (1983).
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Plaintiffs claim that both statutes criminalize behavior that is indistinguishable from typical juvenile behavior, which schools address on a daily basis without resorting to the criminal justice system. For example, students, including some as young as seven, have been charged under the statutes for cursing, refusing to follow directions, or getting in a physical altercation that doesn’t result in any injuries. The complaint further alleges that some students are arrested and charged simply for expressing concerns about police conduct.
According to plaintiffs, criminal charges under the two statutes are among the leading reasons young people enter the juvenile justice system in South Carolina. Between 2010 and 2016, over 9,500 young people throughout the state were referred to the Department of Juvenile Justice under the Disturbing Schools Law, a statistic that excludes those students seventeen and older who are charged and prosecuted as adults.
Plaintiffs also allege that students arrested for violating the statutes are less likely to graduate and more likely to feel stigmatized and afraid, making it difficult to engage in the classroom. When a student’s behavior is characterized as “criminal,” the school is likely to impose a harsher punishment, diminishing the student’s educational opportunities through expulsion, suspension, or placement in alternative settings that do not offer coursework necessary to graduate.
Plaintiffs claim that the statutes are enforced in a discriminatory manner, leaving racial minorities and students with disabilities especially vulnerable. In 2014-2015 black students in South Carolina were nearly four times as likely to be charged under the Disturbing Schools Law compared to their white classmates. In Charleston County, a
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charge under the Disturbing Schools Law was the number one reason young people entered the juvenile justice system and black students were more than six times as likely to be charged for the offense compared to white students. Plaintiffs allege that such racial disparities in discipline cannot be explained by differences in behavior among students of different races.
The individual plaintiffs and members of Girls Rock—all of whom have previously been charged under one of the two statutes—fear future arrest if, while on or around the grounds of a school, their actions are interpreted to fall under any of the broad terms of the statutes. Additionally, Girls Rock alleges that, as an organization, it is “substantially burdened in its mission by the continued practice of charging students” under the Disturbing Schools Law. Compl. ¶ 23. Girls Rock volunteers attend hearings with its members and present testimony on their behalf. These hearings divert time and resources away from “developing programming and providing direct services to young people and attending to administrative business necessary to sustain the operations of the organization, such as writing grant proposals and conducting fundraising activities.” Compl. ¶ 105.
Plaintiffs seek: (1) a declaratory judgment that the statutes violate their right to due process under the Fourteenth Amendment; (2) a preliminary and permanent injunction enjoining defendants from enforcing the laws; and (3) an order enjoining defendants from considering or retaining any of plaintiffs’ records relating to the Disturbing Schools or Disorderly Conduct charges filed against them, except as would be permissible following expungement under S.C. Code Ann. § 17-1-40.
D. 8

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The district court dismissed plaintiffs’ claims for lack of standing. Specifically, the district court held that D.S., S.P., Kenny, Nesmith, and Girls Rock all lacked standing because allegations of a fear or risk of future arrest do not show “imminent harm, an intention to engage in conduct proscribed by the challenged laws, or a credible threat of prosecution.” J.A. 542. The court held that the plaintiffs failed to “plead a likelihood of future injury that is certainly impending and not merely possible.” J.A. 543. The court also held that Girls Rock lacked organizational standing because it did not face imminent harm and its interests were outside the “zone of interests” protected by the Due Process &ODXVH-$௅47. This appeal followed.
II. We review de novo a district court’s dismissal of a case for lack of standing. David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). At least one plaintiff must demonstrate standing for each claim and form of requested relief. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). Thus, we must determine whether plaintiffs have standing to bring their two claims and to request (1) a declaratory judgment and (2) a preliminary and permanent injunction enjoining defendants from enforcing the laws.2 We
2 We do not consider standing issues with respect to the third form of requested relief—to enjoin defendants from considering or retaining plaintiffs’ criminal records— because the district court did not specifically address the issue. This is the only form of relief in which each plaintiff would need to establish standing because one plaintiff does not have standing to request that another plaintiff’s records be expunged. See Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 216 (4th Cir. 2017) (holding each plaintiff must allege injury in fact when plaintiffs seek individualized, instead of identical, relief). But
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accept the facts of the complaint as true as we would in context of a Rule 12(b)(6) challenge because defendants’ motions to dismiss are facial challenges to standing that do not dispute the jurisdictional facts alleged in the complaint. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
To establish Article III standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct . . . and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The district court here concluded that plaintiffs’ complaint failed to allege an injury in fact.
The injury-in-fact requirement ensures that plaintiffs have a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Injury in fact is “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548. “An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (internal quotation marks omitted). But because plaintiffs here seek declaratory and injunctive relief, they must establish an ongoing or future injury in fact. O’Shea v. Littleton86௅³3DVWH[SRVXUHWRLOOHJDOFRQGXFWGRHV not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”).
because we are at the motion to dismiss stage, we see no need to dismiss this request for relief when the underlying jurisdictional facts have not been fully developed.
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There are two ways that plaintiffs’ allegations of a fear and risk of future arrest can satisfy the injury-in-fact requirement for prospective relief. First, there is a sufficiently imminent injury in fact if plaintiffs allege “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). “[I]t 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.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). Separately, there is an ongoing injury in fact if plaintiffs make a “sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (internal quotation marks omitted).
As we explain, we are satisfied that plaintiffs’ allegations satisfy both tests. A.
Consistent with the Babbitt standard for alleging injury, plaintiffs S.P., D.S., and Nesmith say that they are students who fear that their actions will be interpreted to come within the broad terms of the statutes. They attend school without knowing which of their actions could lead to a criminal conviction, which deprives them of notice of prohibited conduct and “may authorize and even encourage arbitrary and discriminatory enforcement” in violation of their right to due process. See City of Chicago v. Morales, 527 U.S. 41, 56 (1999); see also Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 n.4 (2d Cir. 2015) (recognizing plaintiffs’ intended conduct—selling and carrying a variety of folding knives—was affected with a constitutional due process interest in notice of prohibited
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conduct, but proscribed by statute, because plaintiffs couldn’t determine which knives were prohibited under a New York law). Additionally, attending school inevitably involves expressive conduct and these three plaintiffs allege that the statutes restrict their ability “to engage with school,” “speak out against abuses,” or “participate in conversations about policing,” and therefore limit their right to free speech under the First Amendment. Compl. ¶¶ 9, 2, ௅.
Turning to the second part of the Babbitt standard, there is a credible threat of future enforcement so long as the threat is not “imaginary or wholly speculative,” Babbitt, 442 U.S. at 302, “chimerical,” Steffel, 415 U.S. at 459, or “wholly conjectural,” Golden v. Zwickler, 394 U.S. 103, 109 (1969). “[P]ast enforcement against the same conduct is good evidence that the threat of enforcement is not chimerical.” Driehaus, 134 S. Ct. at 2345 (internal quotation marks omitted). Threat of prosecution is especially credible when defendants have not “disavowed enforcement” if plaintiffs engage in similar conduct in the future. Id. Furthermore, there is a presumption that a “non-moribund statute that facially restricts expressive activity by the class to which the plaintiff belongs presents such a credible threat.” North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) (internal quotation marks omitted). “This presumption is particularly appropriate when the presence of a statute tends to chill the exercise of First Amendment rights.” Id.
We find that S.P. and D.S. face a credible threat of future arrest or prosecution under the Disturbing Schools Law and Disorderly Conduct Law, and that Nesmith faces a credible threat of arrest or prosecution under the Disturbing Schools Law because these three plaintiffs regularly attend schools where they allege there may be future encounters
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with school resource officers or other law enforcement; they have been prosecuted under the laws in the past; and the defendants have not disavowed enforcement if plaintiffs engage in similar conduct in the future. Further, plaintiffs allege that black students and students with disabilities are more likely to be criminally charged with violating the statutes. S.P is disabled, Nesmith is black, and D.S. is both disabled and black. Thus, the threat of enforcement is particularly credible with respect to these three plaintiffs.
Moreover, the presumption of a credible threat applies. Plaintiffs plausibly allege that the two statutes are regularly enforced against students like S.P., D.S., and Nesmith; they restrict students’ expressive activity, including anything perceived as “disturbing,” “obnoxious,” “disorderly,” or “boisterous”; and they tend to chill students’ engagement in the classroom as well as their ability to speak out against police and participate in conversations about policing. As a result, we may presume that, as students in South Carolina, S.P., D.S., and Nesmith face a credible threat of prosecution.3
3 The injury-in-fact element is also “commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Cooksey, 721 F.3d at 235. Although “[s]ubjective or speculative accounts of such a chilling effect are not sufficient . . . a claimant need not show he ceased those activities altogether to demonstrate an injury in fact.” Id. at 236 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)). Instead, “[g]overnment action will be sufficiently chilling when it is likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Id. (same).
Here, D.S., S.P., and Nesmith plausibly allege that the statutes have a chilling effect on their free expression. Specifically, they contend that it’s more difficult for students who fear arrest “to engage with school” and that the statutes chill “the ability of students to speak out against abuses and to participate in conversations about policing.” Compl. ¶¶ 2, 9. We think that sufficient to allege an injury in fact.
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B. The district court concluded that there was no credible threat of prosecution because plaintiffs’ future injuries are just as speculative and hypothetical as the alleged future injury in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). We disagree. In Lyons, the plaintiff sought to enjoin the Los Angeles Police Department’s use of chokeholds when an officer faces no threat of deadly force. 461 U.S. at 98. The plaintiff had previously been handcuffed and choked by a police officer during the course of a traffic stop, but the court held that “[a]bsent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles.” Id. at 111. However, Lyons did not involve a pre-enforcement challenge to a statute or any allegation of a chilling effect on the plaintiff’s exercise of his First Amendment rights. The plaintiff there was seeking injunctive relief based on the conduct of a single police officer during a single traffic stop. In fact, the Court in Lyons explained that there would have been an actual controversy if Lyons had “allege[d] that he would have another encounter with the police” and “that the City ordered or authorized police officers to act in such PDQQHU´86DW௅ That is precisely what plaintiffs allege here—specifically, that there will be future encounters with officers at school and that the statutes in question authorize defendants to violate their rights to due process and free speech. Relatedly, unlike Lyons, D.S., S.P., and Nesmith allege they will be subject to arrest or prosecution for engaging in activity
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protected by the Constitution. See Hernandez v. Cremer, 913 F.2d 230, 234 (5th Cir. 1990) (“Hernandez (unlike Lyons) was engaged in an activity protected by the Constitution.”).
The defendants say that the plaintiffs cannot satisfy the Babbitt test because the South Carolina courts have provided limiting constructions that clarify the reach of the statutes. See City of Landrum v. Sarratt, 572 S.E.2d 476 (S.C. Ct. App. 2002) (interpreting the Disorderly Conduct Law); In re Amir X.S., 639 S.E.2d 144 (S.C. 2006) (interpreting the Disturbing Schools Law). Again, we do not agree.
Sarratt was an appeal from a criminal conviction. 572 S.E.2d at 477. The question was whether Sarratt, who had yelled profanities at his mother in a municipal parking lot, had violated the Disorderly Conduct Law. Id. The South Carolina Court of Appeals accepted the lower court’s determination that profane language alone can’t constitute a violation of the Disorderly Conduct Law in light of the First Amendment and “must be accompanied by fighting words or other behavior such as gross intoxication.” Id. The court then found that Sarratt had used fighting words because he yelled loudly and directed vulgarities at his mother, and it therefore upheld his conviction.
Sarratt clarifies that profane language alone cannot constitute a violation of the law, but it says nothing at all about how to interpret other vague phrases in the Disorderly Conduct Law like “conducting [oneself] in a disorderly or boisterous manner” or even what conduct must accompany profane language for there to be a criminal conviction. Thus, it remains plausible that the Disorderly Conduct Law is vague, particularly as applied to elementary and secondary students (who are in many ways disorderly or boisterous by nature).
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In re Amir is also not dispositive as to whether the Disturbing Schools Law, as interpreted by the state court, infringes on plaintiffs’ rights to due process and free expression. There, the plaintiff challenged the Disturbing Schools Law as unconstitutionally vague and overbroad in violation of the First Amendment. In re Amir, 639 S.E.2d at 145. The Supreme Court of South Carolina did not reach the merits of the vagueness challenge, holding instead that the statute was not overly broad because it draws “the very same constitutional line drawn by Tinker and its progeny.” Id. at 150.
Tinker held that a school district could not punish students for wearing black armbands to school in protest of the Vietnam War because there was no “material interference” with school activities. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). The Tinker Court explained that “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior— materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Id. at 513.
As for Tinker’s progeny, the primary case discussed in In re Amir (Grayned v. City of Rockford) involved a city ordinance prohibiting a person, while on grounds adjacent to a building in which a school is in session, from willfully making a noise or diversion that disturbs the peace or good order of the school session. 408 U.S. 104, 107௅ The Court there held the ordinance was a reasonable time, place, manner regulation and thus not overbroad. Id. at 116௅. It also held that “[a]lthough the question is close,” the ordinance was not impermissibly vague because it forbid “willful activity at fixed times—
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when school is in session—and at a sufficiently fixed place—‘adjacent’ to the school.” Id. DW௅
Unlike the school regulation in Tinker or the city ordinance in Grayned, the Disturbing Schools Law is a criminal law that applies to all people who in “any way or in any place” willfully or unnecessarily disturb students or teachers of any school or college. S.C. Code Ann. § 16-17-420(A)(1). We note also that both In re Amir and Tinker are cases addressing overbreadth challenges; neither consider the separate question of whether a statute’s prohibitions are unconstitutionally vague and allow for arbitrary or discriminatory enforcement. In short, we do not think these cases foreclose the plaintiffs’ claims here.
Finally, defendants say that plaintiffs fail to allege an intent to engage in a specific course of conduct proscribed by the statutes. But it is precisely because the statutes are so vague that plaintiffs can’t be more specific. Plaintiffs allege that they can be criminally prosecuted for just about any minor perceived infraction and that they can’t predict the type of conduct that will lead to an arrest.
In any event, plaintiffs don’t need to allege a specific intent to violate the statutes for purposes of standing. In Babbitt, for example, a farmworkers’ union and others sought declaratory judgment that Arizona’s farm labor statute was unconstitutional, and requested an injunction against its enforcement. 442 U.S. at 289. In particular, the union claimed that the statute’s provision limiting union publicity directed at consumers of agricultural products “unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals.” Id. at 301.
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Appeal: 17-1326:176-cvD-0o2c7: 9548-MBS FDileadte: 0F3il/e1d5/0230/1185/18 PgE:n1t8ryoNf u1m8 ber 102 Page 18 of 18
The Court there held that the union’s challenge “plainly pose[d] an actual case or controversy” because even though the union did “not plan to propagate untruths” as prohibited by the statute, the union nevertheless contended “that erroneous statement is inevitable in free debate.” Id. (internal quotation marks omitted). In other words, it was enough that the union alleged an intent to engage in conduct that would inevitably—albeit incidentally—violate the statute. Likewise, plaintiffs here contend that behavior perceived as “obnoxious” or “boisterous” is inevitable on school grounds.
III. For the reasons given, we conclude that S.P., D.S., and Nesmith’s allegations are sufficient to establish an injury in fact.4 We therefore vacate the district court’s judgment and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
4 Because S.P., D.S., and Nesmith satisfy the injury-in-fact requirement, we need not decide whether Kenny or Girls Rock have also established an injury in fact. Whether the claims alleged by these plaintiffs survive further analysis is a matter we leave to the district court.
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 2:16-cv-02794-MBS Date Filed 05/15/18 Entry Number 131 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

NIYA KENNY; TAUREAN NESMITH; GIRLS

) CASE NUMBER: 2:16-cv-02794-MBS

ROCK CHARLESTON, INC.; D.S., by and through )

her next of kin Juanita Ford, and S.P., by and through )

her next of kin Melissa Downs, on behalf of

)

themselves and all others similarly situated,

)

Plaintiffs,

) )

v.

) )

ALAN WILSON in his official capacity as Attorney General of South Carolina; J. ALTON CANNON, JR. in his official capacity as the Sheriff of Charleston County, SC; GREGORY MULLEN in his official capacity as the Chief of the Police Department of the City of Charleston, SC; EDDIE

) CONSENT ORDER AS TO MOTIONS TO

)

DISMISS OF LAW ENFORCEMENT

) DEFENDANTS AND PLAINTIFFS’ MOTION

) FOR DEFENDANT CLASS CERTIFICATION

)

)

DRIGGERS JR., in his official capacity as the Chief )

of the Police Department of the City of North

)

Charleston, SC; CARL RITCHIE in his official

)

capacity as the Chief of the Police Department of the )

City of Mt. Pleasant, SC; LEON LOTT in his

)

official capacity as the Sheriff of Richland County, )

SC; W.H. HOLBROOK in his official capacity as the Chief of the Police Department of the City of Columbia, SC; STEVE LOFTIS in his official

) )

capacity as the Sheriff of Greenville County, SC;

)

KEN MILLER in his official capacity as the Chief

)

of the Police Department of the City of Greenville, )

SC; LANCE CROWE in his official capacity as the )

Chief of the Police Department of the City of

)

Travelers Rest, SC; MICHAEL D. HANSHAW in )

his official capacity as Interim Chief of the Police

)

Department of the City of Simpsonville, SC; M.

)

BRYAN TURNER in his official capacity as the

)

Chief of the Police Department of the City of Mauldin, SC; DAN REYNOLDS in his official capacity as the Chief of the Police Department of the

) )

City of Greer, SC; A. KEITH MORTON in his

)

official capacity as the Chief of the Police

)

Department of the City of Fountain Inn, SC; on

)

behalf of themselves and others similarly situated,

)

)

Defendants.

)

)

2:16-cv-02794-MBS Date Filed 05/15/18 Entry Number 131 Page 2 of 7
Before the Court are the Plaintiffs Niya Kenny; Taurean Nesmith; Carolina Youth Action Project formerly known as Girls Rock, Inc.; D.S., by and through her next of kin Juanita Ford, and S.P., by and through her next of kin Melissa Downs (collectively, hereinafter, “Plaintiffs”), and Defendants J. Alton Cannon, Luther Reynolds, Reginald Burgess, Carl Ritchie, Leon Lott, W.H. Holbrook, Johnny Mack Brown, Ken Miller, Lance Crowe, Michael D. Hanshaw, M. Bryan Turner, and A. Keith Morton (collectively, hereinafter, “Law Enforcement Defendants”), by and through their undersigned respective counsel. The following agreement is entered into by counsel for the parties. The basis for this agreement is as follows:
1. Defendant Wilson, in his official capacity as Attorney General of South Carolina, concedes that where Plaintiffs have established an injury conferring standing, that injury meets the requirements of Article III standing as to traceability and redressability. Subject to the opinion of the Court of Appeals, Defendant Wilson reserves all other arguments including injury.
2. The Law Enforcement Defendants acknowledge service of process in their official capacities as parties to this litigation. It is acknowledged that the Law Enforcement Defendants have a duty to enforce the law. However, the Law Enforcement Defendants do not control the state legislature and the statutes at issue in this case are state statutes.
3. The Plaintiffs and the Defendants both understand that there is currently a bill in the S.C. Legislature which, if passed, will make changes to the current Disturbing Schools law.
4. The Plaintiffs agree to stay all proceedings against the Law Enforcement Defendants and the Law Enforcement Defendants agree to abide by any order or other precedent of this Court and the United States Court of Appeals for the Fourth Circuit regarding the
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2:16-cv-02794-MBS Date Filed 05/15/18 Entry Number 131 Page 3 of 7
constitutionality of S.C. Code Ann. §§ 16-17-420 and 16-17-530, and their enforceability, including, but not limited to, any form of injunctive relief. 5. The Plaintiffs agree that the Law Enforcement Defendants shall not be obligated to further defend this action or to file any further responsive pleadings. 6. This agreement shall encompass any Law Enforcement officers, agencies or departments that the Plaintiffs may later try to add as parties. 7. The Law Enforcement Defendants withdraw all pending renewed motions to dismiss and all objections to Plaintiff Class Certification. 8. Plaintiffs withdraw their Motion for Defendant Class Certification. 9. Plaintiffs agree to dismiss all claims against Law Enforcement Defendants with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) upon a final judgment on claims against remaining Defendants and following any appeal, which Plaintiffs reserve the right to make. 10. The Plaintiffs agree that if they prevail in this litigation they will attempt to seek attorneys’ fees and costs under 42 U.S.C. § 1988 only against defendants other than the Law Enforcement Defendants and will not seek any fees or costs relating to this litigation from Law Enforcement Defendants. The Law Enforcement Defendants agree they will not attempt to seek attorneys’ fees or costs relating to this litigation from Plaintiffs, and further agree that any motions for attorneys’ fees now pending in the District Court shall be withdrawn. It is agreed that between the plaintiffs and the Law Enforcement Defendants, each party shall bear its own costs.
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WHEREFORE, IT IS HEREBY ORDERED THAT this action shall now be STAYED as to the Law Enforcement Defendants, and all parties to this litigation consent to the stay.

Dated: May 14, 2018 Charleston, South Carolina

/s/ Margaret B. Seymour Honorable Margaret B. Seymour Senior United States District Court Judge

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2:16-cv-02794-MBS Date Filed 05/15/18 Entry Number 131 Page 5 of 7
WE SO AGREE:
S/ Susan K. Dunn Susan K. Dunn, Fed. ID: 00647 American Civil Liberties Union Foundation of South Carolina Post Office Box 20998 Charleston, South Carolina 29413 (843) 282-7953 sdunn@aclu.org
Sarah Hinger Gallen Sherwin Dennis D. Parker Lenora Lapidus American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 (212) 519-2500 shinger@aclu.org gsherwin@aclu.org dparker@aclu.org llapidus@aclu.org
Counsel for Plaintiffs
WE AGREE:
S/ J. Emory Smith, Jr. J. Emory Smith, Jr., Fed. ID 03908 South Carolina Attorney General’s Office Post Office Box 11549 Columbia, South Carolina 29211 (803) 734-3680 esmith@scag.gov
Counsel for Defendants Alan Wilson, Lance Crowe, Michael D. Hanshaw, M. Bryan Turner, and A. Keith Morton
[Signatures Continue on the Following Page]
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2:16-cv-02794-MBS Date Filed 05/15/18 Entry Number 131 Page 6 of 7
S/ Robin L. Jackson Robin L. Jackson, Fed. ID 07465 Sandra J. Senn Senn Legal, LLC Post Office Box 12279 Charleston, South Carolina 29422 (843) 556-4045 robin@sennlegal.com sandy@sennlegal.com Counsel for Defendants J. Alton Cannon, Jr., Gregory Mullen and Eddie Driggers, Jr.
S/ Andrew F. Lindemann Andrew F. Lindemann Lindemann, Davis & Hughes, P.A. 5 Calendar Court, Suite 202 Post Office Box 6923 Columbia, South Carolina 29260 Direct Dial: 803-881-8921 Email: andrew@ldh-law.com Counsel for Defendant Carl Ritchie
S/ Robert D. Garfield Robert D. Garfield Post Office Box 1149 Columbia, South Carolina 29202 (803) 999-1225 robert@crowelafave.com Counsel for Defendant Leon Lott
[Signatures Continue on the Following Page]
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2:16-cv-02794-MBS Date Filed 05/15/18 Entry Number 131 Page 7 of 7
S/ William Michael Hemlepp, Jr. William Michael Hemlepp, Jr. City of Columbia Attorney’s Office Post Office Box 667 Columbia, South Carolina 29202 (803) 737-4242 wmhemlepp@columbiasc.net Counsel for Defendant W.H. Holbrook
S/ Anne R. Culbreath Anne R. Culbreath Willson Jones Carter and Baxley 872 S. Pleasantburg Drive Greenville, South Carolina 29607 (864) 672-3713 arculbreath@wjlaw.net Counsel for Defendant Steve Loftis
S/ Michael S. Pitts Michael S. Pitts Logan M. Wells, Fed. ID 10714 City of Greenville Office of the City Attorney Post Office Box 2207 Greenville, South Carolina 29602 mpitts@greenvillesc.gov lmwells@greenvillesc.gov Counsel for Defendant Kenneth Miller
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 2:16-cv-02794-MBS Date Filed 05/16/19 Entry Number 157 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Kenny, et al., Plaintiffs,
v. Wilson, et al.,
Defendants.

Civil Action No.: 2:16-cv-02794-MBS

FIRST AMENDED COMPLAINT PRELIMINARY STATEMENT
1. Plaintiffs challenge as unconstitutional S.C. Code § 16-17-420, commonly referred to as the “Disturbing Schools” statute, which sweeps within the purview of criminal law and the court system a broad swath of adolescent behavior. The Disturbing Schools statute violates fundamental concepts of fairness and the most basic tenants of due process.
2. By broadly labeling as criminal any “interference,” or “disturbance” of a school, any act of “loitering” and any “obnoxious” action, the Disturbing Schools statute creates an impossible standard for school children to follow and for police to enforce with consistency and fairness. The Disturbing Schools statute also chills the ability of students to speak out against abuses and to participate in conversations about policing of their own classrooms and campuses.
3. South Carolina Code § 16-17-420 was enacted almost 100 years ago and there is no indication that it was intended to apply, or was applied at the time, to students rightfully

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attending their own school. More recently, however, the law’s broad terms have been invoked to draw thousands of adolescents into the juvenile and criminal justice systems. The Disturbing School charge is consistently among the leading sources of referrals to the South Carolina Department of Juvenile Justice. 4. While the Disturbing Schools statute impacts hundreds of adolescents each year, some students in South Carolina feel the burdens of the law more than others. Statewide in 2014-2015, Black students were nearly four times as likely to be referred for charges of Disturbing Schools as were their white classmates. In Charleston County, young people were more likely to be referred to the juvenile justice system for Disturbing Schools than for any other reason and Black students were more than six times as likely as their white peers to be referred for this offense. 5. When applied to school students, the Disorderly Conduct statute, which prohibits conducting oneself “in a disorderly or boisterous manner,” is similarly vague. S.C. Code §16-17-530. It fails to provide notice to students or guidance to those charged with determining which adolescent behavior falls under the terms of the law. Adolescents are also commonly referred to the Department of Juvenile Justice for Disorderly Conduct. 6. The types of incidents that lead to Disturbing Schools and Disorderly Conduct charges cannot be distinguished by any objective standard from the types of behaviors schools address regularly without resort to the criminal justice system. These include minor school infractions like cursing, refusing to follow directions, and involvement in a physical altercation that did not result in significant injuries and where the student was not the initiator. Students as young as seven have been charged with Disturbing Schools.
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At times, students have been arrested when they react to disruptions caused by those who are supposed to protect them. 7. School Codes of Conduct from across the state reflect the inability to distinguish criminal Disturbing Schools or Disorderly Conduct from minor school infractions. According to Codes of Conduct, students may experience consequences ranging from a verbal warning to criminal charges for the same behaviors. 8. The resort to charging students criminally occurs despite the substantial role played by school employees in shaping student behavior and the classroom environment. Research demonstrates that teachers and schools can employ a range of effective approaches to prevent disruption, and to de-escalate disruption and conflicts when they do occur. In contrast, research also shows that educators who employ punitive approaches create negative experiences for all students and may escalate disruptions. 9. Referral to law enforcement during school greatly diminishes the likelihood that a student will graduate. Young people who are charged with crimes may feel stigma and fear, making it more difficult to engage with school. They may also face disciplinary consequences that can include years in alternative settings that fail to offer complete access to course work necessary to graduate. 10. Plaintiffs are individuals and a nonprofit organization whose members are directly impacted by and face ongoing risk of arrest or referral under S.C. Code § 16-17-420. Plaintiffs seek a declaratory judgment that S.C. Code § 16-17-420 violates their constitutional right to due process, as well as an injunction preliminarily and permanently enjoining enforcement of and reliance upon S.C. Code § 16-17-420 by Defendants.
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11. Plaintiffs D.S., D.D. and S.P. are individuals who face an ongoing risk of arrest or

referral under S.C. Code § 16-17-530 while attending school. Plaintiffs seek declaratory

judgment that S.C. Code § 16-17-530 violates their constitutional right to due process

when applied to elementary and secondary school students, as well as an injunction

preliminarily and permanently enjoining enforcement of and reliance upon S.C. Code §

16-17-530 as applied to students by Defendants.

JURISDICTION AND VENUE

12. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state

law of rights secured by the United States Constitution.

13. This Court has original jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331 and 1343(a)(3)-(4).

14. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2).

15. This Court has the authority to enter a declaratory judgment and to provide preliminary

and permanent injunctive relief pursuant to Rules 57 and 65 f the Federal Rules of Civil

Procedure, and 28 U.S.C. §§ 2201 and 2202.

A. Plaintiffs

PARTIES

16. Plaintiff Niya Kenny (“Plaintiff Kenny” or “Ms. Kenny”) is a nineteen year-old African-

American female who resides in Richland County, South Carolina. Ms. Kenny obtained

her G.E.D. Diploma from Richland County School District Two in June, 2016.

17. Ms. Kenny was arrested and charged under S.C. Code § 16-17-420 while a student at

Spring Valley High School in Richland School District Two. Ms. Kenny fears future

arrest and prosecution under the Disturbing Schools statute if, while on or around the

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grounds of a school, her actions are interpreted to fall under any of the broad terms of the statute. 18. Plaintiff D.S. is a seventeen year-old African-American female who resides in Charleston, South Carolina. She brings this case through her grandmother and next of kin, Juanita Ford. D.S. was enrolled at Stall High School in the Charleston County School District during the 2015-2016 school year. D.S. plans to enroll at Summerville High School in Dorchester County School District Two in August 2016. D.S. experienced lead poisoning as a young child and has an Individualized Education Plan. 19. D.S. was charged under S.C. Code § 16-17-420 while attending school. D.S. fears being charged under the Disturbing Schools or Disorderly Conduct statutes in the future if, while on or around the grounds of a school, her actions are interpreted to fall under any of the broad terms of the statutes. 20. Plaintiff D.D. is a fifteen year-old African American male who resides in Conway, South Carolina. He brings this case through his mother and next of Kin, Temika Hemmingway. D.D. is enrolled in the tenth grade at Conway High School in the Horry County School District where he plans to continue attending school. 21. D.D. was charged under S.C. Code § 16-17-420 for events alleged to have occurred while attending school. D.D. fears future arrest and prosecution under the Disorderly Conduct statute in the future if, while on or around the grounds of a school, her actions are interested to fall under any of the broad terms of the statute. 22. Plaintiff S.P. is a fifteen year-old Caucasian female who resides in Travelers Rest, South Carolina. She brings this case through her mother and next of kin, Melissa Downs. S.P. was enrolled at Travelers Rest High School in the Greenville County School District
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during the 2015-2016 school year. She plans to continue school at Travelers Rest High School in the 2016-2015 school year. S.P. has been diagnosed with mood and conduct disabilities. She has requested special education services to address her disability and has had a behavior intervention plan. 23. S.P. was referred under S.C. Code § 16-17-0530 (disorderly conduct) while attending school. S.P. fears being charged under the Disturbing Schools or Disorderly Conduct statutes in the future if, while on or around the grounds of a school, her actions are interpreted to fall under any of the broad terms of the statutes. 24. Plaintiff Girls Rock, Charleston (“Girls Rock”) is a non-profit organization with its principal office in Charleston, SC. Girls Rock provides mentorship, music and arts education, and leadership development to young people in Charleston, South Carolina. Girls Rock operates an afterschool program serving at-risk youth and youth who have been involved in the justice system. Girls Rock is guided by core principles that include challenging criminalization and promoting collective accountability for behavior. 25. Girls Rock sues on behalf of its members, students who risk arrest or referral under S.C. Code § 16-17-420 or S.C. Code § 16-17-530 while attending school. Girls Rock also sues on its own behalf. Girls Rock is substantially burdened in its mission by the continued practice of charging students under S.C. Code § 16-17-420. 26. Plaintiff Taurean Nesmith (“Plaintiff Nesmith” or Mr. Nesmith”) is a twenty-one yearold African American male who resides permanently in Kingstree, South Carolina. Mr. Nesmith is a student at Benedict College in Columbia, South Carolina. 27. Mr. Nesmith was arrested and charged with Disturbing Schools under S.C. Code § 16-17420 at his college-owned apartment building. Mr. Nesmith fears future arrest and
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prosecution under the Disturbing Schools statute in the future if, while on or around the grounds of a school, his actions are interpreted to fall under any of the broad terms of the statute.
B. Defendants 28. Defendant Alan Wilson (“Defendant Wilson” or “Mr. Wilson”) is sued in his official
capacity as the Attorney General of South Carolina. Pursuant to the South Carolina Constitution, it is Defendant Wilson’s duty in his capacity as Attorney General of South Carolina to assist and represent the Governor in the faithful execution of the laws. S.C. Const. art. IV § 15. Further, pursuant to South Carolina law, “[h]e shall appear for the State in the Supreme Court and the court of appeals in the trial and argument of all causes, criminal and civil, in which the State is a party or interested, and in these causes in any other court or tribunal when required by the Governor or either branch of the General Assembly.” S.C. Code § 1-7-40, and “[i]n all cases wherein the right of the State may be involved, the persons claiming under the State shall call on the Attorney General . . . to defend the right of the State.” S.C. Code § 1-7-710. Mr. Wilson is a person within the meaning of 42 U.S.C. § 1983 and acts under color of state law in all circumstances relevant to this complaint. Charleston Defendants 29. Defendant J. Alton Cannon, Jr. (“Defendant Cannon” or “Mr. Cannon”) is sued in his official capacity as the Sheriff of Charleston County, S.C. The jurisdiction of the Charleston County Sheriff’s Office includes schools within Charleston County.
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30. Defendant Gregory G. Mullen (“Defendant Mullen” or “Mr. Mullen”) is sued in his official capacity as the Chief of the City of Charleston, S.C. Police Department. The jurisdiction of the Charleston Police Department includes schools within Charleston County.
31. Defendant Eddie Driggers, Jr. (“Defendant Driggers” or “Mr. Driggers”) is sued in his official capacity as Chief of the North Charleston, S.C. Police Department. The jurisdiction of the North Charleston Police Department includes schools within Charleston County.
32. Defendant Carl Ritchie (“Defendant Ritchie” or “Mr. Ritchie”) is sued in his official capacity as Chief of the Mount Pleasant, S.C. Police Department. The jurisdiction of the Mount Pleasant Police Department includes schools within Charleston County.
Columbia Defendants 33. Defendant Leon Lott (“Defendant Lott” or “Mr. Lott”) is sued in his official capacity as
the Sheriff of Richland County, S.C. The jurisdiction of the Richland County Sheriff’s Department includes schools within Richland County. 34. Defendant W.H. Holbrook (“Defendant Holbrook” or “Mr. Holbrook”) is sued in his official capacity as Chief of the Columbia, S.C. Police Department. The jurisdiction of the Columbia Police Department includes schools within Richland County. Greenville Defendants 35. Defendant Steve Loftis (“Defendant Loftis” or “Mr. Loftis”) is sued in his official capacity as the Sheriff of Greenville County, S.C. The jurisdiction of the Greenville County Sheriff’s Department includes schools within Greenville County.
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2:16-cv-02794-MBS Date Filed 05/16/19 Entry Number 157 Page 9 of 28
36. Defendant Ken Miller (“Defendant Miller” or “Mr. Miller”) is sued in his official capacity as Chief of the City of Greenville, S.C. Police Department. The jurisdiction of the Greenville Police Department includes schools within Greenville County.
37. Defendant Lance Crowe (“Defendant Crowe” or “Mr. Crowe”) is sued in his official capacity as Chief of the Travelers Rest, S.C. Police Department. The jurisdiction of the Travelers Rest Police Department includes schools within Greenville County.
38. Defendant Steve Moore (“Defendant Moore” or “Mr. Moore”) is sued in his official capacity as Interim Chief of the Simpsonville, S.C. Police Department. The jurisdiction of the Simpsonville Police Department includes schools within Greenville County.
39. Defendant M. Bryan Turner (“Defendant Turner” or “Mr. Turner”) is sued in his official capacity as Chief of the Mauldin, S.C. Police Department. The jurisdiction of the Mauldin Police Department includes schools within Greenville County.
40. Defendant Dan Reynolds (“Defendant Reynolds” or “Mr. Reynolds”) is sued in his official capacity as Chief of the City of Greer, S.C. Police Department. The jurisdiction of the Greer Police Department includes schools within Greenville County.
41. Defendant A. Keith Morton (“Defendant Morton” or “Mr. Morton”) is sued in his official capacity as Chief of the Fountain Inn, S.C. Police Department. The jurisdiction of the Fountain Inn Police Department includes schools within Greenville County.
42. Defendants, through their respective duties and obligations, are responsible for enforcing S.C. Code § 16-17-420 and S.C. Code § 16-17-530. Each Defendant, and those subject to their direction, supervision, and control, has or intentionally will perform, participate in, aide and/or abet in some manner the acts alleged in this complaint, has or will proximately cause the harm alleged herein, and has or will continue to injure Plaintiffs
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2:16-cv-02794-MBS Date Filed 05/16/19 Entry Number 157 Page 10 of 28
irreparably if not enjoined. Accordingly, the relief requested herein is sought against each Defendant, as well as all persons under their supervision, direction, or control, including but not limited to their officers, employees, and agents.
STATUTORY FRAMEWORK 43. South Carolina Code § 16-17-420 provides:
It shall be unlawful: (1) for any person wilfully or unnecessarily (a) to interfere with or to disturb in any
way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge. S.C. Code § 16-17-420(A). 44. A violation of S.C. Code § 16-17-420 is punishable by fine of not more than $1,000 or ninety days imprisonment. S.C. Code § 16-17-420(B). 45. Section 16-17-420, now commonly referred to as the “Disturbing Schools” statute, was enacted in 1919 and as originally drafted, applied to “any school or college in the State attended by women or girls.” 1919 S.C. Acts 239 (Appendix 1). 46. The Disturbing Schools statute was amended in 1968 to apply to “any school.” 1968 S.C. Acts 2308 (Appendix 2). It was subsequently applied to arrest protestors on a college campus. See Bistrick v. Univ. of S. Carolina, 324 F. Supp. 942 (S.C. 1971); Herman v. Univ. of S. Carolina, 341 F. Supp. 226, 229 (D.S.C. 1971), aff’d, 457 F.2d 902 (4th Cir. 1972). In 1972, the statute was amended to increase the applicable penalties. 1972 S.C. Acts 1426 (Appendix 3). 47. A Westlaw search generated cases referencing juveniles charged under § 16-17-420 beginning in 1989. See Matter of Johnny J., 387 S.E.2d 251, 252 (S.C. 1989) (indefinite
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2:16-cv-02794-MBS Date Filed 05/16/19 Entry Number 157 Page 11 of 28
commitment for probation violation and status offenses was inappropriate); In Interest of Doe, 458 S.E.2d 556, 560 (Ct. App. 1995) (conviction for Disturbing Schools upheld; S.C. Code § 20-7-2170 precluded residential evaluation for children ten years old and younger); In re Amir X.S., 639 S.E.2d 144 (S.C. 2006) (statute not overbroad or vague as applied); In re Joelle T., No. 2010-UP-547, 2010 WL 10088227, at *1 (S.C. Ct. App. Dec. 16, 2010) (Appendix 4). 48. In 2010, the law was amended to remove mandatory minimum sentences and fines and to expressly vest jurisdiction in summary courts or for juveniles, in family court. 2010 South Carolina Laws Act 273 (S.B. 1154). 49. Section 16-17-420 contains no intent requirement before imposing criminal penalties. 50. The terms “interfere,” “disturb,” “loiter,” and “act in an obnoxious manner” are not further defined by the statute. 51. South Carolina Code § 16-17-530 provides:
Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church or (c) while under the influence or feigning to be under the influence of intoxicating liquor, without just cause or excuse, discharge any gun, pistol or other firearm while upon or within fifty yards of any public road or highway, except upon his own premises, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days. S.C. Code § 16-17-530. 52. The terms “disorderly” and “boisterous” are not further defined by the statute. 53. A series of South Carolina Attorney General’s Opinions discuss the reach of both the Disturbing Schools and Disorderly Conduct statutes to address student conduct.
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54. Attorney General’s Opinions conclude that the Disturbing Schools statute and the Disorderly Conduct statute may both be applied to prohibit “[u]se of foul or offensive language toward a principal, teacher, or police officer,” or “[u]se of obscene or profane language near a ‘schoolhouse.’” 1994 S.C. Op. Att’y Gen. 25, 1994 WL 199757 (Appendix 5).
55. The Attorney General’s Office also concludes that “[f]ailure by a student . . . to leave a school campus or school bus, when requested to do so,” id., “fighting,” id., and becoming “uncooperative and disruptive,” each may constitute Disturbing Schools. Letter from Robert D. Cook, S.C. Assistant Att’y Gen., to Hon. John W. Holcombe, Sheriff, Chester Co., 1999 WL 626642 (July 12, 1999) (Appendix 6).
56. Moreover, Attorney General’s Opinions observe that “[n]o express limitations on the time of applicability of [§16-17-420’s] prohibition are set forth,” 1990 S.C. Op. Att’y Gen. 61, 1990 WL 482448 (Appendix 7), and reason that the law might “apply to any part of the campus regardless of whether students or other students [sic] or faculty were present.” 1994 S.C. Op. Att’y Gen. 25. FACTUAL ALLEGATIONS
A. The Impact of Educator Practices on Student Behavior 57. Normal adolescent development includes the development of behavioral and social skills. 58. Addressing student behavior is a regular part of school administration. 59. Research indicates that the ways in which schools and teachers approach student behavior
and the school climate can shape student behavior for better or worse. 60. There are many techniques shown to reduce incidences of disruption and discipline when
employed by educators. Evidence based practices exist to respond to a continuum of
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student needs, and effective approaches exist including for students requiring higher levels of support. 61. In contrast, schools and classrooms that are characterized by a punitive approach with high levels of discipline and fewer positive supports are experienced negatively by students and teachers. 62. Some educator practices and responses can escalate student misbehavior and conflict. 63. Black students and students with disabilities are disproportionately likely to be subjected to exclusionary discipline such as out-of-school suspension as well as referral to law enforcement and arrest at school. 64. Research does not suggest that racial disparities in discipline can be explained by differences in behavior across students of different races. 65. Disparities are most prevalent in categories of discipline that require subjective determination of whether the rule was violated, such as offenses of “disruption” or “excessive noise.” 66. Students who experience punitive discipline miss valuable educational time and may enter a cycle of negative consequences. 67. Students are frequently disciplined more harshly when their behavior is characterized as criminal, and their educational opportunities are diminished through expulsion, suspension, placement in an alternative program, or a combination of these consequences. 68. Disciplinary consequences can have lasting impact on a student’s ability to access educational opportunities. For example, students may be placed into alternative programs without significant support services, providing only computer based instruction, and with no fixed end period, from which they must instead earn their way out. These programs
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may not even provide the course work required to obtain a high school diploma, placing the prospect of educational reentry further and further out of reach. 69. Students may also experience stigma and increased negative feelings about school which may impact their ability to reengage with school. 70. Students who experience referral to law enforcement have significantly reduce likelihood of graduating from high school, even after a first referral. 71. Without a high school education, a young person’s future prospects are also dimmed. B. Enforcement of S.C. Code § 16-17-420 and § 16-17-530 Across South Carolina 72. Between the 2010-2011 school year and March, 2016, over 9,500 young people in South Carolina were referred to the Department of Juvenile Justice on charges of Disturbing Schools. 73. This number provides only a partial picture of the law’s impact. Students 17 and older are charged and prosecuted as adults. 74. Students as young as seven have been charged with Disturbing Schools. 75. Students have been charged with Disturbing Schools in every county in the state except for Chester County. 76. Disturbing Schools and Disorderly Conduct charges are consistently among the leading reasons that young people enter the juvenile justice system. 77. Although referrals for Disturbing Schools have decreased over time in some counties, Disturbing Schools charges have increased statewide from the 2012-2013 school year to the 2015-2016 school year.
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78. Rates of racial disparity in referrals for Disturbing Schools have also increased. In the 2014-2015 school year, Black students statewide were nearly 4 times as likely as their white classmates to be charged with Disturbing Schools.
79. Substantial racial disparities in Disturbing Schools referrals exist in large and small counties and in counties that are more and less racially homogenous.
80. Across the state, there are wide discrepancies in how charges of Disturbing Schools are handled, including whether they will be dismissed, diverted, or prosecuted. In about twenty percent of cases in which DJJ recommended diversion, solicitor’s offices moved forward with prosecution.
81. School Codes of Conduct from across South Carolina reflect the impossibility of attempting to distinguish criminal Disturbing Schools or Disorderly Conduct from behaviors that should be addressed through school responses, including responses as minimal as a verbal warning or a parent conference.
82. Infractions including “disruption,” “behavior that significantly interrupts the learning environment,” “fighting,” “excessive noise,” “boisterous play or pranks,” and “profanity” have all been listed as behaviors that can be addressed through lesser school interventions. Yet the same behaviors may lead students to be charged with the crimes of Disturbing Schools or Disorderly Conduct.
83. The prior experiences of named Plaintiffs exemplify the arbitrary and discriminatory application of the Disturbing Schools and Disorderly Conduct statutes to charge or refer students.
84. Students have been arrested and charged with Disturbing Schools when expressing concern over police actions.
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85. On October 26th, 2015, Niya Kenny was a student at Spring Valley High School when she was arrested under S.C. Code § 16-17-420. Ms. Kenny was in her math class. Students were instructed to work on their laptops on a practice math lesson. Ms. Kenny was working on her lesson when she noticed her teacher whispering to a student a couple desks away. She thought that the teacher must have been helping the other student with her work until she saw him walk over to his desk and call for someone to escort the student from the class. Ms. Kenny wondered what the girl could have done wrong, because she had not noticed anything out of the ordinary.
86. Shortly thereafter, a School Resource Officer (“SRO”), a sworn police officer of the Richland County Sheriff’s Office, known among students as “Officer Slam” entered the room. Ms. Kenny witnessed her classmate forcefully pulled from her desk by the SRO, dragged on the floor, and handcuffed. Deeply frightened by the officer’s actions, Ms. Kenny attempted to document the incident and called out for someone to do something to stop the violent treatment of her classmate.
87. In response, Ms. Kenny was herself arrested. She was handcuffed in front of her classmates, berated by the police officer and the school administrator for voicing her concern and distress, held in an adult detention center for several hours, patted down, finger printed and photographed.
88. The police incident report described her offense as a crime of disorderly conduct and she was charged with Disturbing Schools.
89. Throughout her experience, Ms. Kenny was scared and humiliated. Although she would have liked to complete her senior year with friends and classmates, due to the humiliation
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and anxiety she experienced, Ms. Kenny did not feel that she could return to Spring Valley High School. She withdrew and entered a GED program. 90. Taurean Nesmith was arrested and charged with Disturbing Schools at his college owned apartment building. A campus police officer who had repeatedly stopped and searched Mr. Nesmith and his friends was patrolling in the apartment complex parking lot as Mr. Nesmith and friends left the building and got into their cars. The officer approached Mr. Nesmith’s friend and proceeded to ask him for his identification. 91. Mr. Nesmith complained to another friend that the officer was again stopping them because of their race. The Officer then turned his attention to Mr. Nesmith and asked for his identification. Mr. Nesmith asked why the officer needed to see his identification and continued to question the officer’s actions. Other residents came out to their balconies to see what was happening. 92. Mr. Nesmith was eventually handcuffed and transported to a detention center where he remained overnight. He was charged with Disturbing Schools and Disorderly Conduct. His charges were later dropped. 93. In other instances, students have been charged with Disturbing Schools as the result of behaviors that could just as possibly have met with less severe school discipline or other interventions. 94. In Richland School District One, an eight-year-old African-American student was charged with Disturbing Schools and assault when, after being directed to leave class, the student attempted to slam the classroom door and the teacher’s arm was caught. 95. In Charleston, an African American student was charged with Disturbing Schools and adjudicated delinquent after she and a group of other students were reported for taking
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photographs of themselves and other students in the girls’ restroom. The student was referred to Girls Rock as a condition of her probation. 96. When K.B., a Latina student in Charleston, was thirteen years old, she was charged with Disturbing Schools and adjudicated delinquent after an incident that started with her late arrival to gym class. A School Resource Officer was called when K.B. began to loudly protest being made to leave the gym class and being followed to the “tardy sweep” room. The police officer physically restrained K.B., taking her to the ground and causing bruises, and placed her in handcuffs. She was searched before being released to her mother. The police incident report indicated that K.B. would be charged with Disorderly Conduct. She was subsequently charged with Disturbing Schools. 97. K.B. was sentenced to probation and referred to Girls Rock by her probation officer. K.B. took honors courses in middle school. When K.B. returned to her high school after being charged, she was placed in a program called “Twilight,” through which she was provided no more than three hours of computer-based education per day, and which did not provide access to the courses necessary to obtain a high school diploma. Because K.B. was only permitted to be on campus during program hours, which were shorter than the normal school day, K.B. had to find her own transportation to school, which was a costly expense for K.B. and her mother. 98. K.B. and her mother may move to Texas soon. Although K.B. believes she will be able to return to her regular classes if she begins school in South Carolina, she believes that she will no longer be on track to graduate from high school. 99. D.D., an African American female who has struggled with homelessness, was charged with Disturbing Schools after an incident at her Charleston middle school. D.D. was sent
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out of class for talking. While she was seated on a bench outside of the classroom, another girl walked past her and began speaking to her. A School Resource Officer noticed her speaking to another student and she was detained, handcuffed, and charged with Disturbing Schools. She was placed on probation and became involved with Girls Rock. 100. When D.D. left the alternative middle school and started high school, she was placed in the Twilight program. Although she has remained in the Twilight program for two years, she continues to attend school and struggle to obtain an education. D.D. must find her own transportation to and from Twilight. Her family does not own a car and navigating the bus system was difficult. D.D. was detained for violating the terms of her probation after being picked up for truancy. While attending Twilight, D.D. also does not have access to the school lunch services that she would receive if attending school regularly. 101. S.P. was charged with Disorderly Conduct as a freshman in the Greenville County School District. S.P. has diagnosed disabilities that impact her mood and conduct and has seen a therapist for several years. S.P. had a Behavior Intervention Plan with her school. On the day that S.P. was charged with Disorderly Conduct, she had an ongoing altercation with a girl who had been making fun of her throughout the morning. S.P. encountered the girl in the library and told her to stop talking about her before sitting down at a table with friends. The principal came to the library and told S.P. that she needed to leave with him. When she refused and complained that the girl who was making fun of her did not get in trouble, the principal told S.P. he was addressing her because she could be arrested for not leaving with him. An SRO came to the library and S.P. eventually agreed to leave the library with him. As she was leaving, S.P. cursed at
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the student who had been teasing her. Other students in the library also began to clap as S.P. was escorted out of the library, and S.P. cursed at them. 102. Several months later, S.P. was charged with Disorderly Conduct for these actions. 103. D.S., an African American student in Charleston, was charged with Disturbing Schools after becoming involved in a physical altercation which she did not initiate and in which she was the only person who sustained an injury, a lump on her head. 104. Charged as adults, D.S., her friend, and the other two students involved in the altercation plead guilty to Disturbing Schools without legal representation. D.S. received a suspended sentence of a $400 fine or 20 days imprisonment conditioned on completion of a Pretrial Intervention program (PTI). D.S. subsequently learned that participation in PTI costs $300 or more, a cost that she could not afford. D.S. was rejected from the PTI program and spent many stressful weeks fearing that she would be sent to jail before she obtained a public defender who was able to reopen her case, which was eventually dismissed. 105. D.D., an African American student in Horry County, was charged with Disturbing Schools as a sixth grader after he was alleged to have made a threat toward his school on the school bus. D.D. contested these allegations and questioned the lack of evidence. The charges against him were dismissed prior to any court hearing. 106. Despite the dismissal of charges, D.D. received a letter from the Solicitor General’s Office indicating that charges would remain on his record, that these charges could be brought back in court, and that the dismissed charges could be held against him should he face any future charges. The letter indicated that, if further charges are received, the
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Solicitor “would have a record of the opportunity given by this dismissal and will likely take prosecutorial action.” 107. Enforcement of the Disturbing Schools and Disorderly Conduct laws has also impacted Girls Rock as an organization. Recognizing that Disturbing Schools charges are a primary cause of youth involvement with the justice system, Girls Rock has taken up efforts to challenge the Disturbing Schools statute and bring awareness to the statute’s negative impact on Charleston area young people. For example, Girls Rock teen leaders have engaged in an organizing apprenticeship in which they learned about school-based referrals to law enforcement and the Disturbing Schools law and spoke about these issues at public events, Girls Rock After School Program (“GRASP”) participants performed a skit on the issue during the program’s annual showcase, and created a short video about their advocacy. 108. Girls Rock volunteers have also expended significant time and resources to address the impacts of Disturbing Schools adjudications through mentorship and support of young people in the GRASP program. Girls Rock volunteers also attended hearings with members. They present testimony to speak on a participant’s character and her progress in GRASP. Volunteers have spent hours, at times across multiple days, to attend these hearings. 109. Girls Rock is a primarily volunteer run organization with limited resources. The significant time and resources that Girls Rock staff members spend in mentoring and supporting young people who have been caught up in the justice system for charges of Disturbing Schools detracts from Girls Rock’s ability to help other young people. In addition, time spent addressing ongoing court involvement and other collateral
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consequences of a Disturbing Schools adjudication detract from the positive mentorship activities that Girls Rock seeks to provide. Time spent at court hearings would otherwise be spent developing programming and providing direct services to young people and attending to administrative business necessary to sustain the operations of the organization, such as writing grant proposals and conducting fundraising activities. 110. The experiences of named Plaintiffs and other students in South Carolina reflect the Disturbing Schools and Disorderly Conduct statutes’ broad reach and arbitrary and discriminatory enforcement. The terms of § 16-17-420 are vague and fail to provide notice to students and others expected to comply with its terms or to provide sufficient guidance to those charged with its enforcement, permitting arbitrary and discriminatory enforcement. When applied to elementary and secondary school students, the terms of §16-17-530 are equally vague. 111. Plaintiffs have an objectively reasonable fear that they will be charged with Disturbing Schools under § 16-17-420 or Disorderly Conduct under § 16-17-530. 112. Plaintiffs have no adequate remedy at law.
CLASS ALLEGATIONS Plaintiff Class
113. Plaintiffs D.S., D.D. and S.P. bring this action on behalf of themselves and on behalf of all elementary and secondary public school students in South Carolina (“Plaintiff Class”), each of whom faces a risk of arrest or juvenile referral under the broad and overly vague terms of the challenged statutes.
114. The class is so numerous that joinder of all members is impracticable. F. R. Civ. P. 23(a)(1). Upon information and belief, there are over 750,000 elementary and secondary
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public school students residing South Carolina. Each of these students faces a risk of arrest or juvenile referral under the broad and overly vague terms of S.C. Code § 16-17420 or S.C. Code § 16-17-530. 115. Plaintiffs’ claims share common issues of law and fact, including but not limited to whether each of the challenged statutes is overly vague and violates the Due Process Clause of the Fourteenth Amendment. Fed. R. Civ. P. 23(a)(2). 116. The claims or defenses of the named Plaintiffs are typical of the claims of members of the Plaintiff Class. All Plaintiffs’ claims arise from S.C. Code § 16-17-420 and S.C. Code § 16-17-530 and are based on the same constitutional provisions and arguments. 117. The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. The named Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Named Plaintiffs and the Plaintiff Class both seek to enjoin enforcement of S.C. Code § 16-17-420 and S.C. Code § 16-17-420 and to obtain a declaration that each law violates the due process guarantees of the Fourteenth Amendment. The attorneys representing the Plaintiffs are experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. 118. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2). Class certification is also proper because S.C. Code § 16-17-420 and S.C. Code § 16-17-530 each apply generally to the class, thereby making final injunctive and declaratory relief appropriate as to the whole.
The Defendant Class 119. Plaintiffs bring this action against named Defendants individually and, pursuant to Rules
23(a) and 23(b)(1) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of all
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South Carolina law enforcement agencies who may enforce S.C. Code §§ 16-17-420 and 16-17-530 against Plaintiffs. The proposed Defendant Class consists of all South Carolina law enforcement agencies with authority to enforce S.C. Code § 16-17-420 and S.C. Code § 16-17-530 against Plaintiffs. 120. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). Upon information and belief, there are more than 200 state and local law enforcement agencies in South Carolina, employing over 11,000 personnel. S.C. Code § 16-17-420 has been enforced against Plaintiffs in each county in South Carolina, apart from Chester County. 121. There are questions of law and fact common to the members of the class, including but not limited to whether the challenged statutes are overly vague and violate the Due Process Clause of the Fourteenth Amendment. Fed. R. Civ. P. 23(a)(2). 122. The claims against the named Defendants are typical of the claims against the Defendant Class, particularly because this is a facial challenge to the statute. All claims arise from S.C. Code § 16-17-420 and S.C. Code § 16-17-530 and are based on the same constitutional provisions and arguments. The Defenses expected to be asserted by the named Defendants likewise are common to the members of the Defendant Class. 123. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1). Prosecution of separate actions against individuals would create the risk of inconsistent and varying adjudications. 124. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2). Plaintiffs’ claims to enjoin enforcement of S.C. Code § 16-17-420 and S.C. Code § 530
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apply generally to the class, thereby making final injunctive and declaratory relief appropriate as to the whole.
CLAIMS FOR RELIEF First Cause of Action
S.C. Code § 16-17-420 Violates Due Process Under the United States Constitution, 42 U.S.C. § 1983
125. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein.
126. S.C. Code § 16-17-420’s vague terms violate Plaintiffs’ rights to due process guaranteed by the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, § 1. Second Cause of Action S.C. Code § 16-17-530 Violates Due Process Under the United States Constitution as Applied to Elementary and Secondary Students, 42 U.S.C. § 1983
127. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein.
128. S.C. Code § 16-17-530’s vague terms as applied to elementary and secondary school students violate Plaintiffs’ rights to due process guaranteed by the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, § 1. PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that the Court: A. Issue a declaratory judgment that S.C. Code § 16-17-420 is unconstitutional; B. Issue a declaratory judgment that S.C. Code § 16-17-530 is unconstitutional; C. Issue injunctive relief: 25

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1. preliminarily and permanently enjoining enforcement by Defendants of S.C. Code § 16-17-420;
2. preliminarily and permanently enjoining enforcement by Defendants of S.C. Code § 16-17-530 against elementary and secondary school students;
3. enjoining Defendants from considering any Plaintiffs’ records relating to being taken into custody, charges filed, adjudication, or disposition under S.C. Code § 16-17-420 or S.C. Code § 16-17-530, and from retaining such records except as would be permissible following expungement under S.C. Code § 17-1-40;
4. enjoining Defendants from considering any Plaintiffs’ records related to arrest, booking record, associated bench warrants, mug shots, fingerprints, charges filed, proceedings, or sentencing under S.C. Code § 16-17-420 or S.C. Code § 16-17530, and from retaining such records except as would be permissible following expungement under S.C. Code § 17-1-40;
D. Award Plaintiffs costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and E. Grant such other, further, and different relief as the Court deems just and proper. F. The declaratory and injunctive relief requested in this action is sought against each Defendant; against each Defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with any Defendant, or under any Defendant’s supervision, direction, or control.
Pursuant to Local Rule 3.01(B), undersigned counsel hereby endorses and certifies that this action is properly filed in the Charleston Division.
Between the filing of the Complaint and this First Amended Complaint, the following
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developments have occurred in the case relevant to the Complaint. On May 17, 2018, Governor Henry McMaster signed an amendment to the Disturbing Schools statute that rescinds the provisions contested by Plaintiffs. Act 182, 2018 S.C. Acts, ECF No. 132-1. The amendments to S.C. Code § 16-17-420 address Plaintiffs’ request for injunctive relief against the enforcement by Defendants of S.C. Code § 16-17-420. See Pls.’ Resp. Def. Mot. Supp. Authority 1, ECF No. 134. This also resolves the claims of Plaintiffs Kenny and Nesmith. Id. at 2. Plaintiffs’ requested relief related to still-existing juvenile and criminal records reflecting Disturbing Schools charges remains unresolved. Id. at 2-4. Additionally, on May 15, 2018, Plaintiffs and Defendants jointly filed a Consent Order, ECF No. 131, through which Plaintiffs agreed to withdraw their Motion for Defendant Class Certification and to stay proceedings against local Law Enforcement Defendants and that Law Enforcement Defendants shall not be obligated to further defend this action or file responsive pleadings. Last, the case caption was amended to reflect the fact that Plaintiff Girls Rock changed its name to the Carolina Youth Action Project. See Pls.’ Mot. Amend, ECF No. 128; Order Granting Mot. Amend, ECF No. 133.
Dated: May 16, 2019.
Respectfully Submitted, /s/ Susan K. Dunn SUSAN K. DUNN (Fed. Bar #647) American Civil Liberties Union of South Carolina P.O. Box 20998 Charleston, S.C. 2941 Tel: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
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SARAH HINGER* GALEN SHERWIN* EMMA ROTH* LENORA LAPIDUS* American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 Tel: 212-519-7882 shinger@aclu.org *Admitted Pro Hac Vice ATTORNEYS FOR PLAINTIFFS
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 Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 1 of 22

U.S. District Court District of South Carolina (Charleston) CIVIL DOCKET FOR CASE #: 2:16−cv−02794−MBS

Kenny et al v. Wilson et al Assigned to: Honorable Margaret B Seymour Case in other court: USCA, 17−01367 Cause: 42:1983 Civil Rights Act
Plaintiff
Niya Kenny on behalf of herself and all others similarly situated

Date Filed: 08/11/2016 Jury Demand: Both Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Dennis David Parker American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−519−7832 Email: dparker@aclu.org TERMINATED: 01/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−284−7325 Email: eroth@aclu.org TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Galen Leigh Sherwin American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−519−7819 Email: gsherwin@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2668 Email: llapidus@aclu.org TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Ann Hinger American Civil Liberties Union

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 2 of 22

Plaintiff Taurean Nesmith on behalf of himself and all others similarly situated
Plaintiff Carolina Youth Action Project

Foundation 125 Broad Street 18th Floor New York, NY 10004 212−519−7882 Email: shinger@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn American Civil Liberties Union of SC Foundation PO Box 20998 Charleston, SC 29413 843−282−7953 Fax: 843−720−1428 Email: sdunn@aclusc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis David Parker (See above for address) TERMINATED: 01/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Galen Leigh Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Ann Hinger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis David Parker (See above for address) TERMINATED: 01/16/2019

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 3 of 22

Plaintiff
DS by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Galen Leigh Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Ann Hinger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis David Parker (See above for address) TERMINATED: 01/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Galen Leigh Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Ann Hinger

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 4 of 22

Plaintiff SP by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated
V. Defendant Alan Wilson in his official capacity as Attorney General of South Carolina, on behalf of himself and others similarly situated
Defendant

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis David Parker (See above for address) TERMINATED: 01/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Galen Leigh Sherwin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) TERMINATED: 12/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Ann Hinger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803−734−3970 Fax: 803−734−3677 Email: esmith@scag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 5 of 22

J Alton Cannon, Jr in his official capacity as the Sheriff of Charleston County, SC; on behalf of himself and others similarly situated
Defendant Luther T Reynolds in his official capacity as the Chief of the Police Department of the City of Charleston, SC
Defendant Reginald L Burgess in his official capacity as the Chief of the Police Department of the City of North Charleston, SC
Defendant Carl Ritchie in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself and others similarly situated
Defendant Leon Lott in his official capacity as the Sheriff of Richland County, SC; on behalf of himself and others similarly situated

represented by Robin Lilley Jackson Senn Legal PO Box 12279 Charleston, SC 29422 843−556−4045 Fax: 843−556−4046 Email: Robin@sennlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Jane Senn Senn Legal PO Box 12279 Charleston, SC 29422 843−556−4045 Fax: 843−556−4046 Email: Sandy@sennlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robin Lilley Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Jane Senn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robin Lilley Jackson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Jane Senn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew F Lindemann Lindemann Davis and Hughes PA PO Box 6923 Columbia, SC 29260 803−881−8920 Email: andrew@ldh−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert David Garfield Crowe LaFave LLC PO Box 1149 Columbia, SC 29202 803−999−1225 Fax: 803−848−8157 Email: robert@crowelafave.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 6 of 22

Defendant W H Holbrook Department ofin his official capacity as the Chief of the Police Department of the City of Columbia, SC; on behalf of himself and others similarly situated
Defendant Johnny Mack Brown in his official capacity as the Interim Sheriff of Greenville County, SC
Defendant Ken Miller in his official capacity as the Chief of the Police Department of the City of Greenville, SC; on behalf of himself and others similarly situated

Steven Richard Spreeuwers Bruner Powell Wall and Mullins LLC PO Box 61110 Columbia, SC 29260 803−252−7693 Fax: 803−254−5719 Email: steve@ldh−law.com TERMINATED: 04/17/2018 ATTORNEY TO BE NOTICED
represented by Dana Marie Thye City of Columbia PO Box 667 Columbia, SC 29202 803−737−4242 Fax: 803−737−4250 Email: Dana.Thye@columbiasc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Michael Hemlepp , Jr City of Columbia Attorney's Office PO Box 667 Columbia, SC 29202 803−737−4242 Fax: 803−737−4250 Email: mikeh@thejeffcoatfirm.com TERMINATED: 05/29/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne R Culbreath Willson Jones Carter and Baxley 872 S Pleasantburg Drive Greenville, SC 29607 864−672−3713 Fax: 864−235−6015 Email: ARCulbreath@wjlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) TERMINATED: 12/08/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Stuart Pitts City of Greenville Office of the City Attorney 206 S Main Street 9th Floor Greenville, SC 29601 864−467−4420 Fax: 864−467−4424 Email: mpitts@greenvillesc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 7 of 22

Defendant
Lance Crowe in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC; on behalf of himself and others similarly situated
Defendant
Steve Moore in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of himself and others similarly situated TERMINATED: 04/26/2018
Defendant
M Bryan Turner in his official capacity as the Chief of the Police Department of the City of Mauldin, SC; on behalf of himself and others similarly situated
Defendant
Dan Reynolds in his official capacity as the Chief of the Police Department of the City of Greer, SC; on behalf of himself and others similarly situated
Defendant
A Keith Morton in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC; on behalf of himself and others similarly situated
Defendant
Michael D Hanshaw in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC
Amicus

Logan McCombs Wells City of Greenville PO Box 2207 Greenville, SC 29602 864−467−4354 Fax: 864−467−4424 Email: lmwells@greenvillesc.gov ATTORNEY TO BE NOTICED
Robert P Coler City of Spartanburg PO Box 1749 Spartanburg, SC 29304 864−596−2722 Fax: 864−596−2313 Email: bcoler@cityofspartanburg.org ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 8 of 22

United States

represented by Robert M Sneed US Attorneys Office (Cola) 1441 Main Street Suite 500 Columbia, SC 29201 803−939−3056 Email: robert.sneed@usdoj.gov TERMINATED: 05/29/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/11/2016
08/11/2016 08/11/2016 08/16/2016
08/17/2016
08/25/2016

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0420−6702430.), filed by DS, Niya Kenny, Taurean Nesmith, SP, Girls Rock Charleston Inc. Service due by 11/14/2016. (Attachments: # 1 Appendix 1: 1919 S.c. Acts 239, # 2 Appendix 2: 1968 S.C. Acts 2308, # 3 Appendix 3: 1972 S.C. Acts 1426, # 4 Appendix 4:In re Joelle T., No. 20 1 0−UP−547, 2010 WL 10088227, at *1 (S.C. Ct. App. Dec. 16,2010), # 5 Appendix 5: 1994 S.C. Op. Att'yGen. 25,1994 WL 199757, # 6 Appendix 6:Letter from Robert D. Cook, S.c. Assistant Att'y Gen., to Hon. John W. Holcombe, # 7 Appendix 7: 1990 S.C. Op. Att'y Gen. 61, 1990 WL 482448, # 8 Appendix Index to Appendices)(vdru, ) (Entered: 08/12/2016)
2 Local Rule 26.01 Answers to Interrogatories by DS, Girls Rock Charleston Inc, Niya Kenny, Taurean Nesmith, SP.(vdru, ) (Main Document 2 replaced on 8/18/2016) (vdru, ). Modified to replace with corrected document provided by filer on 8/18/2016 (vdru, ). (Entered: 08/12/2016)
3 Summons Issued as to All Defendants. (vdru, ) (Entered: 08/12/2016)
5 MOTION for Preliminary Injunction by Niya Kenny. Response to Motion due by 9/2/2016. (Attachments: # 1 Affidavit Decl of Plaintiff Kenny, # 2 Affidavit Decl. of Plaintiff Nesmith, # 3 Affidavit Decl. of Carpenter on behalf of Plaintiff Girls Rock, # 4 Affidavit Decl. of Plaintiff D.S., # 5 Affidavit Decl. of Plaintiff S.P., # 6 Affidavit Decl. of K,B. (minor), # 7 Affidavit Decl. of French Marcelin, # 8 Affidavit Decl. of Ryan (expert), # 9 Addendum Refernces and endnotes to Ryan's decl., # 10 Appendix Part 1 of Appendix to Ryan Decl. Curriculum vitae, # 11 Appendix Part 2 of Appendix to Ryan 's Decl. Curriculum vitae., # 12 Affidavit Decl. of Kayiza, # 13 Exhibit Ex. A DJJ statistics, # 14 Exhibit Ex. B Incident reports, # 15 Exhibit Ex. C.1 Charleston County School District Code of Conduct, # 16 Exhibit Ex. C.2 Richland One Discipline Code of Conduct, # 17 Exhibit Ex C.3 Greenville County School District Student Code, # 18 Exhibit Ex. C.4 Richland School District 2 Back−2−School Handbook, # 19 Exhibit Ex. C−5 Spring Valley 2015−2016 Student Handbook, # 20 Exhibit Ex. D Excerpts from DJJ facilities descriptions, # 21 Exhibit Ex. E Publication of 13th Circuit Public Defenders Office, # 22 Exhibit Ex.F Expungement information, # 23 Exhibit Ex. G. Description of Twilight program, # 24 Exhibit Ex. H Letter from Solicitor Donald Myers, # 25 Exhibit Ex. I DOJ COPS Fact Sheet on SROs)No proposed order.(Dunn, Susan) (Entered: 08/16/2016)
6 MOTION to Certify Class by Niya Kenny. Response to Motion due by 9/6/2016. (Attachments: # 1 Appendix Henry v. Jefferson Cty. Planning Commn, No. 99−2122, 215 F.3d 1318, 2000 WL 742188 (4th Cir. 2000), # 2 Appendix R.A.G. ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., 569 F. Appx 41 (2d Cir. 2014), # 3 Appendix R.A−G ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., No. 12−CV−960S, 2013 WL 3354424 (W.D.N.Y. July 3, 2013), # 4 Affidavit Decl. of Plaintiff Kenny, # 5 Affidavit Decl. of Plaintiff Nesmith, # 6 Affidavit Decl. of Carpenter on behalf of Plaintiff Girls Rock, # 7 Affidavit Decl. of Plaintiff D.S., # 8 Affidavit Decl. of Plaintiff S.P., # 9 Affidavit Decl. of Plaintiff K.B.)No proposed order.(Dunn, Susan) (Entered: 08/17/2016)
7 MOTION for Extension of Time by Lance Crowe, Ken Miller, Steve Moore, A Keith Morton, Alan Wilson. Response to Motion due by 9/12/2016. Proposed order is being emailed to chambers with copy to opposing counsel.(Smith, James) (Entered: 08/25/2016)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 9 of 22

08/26/2016
08/29/2016 08/29/2016
08/29/2016 08/30/2016 08/31/2016 08/31/2016 08/31/2016 09/01/2016
09/07/2016 09/07/2016 09/08/2016

8 ORDER granting 7 Motion for Extension of Time. It is ordered that the Defendants are granted a 21 day extension in addition to the 21 days allowed by Rule 12, FRCP, after service, for a total of 42 days to respond to the Complaint following service. They are also granted a 28 day extension to respond to Plaintiffs' Motions for Preliminary Injunction and Class Certification in addition to the 14 allowed by Local Rule 7.06 after service, for a total of 42 days to respond to the Motions following service. Signed by Honorable C Weston Houck on 8/26/2016.(vdru, ) (Entered: 08/26/2016)
9 MOTION to Appear Pro Hac Vice by Sarah Ann Hinger ( Filing fee $ 250 receipt number 0420−6734015) by Niya Kenny. Response to Motion due by 9/15/2016. (Attachments: # 1 Affidavit Application of Sarah Hinger, # 2 Supporting Documents Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 08/29/2016)
10 MOTION to Appear Pro Hac Vice by Dennis David Parker ( Filing fee $ 250 receipt number 0420−6734036) by Niya Kenny. Response to Motion due by 9/15/2016. (Attachments: # 1 Affidavit Application of Dennis Parker, # 2 Supporting Documents Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Attachment 1 replaced on 8/31/2016) (vdru, ). Modified to replace attachment #1 with corrected document provided by the filer on 8/31/2016 (vdru,). (Entered: 08/29/2016)
11 MOTION to Appear Pro Hac Vice by Galen Leigh Sherwin ( Filing fee $ 250 receipt number 0420−6734045) by Niya Kenny. Response to Motion due by 9/15/2016. (Attachments: # 1 Affidavit Application of Galen Sherwin, # 2 Supporting Documents Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 08/29/2016)
12 MOTION for Extension of Time to File Answer by W H Holbrook. Response to Motion due by 9/16/2016. No proposed order.(Hemlepp, William) (Entered: 08/30/2016)
13 ORDER granting 11 Motion to Appear Pro Hac Vice. It is ordered that Galen Leigh Sherwin who represents the Plaintiffs is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 8/30/2016.(vdru, ) (Entered: 08/31/2016)
14 ORDER granting 9 Motion to Appear Pro Hac Vice. It is ordered that Sarah Ann Hinger who represents the Plaintiffs is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 8/30/2016.(vdru, ) (Entered: 08/31/2016)
15 ORDER granting 10 Motion to Appear Pro Hac Vice. It is ordered that Dennis David Parker who represents the Plaintiffs is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 8/31/2016.(vdru, ) (Entered: 08/31/2016)
16 TEXT ORDER granting 12 Motion for Extension of Time to Answer re 1 Complaint, W H Holbrook answer due 9/30/2016. Defendant W.H. Holbrook is granted an extension of time of 21 days to respond by answer or motion to the Complaint. Defendant W.H. Holbrook is also granted an extension of time of 28 days to respond to Plaintiffs Motions for Preliminary Injunction and Class Certification. Entered at the Direction of The Honorable C Weston Houck on 8/31/2016. (vdru, ) (Entered: 09/01/2016)
17 MOTION for Extension of Time by Steve Loftis. Response to Motion due by 9/26/2016. (Attachments: # 1 Proposed Order)No proposed order.(Culbreath, Anne) (Entered: 09/07/2016)
18 MOTION for Extension of Time by Leon Lott. Response to Motion due by 9/26/2016. No proposed order.(Garfield, Robert) (Entered: 09/07/2016)
19 MOTION for Extension of Time by Carl Ritchie. Response to Motion due by 9/26/2016. (Attachments: # 1 Email from Susan Dunn re: consent to requested extensions)No proposed order.(Lindemann, Andrew) (Entered: 09/08/2016)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 10 of 22

09/08/2016 09/08/2016
09/13/2016 09/14/2016
09/26/2016 09/28/2016
09/28/2016 09/30/2016
09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016

20 Local Rule 26.01 Answers to Interrogatories by Lance Crowe, Ken Miller, Steve Moore, A Keith Morton, Alan Wilson.(Smith, James) (Entered: 09/08/2016)
21 TEXT ORDER granting 18 Motion for Extension of Time and 19 Motion for Extension of Time. The deadline for Defendants Carl Ritchie and Leon Lott to respond to the Complaint and motions is extended until Sept. 30. Entered at the Direction of The Honorable C Weston Houck on 9/8/2016.(vdru, ) (Entered: 09/08/2016)
23 MOTION for Extension of Time by M Bryan Turner. Response to Motion due by 9/30/2016. No proposed order.(Smith, James) (Entered: 09/13/2016)
24 TEXT ORDER granting 23 Motion for Extension of Time and 17 Motion for Extension of Time. It is ordered that the deadline for Defendants Loftis and Turner's responses to the Complaint and to the Motions for Preliminary Injunction and Class Certification is extended to September 30. Entered at the Direction of The Honorable C Weston Houck on 9/14/2016.(vdru, ) (Entered: 09/14/2016)
25 MOTION for Leave to File Excess Pages by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson. Response to Motion due by 10/14/2016. No proposed order.(Smith, James) (Entered: 09/26/2016)
26 TEXT ORDER granting 25 Motion for Leave to File Excess Pages. It is ordered that the Defendants may include up to 15 additional pages in their Memo in Support of their Motion to Dismiss and in Opposition to Plaintiffs Motion for Preliminary Injunction. Entered at the Direction of The Honorable C Weston Houck on 9/27/2016.(vdru, ) (Entered: 09/28/2016)
27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by W H Holbrook. Response to Motion due by 10/17/2016. No proposed order.(Hemlepp, William) (Entered: 09/28/2016)
28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson. Response to Motion due by 10/17/2016. (Attachments: # 1 Memo in Support)No proposed order.(Smith, James) (Entered: 09/30/2016)
29 RESPONSE in Opposition re 6 MOTION to Certify Class Response filed by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson.Reply to Response to Motion due by 10/11/2016 (Smith, James) (Entered: 09/30/2016)
30 RESPONSE in Opposition re 5 MOTION for Preliminary Injunction Response filed by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson.Reply to Response to Motion due by 10/11/2016 (Smith, James) (Entered: 09/30/2016)
31 Local Rule 26.01 Answers to Interrogatories by M Bryan Turner.(Smith, James) (Entered: 09/30/2016)
32 NOTICE of Appearance by Robert P Coler on behalf of Ken Miller (Coler, Robert) (Entered: 09/30/2016)
33 MOTION to Stay re 6 MOTION to Certify Class by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen. Response to Motion due by 10/17/2016. No proposed order.(Senn, Sandra) (Entered: 09/30/2016)
34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction by Ken Miller. Response to Motion due by 10/17/2016. (Attachments: # 1 Memo in Support)No proposed order.(Coler, Robert) (Entered: 09/30/2016)
35 RESPONSE in Opposition re 5 MOTION for Preliminary Injunction Response filed by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen.Reply to Response to Motion due by 10/11/2016 (Senn, Sandra) (Entered: 09/30/2016)
36 MOTION to Dismiss , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Response to Motion due by 10/17/2016.) by Steve Loftis. (Attachments: # 1 Memo in Support Memorandum in Support of Motion to Dismiss)No proposed order.(Culbreath, Anne) (Entered: 09/30/2016)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 11 of 22

09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 10/07/2016
10/12/2016

37 RESPONSE in Opposition re 5 MOTION for Preliminary Injunction Response filed by Steve Loftis.Reply to Response to Motion due by 10/11/2016 (Culbreath, Anne) (Entered: 09/30/2016)
38 RESPONSE in Opposition re 6 MOTION to Certify Class Response filed by Steve Loftis.Reply to Response to Motion due by 10/11/2016 (Culbreath, Anne) (Entered: 09/30/2016)
39 Local Rule 26.01 Answers to Interrogatories by Steve Loftis.(Culbreath, Anne) (Entered: 09/30/2016)
40 Local Rule 26.01 Answers to Interrogatories by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen.(Senn, Sandra) (Entered: 09/30/2016)
41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen. Response to Motion due by 10/17/2016. No proposed order.(Senn, Sandra) (Entered: 09/30/2016)
42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction by Carl Ritchie. Response to Motion due by 10/17/2016. (Attachments: # 1 Memo in Support)No proposed order.(Lindemann, Andrew) (Entered: 09/30/2016)
43 Local Rule 26.01 Answers to Interrogatories by Carl Ritchie.(Lindemann, Andrew) (Entered: 09/30/2016)
44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION by Leon Lott. Response to Motion due by 10/17/2016. (Attachments: # 1 Memo in Support)No proposed order.(Garfield, Robert) (Entered: 09/30/2016)
45 Local Rule 26.01 Answers to Interrogatories by Leon Lott.(Garfield, Robert) (Entered: 09/30/2016)
46 RESPONSE in Opposition re 6 MOTION to Certify Class Response filed by Carl Ritchie.Reply to Response to Motion due by 10/11/2016 (Lindemann, Andrew) (Entered: 09/30/2016)
47 RESPONSE in Opposition re 6 MOTION to Certify Class Response filed by Leon Lott.Reply to Response to Motion due by 10/11/2016 (Garfield, Robert) (Entered: 09/30/2016)
48 RESPONSE in Opposition re 5 MOTION for Preliminary Injunction Response filed by Leon Lott.Reply to Response to Motion due by 10/11/2016 (Garfield, Robert) (Entered: 09/30/2016)
49 RESPONSE in Opposition re 5 MOTION for Preliminary Injunction Response filed by Carl Ritchie.Reply to Response to Motion due by 10/11/2016 (Lindemann, Andrew) (Entered: 09/30/2016)
50 MOTION for Extension of Time to File Response/Reply as to 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION, 35 Response in Opposition to Motion, 48 Response in Opposition to Motion, 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS, 33 MOTION to Stay re 6 MOTION to Certify Class , 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 46 Response in Opposition to Motion, 49 Response in Opposition to Motion, 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction, 38 Response in Opposition to Motion, 37 Response in Opposition to Motion, 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction, 47 Response in Opposition to Motion, 30 Response in Opposition to Motion, 29 Response in Opposition to Motion by Niya Kenny. Response to Motion due by 10/24/2016. No proposed order.(Dunn, Susan) (Entered: 10/07/2016)
51 TEXT ORDER granting 50 Motion for Extension of Time to File Response/Reply in Support of Plaintiffs' Motions for Preliminary Injunction, Class Certification and Response to Defendants' Motions to Dismiss. Replies due by 10/19/2016. Entered at the Direction of The Honorable C Weston Houck on 10/12/2016.(vdru, ) (Entered: 10/12/2016)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 12 of 22

10/19/2016 10/19/2016 10/19/2016
10/19/2016 10/19/2016 10/19/2016 10/20/2016 10/20/2016 10/25/2016 10/25/2016 10/26/2016 10/26/2016
10/27/2016

52 MOTION to Appear Pro Hac Vice by Lenora Lapidus ( Filing fee $ 250 receipt number 0420−6814571) by Niya Kenny. Response to Motion due by 11/7/2016. (Attachments: # 1 Affidavit PHV affidavit, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 10/19/2016)
53 RESPONSE in Opposition re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS Response filed by Niya Kenny.Reply to Response to Motion due by 10/31/2016 (Attachments: # 1 Affidavit Declaration of True copy of Family court record)(Dunn, Susan) (Entered: 10/19/2016)
54 RESPONSE in Opposition re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION, 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction, 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction Response filed by Niya Kenny.Reply to Response to Motion due by 10/31/2016 (Dunn, Susan) (Entered: 10/19/2016)
55 ORDER granting 52 Motion to Appear Pro Hac Vice. It is ordered that Lenora Lapidus who represents the Plaintiffs is granted pro hac vice admission in this case. Signed by Honorable C Weston Houck on 10/19/2016.(vdru, ) (Entered: 10/19/2016)
56 REPLY to Response to Motion re 5 MOTION for Preliminary Injunction Response filed by Niya Kenny. (Dunn, Susan) (Entered: 10/19/2016)
57 REPLY to Response to Motion re 6 MOTION to Certify Class Response filed by Niya Kenny. (Dunn, Susan) (Entered: 10/19/2016)
58 MOTION for Extension of Time by Steve Loftis. Response to Motion due by 11/7/2016. No proposed order.(Culbreath, Anne) (Entered: 10/20/2016)
59 MOTION for Extension of Time to File Response/Reply as to 53 Response in Opposition to Motion, by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson. Response to Motion due by 11/7/2016. No proposed order.(Smith, James) (Entered: 10/20/2016)
60 TEXT ORDER granting 58 Motion for Extension of Time. It is ordered that the deadline for Sheriff Loftis' Replies to the Plaintiff's Responses filed on October 19 is extended until November 4, 2016. Entered at the Direction of The Honorable C Weston Houck on 10/25/2016.(vdru, ) (Entered: 10/25/2016)
61 TEXT ORDER granting 59 Motion for Extension of Time to File Replies re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS Replies of Defendants Wilson, Crowe, Moore, Turner and Morton due by 11/4/2016. Entered at the Direction of The Honorable C Weston Houck on 10/25/2016.(vdru, ) (Entered: 10/25/2016)
62 MOTION for Extension of Time to File Response/Reply as to 54 Response in Opposition to Motion,, by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen. Response to Motion due by 11/14/2016. No proposed order.(Senn, Sandra) (Entered: 10/26/2016)
63 REPLY to Response to Motion re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION, 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction, 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction 54 Response filed by W H Holbrook. (Hemlepp, William) (Entered: 10/26/2016)
64 TEXT ORDER granting 62 Motion for Extension of Time to File Reply: The deadline for Defendants Cannon, Driggers, and Mullen to file their Reply to Plaintiffs' Memorandum of Law in Opposition to Defendants' Motions to Dismiss

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 13 of 22

10/27/2016 10/28/2016 10/28/2016 10/28/2016
10/28/2016 10/31/2016 10/31/2016
10/31/2016 11/01/2016 11/01/2016 11/02/2016
11/04/2016 11/04/2016 11/04/2016

is extended until November 4, 2016. Replies due by 11/4/2016. Entered at the Direction of The Honorable C Weston Houck on 10/27/2016.(vdru, ) (Entered: 10/27/2016)
65 MOTION for Extension of Time to File Response/Reply as to 54 Response in Opposition to Motion,, by Carl Ritchie. Response to Motion due by 11/14/2016. No proposed order.(Lindemann, Andrew) (Entered: 10/27/2016)
66 NOTICE of Appearance by Logan McCombs Wells on behalf of Ken Miller (Wells, Logan) (Entered: 10/28/2016)
67 First MOTION for Extension of Time to File Response/Reply as to 54 Response in Opposition to Motion,, by Ken Miller. Response to Motion due by 11/17/2016. No proposed order.(Wells, Logan) (Entered: 10/28/2016)
68 TEXT ORDER granting 65 Motion for Extension of Time to File Reply re 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction. It is ordered that Defendant Ritchie will be allowed an additional four days to file a reply to Plaintiffs' memorandum in opposition to his motion to dismiss. The deadline is extended until November 4, 2016. Replies due by 11/4/2016. Entered at the Direction of The Honorable C Weston Houck on 10/28/2016.(vdru, ) (Entered: 10/28/2016)
69 NOTICE of Appearance by Michael Stuart Pitts on behalf of Ken Miller (Pitts, Michael) (Entered: 10/28/2016)
70 MOTION for Extension of Time to File Response/Reply as to 54 Response in Opposition to Motion,, by Leon Lott. Response to Motion due by 11/17/2016. No proposed order.(Garfield, Robert) (Entered: 10/31/2016)
71 TEXT ORDER granting 67 Defendant Ken Miller's Motion for Extension of Time to File Reply to Plaintiffs Memorandum of Law in Opposition to Defendants Motions to Dismiss. The new deadline is November 4, 2016. Entered at the Direction of The Honorable C Weston Houck on 10/31/2016.(vdru, ) (Entered: 10/31/2016)
72 NOTICE of Appearance by Steven Richard Spreeuwers on behalf of Leon Lott (Spreeuwers, Steven) (Entered: 10/31/2016)
73 TEXT ORDER granting 70 Defendant Sheriff Lott's Motion for Extension of Time to File Reply to the Plaintiff's Motions to Dismiss. Replies due by 11/4/2016. Entered at the Direction of The Honorable C Weston Houck on 11/1/2016.(vdru, ) (Entered: 11/01/2016)
74 MOTION for Leave to File Excess Pages in Reply by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson. Response to Motion due by 11/18/2016. No proposed order.(Smith, James) (Entered: 11/01/2016)
75 TEXT ORDER granting 74 Motion for Leave to File Excess Pages. It is ordered that Defendants Wilson, Crowe, Moore, Morton, and Turner are allowed to includeup to five additional pages for their reply to the Plaintiffs Memorandum in Opposition to their Motion to Dismiss (ECF No. 53). Entered at the Direction of The Honorable C Weston Houck on 11/2/2016.(vdru, ) (Entered: 11/02/2016)
76 REPLY to Response to Motion re 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction Response filed by Ken Miller. (Wells, Logan) (Entered: 11/04/2016)
77 REPLY to Response to Motion re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS Response filed by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson. (Smith, James) (Entered: 11/04/2016)
78 REPLY to Response to Motion re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION Response filed by Leon Lott. (Garfield, Robert) (Entered: 11/04/2016)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 14 of 22

11/04/2016 11/04/2016 11/04/2016 11/04/2016 11/04/2016 11/16/2016
11/18/2016
11/28/2016 12/02/2016 12/08/2016

79 REPLY to Response to Motion re 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM And Reply to Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss Response filed by Steve Loftis. (Culbreath, Anne) (Entered: 11/04/2016)
80 REPLY to Response to Motion re 5 MOTION for Preliminary Injunction And Plaintiff's Reply Memorandum of Law in Support of Plaintiff's Motion for Preliminary Injunction Response filed by Steve Loftis. (Culbreath, Anne) (Entered: 11/04/2016)
81 REPLY to Response to Motion re 6 MOTION to Certify Class And Plaintiff's Reply Memorandum of Law Regarding Motion for Class Certification Response filed by Steve Loftis. (Culbreath, Anne) (Entered: 11/04/2016)
82 REPLY to Response to Motion re 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Response filed by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen. (Senn, Sandra) (Entered: 11/04/2016)
83 REPLY to Response to Motion re 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction Response filed by Carl Ritchie. (Lindemann, Andrew) (Entered: 11/04/2016)
84 NOTICE of Hearing on Motion 5 MOTION for Preliminary Injunction, 6 MOTION to Certify Class, 33 MOTION to Stay re 6 MOTION to Certify Class, 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS, 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction, 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction, 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION: Motion Hearing set for 12/1/2016 02:30 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (ssam, ) (Entered: 11/16/2016)
85 NOTICE OF RESCHEDULED HEARING 12/1/2016 cancelled and rescheduled to: Hearing on Motion 5 MOTION for Preliminary Injunction, 6 MOTION to Certify Class, 33 MOTION to Stay re 6 MOTION to Certify Class, 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS, 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction, 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction, 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION set for 12/8/2016 02:30 PM in Charleston Courtroom #1, J. Waties Waring Judicial Center, 83 Meeting St, Charleston before Honorable C Weston Houck. (sshe, ) Modified on 12/8/2016 PLEASE NOTE: CHANGE OF COURTROOM LOCATION (sshe, ). (Entered: 11/18/2016)
86 RESPONSE in Support re 5 MOTION for Preliminary Injunction Statement of Interest of the United States Response filed by United States. (Sneed, Robert) (Main Document 86 replaced on 11/29/2016) (sshe, ). Modified on 11/29/2016 to replace with corrected document as requested and provided by filing user, added attorney for United States (sshe, ). (Entered: 11/28/2016)
87 MOTION to Withdraw as Attorney by Ken Miller. Response to Motion due by 12/16/2016. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 12/02/2016)
88 TEXT ORDER granting 87 Motion to Withdraw as Attorney. The Office of the Attorney General of South Carolina, including J. Emory Smith will no longer be representing Defendant Miller. Mr. Miller will continue to be represented by Michael S tuart Pitts, Robert P. Coler, and Logan M cCombs Wells of the City Attorneys Office for the City of Greenville. Entered at the Direction of The Honorable C Weston Houck on 12/7/2016.(vdru, ) (Entered: 12/08/2016)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 15 of 22

12/08/2016
03/03/2017 03/06/2017 03/20/2017 03/22/2017 03/23/2017 03/27/2017 04/04/2017

90 Minute Entry. Proceedings held before Honorable C Weston Houck: Motion Hearing held on 12/8/2016 re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /LACK OF JURISDICTION filed by Leon Lott, 34 First MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) Subject Matter Jurisdiction filed by Ken Miller, 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE CLASS ACTION ALLEGATIONS filed by A Keith Morton, M Bryan Turner, Lance Crowe, Steve Moore, Alan Wilson, 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by W H Holbrook, 36 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Steve Loftis, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Eddie Driggers, Jr, Gregory G Mullen, J Alton Cannon, Jr, 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction filed by Carl Ritchie. Court will consider issues of standing and abstention. Court Reporter: Jack Bryan, Court Smart. (ssam, ) (Entered: 12/09/2016)
91 ORDER The Court grants the motions to dismiss (ECF Nos. 27, 28, 34, 36, 41, 42, and 44). Accordingly, the case is dismissed without prejudice. Signed by Honorable C Weston Houck on 02/28/2017.(egra, ) (Entered: 03/03/2017)
92 JUDGMENT: The Court grants the Defendants' Motions to Dismiss and this case is dismissed without prejudice. (vdru, ) (Entered: 03/06/2017)
93 MOTION for Attorney Fees by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen. Response to Motion due by 4/4/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Senn Declaration, # 2 Exhibit Senn CV, # 3 Exhibit DeAntonio Declaration, # 4 Exhibit Summary of Time Records, # 5 Exhibit Certification of Filing User)No proposed order.(Senn, Sandra) Modified to correct filing date on 3/21/2017 (vdru, ). (Entered: 03/21/2017)
95 NOTICE OF APPEAL as to 91 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,, 92 Judgment by Niya Kenny. − Filing fee $ 505, receipt number 0420−7064258. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Dunn, Susan) (Entered: 03/22/2017)
96 Transmittal Sheet for Notice of Appeal to USCA re 95 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (vdru, ) (Entered: 03/23/2017)
98 MOTION for Attorney Fees by Steve Loftis. Response to Motion due by 4/10/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Declaration of Anne R. Culbreath, # 2 Exhibit Summary of Time Records)No proposed order.(Culbreath, Anne) (Entered: 03/27/2017)
99 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion hearing for dates of 12−8−16, before Judge C. Weston Houck, re 95 Notice of Appeal, Court Reporter/Transcriber Bryan/Potocki, Telephone number/e−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction. Does this satisfy all appellate orders for this reporter? Y

04/04/2017

Redaction Request due 4/25/2017. Redacted Transcript Deadline set for 5/5/2017. Release of Transcript Restriction set for 7/3/2017. (dpotocki, ) (Entered: 04/04/2017)
100 MOTION to Stay re 93 MOTION for Attorney Fees , 95 Notice of Appeal, 98 MOTION for Attorney Fees by Niya Kenny. Response to Motion due by 4/18/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Unpublished decision CSX v. Peirce)No proposed order.(Dunn, Susan) (Entered: 04/04/2017)

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 16 of 22

04/06/2017
03/15/2018 04/06/2018
04/06/2018 04/09/2018 04/13/2018 04/16/2018 04/16/2018 04/16/2018 04/17/2018
04/17/2018
04/19/2018 04/19/2018 04/19/2018 04/19/2018 04/19/2018

101 TEXT ORDER granting 100 Motion to Stay proceedings on defendants' motions for fees and expenses. The Court holds the motions for attorney fees (ECF Nos. 93 and 98) in abeyance pending resolution of the appeal by the Fourth Circuit. Entered at the Direction of The Honorable C Weston Houck on 4/6/2017.(vdru, ) (Entered: 04/06/2017)
102 USCA OPINION for 95 Notice of Appeal, filed by Niya Kenny. Decision of Appeals Court: Vacated and Remanded Decision of District Court. (vdru, ) (Entered: 03/15/2018)
103 USCA MANDATE and JUDGMENT entered March 15, 2018, takes effect this date as to as to 95 Notice of Appeal, filed by Niya Kenny. In accordance with the decision of this court, the judgment of the district court is vacated. This case is remanded to the district court for further proceedings consistent with the court's decision. (Attachments: # 1 4CCA Judgment)(vdru, ) (Entered: 04/06/2018)
104 Case Reassigned to Judge Honorable Margaret B Seymour. Judge Honorable C Weston Houck no longer assigned to the case. (glev, ) (Entered: 04/06/2018)
105 NOTICE OF CHANGE OF CASE NUMBER from 2:16−cv−2794−CWH to 2:16−cv−2794−MBS. Please use the new case number on all future filings. (vdru, ) (Entered: 04/09/2018)
106 ANSWER to 1 Complaint,, by W H Holbrook.(Hemlepp, William) (Entered: 04/13/2018)
107 NOTICE of Hearing: Status Conference set for Monday, 4/30/2018 at 11:00 AM in Charleston Courtroom #5, U. S. Court House, 85 Broad St, Charleston before Honorable Margaret B Seymour. (vdru, ) (Entered: 04/16/2018)
108 MOTION to Withdraw as Attorney by Leon Lott. Response to Motion due by 4/30/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Spreeuwers, Steven) (Entered: 04/16/2018)
109 NOTICE of Appearance by Robin Lilley Jackson on behalf of J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen (Jackson, Robin) (Entered: 04/16/2018)
110 TEXT ORDER granting 108 Motion to Withdraw as Attorney. It is ordered that Attorney Steven R. Spreeuwers is allowed to withdraw as counsel for Defendant Leon Lott. Attorney Robert D. Garfield, will remain as counsel for Defendant Leon Lott. Entered at the Direction of The Honorable Margaret B Seymour on 4/16/2018.(vdru, ) (Entered: 04/17/2018)
112 NOTICE OF RESCHEDULED HEARING: Please be advised that the Status Conference originally set for 4/30/2018 is cancelled and rescheduled to: Status Conference set for Thursday, 4/26/2018 at 10:00 AM in Charleston Courtroom #5, U. S. Court House, 85 Broad St, Charleston before Honorable Margaret B Seymour. (vdru, ) (Entered: 04/17/2018)
113 MOTION to Dismiss Renewed by Ken Miller. Response to Motion due by 5/3/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Wells, Logan) (Entered: 04/19/2018)
114 ANSWER to 1 Complaint,, by Ken Miller.(Wells, Logan) (Entered: 04/19/2018)
115 MOTION to Dismiss by W H Holbrook. Response to Motion due by 5/3/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Hemlepp, William) (Entered: 04/19/2018)
116 MOTION to Dismiss by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen. Response to Motion due by 5/3/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Jackson, Robin) (Entered: 04/19/2018)
117 MOTION to Dismiss Renewed Motion to Dismiss and Motion to Strike by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson. Response to Motion due by 5/3/2018. Add an additional 3 days only if served by mail or otherwise

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 17 of 22

04/19/2018 04/20/2018 04/20/2018 04/20/2018 04/20/2018
04/20/2018 04/20/2018 04/20/2018 04/26/2018
05/03/2018 05/03/2018
05/11/2018 05/15/2018
06/06/2018

allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 04/19/2018)
118 ANSWER to 1 Complaint,, by Lance Crowe, Steve Moore, A Keith Morton, M Bryan Turner, Alan Wilson.(Smith, James) (Entered: 04/19/2018)
119 ANSWER to 1 Complaint,, by J Alton Cannon, Jr, Eddie Driggers, Jr, Gregory G Mullen.(Jackson, Robin) (Entered: 04/20/2018)
120 ANSWER to 1 Complaint,, by Steve Loftis.(Culbreath, Anne) (Entered: 04/20/2018)
121 MOTION to Dismiss by Steve Loftis. Response to Motion due by 5/4/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Culbreath, Anne) (Entered: 04/20/2018)
122 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction (Renewed) by Carl Ritchie. Response to Motion due by 5/4/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support)No proposed order.(Lindemann, Andrew) (Entered: 04/20/2018)
123 ANSWER to 1 Complaint,, by Carl Ritchie.(Lindemann, Andrew) (Entered: 04/20/2018)
124 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Renewed) by Leon Lott. Response to Motion due by 5/4/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Garfield, Robert) (Entered: 04/20/2018)
125 ANSWER to 1 Complaint,, by Leon Lott.(Garfield, Robert) (Entered: 04/20/2018)
126 Minute Entry. Proceedings held before Honorable Margaret B Seymour: Status Conference held on 4/26/2018. Michael D. Hanshaw is substituted for Defendant Steve Moore. Motions to Dismiss are taken under advisement. Once dismissal motions are decided, class certification and an amended scheduling order will be discussed. Court Reporter Virginia Druce, Court Smart. (cper, ) (Entered: 04/26/2018)
128 MOTION to Amend/Correct Caption by Niya Kenny. Response to Motion due by 5/17/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 05/03/2018)
129 RESPONSE in Opposition re 124 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Renewed), 116 MOTION to Dismiss , 117 MOTION to Dismiss Renewed Motion to Dismiss and Motion to Strike, 121 MOTION to Dismiss , 113 MOTION to Dismiss Renewed, 115 MOTION to Dismiss , 122 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM /Lack of Jurisdiction (Renewed) Response filed by Niya Kenny.Reply to Response to Motion due by 5/11/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Dunn, Susan) (Entered: 05/03/2018)
130 REPLY to Response to Motion re 117 MOTION to Dismiss Renewed Motion to Dismiss and Motion to Strike Response filed by Alan Wilson. (Smith, James) (Entered: 05/11/2018)
131 CONSENT ORDER withdrawing 93 Motion for Attorney Fees 98 Motion for Attorney Fees 113 Motion to Dismiss 115 Motion to Dismiss 116 Motion to Dismiss; 117 Motion to Dismiss 121 Motion to Dismiss 122 Motion to Dismiss for Failure to State a Claim and 124 Motion to Dismiss for Failure to State a Claim. It is agreed that this action shall be STAYED as to the Law Enforcement Defendants and it is further agreed that between the Plaintiffs and the Law Enforcement Defendants, each party shall bear its own costs. Signed by Honorable Margaret B Seymour on 5/14/2018.(vdru, ) (Entered: 05/15/2018)
132 MOTION for Leave to File Supplemental Authority by Alan Wilson. Response to Motion due by 6/20/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 18 of 22

06/20/2018 06/20/2018 06/21/2018 12/20/2018 01/03/2019
01/08/2019
01/14/2019
01/14/2019
01/15/2019 01/16/2019 01/18/2019 01/18/2019 01/28/2019 01/28/2019

Exhibit Act 182, 2018 SC Acts)No proposed order.(Smith, James) (Entered: 06/06/2018)
133 ORDER granting 128 Motion to Amend: It is ordered that the Case Caption will be amended to reflect a name change for the Plaintiff and several Defendants in their official capacity. Signed by Honorable Margaret B Seymour on 6/19/2018.(vdru, ) (Entered: 06/20/2018)
134 RESPONSE in Opposition re 132 MOTION for Leave to File Supplemental Authority Response filed by Niya Kenny.Reply to Response to Motion due by 6/27/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Dunn, Susan) (Entered: 06/20/2018)
135 REPLY to Response to Motion re 132 MOTION for Leave to File Supplemental Authority Response filed by Alan Wilson. (Smith, James) (Entered: 06/21/2018)
136 NOTICE of Status Conference and Hearing on Motion 132 MOTION for Leave to File Supplemental Authority : Please be advised that a Hearing is set for 1/17/2019 at 10:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable Margaret B Seymour. (vdru, ) (Entered: 12/20/2018)
137 NOTICE OF RESCHEDULED STATUS CONFERENCE and HEARING on 132 MOTION for Leave to File Supplemental Authority : The Hearing previously set for 1/17/2019 is cancelled and rescheduled to: Status Conference and Motion Hearing set for Wednesday, 1/23/2019 at 2:00 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable Margaret B Seymour. (vdru, ) (Entered: 01/03/2019)
138 NOTICE OF RESCHEDULED HEARING on 132 MOTION for Leave to File Supplemental Authority and STATUS CONFERENCE : The Hearing previously set for 1/23/2019 is cancelled and rescheduled to: Motion Hearing set for Monday, 1/28/2019 at 02:30 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable Margaret B Seymour. (vdru, ) (Entered: 01/08/2019)
139 MOTION to Appear Pro Hac Vice by Emma Roth ( Filing fee $ 250 receipt number 0420−8210097) by Niya Kenny. Response to Motion due by 1/28/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Affidavit By Roth in support of Motion, # 2 Exhibit Certificate of Good Standing for Roth)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 01/14/2019)
140 MOTION to Withdraw as Attorney Dennis Parker by Niya Kenny. Response to Motion due by 1/28/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 01/14/2019)
141 ORDER granting 139 Motion to Appear Pro Hac Vice: Emma Jane Roth who represents the Plaintiffs is granted pro hac vice admission in this case. Signed by Honorable Margaret B Seymour on 1/15/2019.(vdru, ) (Entered: 01/15/2019)
142 ORDER granting 140 Motion to Withdraw as Attorney. It is ordered that Dennis David Parker be allowed to withdraw from this case. Signed by Honorable Margaret B Seymour on 1/15/2019.(vdru, ) (Entered: 01/16/2019)
144 JOINT STIPULATION by Niya Kenny. (Dunn, Susan) (Entered: 01/18/2019)
145 Joint Rule 26(f) Report by Niya Kenny.(Dunn, Susan) (Entered: 01/18/2019)
146 Minute Entry. Proceedings held before Honorable Margaret B Seymour: Status Conference held on 1/28/2019. Plaintiffs to notify the court in 2 weeks if D.S. will remain a class representative or if they will be substituting another plaintiff. Court Reporter: Virginia Druce, CourtSmart. (ssam, ) (Entered: 01/28/2019)
147 TEXT ORDER granting 132 Motion for Leave to File: It is ordered that Defendant Allen Wilson is granted leave to file Supplemental Authority Supporting his Renewed Motion to Dismiss the Complaint. Entered at the Direction of The Honorable Margaret B Seymour on 1/28/2019.(vdru, ) (Entered:

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 19 of 22

02/11/2019 02/12/2019 02/19/2019
02/22/2019 02/25/2019
02/28/2019
03/18/2019 05/10/2019 05/16/2019 05/23/2019 05/28/2019 05/29/2019 05/29/2019 05/29/2019

01/28/2019)
148 MOTION for Extension of Time by Niya Kenny. Response to Motion due by 2/25/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Dunn, Susan) (Entered: 02/11/2019)
149 TEXT ORDER granting 148 Motion for Extension of Time: Plaintiffs shall have until 2/19/2019 to file notice to the Court re the class representation. Entered at the Direction of The Honorable Margaret B Seymour on 2/12/2019.(vdru, ) (Entered: 02/12/2019)
151 First MOTION to Amend/Correct 1 Complaint,, by Niya Kenny. Response to Motion due by 3/5/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Proposed amended complaint, # 2 Affidavit Declaration of DD, # 3 Exhibit Solicitor's letter. Exh to DD declaration)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 02/19/2019)
152 NOTICE of Request for Protection from Court Appearance by James Emory Smith, Jr for 3/19/2019, 4/26/2019, 5/14/2019, 5/17/2019 (Smith, James) (Entered: 02/22/2019)
153 MOTION for Extension of Time to File Response/Reply as to 151 First MOTION to Amend/Correct 1 Complaint,, by Alan Wilson. Response to Motion due by 3/11/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 02/25/2019)
154 TEXT ORDER granting 153 Motion for Extension of Time to File Response re 151 First MOTION to Amend/Substitute Class Representative 1 Complaint, . Defendant is granted an additional fourteen (14) days to respond. Response to Motion due by 3/19/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Entered at the Direction of The Honorable Margaret B Seymour on 2/28/2019.(vdru, ) (Entered: 02/28/2019)
155 RESPONSE in Opposition re 151 First MOTION to Amend/Correct 1 Complaint,, Response filed by Alan Wilson.Reply to Response to Motion due by 3/25/2019 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Smith, James) (Entered: 03/18/2019)
156 ORDER granting 151 Motion to Amend/Correct: Plaintiffs are granted leave to amend the complaint and add DD as a class representative. Signed by Honorable Margaret B Seymour on 5/10/2019.(vdru, ) (Entered: 05/10/2019)
157 AMENDED COMPLAINT against All Defendants, filed by Niya Kenny. Service due by 8/14/2019 (Dunn, Susan) (Entered: 05/16/2019)
158 MOTION to Substitute Attorney by W H Holbrook. Response to Motion due by 6/6/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Hemlepp, William) (Entered: 05/23/2019)
159 MOTION for Extension of Time to Respond to Amended Complaint by Alan Wilson. Response to Motion due by 6/11/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 05/28/2019)
160 NOTICE of Appearance by Dana Marie Thye on behalf of W H Holbrook (Thye, Dana) (Entered: 05/29/2019)
161 MOTION to Withdraw as Attorney by W H Holbrook. Response to Motion due by 6/12/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Hemlepp, William) (Entered: 05/29/2019)
162 TEXT ORDER granting 159 Motion for Extension of Time; granting 161 Motion to Withdraw as Attorney. Entered at the direction of Honorable Margaret B

Case: 2:16-cv-2794 As of: 08/11/2020 11:26 AM EDT 20 of 22

06/06/2019 06/11/2019
06/20/2019 06/21/2019 07/05/2019 11/14/2019 11/27/2019 11/27/2019 12/03/2019 12/04/2019
12/16/2019 01/15/2020

Seymour on 5/29/2019.(jbry, ) (Entered: 05/29/2019)
165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS by Alan Wilson. Response to Motion due by 6/20/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support)No proposed order.(Smith, James) (Entered: 06/06/2019)
166 MOTION for Extension of Time to File Response/Reply as to 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS by Alan Wilson. Response to Motion due by 6/25/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 06/11/2019)
167 RESPONSE in Opposition re 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS Response filed by Niya Kenny.Reply to Response to Motion due by 6/27/2019 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Dunn, Susan) (Entered: 06/20/2019)
168 TEXT ORDER granting 166 Motion for Extension of Time to File Response/Reply. Signed by Honorable Margaret B Seymour on 06/21/2019.(hada, ) (Entered: 06/21/2019)
169 REPLY to Response to Motion re 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS Response filed by Alan Wilson. (Attachments: # 1 Exhibit R105, 2019 S.C. Acts − amendment to disorderly conduct statute)(Smith, James) (Entered: 07/05/2019)
170 NOTICE of Hearing on Motion 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS : Motion Hearing set for 12/4/2019 at 2:00 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable Margaret B Seymour. (vdru, ) (Entered: 11/14/2019)
171 MOTION to Withdraw as Attorney by Niya Kenny. Response to Motion due by 12/11/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Dunn, Susan) (Entered: 11/27/2019)
172 MOTION to Withdraw as Attorney Due to death by Niya Kenny. Response to Motion due by 12/11/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Dunn, Susan) (Entered: 11/27/2019)
173 TEXT ORDER granting 171 Motion to Withdraw as Attorney ; granting 172 Motion to Withdraw as Attorney. Entered at the Direction of The Honorable Margaret B Seymour on 12/3/2019.(vdru, ) (Entered: 12/03/2019)
175 Minute Entry. Proceedings held before Honorable Margaret B Seymour: taking under advisement 165 Motion to Dismiss for Failure to State a Claim; Motion Hearing held on 12/4/2019 re 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS filed by Alan Wilson. Defendant has until 1/17/2020 to submit a brief re: the power of the court to address records retroactively and the extent of the expungement procedure in South Carolina. (Defendant's Brief due by 1/17/2020). Court Reporter Karen Martin. (ssam, ) (Entered: 12/04/2019)
176 STIPULATION Written Assurance Form by Niya Kenny. (Attachments: # 1 Supporting Documents Exhibit A)(Dunn, Susan) (Entered: 12/16/2019)
177 Joint MOTION for Confidentiality Order by Niya Kenny. Response to Motion due by 1/29/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Proposed Order, # 2 Supporting Documents Attachment A, # 3 Supporting Documents Attachment B, # 4 Supporting Documents Attachment C)Proposed order is being emailed to chambers

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01/15/2020
01/17/2020 01/24/2020 01/31/2020 02/04/2020 02/05/2020 02/12/2020 03/30/2020 04/09/2020 05/11/2020
05/21/2020 05/28/2020

with copy to opposing counsel.(Dunn, Susan) (Additional attachment(s) added on 1/16/2020: # 5 Proposed Order) (vdru, ). Modified to add proposed order as attachment #5 on 1/16/2020 (vdru, ). (Entered: 01/15/2020)
178 Joint MOTION for Confidentiality Order Redlines show in Word format by Niya Kenny. Response to Motion due by 1/29/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Attachment A, # 2 Supporting Documents Attachment B, # 3 Supporting Documents Attachment C)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 01/15/2020)
179 RESPONSE in Support re 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS Memorandum Regarding Expungement Response filed by Alan Wilson. (Smith, James) (Entered: 01/17/2020)
180 ORDER granting granting 178 Motion for Confidentiality Order : The parties have stipulated that certain discovery material is and should be treated as confidential and have agreed to the terms of this order. Details regarding the designation and treatment of confidential materials are set forth in Order. Signed by Honorable Margaret B Seymour on 1/21/2020.(vdru, ) (Entered: 01/24/2020)
181 REPLY to Response to Motion re 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS Response filed by Niya Kenny. (Attachments: # 1 Supporting Documents Unreported case referenced in the brief)(Dunn, Susan) (Entered: 01/31/2020)
182 MOTION for Extension of Time by Alan Wilson. Response to Motion due by 2/18/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 02/04/2020)
183 TEXT ORDER granting 182 Motion for Extension of Time: The deadline for Defendant Wilson to file a reply to the response filed by Plaintiffs (Dkt. No. 181) to his Memorandum Regarding Expungement (Dkt. No. 179) is extended until 2/12/2020. Entered at the Direction of The Honorable Margaret B Seymour on 2/5/2020.(vdru, ) (Entered: 02/05/2020)
184 REPLY to Response to Motion re 165 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS Reply to Response to Memorandum regarding expungement Response filed by Alan Wilson. (Smith, James) (Entered: 02/12/2020)
185 ORDER AND OPINION: Defendant's Motion to Dismiss the Amended Complaint and Motion to Dismiss or Strike Class Action allegations (ECF No. 165) is Denied. Signed by Honorable Margaret B Seymour on 3/30/2020. (vdru, ) (Entered: 03/30/2020)
186 ANSWER to 157 Amended Complaint by Alan Wilson.(Smith, James) (Entered: 04/09/2020)
187 MOTION re 6 MOTION to Certify Class by Carolina Youth Action Project, DS, Niya Kenny, Taurean Nesmith, SP. Response to Motion due by 5/26/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Declaration of D.D., # 2 Supporting Documents Letter from Solicitor)No proposed order.(Dunn, Susan) (Entered: 05/11/2020)
188 RESPONSE in Opposition re 187 MOTION re 6 MOTION to Certify Class , 6 MOTION to Certify Class Response filed by Alan Wilson.Reply to Response to Motion due by 5/28/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Smith, James) (Entered: 05/21/2020)
189 REPLY to Response to Motion re 187 MOTION re 6 MOTION to Certify Class , 6 MOTION to Certify Class Response filed by Carolina Youth Action Project, DS, Niya Kenny, Taurean Nesmith, SP. (Dunn, Susan) (Entered: 05/28/2020)

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06/05/2020 191 Joint Rule 26(f) Report by Carolina Youth Action Project, DS, Niya Kenny, Taurean Nesmith, SP.(Dunn, Susan) (Entered: 06/05/2020)