USCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 1 of 65
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 19-13604
`________________________
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`D.C. Docket No. 0:15-cv-60185-WJZ
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`FORT LAUDERDALE FOOD NOT BOMBS,
`NATHAN PIM,
`JILLIAN PIM,
`HAYLEE BECKER,
`WILLIAM TOOLE,
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` Plaintiffs - Appellants,
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` versus
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`CITY OF FORT LAUDERDALE,
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` Defendant - Appellee.
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`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`________________________
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`(August 31, 2021)
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`Before LAGOA, HULL, and MARCUS, Circuit Judges.
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`MARCUS, Circuit Judge:
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` [PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 19-13604
`________________________
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`D.C. Docket No. 0:15-cv-60185-WJZ
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`FORT LAUDERDALE FOOD NOT BOMBS,
`NATHAN PIM,
`JILLIAN PIM,
`HAYLEE BECKER,
`WILLIAM TOOLE,
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` Plaintiffs - Appellants,
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` versus
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`CITY OF FORT LAUDERDALE,
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` Defendant - Appellee.
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`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`________________________
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`(August 31, 2021)
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`Before LAGOA, HULL, and MARCUS, Circuit Judges.
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`MARCUS, Circuit Judge:
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`This case presents the second appellate skirmish in Fort Lauderdale Food
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`Not Bombs’s (“FLFNB”) challenge to Fort Lauderdale’s efforts to shut down the
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`practice of sharing food with the homeless in downtown Stranahan Park. FLFNB
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`hosts food-sharing events in order to communicate the group’s message that scarce
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`social resources are unjustly skewed towards military projects and away from
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`feeding the hungry. In Round One, a panel of this Court held FLFNB’s food
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`sharing to be expressive conduct protected by the First Amendment and remanded
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`the case to the district court to address whether the City’s regulations actually
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`violated the First Amendment. Now, in Round Two, we must decide whether Fort
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`Lauderdale Park Rule 2.2, which requires City permission for social service food-
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`sharing events in all Fort Lauderdale parks, can withstand First Amendment
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`scrutiny as applied to FLFNB’s demonstrations.
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`It cannot. The Park Rule commits the regulation of FLFNB’s protected
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`expression to the standardless discretion of the City’s permitting officials. The
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`Park Rule bans social service food sharing in Stranahan Park unless authorized
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`pursuant to a written agreement with Fort Lauderdale (the “City”). That’s all the
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`rule says. It provides no guidance and in no way explains when, how, or why the
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`City will agree in writing. As applied to FLFNB’s protected expression, it violates
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`the First Amendment. It is neither narrowly drawn to further a substantial
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`government interest that is unrelated to the suppression of free expression, nor, as
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`applied, does it amount to a reasonable time, place, and manner regulation on
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`expression in a public forum. Accordingly, we reverse the district court’s order
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`granting summary judgment in favor of the City and remand for further
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`proceedings consistent with this opinion.
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`I.
`A.
`Fort Lauderdale Food Not Bombs is a nonprofit unincorporated association
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`affiliated with the international advocacy organization Food Not Bombs. FLFNB
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`advocates the message “that food is a human right, not a privilege, which society
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`has a responsibility to provide for all.” Fort Lauderdale Food Not Bombs v. City
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`of Fort Lauderdale, 901 F.3d 1235, 1238 (11th Cir. 2018) (“FLFNB I”).
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`At the center of FLFNB’s efforts are its weekly food sharing events in Fort
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`Lauderdale’s downtown Stranahan Park. Stranahan Park “is known in the
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`community as a location where the homeless tend to congregate and, according to
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`FLFNB, ‘has traditionally been a battleground over the City’s attempts to reduce
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`the visibility of homelessness.’” Id. “At these events, FLFNB distributes
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`vegetarian or vegan food, free of charge, to anyone who chooses to participate.
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`FLFNB does not serve food as a charity, but rather to communicate its message
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`‘that [ ] society can end hunger and poverty if we redirect our collective resources
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`from the military and war . . . .’ Providing food in a visible public space, and
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`partaking in meals that are shared with others, is an act of political solidarity meant
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`to convey the organization’s message.” Id.
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`“FLFNB sets up a table underneath a gazebo in the park, distributes food,
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`and its members . . . eat together with all of the participants, many of whom are
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`homeless individuals residing in the downtown Fort Lauderdale area. FLFNB’s
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`set-up includes a banner with the name ‘Food Not Bombs’ and the organization’s
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`logo -- a fist holding a carrot -- and individuals associated with the organization
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`pass out literature during the event.” Id. This includes flyers to convey FLFNB’s
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`social-justice message that all who are hungry deserve food.
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`B.
`Sometime before 2000, the City of Fort Lauderdale promulgated Park Rule
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`2.2:
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`Parks shall be used for recreation and relaxation, ornament, light and
`air for the general public. Parks shall not be used for business or social
`service purposes unless authorized pursuant to a written agreement with
`City. As used herein, social services shall include, but not be limited
`to, the provision of food, clothing, shelter or medical care to persons in
`order to meet their physical needs.
`Some years ago, Arnold Abbott, who led a program to feed the homeless on a
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`public Fort Lauderdale beach, obtained a state-court injunction against the Park
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`Rule on the ground that it violated Florida’s Religious Freedom Restoration Act,
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`Fla. Stat. § 761.03. (Abbott is not affiliated with FLFNB.) The injunction required
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`the City to either stop enforcing the Park Rule, designate an area in which Abbott
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`could lawfully distribute food, or specify objective criteria for permitted food-
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`sharing locations. See Abbott v. City of Fort Lauderdale, 783 So. 2d 1213, 1215
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`(Fla. Dist. Ct. App. 2001).
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`The City stopped enforcing the Park Rule until October 22, 2014, when it
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`enacted Ordinance C-14-42 to amend the Fort Lauderdale Uniform Land
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`Development Regulations (“ULDR”). The City enacted this ordinance at least in
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`part as an effort to bring itself into compliance with the state-court injunction so
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`that it could resume enforcement of the Park Rule. In the years leading up to the
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`enactment of Ordinance C-14-42, some citizens had complained about a series of
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`problems they believed to be associated with feeding the homeless in public
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`spaces, including safety risks, a lack of proper water and restroom facilities, and
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`the negative impact this conduct may have on surrounding communities. In
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`January 2014, the City Commission held a workshop on the “the homeless
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`population in the City of Fort Lauderdale,” where stakeholders debated public food
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`distribution and related issues.
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`Ordinance C-14-42, as relevant here, (1) defines an Outdoor Food
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`Distribution Center as “[a]ny location or site temporarily used to furnish meals to
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`members of the public without cost or at a very low cost as a social service”; (2)
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`defines “social service[]” as “[a]ny service provided to the public to address public
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`welfare and health such as, but not limited to, the provision of food; hygiene care;
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`group rehabilitative or recovery assistance, or any combination thereof;
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`rehabilitative or recovery programs utilizing counseling, self-help or other
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`treatment or assistance; and day shelter or any combination of same”; and (3)
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`requires a conditional use zoning permit for the operation of an Outdoor Food
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`Distribution Center in Stranahan Park.1 The other city parks in Fort Lauderdale (of
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`which there are more than 90, City of Fort Lauderdale, City Parks,
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`https://www.fortlauderdale.gov/departments/parks-recreation/city-parks (last
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`visited June 29, 2021)) are zoned so that public food-sharing events are not
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`allowed at all, even by permit. Thus, the Ordinance prohibits social service food
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`distribution in most parks and does not provide for food sharing as of right in any
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`park.
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`To obtain a conditional use permit, an individual or group must wind
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`through a lengthy process for receiving a zoning variance. This involves an initial
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`application to the Development Review Committee (which meets twice a month);
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`upon approval, a subsequent submission and presentation to the Planning and
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`Zoning Board (which meets once a month); and then a subsequent review by the
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`1 Ordinance C-14-42 implemented these regulations of outdoor food distribution by adding new
`provisions -- ULDR §§ 47-1B.31(B)(4), (C)(2)(c) -- and by making additions to ULDR §§ 47-
`6.12; 47-6.13; 47-7.10; 47-8.10; 47-8.11; 47-8.12; 47-8.13; and 47-13.10. We refer to these
`specific components of Ordinance C-14-42 -- those that regulate outdoor food distribution -- as
`the “Ordinance.” Other provisions of Ordinance C-14-42 regulate other social services not
`relevant to this case, such as providing addiction treatment centers. The constitutionality of the
`other provisions of Ordinance C-14-42 is not before this Court.
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`City Commission. The City Commission has 30 days to decide whether to conduct
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`its own review of the application; if the City Commission does not, the application
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`is considered approved and returns to the Development Review Committee for a
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`check to make sure the final permit is the same as the plan the Zoning Board
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`approved. There is no deadline for a permit to issue, and the City’s zoning
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`administrator could not provide an average time for resolving applications.
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`Applicants must pay a fee for City staff time spent reviewing an application; the
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`fee can rise as high as $6,000, which the City may reduce in its unguided
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`discretion.
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`Permitting requirements for outdoor food distribution include that the
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`proposed activities must not impose a nuisance or cause a change to the character
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`of the area, that the use be 500 feet away from similar uses and residential
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`property, that food be timely served and stored at safe temperatures, that a certified
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`food service manager attend the event, and that the site provide handwashing,
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`wastewater disposal, and restroom facilities.
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`Soon after the Ordinance passed, the City began enforcing it along with the
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`Park Rule. Police officers interrupted and stopped an FLFNB demonstration in
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`Stranahan Park on November 7, 2014. On that day, the city arrested and cited
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`FLFNB members and other demonstrators for violating both the Ordinance and the
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`Park Rule. The City also issued citations to participants in FLFNB demonstrations
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`on November 14 and November 21. FLFNB members Nathan Pim, Jillian Pim,
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`Haylee Becker, and William Toole were not personally arrested or cited, but were
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`present at each of these events and witnessed their co-demonstrators being arrested
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`and cited on November 7 and November 14. They did not directly witness any
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`arrests or citations at the November 21 event; police later delivered a citation to the
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`home of a participant in that demonstration.
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`The City also enforced the Ordinance and the Park Rule against Abbott, who
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`moved the state court for an order to enforce its 2000 injunction and halt
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`enforcement. See Mot. to Enforce Inj., Abbott v. City of Fort Lauderdale, No. 99-
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`03583 (05), Dkt. No. 37 (Fla. Cir. Ct. Nov. 12, 2014). The Seventeenth Judicial
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`Circuit Court in Broward County issued a temporary stay on December 2, 2014,
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`and the City stopped enforcing the Ordinance along with the Park Rule. Even
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`though the state-court stay expired on January 1, 2015, the City voluntarily
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`continued its non-enforcement, and has not enforced the Ordinance or the Park
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`Rule since. FLFNB continues to hold weekly food-sharing demonstrations in
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`Stranahan Park.
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`C.
`Soon after the state-court stay expired, on January 29, 2015, FLFNB and
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`members Nathan Pim, Jillian Pim, Haylee Becker, and William Toole (the
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`“Individual Plaintiffs,” and, together with FLFNB, the “Plaintiffs”) sued the City
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`in the United States District Court for the Southern District of Florida pursuant to
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`42 U.S.C. § 1983. They alleged that the Ordinance and the Park Rule violated
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`their First Amendment rights to free expression and expressive association, and
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`that these regulations were unconstitutionally vague, both facially and as applied.
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`The Plaintiffs sought declaratory and injunctive relief as well as compensatory
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`damages.
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`After discovery, the parties cross-moved for summary judgment. The
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`district court granted the City’s motion on all claims, holding that FLFNB’s food-
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`sharing was not expressive conduct entitled to First Amendment protection. Fort
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`Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 15-60185-CIV, 2016
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`WL 11700270, at *9 (S.D. Fla. Sept. 30, 2016). In an analysis heavily influenced
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`by its initial holding that FLFNB was not engaged in expressive conduct, the
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`district court concluded that the Ordinance and the Park Rule did not infringe on
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`the Plaintiffs’ rights to expressive association. Id. Finally, the district court held
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`that the Ordinance and the Park Rule were not unconstitutionally vague. The court
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`acknowledged that this holding was also influenced by its conclusion that FLFNB
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`was not engaged in expressive conduct. Id. at *10.
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`The Plaintiffs appealed the trial court’s judgment to this Court. On
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`November 7, 2017, while the appeal was pending, the City repealed the Ordinance
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`insofar as it regulated outdoor food distribution. However, Fort Lauderdale did not
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`repeal the Park Rule, which remains on the books.
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`In Round One, a panel of this Court reversed the district court’s summary
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`judgment order. FLFNB I, 901 F.3d at 1245. We applied the two-part inquiry
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`drawn from Spence v. Washington, 418 U.S. 405, 410–411 (1974), and held that
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`FLFNB’s demonstrations were expressive conduct protected by the First
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`Amendment. FLFNB I, 901 F.3d at 1240–43. First, the panel had little difficulty
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`concluding that FLFNB “inten[ded] to convey a particularized message” with its
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`food sharing events. Id. at 1240 (quoting Spence, 418 U.S. at 410–411). FLFNB
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`shared food in order “to convey that all persons are equal, regardless of socio-
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`economic status, and that everyone should have access to food as a human right.”
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`Id. at 1240–41.
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`Next, the panel closely examined the circumstances surrounding FLFNB’s
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`food sharing in order to apply the second part of the Spence inquiry -- whether a
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`“reasonable person would interpret FLFNB’s food sharing events ‘as some sort of
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`message.’” Id. at 1242 (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d
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`1252, 1270 (11th Cir. 2004)). We held that five circumstances surrounding
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`FLFNB’s events would lead a reasonable observer to discern a message. First,
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`FLFNB wasn’t just a group of acquaintances eating together in a park -- it adorned
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`its events with tables and banners and distributed literature explaining its political
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`message. Second, the events had “social implications” because they were open to
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`all comers. Id. Third, FLFNB held its food sharings “in Stranahan Park, a public
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`park near city government buildings.” Id. Public parks, the panel noted, are
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`“historically associated with the exercise of First Amendment rights.” Id. (citation
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`omitted). Fourth, treatment of the homeless was an issue of substantial public
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`concern and discussion in the Fort Lauderdale community. Indeed, the City had
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`held a public workshop on the issue, and local media had covered “the status of the
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`City’s homeless population” for years. Id. Fifth, the sharing of food with others in
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`order to communicate a message was a tradition that “date[d] back millennia.” Id.
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`at 1243. All of these circumstances combined to “put[] FLFNB’s food sharing
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`events on the expressive side of the ledger.” Id. at 1242.
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`Since each of the district court’s merits holdings had turned in substantial
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`part on its erroneous conclusion about expressive conduct, the panel remanded the
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`case for the district court to reconsider these issues as well as to address in the first
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`instance whether the Ordinance and the Park Rule violated the First Amendment.
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`Id. at 1245 & n.2.
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`On remand, the district court took supplemental briefing, including on the
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`effect of the repeal of the Ordinance. For a second time, the district court entered
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`summary judgment in favor of the City. The court held that the Plaintiffs had
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`standing based on the City’s disruption of their events, and that FLFNB was a
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`“person” with a cause of action under 42 U.S.C. § 1983. The court noted that
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`while the repeal of the Ordinance mooted the Plaintiffs’ claims for declaratory and
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`injunctive relief against the Ordinance, the court still had to rule on its
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`constitutionality because the Plaintiffs also sought compensatory damages. Next,
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`the district court held that even accepting FLFNB I’s binding holding that the
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`Ordinance and the Park Rule interfered with the Plaintiffs’ expressive conduct,
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`both regulations passed First Amendment muster as lawful, content-neutral time,
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`place, and manner regulations.
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`As for the Plaintiffs’ claims that the Ordinance and the Park Rule’s
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`permitting requirements acted as a prior restraint by giving City officials unguided
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`discretion to block their expression, the district court observed that the regime was
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`“somewhat suspect.” After all, Fort Lauderdale’s officials could charge as much
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`as $6,000 for the permitting process but could reduce that amount in any way if
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`they “fe[lt]” it appropriate. Meanwhile, the Park Rule did not provide any
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`standards to guide the exercise of discretion in determining whether to provide
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`City permission to share food in the park. Even so, the district court concluded
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`that the permitting schemes were not subject to either as-applied or facial
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`challenges, because the Plaintiffs never applied for a permit and because the
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`regulations were “laws . . . of general application” that did not directly regulate
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`protected expression. The district court also rejected the Plaintiffs’ expressive
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`association arguments, reasoning that the regulations “impose a content-neutral
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`restriction on a kind of expressive conduct that is only incidentally associative.”
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`Finally, the trial court held that the terms found in the Ordinance and in the Park
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`Rule, such as “social service,” were not unconstitutionally vague.
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`Again, the Plaintiffs timely appealed to this Court.
`II.
`Before we can consider the merits of the Plaintiffs’ claims, we are required
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`to address three threshold matters. As for the first one, we conclude that FLFNB is
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`a “person” and therefore a proper plaintiff under § 1983 of Title 42. Second, as for
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`the City’s Ordinance, the Plaintiffs’ claims for injunctive and declaratory relief are
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`moot; however, their monetary damages claims arising out of the enforcement of
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`the Ordinance are not. Finally, all of the Plaintiffs have standing to bring their
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`remaining claims. Our review on each of these issues is de novo. See Hoever v.
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`Marks, 993 F.3d 1353, 1357 (11th Cir. 2021); Taylor v. Polhill, 964 F.3d 975, 980
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`(11th Cir. 2020); Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320,
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`1328 (11th Cir. 2004).
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`A.
`First, the City argues that FLFNB, as an unincorporated association, is not a
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`“person” that may bring suit under § 1983, which provides in relevant part:
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`Every person who, under color of any statute, ordinance, regulation,
`custom, or usage, of any State or Territory or the District of Columbia,
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`subjects, or causes to be subjected, any citizen of the United States or
`other person within the jurisdiction thereof to the deprivation of any
`rights, privileges, or immunities secured by the Constitution and laws,
`shall be liable to the party injured in an action at law, suit in equity, or
`other proper proceeding for redress, except that in any action brought
`against a judicial officer for an act or omission taken in such officer’s
`judicial capacity, injunctive relief shall not be granted unless a
`declaratory decree was violated or declaratory relief was unavailable.
`42 U.S.C. § 1983 (emphasis added). There is some historical support for the City’s
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`reading, but this view stands in tension with the text’s ordinary meaning, Supreme
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`Court precedent, successive amendments to § 1983, and longstanding, settled
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`practice. Absent clear direction from the Supreme Court, we decline the City’s
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`invitation to bar all unincorporated associations (other than unions) from being
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`able to sue under § 1983.
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`“As with any statutory interpretation question, our analysis ‘must begin, and
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`usually ends, with the text of the statute.’” United States v. Stevens, 997 F.3d
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`1307, 1314 (11th Cir. 2021) (citation omitted). When examining the phrase “any
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`citizen of the United States or other person,” “person” must refer to something
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`beyond individuals who are United States citizens; otherwise, the term would be
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`redundant. See, e.g., Corley v. United States, 556 U.S. 303, 314 (2009) (noting
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`that “one of the most basic interpretive canons” is “that ‘[a] statute should be
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`construed so that effect is given to all its provisions, so that no part will be
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`inoperative or superfluous, void or insignificant’”) (citation omitted and alteration
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`accepted). At the very least, the phrase extends a § 1983 cause of action to non-
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`14
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`citizen individuals. Congress enacted Section 1 of the Civil Rights Act of 1871
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`(also known as the Ku Klux Klan Act), the original version of what is now § 1983,
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`in order to enforce the Fourteenth Amendment. See, e.g., Ngiraingas v. Sanchez,
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`495 U.S. 182, 187 (1990). The word “person” in the Fourteenth Amendment
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`includes not only citizens but also non-citizens within the United States. E.g.,
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`Graham v. Richardson, 403 U.S. 365, 371 (1971); see also Hague v. Comm. for
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`Indus. Org., 307 U.S. 496, 526 (1939) (opinion of Stone, J.) (“It will be observed
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`that the cause of action, given by [Section 1 of the 1871 Civil Rights Act], extends
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`broadly to . . . those rights secured to persons, whether citizens of the United States
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`or not, to whom the [Fourteenth] Amendment in terms extends the benefit of the
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`due process and equal protection clauses.”). We also know that the word “person”
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`in § 1983 extends to corporations, both municipal and otherwise. See Monell v.
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`Dep’t of Soc. Servs., 436 U.S. 658, 687, 690 (1978). Indeed, in Monell, the
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`Supreme Court observed that “by 1871, it was well understood that corporations
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`should be treated as natural persons for virtually all purposes of constitutional and
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`statutory analysis.” Id. at 687.
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`However, the Supreme Court has also ruled that Native American Tribes
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`seeking to vindicate sovereign rights, States, State officers acting in their official
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`capacities, Territories, and Territory officers acting in their official capacities are
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`not “persons.” Inyo Cnty. v. Paiute-Shoshone Indians of the Bishop Cmty. of the
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`Bishop Colony, 538 U.S. 701, 712 (2003) (reasoning that § 1983 “was designed to
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`secure private rights against government encroachment” to reach this conclusion in
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`the case of a Tribe suing to vindicate its right to sovereign immunity from state
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`process); Ngiraingas, 495 U.S. at 187–92 (examining historical sources and the
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`context surrounding amendments to § 1983 to reach this conclusion with respect to
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`Territories and their officers); Will v. Mich. Dep’t of State Police, 491 U.S. 58,
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`64–67 (1989) (relying on federalism concerns, the Eleventh Amendment, and the
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`“often-expressed understanding that ‘in common usage, the term ‘person’ does not
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`include the sovereign, and statutes employing the word are ordinarily construed to
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`exclude it’” to reach this conclusion regarding States and their officials)
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`(alterations accepted and citation omitted). Monell, Ngiraingas, and Will each
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`interpreted the first use of the word “person” in § 1983, which relates to which
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`entities may be proper § 1983 defendants -- “[e]very person” who under color of
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`law causes a deprivation of federal rights shall be liable to the party injured. By
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`contrast, today we interpret § 1983’s second use of the word “person” -- “any
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`citizen or other person” -- a phrase that delineates which entities may be proper §
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`1983 plaintiffs. But these cases are nonetheless instructive, because we “generally
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`presume that ‘identical words used in different parts of the same act are intended to
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`have the same meaning.’” United States v. Cleveland Indians Baseball Co., 532
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`U.S. 200, 213 (2001) (citation omitted).
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`16
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`USCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 17 of 65
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`In order to decide whether FLFNB has a cause of action in this case, we
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`must determine whether “other persons,” in addition to including non-citizen
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`individuals and corporate entities, extends to unincorporated associations. The
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`words “other person,” by themselves, do not definitively answer the question. Cf.
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`Ngiraingas, 495 U.S. at 187 (“[Section 1983] itself obviously affords no clue as to
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`whether its word ‘person’ includes a Territory.”). Unlike sovereign entities, there
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`is no presumption that unincorporated associations are not persons. To the
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`contrary, the ordinary meaning of “person” in legal contexts includes
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`unincorporated associations. See Antonin Scalia & Bryan A. Garner, Reading
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`Law: The Interpretation of Legal Texts 273 (2012) (“Traditionally the word person
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`. . . denotes not only natural persons (human beings) but also artificial persons such
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`as corporations, partnerships, associations, and both public and private
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`organizations.”) (second emphasis added). Thus, the most natural reading of §
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`1983 extends a cause of action to unincorporated associations.
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`
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`On the other hand, we “normally interpret[] a statute in accord with the
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`ordinary public meaning of its terms at the time of its enactment.” Bostock v.
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`Clayton Cnty., 140 S. Ct. 1731, 1738 (2020). And in 1871, unincorporated
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`associations were not legal persons with the capacity to sue or be sued absent some
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`express authorization. United Mine Workers of Am. v. Coronado Coal Co., 259
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`U.S. 344, 385 (1922) (“Undoubtedly at common law an unincorporated association
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`
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`17
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`USCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 18 of 65
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`of persons was not recognized as having any other character than a partnership in
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`whatever was done, and it could only sue or be sued in the names of its members,
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`and their liability had to be enforced against each member.”); Wesley A. Sturges,
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`Unincorporated Associations as Parties to Actions, 33 Yale L.J. 383, 383 (1924)
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`(citing authorities dating as far back as 1884 to observe that “[t]he cases are
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`remarkably in accord that, in the absence of enabling statute, an unincorporated
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`association cannot sue or be sued in the common or association name”).
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`
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`Moreover, reading the word “person” to exclude unincorporated associations
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`is fully consonant with the 1871 version of the Dictionary Act, which expressly
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`limited “person” to “bodies politic and corporate.” See, e.g., Will, 491 U.S. at 69
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`n.8. The Dictionary Act -- a statute that provides general definitions for common
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`terms used across the United States Code, see 1 U.S.C. § 1 -- did not expand to
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`include “associations” until 1948. See Act of June 25, 1948, Pub. L. No. 80-772, §
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`6, 62 Stat. 683, 859 (1948); Lippoldt v. Cole, 468 F.3d 1204, 1214 (10th Cir.
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`2006). The 1871 Dictionary Act definition matches the definition of “person”
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`found in the first edition of Black’s Law Dictionary, published in 1891, which
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`confirms that an entity needed some express authorization in positive law to
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`achieve legal personhood. Person, Black’s Law Dictionary (1891) (“Persons are
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`divided by law into natural and artificial. Natural persons are such as the God of
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`nature formed us; artificial are such as are created and devised by human laws, for
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`
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`18
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`USCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 19 of 65
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`the purposes of society and government, which are called ‘corporations’ or ‘bodies
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`politic.’”).
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`What’s more, the legislative history surrounding the adoption of the 1871
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`Civil Rights Act does not suggest any departure from the established legal meaning
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`of “person” as it related to the capacity to sue in 1871. See Monell, 436 U.S. at
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`690 (analyzing the legislative history of Section 1 to interpret § 1983). The
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`drafters of Section 1 of the 1871 Civil Rights Act likely did not contemplate that
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`unincorporated associations were “persons” under the Act. The Republican
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`sponsors of the Civil Rights Act were aghast at reports of widespread vigilante
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`violence against federal officials, northern transplants, Blacks, and Republicans in
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`the post-war South. These attacks, they believed, were the work of recalcitrant
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`Confederates, including individuals organized as the Ku Klux Klan, who faced
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`only weak opposition from ineffectual state officials. See, e.g., Cong. Globe, 42d
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`Cong., 1st Sess., 320 (1871) (hereinafter “Globe”) (Rep. Stoughton) (“There exists
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`at this time in the southern States a treasonable conspiracy against the lives,
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`persons, and property of Union citizens, less formidable it may be, but not less
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`dangerous, to American liberty than that which inaugurated the horrors of the
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`rebellion.”); id. at 820 (Sen. Sherman) (observing that the bill was based on the
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`fact that “an organized conspiracy, spreading terror and violence, murdering and
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`scourging both white and black, both women and men, and pervading large
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`
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`19
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`USCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 20 of 65
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`communities of this country, now exists unchecked by punishment, independent of
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`law, uncontrolled by magistrates” and that “of all the multitude of injuries not in a
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`single case has redress ever been meted out to one of the multitude who has been
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`injured”).
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`Section 1 itself “was the subject of only limited debate and was passed
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`without amendment.” Monell, 436 U.S. at 665. At most, read together with
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`statements about the 1871 Act generally, floor discussions of Section 1 suggest that
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`both proponents and opponents of the 1871 Act believed that the typical plaintiff
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`would be an individual who suffered a violation of constitutional rights, especially
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`the denial of the equal protection of the laws at the hands of state officials. Thus,
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`for example, proponent Senator Dawes spoke of “citizen[s]” who suffered
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`violations of their rights -- phrasing that implies a concern for the individual
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`plaintiff. Globe at 477 (“I conclude . . . [that] Congress has power to legislate for
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`the protection of every American citizen in the full, free, and undisturbed
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`enjoyment of every right, privilege, or immunity secured to him by the
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`Constitution; and that this may be done . . . [b]y giving him a civil remedy in the
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`United States courts for any damage sustained in that regard.”). For their part,
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`Democrats who opposed the passage of Section 1 generally claimed that it was too
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`broad, but notably did not argue that the word “person” did anything to expand the
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`range of entities that could traditionally sue. They, too, seemed to envision
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`20
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`USCA11 Case: 19-13604 Date Filed: 08/31/2021 Page: 21 of 65
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`individual plaintiffs. E.g., id. at 337 (R
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