So ist das Leben sagte der Clown Tattoo

(Reuters) - Fans of the hip hop duo Insane Clown Posse, known as Juggalos, are admittedly more fervent than most. They gather at the duo’s elaborate live performances and often display their Juggalo allegiance in bumper stickers, clothing, jewelry, clown-inspired face paint and tattoos, including depictions of the distinctive hatchet-man logo of Insane Clown Posse’s Psychopathic Records label.

In 2011, the Justice Department’s National Gang Intelligence Center issued a report identifying Juggalos as a “loosely-organized hybrid gang … rapidly expanding into many U.S. communities.” The report said that most crimes committed by Juggalos were simple assaults, drug use, petty theft and vandalism but warned of evidence suggesting a small number of Juggalos “are forming more organized subsets and engaging in more gang-like criminal activity, such as felony assaults, thefts, robberies and drug sales.”

The Justice Department’s gang report took a toll on some entirely law-abiding Juggalos who argue the group’s designation as a gang induced state and local law enforcement officials to target them. Mark Parsons, who runs a Utah trucking business and drives a rig decorated with a big Juggalo hatchet-man logo, claimed he was pulled over in Tennessee by a state trooper who suspected gang activity. Brandon Bailey, who wears Juggalo clothing and has Juggalo tattoos, asserts he has been frequently detained and questioned by California police officers because of his affiliation with the group. An Army recruiting officer supposedly informed Juggalo Scott Gandy that his application would be denied unless he removed his gang-related Juggalo tattoo. Robert Hellin, a Juggalo who is already serving in the Army, claims he was told he could be disciplined or even discharged because of his tattoos.

In 2014, these four Juggalos, along with Insane Clown Posse members Joseph Bruce and Joseph Utsler, sued under the Administrative Procedure Act to force the Justice Department to remove Juggalos from the 2011 gang list. Their lawyers at Miller Canfield and the Michigan ACLU argued the Justice Department and the FBI had been arbitrary and capricious in characterizing Jaggalos as a gang, violating the group’s Fifth Amendment right of free association and Fifth Amendment right of due process. In 2015, the 6th U.S. Circuit Court of Appeals held  the stigma the Juggalos had experienced from being listed as a gang in the 2011 report was sufficiently concrete to give them standing to proceed with the suit.

But on Monday, a different 6th Circuit panel ruled the Juggalos can’t use the Administrative Procedure Act to get themselves off of the 2011 gang list. The opinion, written by Judge Alice Batchelder for a panel that also included Judges Danny Boggs and Raymond Kethledge, concluded the 2011 report naming the Juggalos as a gang did not meet the legal definition of a final agency action because third parties – and not the Justice Department or the FBI – actually committed the acts that supposedly harmed the Juggalo plaintiffs.

“Harms caused by agency decisions are not legal consequences if they ‘stem from independent actions taken by third parties,’” the 6th Circuit said, quoting the 4th Circuit’s 2002 decision in Flue-Cured Tobacco v. U.S. Environmental Protection Agency. “Even if those third parties are government actors relying on an agency report, their actions ‘are not direct consequences of the report, but are the product of independent agency decision-making.”

So basically, according to Juggalo lawyer Emily Palacios of Miller Canfield, the 6th Circuit ruling means her clients cannot get legal relief for what the 6th Circuit previously deemed to be plausible allegations of constitutional injuries. That doesn’t make sense, in Palacios’ view.

“If there’s a constitutional injury, how can it not be reviewable?” Palacios said.

The 6th Circuit’s analysis of what constitutes a final agency action is not just a Juggalos problem, said Palacios, whose firm got involved in the case via a connection to the Michigan ACLU. Any group whose members experienced fallout from being named in a government report would face the same problem. Miller Canfield's brief to the 6th Circuit invited the judges to imagine that the Justice Department had decided, based on unconnected criminal acts by some members, to designate the National Rifle Association, or the NAACP, or Greenpeace (or a list of other groups), as a gang. Under the 6th Circuit’s ruling Monday, Palacios said, “there’s nothing you can do.”

That’s especially frustrating, Palacios said, because courts are the only recourse for this sort of alleged Administrative Procedure Act violation. Rather than look holistically at the Juggalos’ claim, she said, the 6th Circuit chose a legalistic analysis that provides no recourse. “APA review is supposed to be pragmatic,” she said. “Courts look for wrongs that should be corrected.”

Palacios said the plaintiffs probably won’t ask for additional review of the case. If there is any consolation for the Juggalos from the APA litigation, it’s that the FBI and the Justice Department have not listed the group in post-2011 reports from the National Gang Intelligence Center. Even so, Palacios said the 2011 report’s designation continues to hang over Insane Clown Posse fans in all kinds of ways, including custody hearings.

“It breaks my heart,” Palacios said.