United States Court of Appeals

For the First Circuit

No. 23-2062

MEREDITH O'NEIL; JESSICA SVEDINE; DEANNA CORBY; ROBERTO SILVA,

Plaintiffs, Appellants,

JENNA ROCCO; NICK ROCCO,

Plaintiffs,

v.

CANTON POLICE DEPARTMENT; TOWN OF CANTON MASSACHUSETTS; HELENA 

RAFFERTY, as Chief of the Canton Police Department and in her 

personal capacity; ROBERT ZEPF; MICHAEL CHIN; ANTHONY 

PASCARELLI; JOSEPH SILVASY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Gelpí, Lynch, and Montecalvo,

Circuit Judges.

Marc J. Randazza, with whom Jay M. Wolman and Randazza 

Legal Group, PLLC were on brief, for appellant.

Douglas I. Louison, with whom Joseph A. Mongiardo and 

Louison, Costello, Condon & Pfaff, LLP were on brief, for appellee.

September 19, 2024
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LYNCH, Circuit Judge. On November 7, 2023, appellants 

Meredith O'Neil, Jessica Svedine, Deanna Corby, and Roberto Silva

sued various Canton, Massachusetts town and police officials

seeking declaratory and injunctive relief prohibiting the 

enforcement of the Massachusetts witness intimidation statutes, 

Mass. Gen. Laws ch. 268 §§ 13A and 13B, bringing both facial and 

as-applied attacks under the First Amendment. The complaint 

alleged that the appellants feared prosecution for their actions 

during a November 5, 2023 protest and that their speech would be

chilled as to a planned protest to take place on November 12, 2023.

On the day after they filed suit, the appellants moved

for emergency relief, asking that the "[d]efendants' 

unconstitutional acts . . . be immediately enjoined by temporary 

restraining order, to be converted to a preliminary injunction 

following a hearing thereon." Defendants opposed the motion and

the district court denied the motion two days later, for the 

reasons explained below. 

Appellants took this appeal on December 10, 2023 from 

the denial of their emergency motion. We dismiss this appeal, 

which concerns only the denial of emergency relief, as moot. When

events have transpired "to render a court opinion merely advisory, 

Article III considerations require dismissal of the case." Mangual

v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003).
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I.

The background for this appeal is a separate state 

criminal prosecution brought by the Commonwealth of Massachusetts 

not against these appellants but against defendant Karen Read, 

charging her with the murder of John O'Keefe, vehicular 

manslaughter, and leaving the scene of personal injury or death. 

Read's state criminal court trial took place in April 2024 and 

ended in a mistrial. At that trial, Chris Albert, among other

witnesses, testified and was cross-examined. A new state court

trial, apparently on the same charges, is scheduled for January 

27, 2025.1 

We describe the events in chronological order. We start 

with the pleadings in appellants'2 federal court complaint: on 

November 5, 2023, before Read's criminal trial, the appellants and 

others gathered "across the street from Chris Albert's business, 

D&E Pizza" to "protest against what appear[ed] to be perjury to 

them."3 The appellants held signs on November 5 with slogans such 

as "Free Karen Reed [sic]" and "Justice." Four Canton police 

1 Read's legal team recently filed a motion to dismiss two of 

the three charges on double jeopardy grounds, which the state court 

denied. Read's legal team has appealed that denial. 

2 Jenna Rocco and Nick Rocco were also named as plaintiffs 

and have not joined this appeal. 

3 In their opening brief before this court, the appellants 

further characterized their protest as being "[to] encourage[] 

Albert to speak the truth, and to not bow to pressure to lie about 

what actually occurred on the night of O'Keefe's death." 
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officers drove by several times and then "stopped and informed the 

protestors that they were not permitted to protest there, because 

if the protest could be seen by Chris Albert, they would deem it 

to be 'witness intimidation' and [appellants] would be arrested," 

and handed the appellants a copy of Mass. Gen. Laws ch. 268 § 13A, 

which states:

Whoever, with the intent of interfering with, 

obstructing, or impeding the administration of 

justice, or with the intent of influencing any 

judge, juror, witness, or court officer, in 

the discharge of his duty, pickets or parades 

in or near a building housing a court of the 

commonwealth, or in or near a building or 

residence occupied or used by such judge, 

juror, witness, or court officer, shall be 

punished by a fine of not more than five 

thousand dollars or by imprisonment for not 

more than one year, or both.

Nothing in this section shall interfere with 

or prevent the exercise by any court of the 

commonwealth of its power to punish for 

contempt.

Appellants do not allege that the officers gave them a 

copy of Mass. Gen. Laws ch. 268 § 13B, the other Massachusetts 

witness intimidation statute that the appellants challenge. The 

statute provides (in relevant part) criminal penalties for:

Whoever willfully, either directly or 

indirectly . . . misleads, intimidates or 

harasses another person who is a: (A) witness 

or potential witness . . . with the intent to 

or with reckless disregard for the fact that 

it may: (1) impede, obstruct, delay, prevent 

or otherwise interfere with . . . a trial or 

other criminal proceeding of any type . . . or

(2) punish, harm, or otherwise retaliate 
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against any such person described in this 

section for such person or such person's 

family member's participation in any of the 

proceedings described in this section[.]

After the November 5 protests but before the allegedly 

planned November 12 protest, the appellants filed the emergency 

motion. The district court acted promptly and ruled on the 

emergency motion on November 10, 2023, denying relief. First, the 

court assumed that on the pleadings the plaintiffs had standing to 

seek relief.4

The court considered "[1] the movant[s'] likelihood of 

success on the merits of [their] claims; [2] whether and to what 

extent the movant[s] will suffer irreparable harm if the injunction 

is withheld; [3] the balance of hardships as between the parties; 

and [4] the effect, if any, that an injunction (or the withholding 

of one) may have on the public interest." Corp. Techs., Inc. v. 

Harnett, 731 F.3d 6, 9 (1st Cir. 2013) (citing Ross-Simons of 

Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996)). 

The court held that the plaintiffs had not demonstrated a 

4 "It is not clear that [these] circumstances," the court 

wrote, "show a sufficiently imminent threat of arrest as to both 

§§ 13A and 13B, particularly where Plaintiffs make no allegations 

regarding their individual conduct during the November 5, 2023 

protest or their conduct during the planned November 12, 2023 

protest." However, the court noted that "there has been no 

disavowal of Defendants not to charge Plaintiffs or that their 

interpretation of [the] statute is unreasonable[,]" so "at this 

early juncture and on the factual record before it, the Court 

assumes that Plaintiffs have met the 'extremely low' bar in this 

context[.]" 
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reasonable likelihood of success on the merits for any of their 

claims. For the as-applied challenge, the court, citing relevant 

cases, determined that "most courts have concluded that witness 

intimidation statutes such as the one at issue in this case are 

content-based and subject to strict scrutiny when applied to 

expressive conduct, because they limit speech related to a pending 

court proceeding but not speech on other subjects." The court 

reasoned that the Massachusetts witness intimidation statutes

satisfied strict scrutiny in that they "serve [] compelling 

interests in protecting the orderly administration of justice" and

were narrowly tailored to serve that interest "[e]ven as applied 

to Plaintiffs." "As alleged," the court wrote, "Plaintiffs did 

not gather in any other public location, but outside of Albert's 

place of business. There is nothing in the statute, or as applied 

to Plaintiffs, that would prohibit their gathering to do the same 

in other locations." The court rejected the appellants' associated

retaliation claim because they had not shown likelihood of success 

on the merits, in light of its conclusion that the statutes were 

likely constitutional as applied. 

The court then determined that the plaintiffs also had 

not shown they faced a risk of irreparable harm. Appellants 

represented that they decided not to move forward with a November 

12 planned protest, and "they have provided no details regarding 

the planned protest and why such protest would inevitably be viewed 
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by law enforcement as violative of §§ 13A, 13B." The district 

court noted that the "Defendants are not alleged to have issued 

any prohibition on protests related to the Read prosecution or to 

have halted any peaceful, non-threatening protests regarding the 

Read prosecution[,]" and "it is not clear that any exercise of 

free speech has been chilled where Plaintiffs have other public 

forum[s] to express their views, particularly given the widespread 

news coverage and public interest that has already been generated 

regarding [the] same." 

The district court reasoned that the "balance of harms 

between the parties and the consideration of the public interest 

also weigh against the injunctive relief that Plaintiffs seek." 

The court held that the "interest of the Plaintiffs in obtaining 

the injunctive relief weighs against the Defendants' interest in 

enforcement of law in the Town, and consideration of the public 

interest in ensuring the administration of justice, including 

interference with witnesses." 

After the denial of emergency relief, the appellants did 

not protest on November 12, 2023, and from the record before us 

have not protested since. On November 22, three of the four 

appellants -- O'Neil, Corby, and Silva -- were charged with 

violations of §§ 13A and 13B based on their November 5, 2023 
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protest, and on August 2, 2024, those charges were dismissed by 

the state court for lack of probable cause.5

II.

In light of intervening events, this court on August 7, 

2024 ordered the parties to address in filings the issue of whether 

this appeal was moot. In reply, each party filed supplemental 

briefs and statements made under the pains and penalties of 

perjury, as permitted by the order.6 Each appellant alleged

generally an intent to "continue protesting for [their] belief 

5 Svedine was apparently not among the group of protesters 

charged for the November 5 incident. 

6 Because of the chronology of events those documents and 

statements were not before the district court. As exhibits to 

appellees' supplemental appellate briefing, Canton Police 

Department documents show that O'Neil carried a sign reading "Colin 

Albert was inside the house." Helena Rafferty, Canton Chief of 

Police, stated that "[t]here are video recordings indicating 

certain individuals from the protest did not remain across the 

street and had in fact made their way in front of D&E Pizza & Subs. 

Signage observed by officers also included 'Colin Albert was in 

the house' and slogans recorded on audio included 'Chris Albert 

killed a man.'" Chief of Police Rafferty also stated, inter alia, 

that:

1. "It is not the policy or prerogative of the Canton Police 

Department to charge an individual for witness intimidation under 

[§ 13A or § 13B] merely because she holds a sign that says 'JUSTICE' 

within eyesight of a witness." 

2. "Thanks to cooperation with protest organizers, numerous 

protests have been held outside the Norfolk County District 

Attorney's office . . . and in front of the Canton Police 

Department . . . without violation of the law." 
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that Karen Read is being framed" and that "[o]nce an injunction 

enters, [they] intend to protest." 

This court then heard oral argument on September 11, 

2024 on this appeal, including on the issues of mootness. 

III.

Where "[t]he posture of the case has changed in 

significant ways since the plaintiff[s] initially made [their]

motion for a preliminary injunction," the justiciability of an 

interlocutory appeal from the denial of that motion is "called 

into question." Matos v. Clinton Sch. Dist., 367 F.3d 68, 72 (1st 

Cir. 2004). Article III limits federal court jurisdiction to 

"cases" and "controversies." U.S. Const. art. III, § 2. The

intertwined doctrines of standing and mootness help define that 

limitation, and courts "review[] these threshold questions de 

novo." N.H. Lottery Comm'n v. Rosen, 986 F.3d 38, 49 (1st Cir. 

2021) (citing Mangual, 317 F.3d at 56).

There is no question the posture of the case has now 

changed in significant and material ways: Chris Albert, the alleged 

object of appellants' activities, has now testified, and the Read 

trial resulted in a mistrial. Significantly, the state court has 

dismissed the charges against the plaintiffs under the statutes at 

issue and has determined that no probable cause for violation of 

the witness intimidation statutes existed on the facts of the 

November 5 protest. If there are any future protests, the present 
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contours of such protests are purely hypothetical. The mootness 

doctrine is based in the Article III jurisdictional requirements. 

Moore v. Harper, 600 U.S. 1, 14 (2023). Mootness occurs when 

subsequent events unfold such that standing no longer exists. See

Mangual, 317 F.3d at 60 ("The doctrine of mootness enforces the 

mandate 'that an actual controversy must be extant at all stages 

of the review, not merely at the time the complaint is filed.'") 

(quoting Steffel v. Thompson, 415 U.S. 452, 460 n.10 (1974)). 

Mootness can be viewed as "the doctrine of standing set in a time 

frame." Id. (quoting United States Parole Comm'n v. Geraghty, 445 

U.S. 388, 397 (1980)). 

To meet standing requirements, a plaintiff must 

establish "an injury in fact caused by the defendant and 

redressable by a court order." United States v. Texas, 599 U.S. 

670, 676 (2023). An injury in fact must be "concrete and 

particularized" and "actual or imminent," not "conjectural" or 

"hypothetical." Susan B. Anthony List ("SBA List") v. Driehaus,

573 U.S. 149, 158 (2014) (quoting Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560 (1992)). The witness intimidation charges as to the 

November 5 activities of appellants were dismissed for lack of 

probable cause, thus obviating any need for the court to enjoin 

behavior related to that particular conduct. That moots any claims 

for emergency relief as to those charges. See Ramirez v. Sanchez 

Ramos, 438 F.3d 92, 100 (1st Cir. 2006) (holding that the "'want 
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of probable cause' determination eradicated the threatened injury 

. . . . No more is exigible to establish mootness."). There is 

simply "no ongoing conduct left for the court to enjoin."7 Am. C.

L. Union of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 53 

(1st Cir. 2013); see also Matos, 367 F.3d at 72 (holding that where

the event that the plaintiff sought to enjoin had already occurred, 

"[t]his court lacks the power to turn back the clock and, 

accordingly, . . . the appeal is moot.").

As to the appellants' general allegations made to this 

court of an intention to protest in a manner similar to the 

November 5 protest despite the fact that Chris Albert's testimony 

has taken place and is a matter of record, these statements of 

intention do not show any likelihood of threatened prosecution.8

To establish standing for these pre-enforcement 

challenges to possible applications to the appellants of these 

statutes for undefined activity, appellants have not shown a 

7 Rafferty's affidavit notes that "[t]he Canton Police 

Department is currently reviewing its ability to appeal [the 

Stoughton District Court's findings of lack of probable cause]." 

Nonetheless, the appeal before us from the emergency motion remains 

moot. The emergency motion did not include a request to enjoin 

ongoing prosecutions; indeed, such a motion would implicate 

Younger v. Harris, which establishes that federal courts may not 

"stay or enjoin pending state court proceedings" "except under 

special circumstances." 401 U.S. 37, 41 (1971).

8 The appellants have also not alleged that Canton police 

would enforce the witness intimidation statutes in the future in 

a way that defies the state court's findings that no probable cause 

existed as to the appellants' conduct at the November 5 protest.
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likelihood of arrest and prosecution, and so fail to show that 

"there exists a credible threat of prosecution." SBA List, 573 

U.S. at 159 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 

(1979)). Standing exists only when "the threatened enforcement 

[is] sufficiently imminent."9 SBA List, 573 U.S. at 159; see also

Clapper v. Amnesty Int'l USA, 568 U.S. 398, 402 (2013) (holding no 

standing existed where alleged injury was "based on hypothetical 

future harm that is not certainly impending."). The threatened 

enforcement must also be sufficiently specific: the plaintiff must 

allege a "live controversy" about "an actual or imminent 

application of [the challenged statute] sufficient to present the 

constitutional issues in 'clean-cut and concrete form.'" Renne v. 

Geary, 501 U.S. 312, 320-22 (1991) (quoting Rescue Army v. Mun.

Ct. of L.A., 331 U.S. 549, 584 (1947)). "Allegations of a 

subjective 'chill' are not an adequate substitute for a claim of 

9 In Susan B. Anthony List v. Driehaus, the petitioners had 

adequately "alleged a credible threat of enforcement" and 

established standing only because (in relevant part) the 

"petitioners ha[d] pleaded specific statements they intend to make 

in future election cycles" that could be the subject of future 

enforcement. 572 U.S. at 161. In contrast, the appellants here 

have not pleaded the specific speech that could be the target of 

future enforcement or the context or circumstances and allege only 

a general intention to protest. Moreover, in SBA List, a state 

commission charged with enforcing the challenged statute had 

"already found probable cause to believe that SBA violated the 

statute when it stated . . . the same sort of statement petitioners 

plan to disseminate in the future." Id. at 162. Here, the state 

has done the opposite and determined that no probable cause existed 

for apellants' previous protest. 
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specific present objective harm or a threat of specific future 

harm." Blum v. Holder, 744 F.3d 790, 796 (1st Cir. 2014) (quoting 

Laird v. Tatum, 408 U.S. 1, 13-14 (1972)).10 

For the foregoing reasons, this appeal from the denial 

of the motion for emergency relief is dismissed as moot. We remand

to the district court for such further proceedings as are 

appropriate, noting that the case before the district court has 

not been dismissed and that no discovery has yet taken place. 

10 The appellees moved to strike various exhibits that the 

appellants attached to supplemental briefing before this court. 

Even considering those exhibits, they are simply insufficient to 

avoid mootness.