Traditionalist Am. Knights of Ku Klux Klan v. City of Desloge

• Decision Date: 24 December 2014
• Docket Number: No. 13–3368.,13–3368.
• Citation: 775 F.3d 969
• Parties: TRADITIONALIST AMERICAN KNIGHTS OF THE KU KLUX KLAN, an unincorporated assoc iation; Frank Ancona, Plaintiffs–Appellees, v. CITY OF DESLOGE, MISSOURI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

775 F.3d 969

TRADITIONALIST AMERICAN KNIGHTS OF THE KU KLUX KLAN, an unincorporated assoc iation; Frank Ancona, Plaintiffs–Appellees

v.CITY OF DESLOGE, MISSOURI, Defendant–Appellant.

No. 13–3368.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 8, 2014.

Filed Dec. 24, 2014.

Rehearing and Rehearing En Banc Denied March 26, 2015.^*

John Gerard Young, Jr., argued (Neal B. Griffin, on the brief), Saint Louis, MO, for Plaintiffs–Appellees.

Anthony E. Rothert, argued (Grant R. Doty, on the brief), Saint Louis, MO, for Defendant–Appellant.

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

Opinion

MURPHY, Circuit Judge.

The Traditionalist American Knights of the Ku Klux Klan (the Klan) and its Imperial Wizard Frank Ancona sought a preliminary injunction against enforcement of a Desloge, Missouri ordinance. The district court granted an injunction after concluding that some provisions of the ordinance were not narrowly tailored and violated the First Amendment. The city appeals, asserting that its ordinance was enacted to protect pedestrian and traffic safety without offending the Constitution. We reverse and remand.

I.

The city of Desloge, Missouri is a small town located 60 miles southwest of St. Louis on U.S. Highway 67. The most recent census reports that the population of Desloge is 5,054 and that 97.4% of its residents are white. United States Census Bureau, Profile of General Population and Housing Characteristics: 2010 Demographic Profile Data for Desloge, Missouri, available at http://factfinder2.census.gov/bkmk/table/1.0/en/DEC/10_DP/DPDP 1/1600000US2919216.

The Klan is a national organization of white Americans which is dedicated to advancing white supremacist principles. Imperial Wizard Ancona has explained that it is “comprised of white Christian patriots, people who care about their nation and their race.” He testified, “We do not commit acts of violence, and we believe in perpetuating our race. We believe in having children and grandchildren, white ones.... We believe in the Constitution as it was originally written by our forefathers that founded this nation.” Members must be 18 years old, white, and Christian.

The record indicates that Klan members regularly distribute leaflets on public streets and sidewalks to spread their messages. The topics addressed in the leaflets submitted as exhibits in this case include the dangers of methamphetamine to the “White Race,” a “warning for White Americans” about “violent black on white crime,” organizing neighborhood watches, obtaining firearms for protection, and defending “White Christian culture [and] the future of our nation” against Shariah law. The leaflets list a PO Box address for the Klan in Park Hills, Missouri, a town one and one half miles south of Desloge. While distributing leaflets in Desloge, Klan members have worn their robes and hoods which they describe as their “regalia.”

A.

The Klan has challenged three different Desloge ordinances prohibiting solicitation or distribution in the city's roadways. These different ordinances were enacted in 1999, on April 8, 2013, and on August 12, 2013. All but the August 12, 2013 ordinance have been repealed, and that ordinance is the only one at issue in this appeal.

Members of the Klan planned to distribute leaflets in Desloge on October 27, 2012. Imperial Wizard Ancona contacted Desloge city officials about its plans and was told that a 1999 city ordinance prohibited “solicitation activities” on public streets and that it would prevent the Klan from distributing its literature on any city road in Desloge. The Klan then went to the federal district court to challenge the 1999 ordinance and seek a preliminary injunction against its enforcement.

The district court issued an injunction against the 1999 ordinance after concluding that it violated the First Amendment because it was not narrowly tailored to serve a significant governmental interest. It decided that the 1999 city ordinance prohibited speech on sidewalks as well as on public roads and that it was not “tailored to particular times, problematic locations, or circumstances under which the City might have legitimate concerns about traffic safety and congestion.” Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, Mo., 914 F.Supp.2d 1041, 1050–51 (E.D.Mo.2012). A consent judgment later made the injunction permanent on March 19, 2013.

On April 26, 2013 Imperial Wizard Ancona and other members of the Klan returned to Desloge to distribute leaflets explaining their views on gun rights. They stationed themselves along a sidewalk at a four way stop where they held up their leaflets. If an occupant of a vehicle at the intersection signaled for a leaflet, a Klan member was to step out into the street to supply one. Soon after the Klan members arrived, they were approached by a police officer who had seen one of them enter the roadway to distribute a leaflet to a vehicle occupant. The officer told them there was a new city traffic ordinance, passed on April 8, 2013, which prohibited “stand[ing] in or enter [ing] upon a roadway for the purpose of soliciting rides, employment, business or charitable contributions from, or distribut[ing] anything to, the occupant of any vehicle.” City of Desloge, Mo., Ordinance 2013.04. Imperial Wizard Ancona was given a copy of the new ordinance. After reviewing it, he instructed the Klan members to leave. Subsequently on April 29, 2013, Ancona and the Klan, represented by the American Civil Liberties Union, filed the present action against the city to enjoin enforcement of the April 2013 ordinance on the grounds that it violated their First Amendment rights.

While this litigation was pending, the city amended its traffic ordinance on August 12, 2013 by adding a preamble to explain the law's purpose and by defining key terms. The August 2013 ordinance explained that the city sought to address “public safety concerns,” specifically the risk that people soliciting or distributing materials within a roadway would distract drivers and “result in the person in the Roadway being struck by the vehicle during its operation, or the vehicle striking another vehicle or property in an effort to avoid the person in the Roadway.” The ordinance indicated that solicitation and distribution were being limited because they pose “a distraction to the operator and occupants of the vehicle and to the pedestrian ... at a time when the person is a pedestrian in the Roadway.” “Roadway” was defined as the entire road, from one curb or pavement edge to another, including parking lanes.

The key portions of the August 2013 distribution ordinance stated:

(2) No person shall stand in or enter upon a Roadway for the purpose of distributing anything to the occupant of any vehicle.

(3) ... [T]he Distribution described in subparagraph 2[is] permissible to an occupant of a non-moving vehicle on the Roadway adjacent to the sidewalk and if the person doing so is on the adjacent sidewalk.

(4) Nothing contained herein is intended to prohibit Solicitation or Distribution by any person on a sidewalk, to another person on the sidewalk, or by and among persons in a city parking lot or city park.

City of Desloge, Mo., Code § 220.205. A violation was punishable by a fine not over $500, imprisonment not over 90 days, or both. Id. at § 100.210. The Klan sought a preliminary injunction to enjoin its enforcement on August 19, 2013, three days before the ordinance was to take effect.

B.

The district court held a hearing on the Klan's preliminary injunction motion. The parties submitted as exhibits the April and August 2013 ordinances, a city resolution affirming that the August ordinance replaced and repealed the April ordinance, four examples of Klan leaflets, photos of Desloge roadways, three letters between the parties, the city's report from traffic consultant David Brammeier, and affidavits from two traffic researchers. The testifying witnesses were Imperial Wizard Ancona, City Administrator Gregory Camp, Brammeier, and the Desloge police officer who had spoken with Ancona on April 13, 2013.

Camp testified that the city enacted its initial traffic ordinance in 1999 to address concerns that groups which solicited donations in the streets, including youth sports teams, might be hit by vehicles. Such safety concerns led the city to continue revising the ordinance in light of constitutional challenges. Camp explained that the August 2013 ordinance allows distribution to the occupant of a vehicle by someone standing on the sidewalk near some of the several stop signs in Desloge. Photographs of the Desloge roadways corroborated this testimony. Camp also added that under the city code, individuals may enter a roadway to place literature on parked cars and pedestrians may walk in the street where no sidewalk is available. Skateboarders and rollerbladers are required to keep to the street.

Traffic consultant Brammeier testified about his work for the city which led to the drafting of the August 2013 ordinance. Brammeier explained that he had had 42 years of experience as a professionally licensed traffic and transportation engineer and that he had specialized training in work zone safety. He is a member of the St. Louis firm of Crawford, Bunte, Brammeier, a firm which provides traffic safety consulting services to many Midwestern municipalities. Brammeier had also consulted with the city of Desloge in the past. Before amending its traffic ordinance, the city asked Brammeier to prepare a report identifying and evaluating any safety issues raised by pedestrian distributions or solicitations on public roadways.

In undertaking the assignment, Brammeier began by visiting Desloge to study its roads and traffic patterns. He took 28 photos during this process which are included in his report. He determined that the city's roads raise safety issues for pedestrians, whether or not they are soliciting or distributing materials. For example, the city has open storm drains and grated inlets...