Wilkinson v. Forst

Decision Date09 November 1987
Docket NumberNo. 352,352
Citation832 F.2d 1330
PartiesBill WILKINSON and James Farrands, Plaintiffs-Appellees, v. Lester FORST, Donald Long, Austin McGuigan and the City of Meriden, Defendants-Appellants. Docket 86-7631.
CourtU.S. Court of Appeals — Second Circuit

Shelly White, Hartford, Conn., Matthew Horowitz, Springfield, Mass. (Martha Stone, Connecticut Civil Liberties Union Foundation, Hartford, Conn., of counsel), for plaintiffs-appellees.

Carl Schuman, Senior Appellate Attorney, Assistant State's Attorney, Office of the Chief State's Attorney, Division of Criminal Justice, Wallingford, Conn. (Joseph I. Lieberman, Atty. Gen., State of Conn., Stephen J. O'Neill, Asst. Atty. Gen., Richard T. Biggar, Asst. Atty. Gen., John J. Kelly, Chief State's Atty., Scott J. Murphy, Asst. State's Atty., James J. Szerejko, Halloran, Sage, Phelon & Haggerty, Hartford, Conn., of counsel), for defendants-appellants Lester J. Forst, Commissioner of Public Safety, and Donald Long, former Commissioner of Public Safety, of the State of Connecticut.

John M. Massameno, Asst. State's Atty., Senior Appellate Attorney, State of Conn., Wallingford, Conn., (Thomas H. Hrusa, Roseanne Wagner, Mitchell Goldklang, Law Student Interns, of counsel), for defendant-appellant Austin J. McGuigan, former Chief State's Attorney of the State of Connecticut.

Corporation Counsel, City of Meriden, for defendant-appellant City of Meriden.

Before KAUFMAN, WINTER and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants appeal from a judgment of the United States District Court for the District of Connecticut (Jose A. Cabranes, Judge) enjoining them from indiscriminately searching persons and automobiles at rallies held in the State of Connecticut by the Invisible Empire of the Knights of the Ku Klux Klan ("Klan") in the absence of either (1) "specific and articulable" facts to support a reasonable belief that a particular individual poses a threat to public safety, Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), or (2) probable cause to believe that the individual is violating the law (including a valid ban on the possession or display of weapons at rallies), and further adjudging the defendants Long, Forst, and the City of Meriden jointly liable to each of the plaintiffs for one dollar in nominal damages on account of infringement of their constitutional rights.

The opinion below is reported at 639 F.Supp. 518 (D.Conn.1986). In an earlier opinion, Wilkinson v. Forst, 591 F.Supp. 403 (D.Conn.1984), Judge Cabranes denied defendant McGuigan's motion for summary judgment and his motion to dismiss on grounds of standing, mootness, and ripeness. An opinion denying post-trial motions for a stay of proceedings pending appeal or for relief from judgment is reported at 656 F.Supp. 710 (D.Conn.1986). Familiarity with the opinions below is assumed.

Plaintiffs are current or former Klan officers, and defendants are current and former Commissioners of Public Safety of the State of Connecticut, the former Chief State's Attorney, 1 and the City of Meriden, Connecticut.

We affirm the injunction entered below as to its prohibition of pat-down and automobile searches without reasonable suspicion or probable cause, but reverse and remand with a direction to modify the injunction to allow general magnetometer searches at future Klan rallies in Connecticut without regard to standards of reasonable suspicion or probable cause; reverse the award of nominal damages against Lester Forst and Donald Long; and reverse and remand with respect to the award of nominal damages against the City of Meriden.

Background 2

This lawsuit results from sixteen rallies conducted by the Klan in Connecticut from September 13, 1980 through April 29, 1984, 3 and searches conducted by Connecticut authorities in connection therewith. The district court found that the Klan intends to conduct future rallies in Connecticut, plaintiffs plan to participate in those rallies, and defendants can be expected to seek court orders similar to those obtained prior to previous rallies and to search all persons attending future rallies, see 639 F.Supp. at 524, unless precluded from doing so as a result of this litigation.

In the summer of 1980, officials of the Connecticut State Police ("CSP") learned that the Klan was planning to hold a rally on September 13, 1980 in the small rural community of Scotland. This was to be the first Klan-affiliated rally in Connecticut in about half a century, and was scheduled to take place approximately one year after several people were killed in a clash between a Klan faction and opposing groups in Greensboro, North Carolina. 4 News of the Klan rally prompted various individuals and groups, including the International Committee Against Racism ("INCAR"), to plan counter-demonstrations in Scotland. Some of these groups had a prediliction for hostile confrontation with the Klan and the police. 5 Moreover, Klan members expressed an intention to arm themselves for purposes of self-defense, and plaintiff Wilkinson's armed bodyguards were scheduled to attend the rally. Reliable information from an undercover agent of the United States Treasury Department indicated that INCAR members would be armed (though not with firearms) and ready to attack Klansmen. Several neighborhood residents heard gunfire emanating from the private property on which the Klan rally was to be held in the days preceding the scheduled rally.

Against this background, state and local authorities sought (ex parte) and obtained a state court injunction banning the "carrying on one's person or in a motor vehicle [of] a firearm or other dangerous weapon" within the boundaries of the Town of Scotland on the days of the rally, absent specific authorization from Scotland authorities. 6 The injunction was enforced by establishing various checkpoints on main roads leading into Scotland, within the town, and just outside the rally site. At the checkpoints, motorists and pedestrians were informed that they were "subject to search" 7 if they proceeded to the vicinity of the rally. The decision whether or not to search was within the discretion of individual officers, and the officers did not feel constrained by standards of probable cause or reasonable suspicion. Motorists and pedestrians were told that they would not be subject to search if they avoided the area of the rally. The searches produced seven firearms, fifty-four rounds of ammunition, forty-one knives, two swords, two machetes, five baseball bats, three pieces of pipe, eight lengths of chain, two cans of mace, three sling shots, one set of weighted knuckles, a detonator, and a number of clubs.

Although the rally itself occurred without incident, members of Citizens Against Racism, during an attempt to march to the rally, attacked people in the area outside the rally site with fists, rocks, sticks, and flagpoles, resulting in injuries to a number of persons.

The next demonstration relevant to this lawsuit took place on March 21, 1981 in Meriden ("Meriden I"). It was a planned march to and from City Hall. The State did not attempt to search all persons and vehicles at checkpoints on a less than probable cause basis, and no court order was sought or obtained. The demonstration was attended by fifty police officers, twenty-one Klansmen, 1,500 to 2,000 spectators and press, and a substantial number of anti-Klan demonstrators. As Klan members arrived at the City Hall steps, they were attacked with rocks and bottles thrown by anti-Klan forces. A person with a bullhorn advocated violence against the Klan and the police. Fist fights broke out among various groups in the crowd, and automobile windows were smashed. As the police attempted to escort the Klan out of the area, demonstrators pelted the Klan and the police with rocks, bottles, boards, clubs, and bricks. Two people used a building block to strike plaintiff Farrands' daughter on the back. At some point during the demonstration, Klansman Clyde Dick was restrained by the police when he attempted to draw a revolver from his coat pocket. Twenty policemen, six Klansmen, and one bystander received injuries. Many of the officers were hit with rocks or bricks. One female Klan member suffered head lacerations and injuries to the skull, while another was rendered semiconscious by a blow to the head.

The next demonstration ("Meriden II") took place in Meriden on July 11, 1981. It was to be held in a public square. Once again, the State sought no court order banning weapons or authorizing searches. One hundred and three police officers, twenty-five Klansmen, a substantial number of anti-Klan forces, and about seven hundred spectators and press were in attendance. The Klansmen were subjected to pat-down searches, to which they allegedly consented, prior to the rally. The searches uncovered two pistols with valid state permits and several axhandles, sticks and pocketknives, all of which were confiscated by the police. The police disarmed a group of anti-Klan demonstrators whom they observed gathering and carrying rocks, sticks and clubs.

This rally ended before it began. As soon as the Klan, escorted by police, appeared on the square, INCAR members commenced throwing rocks, bottles, and tin cans in their direction. Several fist fights broke out within the crowd. Police halted the rally promptly and ordered the area cleared. Three officers and one Klansman were treated for injuries.

After the Meriden II rally, state officials decided upon a new course of action to prevent outbreaks of violence. For the Windham rally of October 10-11, 1981, and for the subsequent twelve rallies involved in this lawsuit, the relevant authorities sought state court injunctions banning the carrying of firearms or other dangerous weapons on and around the rally sites and permitting searches of persons attending the rallies. The order banning weapons...

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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
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  • Special needs' and other fourth amendment searches
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    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
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    ...intention to bring firearms to their rally and a high potential for violent confrontations because of past events. Wilkinson v. Forst , 832 F.2d 1330, 1341 (2nd Cir. 1987). §7:40 Military Bases Searches on closed military bases are permissible, even without a case-by-case analysis of the sp......
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    ...intention to bring irearms to their rally and a high potential for violent confrontations because of past events. Wilkinson v. Forst , 832 F.2d 1330, 1341 (2nd Cir. 1987). §7:40 Military Bases Searches on closed military bases are permissible, even without a case-by-case analysis of the spe......
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    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2017 Contents
    • August 4, 2017
    ...intention to bring irearms to their rally and a high potential for violent confrontations because of past events. Wilkinson v. Forst , 832 F.2d 1330, 1341 (2nd Cir. 1987). §7:40 Military Bases Searches on closed military bases are permissible, even without a case-by-case analysis of the spe......

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