Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia

• Decision Date: 20 October 1992
• Docket Number: No. 91-5011,91-5011
• Citation: 972 F.2d 365,297 U.S. App. D.C. 312
• Parties: CHRISTIAN KNIGHTS OF the KU KLUX KLAN INVISIBLE EMPIRE, INC., et al., Appellees, v. DISTRICT OF COLUMBIA, et al., Appellants, United States of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 365

972 F.2d 365

297 U.S.App.D.C. 312

CHRISTIAN KNIGHTS OF the KU KLUX KLAN INVISIBLE EMPIRE, INC., et al., Appellees, v. DISTRICT OF COLUMBIA, et al., Appellants, United States of America, Appellee.

No. 91-5011.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 16, 1992.

Decided Aug. 14, 1992.

As Amended Aug. 14, 1992.

Rehearing and Rehearing En Banc

Denied Oct. 20, 1992.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-02615).

Donna M. Murasky, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellants.

Arthur B. Spitzer, with whom Elizabeth Symonds, Washington, D.C., was on the brief, for appellees, Christian Knights of Ku Klux Klan Invisible Empire, Inc., et al.

John C. Cleary, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence, and Michael L. Martinez, Asst. U.S. Attys., Washington, D.C., were on the brief, for federal appellee.

Before: BUCKLEY, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

On October 28, 1990, twenty-seven members of the Ku Klux Klan paraded from the Washington Monument down Constitution Avenue to Capitol Hill. A violent counter-demonstration had been threatened, causing the full mobilization of the Metropolitan Police Department and the commitment of more than 3,500 police officers. Disputes about the permit for the march generated two district court rulings, the second issuing twelve hours before the march, in the wake of this court's decision, on an emergency appeal, vacating and remanding the initial order.

District Judge Oberdorfer, on remand, issued an order in the form of a preliminary injunction requiring the District of Columbia to grant the Klan's request for a march permit. The District brings this appeal to challenge that order. The United States (a party to the proceedings because the Klan had requested, in the alternative, a permit to march along streets under federal control) urges us to dismiss the appeal as moot. The Klan asks us to affirm. Because the Klan may march again, in which event the circumstances attending its permit request in this case would likely recur, we hold that the case continues to present a live controversy. On the merits, we affirm the district court's judgment granting the injunction.

I

The Klan attempted an earlier march, on September 2, 1990, along the route later taken pursuant to the district court's order. The September march met considerable resistance. Counter-demonstrators near the Monument spilled into an intersection and the Metropolitan Police Department (MPD) chose not to clear it. Instead, the MPD sent the Klan by bus directly from a parking lot at the Pentagon to the Capitol, where Klan members made speeches. (The MPD claims the Klan agreed to the change voluntarily; the Klan says it was threatened with revocation of its permit if it did not agree.) Believing that it had been denied its right to march, through a combination of mob and government action, the Klan resolved to try again.

On September 17, 1990, the Klan applied for new parade permits. In order to march from the Washington Monument at 14th Street, N.W., to the Capitol along Constitution Avenue, a group must obtain permits from three authorities: the United States Park Police (which has authority over the Monument, the Mall, and the streets running through it); the MPD (which has authority over Constitution Avenue from 14th Street to 3d Street); and the Capitol Police (which has authority over Constitution Avenue from 3d Street to the Capitol, and over the Capitol grounds). Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 751 F.Supp. 212, 219 (D.D.C.1990).

The Klan initially requested permits for October 14. The District objected on the basis of competing events. The Klan then sought October 28, a Sunday, from 12:30 p.m. to 4:30 p.m. The Park and Capitol Police representatives granted permits for that date. The MPD, on October 19, granted a permit to march only from 7th Street to 3d Street. 751 F.Supp. at 221. To keep the peace along even this reduced route, the District planned to mobilize fully the MPD. About half the city's officers were to be assigned to the march. The MPD's idea was to have officers standing shoulder to shoulder along the four block route for which it had granted the permit.

On October 23, the Klan brought an action for an injunction requiring the District to allow it to march from 14th to 3d Streets, the route the Klan requested. In the alternative, the Klan sought an order requiring the Park Police to grant a permit for a march down Madison Drive, an essentially parallel route through the Mall under Park Police jurisdiction. 751 F.Supp. at 219. The District opposed the suit on the grounds that it could not ensure the safety of the Klan's marchers or of bystanders, and could not protect property for all eleven blocks under its jurisdiction. Id. at 213. The United States disagreed with that assessment and urged the court to order the District to grant the permit. The federal government also contended that since the Madison Drive route would be harder to secure than the Constitution Avenue route, the Park Police should not be required to issue such a permit if the court did not enjoin the District. Id. at 214. On October 25, District Judge Oberdorfer granted the injunction against the District of Columbia. Id. at 216.

The first appeal to this court immediately followed. On October 27, by a split decision rendered without the benefit of oral argument, an emergency panel, including the writer, vacated the injunction and remanded the case. Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 919 F.2d 148 (D.C.Cir.1990). Judge Edwards thought that the record demonstrated neither a likelihood of success on the merits nor an irreparable injury, primarily because the district court had made no findings about the probability of violence or the police's ability to contain it. Id. at 149 (Edwards, J., concurring). The writer thought that, in the absence of any evidence that the District government harbored an improper motive for shortening the route, the District's action should be viewed as a legitimate time, place or manner restraint. Id. at 152 (Randolph, J., concurring). Then-Chief Judge Wald dissented, arguing that if the District could restrict the length of the march from eleven blocks to four, further reductions were also possible, and "the parade [could be] over before it beg[an]." Id. at 153 (Wald, C.J., dissenting).

On remand, Judge Oberdorfer sat late into the evening of October 27, holding a three and one-half hour evidentiary hearing primarily focused on the ability of the various police forces to control any possible violence, and on the District's past practices in adjusting march routes. 751 F.Supp. at 218-19. Though one MPD officer maintained that the police would not be able adequately to control violence if the march began at 14th rather than 7th Street, officers of the United States Park Police disagreed with that assessment, and thought any threatened violence controllable even over the longer route. The United States also represented that it would provide the District with all the assistance reasonably necessary--in the view of the United States--to reinforce the MPD. The court found as facts that (among other things) there was "a truly real, substantial likelihood of violence," but that "[t]he threat of violence [was] not beyond reasonable control." 751 F.Supp. at 217. It also found that while "the threat of violence in this case is not materially distinguishable from other cases," id. at 223, the District had acted differently in this instance.

The court therefore concluded that the Klan was likely to prevail on two theories: that the restriction was impermissible even as a time, place and manner restriction; and that the District's decision "deprive[d] plaintiffs of equal protection of the laws" because it was "not based on any discernible standard." Id. The court further concluded that the Klan was likely to succeed because its asserted message--that it had the right to march the full route--could only be conveyed if it got to march the full route. Id. At 1:00 a.m. on October 28, the court re-issued its injunction, requiring the District to allow the march to proceed from 14th Street. Id. at 217. The District did not seek an emergency appeal and the march went off as planned later that Saturday afternoon. According to press accounts, approximately 3,500 police officers, 1,000 counter-demonstrators, and 27 Klan members showed up. Bricks were thrown, nightsticks were swung. When it was over, six counter-demonstrators and eight police officers suffered injuries. Though the Chief of Police initially reported that one officer's neck had been broken, that injury--the most serious reported in the press--turned out to be a muscle strain. Approximately two months after the march, the District filed this appeal.

II

The obvious initial question is whether the appeal is now moot. The march is over. Nothing a court could do today would change what occurred. The Klan received the full measure of relief it sought through its complaint. The complaint itself concerned only the Klan's permit requests for an October 28, 1990, parade. No regulations were challenged on their face. The United States makes several of these points in urging a dismissal for mootness. University of Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 1833, 68 L.Ed.2d 175 (1981), supports its position. An appeal from an order granting a preliminary injunction becomes moot when, because of the defendant's compliance or some other change in circumstances, nothing remains to be enjoined through a...