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

• Decision Date: 27 October 1990
• Docket Number: No. 90-5332,90-5332
• Citation: 919 F.2d 148
• Parties: CHRISTIAN KNIGHTS OF THE KU KLUX KLAN INVISIBLE EMPIRE, INC., et al., Appellees, v. The DISTRICT OF COLUMBIA, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 148

919 F.2d 148

287 U.S.App.D.C. 39

CHRISTIAN KNIGHTS OF THE KU KLUX KLAN INVISIBLE EMPIRE INC., et al., Appellees, v. The DISTRICT OF COLUMBIA, et al., Appellants.

No. 90-5332.

United States Court of Appeals District of Columbia Circuit.

Oct. 27, 1990.

Herbert O. Reid, Sr., Corp., Counsel, Office of the Corp. Counsel, with whom Charles L. Reischel, Deputy Corp. Counsel, and Donna M. Murasky, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellant District of Columbia.

Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for appellees.

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

Before WALD, Chief Judge, EDWARDS and RANDOLPH, Circuit Judges.

ORDER

PER CURIAM.

Upon consideration of the emergency motion, the response thereto, the memorandum in support of the emergency motion, the response thereto, and all supporting submissions filed by the parties, it is

ORDERED that the order entered by the district court on October 25, 1990, be vacated and the case remanded for the reasons stated in the accompanying concurring statements.

The Clerk is directed to issue forthwith a certified copy of this order to the district court in lieu of formal mandate.

HARRY T. EDWARDS, Circuit Judge:

The District of Columbia appeals an order of the District Court compelling it to issue a permit authorizing the appellees, the Christian Knights of the Ku Klux Klan, to march from the Washington Monument to Capitol Hill on October 28, 1990. See Christian Knights of the Ku Klux Klan Invisible Empire v. The District of Columbia, 751 F.Supp. 212 (D.D.C.1990). The District of Columbia had agreed to issue a permit to the appellees allowing them to march over a shorter route; the appellees then sought an injunction compelling the District of Columbia to issue a permit allowing them to march the full distance from the Monument to the Capitol. Upon receiving testimony and hearing arguments from both sides, the District Court granted the appellees' request.

In my view, the order entered by the District Court on October 25, 1990, must be vacated and the case remanded. Appellees have not demonstrated the requisite irreparable injury or likelihood of success on the merits to warrant the preliminary relief sought. See Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C.Cir.1977); Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C.Cir.1958).

It should be noted at the outset that this case does not involve an effort by the District of Columbia to prohibit appellees' freedom of expression. Appellees have been given a permit to march and to demonstrate. Thus, the issue raised here is the extent to which the location of a demonstration can be regulated to deal with matters of public safety and other considerations.

Appellants' issuance of a parade permit for October 28, 1990, allowing appellees to march down Constitution Avenue in Washington, D.C. from 7th Street to 3rd Street, N.W., rather than issuance of a permit for the full requested route extending from 14th Street to 3rd Street, N.W., does not constitute irreparable harm for the appellees. Appellees will have the opportunity to convey their message along the approved route and at a permitted demonstration on the Capitol grounds. The District Court noted that "the route along Constitution Avenue for demonstrations assembling at the Monument and demonstrating at the Capitol is a traditional segment of the Nation's premier public forum." This appears undisputed. However, according to an affidavit submitted by Thomas Carroll, Deputy Chief of the Metropolitan Police Department ("MPD"), "the [Police] Department as a matter of practice coordinates with permit requestors relative to such matters as march route, march length, time and duration of march." Thus, appellants have indicated that modification of the requested route was consistent with normal permitting procedures. The District Court made no findings on this point.

Appellants assert that, given the circumstances of this case, the MPD modification of appellees' permit application is reasonable; in particular, appellants cite the relatively small size of appellees' march, the extraordinary risk of violence, the lack of manpower to police the streets during the demonstration and the huge expense and disruption that would be caused by a march along the full route preferred by appellees. The District Court's opinion in no way suggests that the MPD findings were somehow inaccurate or that they were merely a subterfuge to cover some impermissible motive. Indeed, neither the District Court nor appellees appear to dispute appellants' assertion, in a letter written by Isaac Fulwood, Jr., Chief of the MPD, that "the parade creates a substantial possibility of violent disorderly conduct likely to endanger public safety or to result in significant property damage." Appellants also asserted that they "could not adequately ensure public safety for the length of the [parade] route proposed." Although the United States disputed this latter contention, the District Court made no findings on the point.

Thus, on the record that has been developed to date, there is nothing to indicate that the factors considered by appellants in issuing the permit were impermissible. The sole authority cited by the District Court to support its finding of irreparable harm is Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a patronage dismissal case in which petitioners' First Amendment rights were totally denied by the disputed Government action. This is not such a case. Appellees have been given a permit to march and to demonstrate over a route and on grounds traditionally made available to permit holders. The parade route is shorter than the one often made available to demonstrators, but appellants say that the modification is consistent with MPD permitting procedures; appellants also assert that the factors considered in this case are usual and reasonable.. Appellees must show otherwise in order to prevail in their case on the merits. For now, however, there is no showing of irreparable harm.

In assessing the merits of appellees' claim, the District Court properly considered the so-called "heckler's veto" cases. Under this line of authority, it has long been held that "a hostile audience is not a basis for restraining otherwise legal First Amendment activity.... [I]t is impermissible even to consider the threat of a hostile audience when ruling on a permit application...." Collin v. Chicago Park Dist., 460 F.2d 746, 754-55 (7th Cir.1972); see also NAACP Legal Defense & Educational Fund, Inc. v. Devine, 727 F.2d 1247, 1261-62 (D.C.Cir.1984) (to consider the intense hostility would be to "allow the intolerance (and threats) of a vocal minority (or even the majority) to determine who shall and who shall not speak"), rev'd on other grounds sub nom. Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). For several reasons, these cases are not dispositive of the issues before us.

First, as noted above, appellees have proceeded in this case on the assumption that permit holders always are allowed to parade the full distance from the Monument to the Capitol, without regard to any other considerations; appellants dispute this contention and the District Court has made no findings on the point.

Second, it appears that the "heckler's veto" cases cited by the District Court and appellees all have involved situations in which petitioners have been totally denied an otherwise available forum for expression; that is not this case. Appellees' argument might be compelling if they could at least show that the only reason that they have been denied a permit to parade the preferred distance is the threat of violence, and that absent this threat they would have been granted the permit sought; but that proof is not in the record as it presently stands.

Finally, even the United States, in its submission in support of appellees, is unwilling to say that threats of violence never may be considered in the assessment of permit applications. Nor can this court assume that the "heckler's veto" decisions must be read to go this far, especially in light of indications from the Supreme Court that the concern for public safety is a proper Government interest. Compare Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.") with Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) ("Subject to ... reasonable regulation, ... peaceful demonstrations in public places are protected by the First Amendment. Of course, where demonstrations turn violent, they lose their protected quality as expression under the First Amendment.") (footnote omitted) and Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941) ("The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.").

At this juncture in this litigation, it is unnecessary for us to attempt to reconcile the foregoing lines of authority, or to assess the extent to which the MPD must go in spending public funds to protect demonstrators,...