United States Court of Appeals

For the First Circuit

No. 05-1798

MIRIAM J. RAMÍREZ,

Plaintiff, Appellant,

v.

ROBERTO SÁNCHEZ RAMOS, IN HIS CAPACITY AS

SECRETARY OF JUSTICE OF PUERTO RICO,*

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

 Selya, Lipez and Howard, Circuit Judges.

David W. Roman, with whom José Luis Ubarri and Brown & Ubarri

were on brief, for appellant.

Eduardo Vera Ramírez, with whom Roberto Sánchez Ramos,

Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,

Eileen Landrón Guardiola, Courtney R. Carroll, and Landrón & Vera,

LLP were on brief, for appellee.

February 21, 2006

__________

*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we have

substituted Roberto Sánchez Ramos for his predecessor in office,

Anabelle Rodríguez.
The First Amendment applies to the several states by 1

operation of the Fourteenth Amendment. See 44 Liquormart, Inc. v.

Rhode Island, 517 U.S. 484, 489 n.1 (1996). Puerto Rico is, for

this purpose, the functional equivalent of a state. See El Vocero

de P.R. v. Puerto Rico, 508 U.S. 147, 148 n.1 (1993).

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SELYA, Circuit Judge. Following her failed efforts to

force an agency of the Puerto Rican government to display the

American flag in its central office, plaintiff-appellant Miriam J.

Ramírez found herself on the wrong end of criminal charges brought

pursuant to the Riot Act, P.R. Laws Ann. tit. 33, § 4522. Claiming

that the Riot Act impermissibly infringed her First Amendment right

to political expression and that the party in power was using it as

a tool to harass political opponents, the plaintiff mounted a

constitutional challenge. After the criminal charges were 1

dropped, the district court determined that the plaintiff no longer

had an adequate stake in the action and dismissed her

constitutional claims as moot. Ramírez v. Rodríguez, 389 F. Supp.

2d 143, 147 (D.P.R. 2005). This appeal followed. 

We conclude that the plaintiff lacked standing to bring

a facial challenge to the Riot Act. While she had standing to

mount an as-applied challenge, that claim became moot upon the

termination of the criminal charges. Accordingly, we affirm the

judgment below.

I. BACKGROUND

The plaintiff is a member of the New Progressive Party

(NPP) and a former legislator. In 2002, the NPP's main rival, the
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Popular Democratic Party (PDP), controlled the Puerto Rican

government. On June 20, 2002, after learning that a government

agency, the Office of the Women's Advocate (OWA), was not

displaying the American flag alongside the Puerto Rican flag, the

plaintiff joined a group of NPP adherents who marched, flag in

hand, to the OWA's headquarters in an effort to rectify the

situation. The marchers were denied entry when they reached their

destination. Carlos Pesquera, then the president of the NPP, met

with OWA representatives to explain the group's objective.

Pesquera's entourage waited outside in hopes that they would be

allowed to enter the building and hoist the American flag. Over

the course of the afternoon, the large crowd attracted attention

from both the media and the police. 

After many hours, the doors to the OWA's headquarters

were finally unlocked. The plaintiff claims that she was swept

inside when the crowd rushed to enter the ground-level vestibule.

The influx did not proceed very far; OWA personnel used physical

force to prevent the marchers from ascending the stairs to the

reception area (where they wished to place the flag). 

Throughout, the plaintiff remained on the ground floor,

seeking refuge in a side stairwell. While waiting for the frenzy

to abate, she grabbed a man to prevent him from climbing over

peoples' heads as he attempted to ascend the staircase. The man
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(later identified as an OWA hierarch) turned and struck her. The

plaintiff subsequently left the building. 

No one was arrested or charged on the date of the

incident. In its aftermath, however, the Puerto Rico Department of

Justice appointed an independent prosecutor (the Prosecutor). The

Prosecutor secured affidavits stating that the plaintiff had (i)

directed threatening gestures at OWA officials while awaiting

ingress to the building and (ii) used physical force against an OWA

official once she was inside. Armed with these affidavits, the

Prosecutor filed criminal charges against the plaintiff under the

Riot Act. The Prosecutor charged several other prominent NPP

members for their roles in the incident. No charges were lodged

against anyone from the OWA.

On February 6, 2003, a local court dismissed the charges

against the plaintiff for want of probable cause. Later, however,

the court agreed to reconsider its decision and scheduled a hearing

for March 19, 2003. Shortly before the appointed date, the

plaintiff filed suit in the United States District Court for the

District of Puerto Rico. In that action, she sought to enjoin the

pending prosecution and to secure a declaration of the Riot Act's

unconstitutionality. 

At this point, a few words of explanation are in order.

The Riot Act defines the offense with which the plaintiff was

charged as "[a] use of force or violence to disturb the public
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peace, or any threat to use such force or violence," so long as

that act is "accompanied by immediate power of execution" and is

carried out "by two (2) or more persons, acting together and

without authority of law." P.R. Laws Ann. tit. 33, § 4522. The

plaintiff's constitutional challenge to this statute has two

facets. First, she attacks the Riot Act on the ground that the

government was using it selectively to prosecute NPP partisans for

their lawful exercise of First Amendment freedoms. Second, she

alleges that the Riot Act, on its face, is unconstitutionally

vague, overly broad, and incompatible with Fourteenth Amendment

protections (e.g., due process and equal protection). In this

regard, the plaintiff complains that the Riot Act neither specifies

what behavior constitutes a disturbance of the peace nor limits

violations to those situations in which the interdicted conduct

presents a clear and present danger of actual injury. 

The defendants, government officials sued in their

representative capacities, moved to dismiss the action based on

Younger abstention principles. See Younger v. Harris, 401 U.S. 37

(1971). The district court prudently stayed proceedings pending

the outcome of the criminal prosecution. That case terminated on

March 25, 2003, when the local court reaffirmed its earlier

dismissal of the charges against the plaintiff for want of probable

cause.
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In short order, the district court jettisoned the

plaintiff's claim for injunctive relief as moot. The court

simultaneously denied the defendants' motion to dismiss the federal

action on Younger grounds. Neither of these determinations is at

issue in this appeal.

On April 22, 2003, the plaintiff moved for summary

judgment on her declaratory judgment claim. She argued that she

retained a personal stake in the matter because, as an active NPP

member, she intended to continue participating in activities

critical of the PDP-controlled administration. Specifically, she

explained that she planned to participate in the NPP's upcoming

"march of indignation" and to continue exercising her rights of

peaceful assembly and vocal protest. She worried that these

activities might subject her to selective prosecution under the

allegedly vague and overbroad language of the Riot Act. She also

worried that her fear of future prosecution might, in turn, chill

the free exercise of her First Amendment rights. 

In response, the Secretary of Justice (the sole remaining

defendant) cross-moved to dismiss the plaintiff's complaint on the

ground that the entire case had become moot when the criminal

charges were squelched. On March 31, 2005, the district court

granted the defendant's motion. The court cited the following

uncontested facts: (i) the criminal charges against the plaintiff

had been dismissed; (ii) a general election had intervened and a
Effective May 1, 2005, the legislature recodified the Riot 2

Act as Article 248 of the Puerto Rico Penal Code, P.R. Laws Ann.

tit. 33, § 4876. Aside from altering the penalty for violations —

a modification that is of no consequence to the plaintiff's

constitutionality arguments — Article 248 is a verbatim

recodification of Article 261. Thus, we do not distinguish between

the two for purposes of this appeal. 

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new administration (albeit one headed by a different PDP governor)

was in power; (iii) the plaintiff's term of office had expired and

she was no longer an elected official; and (iv) the other NPP

leaders who had been charged under the Riot Act in connection with

the flag incident had all been acquitted in a highly publicized

trial. See Ramírez, 389 F. Supp. 2d at 146-47. The court found

that these changed circumstances rendered it "improbable that the

Puerto Rico Department of Justice [would] once again expose itself

to public embarrassment and ridicule by selectively prosecuting

public officials under the Riot Act for voicing their differences

with the government." Id. at 147. Although it dismissed all that

remained of the action, the court did not undertake separate

analyses of the plaintiff's as-applied and facial challenges. This

timely appeal ensued. 

2

II. ANALYSIS

We review the district court's mootness determination de

novo, accepting as true the material factual allegations contained

in the complaint and drawing all reasonable inferences therefrom in

the plaintiff's favor. See N.H. Right to Life Political Action

Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996).
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It is beyond dispute that when a litigant wishes to

pursue a claim in a federal court, justiciability principles

require the existence of an actual case or controversy. See U.S.

Const. art. III, § 2, cl. 1; see also Allen v. Wright, 468 U.S.

737, 750 (1984); Osediacz v. City of Cranston, 414 F.3d 136, 139

(1st Cir. 2005). To satisfy the case or controversy criterion, the

party alleging the existence of jurisdiction (normally, the

plaintiff) must possess a personal stake in the outcome of the

litigation. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

This requirement "subsists through all stages of federal judicial

proceedings, trial and appellate." Lewis v. Cont'l Bank Corp., 494

U.S. 472, 477 (1990).

The doctrine of standing measures whether a plaintiff has

satisfied the "personal stake" requirement at the commencement of

an action. See Baker v. Carr, 369 U.S. 186, 204 (1962).

Thereafter, the doctrine of mootness measures whether the

plaintiff's interest remains sufficient to justify continuing

federal jurisdiction. See U.S. Parole Comm'n v. Geraghty, 445 U.S.

388, 397 (1980). Given that dichotomy, mootness is aptly described

as "the doctrine of standing set in a time frame." Id. (citation

and internal quotation marks omitted).

In this instance, the plaintiff asserts that she has a

personal stake sufficient to support the justiciability of both her

as-applied (selective prosecution) claim and her facial challenge
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to the constitutionality of the Riot Act. These two claims involve

different justiciability standards. For that reason, we analyze

them separately. 

The difference between standing and mootness necessitates

a further segmentation of our analysis. Thus, we first consider,

as to each claim, whether the plaintiff carried her initial burden

of establishing standing. We then proceed to a mootness inquiry if

— and only if — that answer is in the affirmative. Cf. Warth v.

Seldin, 422 U.S. 490, 498 (1975) (explaining that standing is a

"threshold question in every federal case").

A. Standing.

Standing involves both constitutional imperatives and

prudential considerations. Valley Forge Christian Coll. v. Ams.

United for Separation of Church & State, 454 U.S. 464, 471 (1982).

An inquiry into standing must be based on the facts as they existed

when the action was commenced. Mangual v. Rotger-Sabat, 317 F.3d

45, 56 (1st Cir. 2003).

To satisfy Article III's "personal stake" requirement

vis-à-vis a statutory challenge, the plaintiff bears the burden of

demonstrating that (i) she has suffered an actual or threatened

injury in fact, which is (ii) fairly traceable to the statute, and

(iii) can be redressed by a favorable decision. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Lewis, 494 U.S.

at 477. Allegations of abstract injury are insufficient to make
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out an injury in fact. Instead, the plaintiff "must show that he

has sustained or is immediately in danger of sustaining some direct

injury." Lyons, 461 U.S. at 101-02 (citations and internal

quotation marks omitted). Moreover, she must show that the injury

or threat of injury is both real and immediate. Id. at 102

(citations and internal quotation marks omitted). 

In addition to these constitutional requirements,

prudential considerations must be taken into account. In general

— there are exceptions, but we need not discuss them here —

prudential concerns require a plaintiff to show that she is seeking

to protect her own legal rights (rather than those of a third

party), that her complaint does not merely represent a generalized

grievance, and that the complaint falls within the zone of

interests protected by the law invoked. See N.H. Right to Life, 99

F.3d at 15. 

Against this backdrop, we turn to the two claims at issue

here.

1. The As-Applied Challenge. At the time the plaintiff

sued, criminal charges were pending against her under the Riot Act.

Because she was in immediate danger of sustaining harm, her asapplied claim satisfies the first prong of the constitutional

standing inquiry. See Lyons, 461 U.S. at 101-02. This claim also

clears the second and third hurdles of the constitutional test: her

injury was directly traceable to the challenged conduct, and a
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declaration of the Riot Act's invalidity would eliminate the

threatened harm.

By the same token, the as-applied claim satisfies

prudential prerequisites. The plaintiff is seeking to protect her

own First Amendment freedoms; the allegedly selective prosecution

crystallized in a particularized event (the institution of criminal

charges); and aspects of the threatened injury (most particularly,

the chilling of political expression) fall comfortably within the

zone of interests that the First Amendment protects. 

To say more would be to paint the lily. We hold, without

serious question, that the plaintiff carried her burden of

establishing initial standing to seek a declaratory judgment with

respect to her as-applied claim.

2. The Facial Challenge. Although allegations of

abstract injury are insufficient to satisfy the first prong of the

Article III standing test, a litigant who brings a First Amendment

challenge to the face of a statute need not actually violate the

statute or suffer the prescribed penalty in order to establish an

injury in fact. Steffel v. Thompson, 415 U.S. 452, 459 (1974).

Because the "conflict between state officials empowered to enforce

a law and private parties subject to prosecution under that law is

a classic 'case' or 'controversy' within the meaning of Art. III,"

Diamond v. Charles, 476 U.S. 54, 64 (1986), two other types of

injury may in some situations constitute valid proxies.
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The first occurs when a "plaintiff has alleged an

intention to engage in a course of conduct arguably affected with

a constitutional interest, but proscribed by [the] statute, and

there exists a credible threat of prosecution." Babbitt v. United

Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). The second

occurs when a plaintiff "is chilled from exercising her right to

free expression or forgoes expression in order to avoid enforcement

consequences." N.H. Right to Life, 99 F.3d at 13. The plaintiff

seeks to invoke these exceptions here.

However, there is a rub. Each of the exceptions requires

a credible threat — as opposed to a hypothetical possibility — that

the challenged statute will be enforced to the plaintiff's

detriment if she exercises her First Amendment rights. Id. at 14.

Consequently, "[a] party's subjective fear that she may be

prosecuted for engaging in expressive activity will not be held to

constitute an injury for standing purposes unless that fear is

objectively reasonable." Id. The evidentiary threshold that must

be crossed in order to establish a credible threat is modest, see,

e.g., Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392-93

(1988); Babbitt, 442 U.S. at 302, but it is real. We turn, then,

to the question of whether the plaintiff's proffer passes muster.

In her filings, the plaintiff expressed her intention to

participate in a march, peacefully assemble, and openly voice her

opposition to the PDP regime. She asserted that she feared future
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prosecutions under the Riot Act if she followed through on any or

all of these intentions and worried that she might be dissuaded

from exercising her First Amendment freedoms.

Because the plaintiff never stated an intention to engage

in any activity that could reasonably be construed to fall within

the confines of the Riot Act, she failed to satisfy even the

relaxed standing requirements reserved for facial First Amendment

challenges. See Osediacz, 414 F.3d at 141 (suggesting that a

"party mounting a facial challenge [must] at the very least

desire[] or intend[] to undertake activity within the compass of

the challenged statute"). Read straightforwardly, the Riot Act

only criminalizes the "use of force or violence" or the "threat to

use such force or violence." P.R. Laws Ann. tit. 33, § 4522. None

of the activities in which the plaintiff has expressed a desire to

engage — marching, peacefully assembling, and speaking out —

involves force or violence. Therefore, none of them is even

arguably within the statute's reach. Accordingly, the plaintiff

lacks standing to pursue a declaration that the Riot Act is

unconstitutional on its face. See Osediacz, 414 F.3d at 141; N.H.

Right to Life, 99 F.3d at 14.

To be sure, the plaintiff maintains that her fear is

credible because the prosecutions following the flag incident

warrant an inference that the PDP administration is overly eager to

employ the Riot Act against NPP leaders. Assuming, for argument's
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sake, that such an inference reasonably can be drawn, there is an

important distinction between the flag incident and the activities

that the plaintiff lists as future pursuits. Even though the Riot

Act charges against the plaintiff were ultimately found to be

baseless, the Prosecutor had obtained evidence suggesting that the

plaintiff had used force on that occasion. It is simply too much

of a stretch to posit that the government's decision to prosecute

a Riot Act charge when some evidence supports a "force or violence"

finding indicates a willingness to prosecute entirely peaceful

First Amendment expression. See United States v. Armstrong, 517

U.S. 456, 464 (1996) (explaining that "in the absence of clear

evidence to the contrary, courts presume that [prosecutors will]

properly discharge[] their official duties") (citation and internal

quotation marks omitted). While the government's decision to

prosecute the earlier case is relevant to the plaintiff's asapplied claim, it does not confer standing to bring a facial

challenge where, as here, the plaintiff has stated no intention of

engaging in similar conduct. The plaintiff has, therefore, failed

to clear the evidentiary bar for establishing a credible threat of

future prosecution. See N.H. Right to Life, 99 F.3d at 14; see

also Osediacz, 414 F.3d at 141 (explaining that although "standing

concerns are relaxed in certain facial challenges implicating the

First Amendment, a litigant still must demonstrate that she
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satisfies the constitutional minima essential to establish

standing").

B. Mootness.

As limned above, the plaintiff had initial standing to

bring her as-applied challenge to the Riot Act, but not her facial

challenge. Consequently, only the former claim engenders a

mootness inquiry. 

Article III considerations require that an actual case or

controversy "must be extant at all stages of review, not merely at

the time the complaint is filed." Steffel, 415 U.S. at 459 n.10.

When, as now, a plaintiff has initial standing to bring a

particular claim, a federal court is duty bound to dismiss the

claim as moot if subsequent events unfold in a manner that

undermines any one of the three pillars on which constitutional

standing rests: injury in fact, causation, and redressability. See

Goodwin v. C.N.J., Inc., ___ F.3d ___, ___ (1st Cir. 2006) [No. 04-

2050, slip op. at 6] ("A case becomes moot if, at some time after

the institution of the action, the parties no longer have a legally

cognizable stake in the outcome."); Mangual, 317 F.3d at 60 ("If

events have transpired to render a court opinion merely advisory,

Article III considerations require dismissal of the case."). 

Despite their close family resemblance, there is a

telltale distinction between the doctrines of standing and

mootness. Whereas the party invoking federal jurisdiction bears
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the burden of proving that she has standing, the party raising a

mootness defense has the burden of establishing the facts necessary

to sustain that defense. See Mangual, 317 F.3d at 61. To satisfy

this burden, the challenger must show that, after the case's

commencement, intervening events have blotted out the alleged

injury and established that the conduct complained of cannot

reasonably be expected to recur. See County of Los Angeles v.

Davis, 440 U.S. 625, 631 (1979); United States v. Concentrated

Phosphate Export Ass'n, 393 U.S. 199, 203 (1968). If it is

sufficiently plain that intervening events have wiped the slate

clean, the case has become moot. 

We conclude that in this case the defendant has satisfied

his heavy burden of showing that the plaintiff's as-applied claim

is moot. The Puerto Rico court's "want of probable cause"

determination eradicated the threatened injury that formed the

centerpiece of the plaintiff's selective prosecution claim. The

finality of that ruling makes it transparently clear that the

plaintiff will not face future prosecution under the Riot Act for

her participation in the flag incident (indeed, she has made no

claim to the contrary). No more is exigible to establish mootness.

In an effort to parry this thrust, the plaintiff notes

that there is an exception to the mootness bar for situations in

which a claim is capable of repetition, yet evades review. See,

e.g., S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); Cruz
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v. Farquharson, 252 F.3d 530, 534 (1st Cir. 2001). Here, however,

the plaintiff's attempt to avail herself of this exception is

unpersuasive. 

The exception is applicable when "(1) the challenged

action [is] in its duration too short to be fully litigated prior

to its cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party [will] be subjected to

the same action again." Weinstein v. Bradford, 423 U.S. 147, 149

(1975). The party who asserts continuing jurisdiction (here, the

plaintiff) bears the burden of establishing both that the issue is

capable of repetition and that, absent relaxation of the classic

mootness rule, it will evade review. See Lawrence v. Blackwell,

430 F.3d 368, 371 (6th Cir. 2005); Video Tutorial Servs. v. MCI

Telecomms. Corp., 79 F.3d 3, 6 (2d Cir. 1996). In the case at

hand, the plaintiff has not satisfied her burden with respect to

either requirement. We explain briefly.

First, there is nothing about Riot Act prosecutions in

general that would routinely preclude defendants from litigating

the constitutionality of the statute during the pendency of

criminal proceedings. That the criminal proceedings here were

short-circuited by the "want of probable cause" determination and

thus proved to be of insufficient duration to allow the plaintiff

to adjudicate her constitutional challenge to a conclusion does not

change this calculus. It is the issue raised, not the particulars
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of the plaintiff's claim, that is determinative. In other words,

the issue itself must systematically evade review in order for the

exception to apply. See Spencer v. Kemna, 523 U.S. 1, 18 (1998)

(finding that due process challenge to parole revocation hearing

did not qualify for the exception, even though the plaintiff's

sentence expired before he could litigate his constitutional

challenge, because the time between parole hearings and the

expiration of criminal sentences is not always — or even typically

— so short as to evade review); Horizon Bank & Trust Co. v.

Massachusetts, 391 F.3d 48, 54 (1st Cir. 2004) (holding that claims

evade review only when "the underlying facts are inherently

temporary such that they will predictably have changed and

foreclosed meaningful relief by the time the case has worked its

way through the legal system"). On this basis, the plaintiff's asapplied claim cannot be said to evade review.

Second, the plaintiff has not alleged any intent to

engage in future political expression involving the actual or

threatened use of force or violence. See supra Part II(A)(2). Her

allegations, therefore, do not support a reasonable anticipation

that she herself will be exposed to further Riot Act prosecutions.

This is vitally important because it is the original plaintiff,

rather than some other party, who must bear the onus of repeated

exposure to the challenged conduct in order to meet the "capable of

repetition" standard. See Marchand v. Dir., U.S. Prob. Office, 421
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F.2d 331, 334 (1st Cir. 1970). Consequently, the plaintiff's asapplied claim has not been shown to be capable of repetition in the

requisite sense. 

III. CONCLUSION

We need go no further. Because the plaintiff's

expressive aspirations, as she describes them, do not give rise to

a credible threat of future prosecution under the Riot Act, she

lacked standing to mount a facial challenge to the statute. And

while she had standing to bring an as-applied challenge, that claim

became moot once the criminal charges against her vanished. Hence,

the district court did not err in dismissing the action. 

Affirmed.