Christian P. Pewitt Blogs: Appeals Court Dismiss 'Gang Designation' Lawsuit Brought Against FBI By Insane Clown Posse Fans

Insane Clown Posse fans (known more commonly as Juggalos) recently brought a lawsuit against the FBI in response to its classification of the fanbase as a gang in its National Gang Threat Assessment report. While juggalos are claiming this has resulted in unfair treatment from law enforcement, the appeals court appears to be rejecting this reciprocal lawsuit.

________________________

Guest post by Tim Cushing of Techdirt

The Sixth Circuit Appeals Court has now had the dubious privilege of hosting a legal challenge by Juggalos (as fans of the Insane Clown Posse are known). The case traces back to 2014, following the FBI's 2011 designation of Juggalos as a gang in its National Gang Threat Assessment report.

This posed problems for Juggalos, thanks to local law enforcement treating fans of a band as though they were part of a crime syndicate. There appeared to be some actual injury (to use the legalese) suffered by Juggalos, who detailed additional hassling by The Man in their ACLU-aided lawsuit against the FBI.

The State Trooper indicated that he detained Parsons for an inspection because of the hatchetman logo on the truck.

The State Trooper indicated that he considered Juggalos to be a criminal gang because of the DOJ’s designation.

The State Trooper asked Parsons if he had any axes, hatchets, or other similar chopping instruments in the truck. Parsons truthfully answered that he did not.

The State Trooper continued to search the truck and interrogate Parsons for about an hour, delaying Parsons’ time-sensitive hauling work. During the search, the State Trooper did not find any weapons or contraband. The State Trooper did not issue a ticket or other citation to Parsons.

The FBI responded to the Juggalos' First Amendment complaint with "not our fault." The DOJ argued it was not responsible for any rights violations suffered by Juggalos as a result of its gang designation because it wasn't the DOJ's fault local lawmen took the contents of the gang threat assessment seriously.

Justice Department attorney Amy Powell said the group and its fans have no standing to sue. She said the government is not responsible for how police agencies use information in the 2011 national gang report. Powell said a "subjective chill" as alleged by plaintiffs was not enough to be in court.

"There is no general right of protection to a social association," she said, referring to First Amendment violations argued by Insane Clown Posse and its fans.

If so, gang reports are a waste of time and money. If law enforcement isn't supposed to take guidance from the DOJ to heart, there's really no point in the agency issuing any. It sounds exactly like the excuse the FBI deployed when questioned by the FCC about non-disclosure agreements the feds made local law enforcement sign before acquiring a Stingray device. The FBI said it was shocked (shocked!) to hear local cops and prosecutors were following the terms of the NDA they had signed.

The Sixth Circuit Court doesn't agree the plaintiffs have no standing to sue. As the court notes, sufficient allegations have been made to allow the suit to continue. But the DOJ's Plan B is going to keep the case from being pursued any further. The alternate legal theory advanced by the DOJ simply states the gang threat assessment can't be reviewed by the court. And the court agrees. From the decision [PDF]:

The district court initially granted a motion by DOJ and FBI to dismiss the case for lack of standing. We reversed that decision, finding that Appellants had alleged facts sufficient to demonstrate standing to pursue their APA claims against DOJ and FBI. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015). On remand, DOJ and FBI filed a second motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the Juggalo gang designation was not reviewable because it was not a final agency action and was committed to agency discretion by law. The district court granted the motion to dismiss, holding that the Juggalo gang designation was not a final agency action and, even if it was, it was committed to agency discretion by law.

This dovetails right into the DOJ's "not our fault" argument. The court finds the injuries suffered by the band and its fans stem directly from actions by third parties -- local law enforcement agencies -- who were not legally-bound to act on the advice given in the gang assessment report.

First, the Juggalo gang designation does not result in legal consequences because it does not impose liability, determine legal rights or obligations, or mandate, bind, or limit other government actors. As noted above, Congress directed NGIC to “collect, analyze, and disseminate gang activity information,” and to submit an annual gang-activity report to Congress. § 1107, 119 Stat. at 3093. That is the extent of NGIC’s legal authority. NGIC does not control other agencies or law-enforcement officers, nor are any agencies or law-enforcement officers required to consider the 2011 NGIC Report on gang-related issues. Instead, the 2011 NGIC Report, as the product of NGIC’s task to “collect, analyze, and disseminate,” is merely an informational agency report.

[...]

[T]he Juggalo gang designation does not result in legal consequences because the harms that Appellants suffered were caused by third parties who discretionarily relied on the gang designation. As the district court explained, each of the harms suffered by Appellants “constitutes a decision to act that rests on the shoulders of others . . . and not the Defendants or the agency action at issue in this case.” The government officials who harmed Appellants were not bound by the Juggalo gang designation nor were they required to consider the 2011 NGIC Report. Thus, the government officials’ actions are not direct consequences of the Juggalo gang designation in the 2011 NGIC Report, but are the product of their own independent decision-making.

This would seem to invite the filing of handful of lawsuits against the individual agencies that violated the Juggalos' rights. If the locals weren't legally-bound to take the FBI's Juggalo gang designation to heart, it seemingly follows they should be liable for any legal injuries caused. The problem with taking this route is that it would allow law enforcement agencies to defer to the FBI's gang guidance. Under the same circumstances, the allegations of additional hassling by law enforcement officers would likely be waved away by assertions of good faith reliance on DOJ threat assessment reports. They're not "bound" by the report, but they can likely rely on it to make threat determinations that result in longer, more explorative interviews and traffic stops. It's lose-lose for Juggalos if the court's going to allow the DOJ to give law enforcement agencies information (no matter how unreliable) and then claim it has zero responsibility for choices made by end users.