Church of Amer. Knights of Ku Klux Klan v. Kerik

• Decision Date: 19 November 2002
• Docket Number: No. 99 Civ. 10635(HB).,99 Civ. 10635(HB).
• Citation: 232 F.Supp.2d 205
• Parties: CHURCH OF THE AMERICAN KNIGHTS OF THE KU KLUX KLAN, et al., Plaintiffs, v. Bernard KERIK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

232 F.Supp.2d 205

CHURCH OF THE AMERICAN KNIGHTS OF THE KU KLUX KLAN, et al., Plaintiffs, v. Bernard KERIK, et al., Defendants.

No. 99 Civ. 10635(HB).

United States District Court, S.D. New York.

November 19, 2002.

COPYRIGHT MATERIAL OMITTED

Norman Siegel, Arthur N. Eisenberg, Beth Haroules, New York Civil Liberties Union Foundation, New York City, for Plaintiffs.

Rachel Bess Goldman, Michael D. Hess, Corp. Counsel of City of New York, New York City, for Defendants.

OPINION & ORDER

BAER, District Judge.

Plaintiff Church of the American Knights of the Ku Klux Klan ("American Knights") brings this action for a declaratory judgment and a permanent injunction declaring New York Penal Law § 240.35(4), which prohibits the wearing of masks at public gatherings, unconstitutional under the First Amendment. In response, defendants Bernard Kerik, former Commissioner of the New York City Police Department, and the City of New York contend that the Court should not grant the injunctive relief as the statute is constitutional as a legitimate exercise of state police power. This Court, sitting with Judge Hellerstein, who had been assigned a related matter dealing primarily with the logistics of the proposed event, granted plaintiff's request for a preliminary injunction on October 21, 1999. The Second Circuit stayed that aspect of the relief which had permitted the use of masks. Both sides have now moved for summary judgment on their respective claims and agree that there are no material issues of fact to prevent the Court from deciding this issue on the papers submitted. For the following reasons, plaintiff's motion for summary judgment is GRANTED and defendants' motion is DENIED.

I. PROCEDURAL HISTORY

On September 24, 1999, the American Knights applied to the New York Police Department ("police department") for a parade permit and a sound device permit in conjunction with a planned event to be held on Saturday, October 23, 1999, on the steps of the New York County Courthouse at 60 Centre Street. After reviewing the application, however, the police department informed the American Knights on October 15, 1999, that its plan to wear masks, which it had communicated to the police department, would violate New York Penal Law § 240.35(4). The permit was therefore denied. In pertinent part, N.Y. Penal Law § 240.35(4) provides:

A person is guilty of loitering when he:

... Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment ...

As a result of the denial, the American Knights, on October 19, sought a preliminary injunction forcing the police department to allow the event and the masks. On October 21, after a hearing, which included testimony from both sides, this Court sitting with Judge Hellerstein, issued a preliminary injunction that allowed the American Knights to conduct the event with masks. However, on October 22, the Circuit stayed without comment that "part of the district court order permitting the use of masks." The plaintiff applied pursuant to 28 U.S.C. § 1651 to Justice Ginsberg to re-instate the preliminary injunction, but on October 23 she declined to do so.

The American Knights conducted the event on October 23 as planned. Seventeen members participated and wore the American Knights' regalia but did not wear masks. After the event, both parties moved for summary judgment¹ on the plaintiff's request for declaratory relief and a permanent injunction. The members of the American Knights plan to hold rallies in New York in the future and seek to wear its full regalia. See Plt. Mem. at 6.

II. BACKGROUND

The American Knights describes itself as an ideological organization that advocates white separatism and "white pride." The organization was founded by Jeffrey Berry ("Berry"), the National Imperial Wizard, approximately five years ago and claims to be an "unincorporated political membership association that advocates on behalf of the white race and the Christian faith." While not formally associated with the notorious Ku Klux Klan ("KKK"), the two groups share certain beliefs, including a belief in the separation of races. Among other things, the American Knights oppose affirmative action, racial intermarriage and immigration. The group's leaders opine that the organization does not advocate the use of force or violence to achieve its goals nor does it advocate the hatred of any racial group.

Regardless of what they may say the fact is that members of the American Knights don robes and hooded masks similar to, and traditionally associated, with the KKK, and consider these trappings integral to their identity. As one member stated,

Our traditional Klan regalia demonstrates our organization's traditional historical link with the original Ku Klux Klan. The hooded masks also convey a sense that everyone is equal, regardless of social rank, economic status, gender or race. The robes and hood with the mask is [sic] also intended as a religious symbol. Specifically, the hood reflects their belief that they are all sinners in the eyes of God and must therefore hide ourselves before God.

Clearly, racial hatred is the image conjured up by the regalia. The American Knights, however, claim that the masks provide anonymity at public events, leafleting and at other public activities. The organization believes that due to the unpopularity of its views, "being able to preserve the anonymity of our members is important if the organization is to attract and keep members." Berry Aff. at 2. It is for this reason too that the group does not publicize the names of its members, except for those persons in leadership positions. In fact, the organization's concerns appear to be well-founded as members of the American Knights claim that they have been subject to public harassment, threats, and violence.

Individual members have submitted affidavits to the Court attesting to how they suffered repercussions during and after their participation in various American Knights' rallies. Specifically, members have been followed after rallies by counter-demonstrators who have attempted to ascertain the members' identities and have subjected them to verbal abuse and even physical injury. Berry stated that a number of the members, including his former wife and his son, had been injured by the conduct of counter-demonstrators either during or immediately after participation in an event.² The fear of identification is further illustrated by a testimonial from one of the unnamed plaintiffs in this action who described how, at an event in Ohio in 1998, her mask became separated from her hood, revealing her face. The media photographed her and the photos were widely disseminated. As a result of the publicity, her co-workers and employer learned of her affiliation with the American Knights, and she consequently lost her job. She endured threatening phone calls and hate letters, the windows in her home were broken, her car was vandalized and her children harassed. The same member reports that after her participation in the October 23 event, her children were further taunted and harassed, (she asserts that she took part in the October 23 event only as a matter of principle to challenge the anti-mask law). Because of this negative exposure, she continues to fear retaliation.

Other members also experienced harassment and repercussions after the October 23 event. A number of the counter-demonstrators attending the event threw batteries, rocks and other projectiles at the participants and verbally threatened the members with death or injury. Two counter-protestors evaded the alleged "tight" police security and physically assaulted the Grand Dragon for the Realm of New York and New Jersey. They shattered his eyeglasses causing him serious injury. Moreover, participation in the event and ipso facto identification resulted in one person losing her job, another being harassed extensively at his job site, and the family of another member being verbally and physically abused. Some of the participants indicated that, as a result of such reprisals, they will not rally again unless they are permitted to wear masks. Still others, as a consequence of the stay, decided not to participate at all.

Further, the American Knights is systematically monitored by Klanwatch, a project of the Southern Poverty Law Center; the Anti-Defamation League; the Jewish Defense Organization; and the Right-Wing Watch project of People for the American Way. While this monitoring takes many forms, identification is pivotal. For example, as a part of the Jewish Defense Organization's "Operation Klan Kicker," the Grand Dragon for the Realm of New York and New Jersey's name address and phone number were listed on its website for several weeks after the October 23 event. Visitors to the Jewish Defense Organization's website were encouraged to "drive [him] out of the state." Suffice it to say that membership alone in the American Knights spawns retaliation and stifles free expression. It is against this backdrop that I consider the American Knights' request for a permanent injunction.

III. DISCUSSION

Plaintiff contends that N.Y. Penal Law § 240.35(4) constitutes an unconstitutional infringement on its members' right to free speech on several related grounds including: 1) that the statute violates their right to anonymous speech and association; 2) that the statute violates the right to symbolic speech; 3) that the statute is facially unconstitutional as it excepts conduct occurring in "connection with a masquerade party or like entertainment;" and 4) that the city has engaged in viewpoint discrimination by selectively enforcing the statute. I will...