In Havens v. James, No.20-664_(2d Cir. Aug. 4, 2023), a split Second Circuit panel holds that under Fed. R. Civ. R. 65(d)(2), that for a non-party to be subject to an injunction as acting in “active concert or participation,” they must act with the purpose of benefiting or assisting an enjoined party. The panel majority holds that a sidewalk abortion counselor who arrived on the scene twelve years after an injunction was entered is not bound by its terms, despite his having some possible entanglements with the original defendants.
“In 2005, a federal district court entered a permanent injunction against several pro-life advocates. The ‘Arcara Injunction,’ named after the district judge who issued it, enjoined the named defendants from, among other things, entering the public sidewalk within fifteen feet of the entrance of any abortion clinic in the Western District of New York and from aiding and abetting others to do the same.
“Twelve years later, in 2017, Plaintiff-Appellant [Havens] began sidewalk counseling near the Planned Parenthood facility in Rochester, New York. Havens invited others to join him, and they eventually formed an association, ROC Love Will End Abortion (‘ROC’). Havens, who was neither a party to the Arcara Injunction nor aware of it, did not avoid the fifteen-foot buffer zone defined in the Arcara Injunction.” City police took a hands-off approach at first, but eventually warned that Havens might be arrested if he violated the fifteen-foot buffer.
To avoid possible criminal liability, Havens filed an action seeking declaratory relief, an injunction, and nominal damages. He argued that because he was neither named in the Arcata Injunction, nor acting in concert with any named parties in that case, he could not be bound by the injunction under the terms of Fed. R. Civ. P. 65(d). That rule provides, in relevant part, that an injunction binds only the parties to the injunction; their officers, agents, and employees acting in that capacity; and those “who are in active concert or participation” with the enjoined parties to violate the injunction. Fed. R. Civ. P. 65(d)(2).
The district court dismissed the action for failure to state a claim, holding that Havens, “although not a party to the Arcara Injunction, gave ‘benefit[]’ to several named parties and was therefore ‘in active concert or participation’ with those parties when he ‘sidewalk counseled’ within the fifteen-foot buffer zone.” The district court denied the injunction as moot in light of dismissal of the underlying suit.
The Second Circuit reverses the dismissal and remands for a hearing on a preliminary injunction. The panel starts with the long-standing principle in equity that injunctions do not bind non-parties. Citing Rule 65(d)(2), the panel majority notes two exceptions to that rule: parties (1) “legally identified” with or (2) being in “active concert or participation” with an enjoined party. That majority holds, on the face of the complaint, that Havens falls into neither exception.
The main ground advanced by the defendants for binding Havens was “active concert or participation,” i.e., an aiding-and-abetting theory. (The “legally identified” ground is dispensed with in a brief footnote.) The panel majority holds that for such liability, a court must find that “the challenged action” of the nonparty “was taken for the benefit of, or to assist, a party subject to the decree” in violating the injunction. The panel majority here cites a wide range of district court cases, older authority, out-of-circuit cases, and academic works. It also analogizes to criminal aiding-and-abetting, requiring a specific intent to advance a criminal offence. It also distinguishes Second Circuit authority that facially suggests a less-restrictive standard.
The panel majority holds that only one allegation in the complaint in this case suggests a connection between Havens and the enjoined party: “Havens held sidewalk counseling trainings at Focus Pregnancy Help Center, an organization with which Jost [an enjoined party] is associated.” But the panel majority holds that at the complaint stage, Havens did not concede that connection, but merely alleged it (in quotation marks) as background for the city’s acting against him.
The panel also holds Havens cannot be bound by the Arcara Injunction on the alternative theory that the enjoined parties promoted Havens’ sidewalk counseling on social media. “The Arcara Injunction does not expressly prohibit . . . promoting sidewalk counseling, and on a motion to dismiss—making all inferences in favor of the plaintiff—we cannot conclude that making supportive Facebook posts amounts to aiding and abetting.”
“Rule 65(d) establishes a general rule that nonparties may not aid and abet named parties to violate an injunction. That general rule does not require us to hold that Rule 65(d) creates aiding-and-abetting liability for every aspect of every injunction a district court might devise. When an injunction prohibits the named party from aiding and abetting nonparties, Rule 65(d) does not create an additional layer of aiding-and-abetting liability for nonparties, especially when the nonparty is the principal actor in the underlying conduct.”
Dissenting, Judge Lohier not only rejects the majority’s legal analysis, but cautions that the majority’s narrow construction of “active concert and participation” will haunt future enforcement of injunctions. “[T]he decision … defines ‘active concert and participation’ so narrowly as to render Rule 65(d)(2)(C) practically meaningless. Few bound by an injunctive decree will have much trouble enlisting a nonparty to do what they are unable to do directly. It is unclear to me how district courts will be able to meaningfully enforce their decrees against clever and devoted parties with clever and devoted friends.”
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