OPINION: Judge exposes activist group’s dubious legal tactic
By Mitch Kokai, Senior Policy Analyst, John Locke Foundation
The activist group Emancipate NC can continue to work with Raleigh residents fighting police in federal court over a 2020 raid. But the group cannot continue to take part in the case as a plaintiff.
U.S. District Judge Terrence Boyle’s March 13 decision to remove Emancipate NC from the lawsuit helped expose a dubious legal tactic.
Emancipate NC has been active in recent policy debates in Raleigh and at the N.C. General Assembly. The group’s Kerwin Pittman attracted attention earlier in March when he called out Democrats who supported a bill to increase criminal penalties for riots and looting.
“My message is to any Dems who want to sign on to this type of legislation: Make no mistake — we’ve organized from one end of the state to the other, and you will be held accountable for sponsoring, as well as supporting, this type of legislation that distinctly targets marginalized communities.”
The message did not stop the bill. Gov. Roy Cooper recently allowed it to become law without his signature.
In addition to state legislation, Emancipate NC has targeted local law enforcement policies. The group has opposed Raleigh police using “no-knock” search warrants. It’s working with plaintiffs seeking damages in connection with a May 2020 raid on the wrong home.
Beyond supporting individuals affected by the raid, the group also added its name to the list of plaintiffs. That action didn’t survive Boyle’s analysis.
“The issue here is whether Emancipate NC has suffered an injury in fact,” Boyle wrote in an order in the case, titled Irving v. City of Raleigh. “An organization is not injured by simply diverting resources to address an ‘abstract concern with a subject.’”
“Here, it is not enough that RPD’s alleged no-knock policy was inconsistent with Emancipate’s mission,” Boyle added. “Emancipate must show that defendants’ conduct impeded Emancipate from carrying out its mission.”
“[I]t is clear that Emancipate was not injured in fact,” Boyle wrote. “Emancipate’s mission is to end mass incarceration and racism in the legal system. Emancipate claims that it diverted resources to oppose RPD’s policy of executing no-knock warrants. According to Emancipate, this diversion of resources prevented it from addressing other issues, causing Emancipate injury in fact.”
That’s not enough to give the group legal standing to participate in a federal lawsuit.
“Emancipate may have diverted resources to challenge defendant’s conduct, but that budgetary decision does not qualify as injury in fact,” the judge explained. “Emancipate does not have standing because it has not shown that defendants’ actions impeded Emancipate from performing its mission.”
Granting standing in this case could have opened the door for other questionable federal complaints.
“Indeed, if Emancipate had standing here, it would follow that any organization with an ‘abstract concern’ in an adjudication could establish standing by diverting resources to oppose a defendant’s actions,” Boyle wrote. “Such a principle is inconsistent with both the law and common sense.”
The judge’s ruling does not prevent the group from helping individual plaintiffs. Boyle is not stopping Emancipate NC from lobbying Raleigh City Council or police and city government officials. The order does not prevent Pittman from taking his complaints about “no-knock” policies to the halls of the General Assembly.
But the group cannot use Boyle’s courtroom to pursue its policy goals.
The judge’s words set no precedent for other cases. But perhaps Boyle has offered useful guidance for judges who can set precedents in state and federal courts.
Emancipate NC is not the first activist group to file suit when challenging a policy or law. As Boyle noted, “Like an individual plaintiff, an organizational plaintiff must show standing.”
Standing, or the right to bring a complaint to a federal court, requires three elements, he wrote. The group must have suffered “an injury in fact.” That injury must be “fairly traceable” to the defendant’s “alleged misconduct.” That injury must be “likely to be redressed” if the court offers a favorable ruling.
From the N.C. federal judge’s perspective, “diverting resources” to challenge a disputed government decision doesn’t count as an injury. Nor should it. Groups working in the public policy arena make decisions every day that require them to shift resources from one priority to another.
Those decisions help them craft the best possible arguments for their selected causes. Those decisions help them avoid wasting resources on lower-priority items. Those decisions allow them to use their donors’ money in the most efficient way.
But there’s no good reason for those funding priority decisions to count as a legal “injury.”
Boyle made the right decision about Emancipate NC. Other judges would be wise to follow suit.
Mitch Kokai is senior political analyst for the John Locke Foundation.
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