American Knights Ku Klux Klan v. Goshen, Indiana
| Decision Date | 04 May 1999 |
| Docket Number | No. 3:98CV403RM.,3:98CV403RM. |
| Citation | 50 F.Supp.2d 835 |
| Parties | AMERICAN KNIGHTS OF THE KU KLUX KLAN, Plaintiff, v. CITY OF GOSHEN, INDIANA, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for American Knights of the Ku Klux Klan, plaintiff.
Larry A. Barkes, Hartzog, Barker, Hepler and Saunders, Goshen, IN, Michael F. DeBoni, Yoder, Ainlay, Ulmer and Buckingham, Goshen, IN, for City of Goshen, defendant.
The City of Goshen enacted an ordinance that would, among other things, make it illegal for members of the American Knights of the Ku Klux Klan to wear masks in public assembly. The United States Constitution protects a group's speakers the right to anonymity when past harassment makes it likely that disclosing the members would impact the group's ability to pursue its collective efforts at advocacy. The Goshen ordinance violates that constitutional guarantee.
On June 16, 1998, the Common Counsel of the City of Goshen, Indiana enacted Ordinance 3829:
A. It shall be unlawful for any person 18 year of age or older to wear a mask, hood or other device in any public place for the purpose of disguising or concealing his or her identity.
B. This ordinance does not prohibit any person from wearing a mask, hood or other device in any public place for religious, safety, or medical reasons.
C. For the purpose of this ordinance, a "public place" shall mean any lane, walk, alley, street, road, public way or highway within the City of Goshen or upon any property owned by a governmental entity in the city.
D. Any person violating the provisions of this ordinance shall be subject to a fine of up to Two thousand five hundred dollars ($2,500.00).
E. This ordinance may be enforced by a member of the Police Department....
Goshen Mayor Allan Kauffman explained in his deposition that the ordinance was passed in response to Ku Klux Klan activity in Goshen and a number of letters he received from residents requesting a "no mask" ordinance. He also stated that Goshen believed that the Klan's appearance in the city had caused intimidation and fear because citizens did not know the masked people's identity, and that such reactions are reduced when "we know who our adversaries are and we can have discussion with them," i.e., that the ordinance might "enhance civil discourse."
The American Knights of the Ku Klux Klan, the plaintiff in this case, challenges the ordinance as unconstitutional. The American Knights of the Ku Klux Klan was founded about five years ago by its "National Imperial Wizard," Rev. Jeffery Berry of Butler, Indiana, an ordained minister in the Universal Life Church. Although the American Knights of the Ku Klux Klan shares its belief in racial separation with the group historically known as the Ku Klux Klan, the American Knights of the Ku Klux Klan claims no association whatsoever with any other current group using the Ku Klux Klan name. Accordingly, the court refers to the plaintiff as AKKKK in this memorandum.
AKKKK considers itself a religion. According to Rev. Berry, AKKKK has seven sacred symbols: the robe, the hood (including the mask), the Bible, the cross, fire, water, and the sword. The hood and attached mask, Rev. Berry explains, carry special significance during religious ceremonies because members use them to hide themselves before God because they are sinners in His eyes.
AKKKK appeared in Goshen, with some members masked, to disseminate their ideas several times before the June, 1998 anti-mask ordinance, but has learned from the Goshen police that the ordinance will be enforced against its members if they appear in public wearing their masks. In addition to the religious basis asserted for the hood and mask, AKKKK claims that its members wear their full uniform publicly, including the sacred symbol of the hood (and attached mask), because it is an essential part of their uniform and organizational identity. AKKKK also asserts that many of its members wear their masks because they want to remain anonymous and so reduce the likelihood that they will be harassed, threatened, or attacked, will lose their employment, or suffer other types of retaliation for the admittedly unpopular ideas the group advocates.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) "mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which the party will bear the burden of proof at trial." "Where the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial ... there can be no `genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Although the moving party must initially identify the basis for its contention that no genuine issue of material fact exists, the nonmoving party cannot rest on his pleadings, but must produce his own evidence. Rule 56(e) requires that the nonmoving party who bears the burden of proof on an issue allege specific facts showing that there is a genuine issue for trial by his own affidavits or by the depositions, answers to interrogatories, and admissions on file....
In considering whether there are any genuine issues of material fact, we view the record and extract all reasonable inferences from the evidence in the light most favorable to the nonmoving party. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Where a fact is disputed, the nonmoving party must show that the disputed fact is material under the applicable law. The applicable law will dictate which facts are material. Only disputes that could affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.
National Soffit & Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264-265 (7th Cir.1996) (citations omitted). The parties agree that no genuine issues of fact exist, and that the court should decide the constitutionality of Goshen's anti-mask ordinance on the basis of the summary judgment record. The court is not so convinced of the absence of genuine issues of fact in the summary judgment record, but existing genuine issues do not preclude summary judgment because they are not material to the bases on which the court finds summary judgment appropriate.
AKKKK presents several challenges to the constitutionality of the anti-mask ordinance. It believes the ordinance is unconstitutionally vague on its face because it inadequately describes the activities it proscribes and gives law enforcement officers unbridled discretion in its enforcement. AKKKK argues that the ordinance is overbroad as well because it reaches so wide a variety of the expressive speech and behavior of parties not before the court— adult masqueraders, environmental protesters wearing gas masks, and street theater actors. As applied to their prayer and other religious activities in public, AKKKK claims the ordinance violates its members' rights to freely exercise their religion. AKKKK also claims that wearing their full uniform (including their masks) is an essential part of their identity and ability to convey their message, and that the ordinance unconstitutionally restricts this symbolic speech. Finally, AKKKK claims that the ordinance violates its members' rights to express themselves and associate anonymously. This final point provides the central basis for the court's ruling.
AKKKK argues that, in wearing their masks, its members exercise their rights to anonymous speech and association. It openly acknowledges the disdain with which their message is usually received— that their group is "extremely unpopular." According to Rev. Berry, AKKKK does not make public the names of its members, and members wear their masks to protect their anonymity. Berry Aff., ¶¶ 12, 18. Concealing their identity, he explains, is very important because of the harassment, threats of violence, violence, job firings, and other retaliation that has been caused by membership in AKKKK. Id. ¶ 11. Rev. Berry also says AKKKK considers anonymity important to attracting and keeping members; he reports that he "know[s] from talking to [his] members that if members are not allowed to appear in public without being able to preserve their anonymity with their hoods and masks that they will not participate in public activities because they are fearful of having their identity known." Id. ¶ 20.1
As examples of the harassment its members have experienced and continue to fear, AKKKK offers incidents involving a member and a former member whose identities became known. The present member, a Goshen resident, attributes the following to the disclosure of her membership: a bomb threat, vandalism against her house, death threats, and an incident in which she found a Barbie doll head floating in ajar of gasoline on her porch. The former member, also a Goshen resident, was yelled at and threatened with physical harm after his membership was revealed.
Goshen agrees that at least some AKKKK members wear their masks to conceal their identity and retain their anonymity. Pointing to evidence that some AKKKK members appear in public without masks, Goshen argues that the ordinance requires them to do only what many members already do. Goshen asserts that...
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