Church of American Knights Ku Klux v. City of Erie

• Decision Date: 25 January 2000
• Docket Number: No. CIV.A. 98-337 ERIE.,CIV.A. 98-337 ERIE.
• Parties: CHURCH OF THE AMERICAN KNIGHTS OF THE KU KLUX KLAN, Realm of Pennsylvania, and Kay Ryan, Plaintiffs, v. CITY OF ERIE, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

99 F.Supp.2d 583

CHURCH OF THE AMERICAN KNIGHTS OF THE KU KLUX KLAN, Realm of Pennsylvania, and Kay Ryan, Plaintiffs, v. CITY OF ERIE, Defendant.

No. CIV.A. 98-337 ERIE.

United States District Court, W.D. Pennsylvania.

January 25, 2000.

Richard Ruth, Erie, PA, Richard Gilmore, Waterford, PA, Witold J. Walczak, ACLU of Pennsylvania, Pittsburgh, PA, for Plaintiffs.

Gregory A. Karle, Erie, PA, for Defendant.

MEMORANDUM OPINION

McLAUGHLIN, District Judge.

On November 24, 1998, this action was commenced against the City of Erie, Pennsylvania by Plaintiffs, the Church of the American Knights of the Ku Klux Klan, Realm of Pennsylvania (hereinafter, the "Klan") and its "Grand Dragon," Kay Ryan. Plaintiffs sought a temporary restraining order and/or preliminary injunction against the City precluding enforcement of the City's "anti-mask" ordinance. Plaintiffs asserted a cause of action under 42 U.S.C. § 1983, claiming that the ordinance violates their rights under the First and Fourteenth Amendments to the United States Constitution. Following a hearing on the preliminary injunction, this Court granted the Plaintiffs' motion in part. The matter is now before the Court again on consideration of Plaintiffs' request for permanent injunctive relief. We have jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). For the reasons that follow, Plaintiffs' motion for permanent injunctive relief will be granted in part and denied in part.

I. BACKGROUND

The Klan is an unincorporated political association that advocates on behalf of the white race and the Christian faith. It was organized in 1996 and foreswears any formal affiliation with other Ku Klux Klan groups existing in the United States. Plaintiff Kay Ryan is a resident of Allegheny County, Pennsylvania and Grand Dragon of the Klan since July 1998. She represents that the purpose of her organization is to "non-violently promote white rights; racial separation; Christianity; and Americanism." (Aff. in Supp. of Verified Complaint and Mot. for Temp. Restraining Order or Preliminary Injunc. at ¶ 8.) Ms. Ryan further represents that her organization does not permit under any circumstances the performance of illegal or violent activity or the carrying of any weapon. (Id. at ¶¶ 9, 12.)

In early November 1998, the Klan provided officials of the City of Erie with notice of its intention to conduct a demonstration on Saturday, November 28, 1998 from 1:00 p.m. to 3:00 p.m. at the Erie County Courthouse. The purpose of the demonstration, according to Ms. Ryan, was to speak out against affirmative action, abortion, child molesters, drug dealers and homosexuals.

In response to this notice city officials advised Plaintiffs that, while the City would not prohibit the demonstration, it intended to enforce Article 733 of its Codified Ordinances (hereinafter, "Article 733" or the "Ordinance"), which imposes criminal penalties for, inter alia, the concealment of an individual's identity in a public place when coupled with certain specified "intent" requirements. To that end, members of the City Council unanimously adopted a measure directing the Mayor to enforce the Ordinance if members of the Klan wore hoods during the planned demonstration.

Plaintiffs then commenced this action, claiming that the City's intent to enforce the Ordinance would violate their First Amendment rights of free speech and assembly, as well as their Fourteenth Amendment right to equal protection of the laws and their right to associational and political privacy under the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution. Furthermore, Plaintiffs argued that the Ordinance is both overly broad and impermissibly vague in that it does not adequately advise individuals of the conduct being proscribed, thereby giving City officials unfettered discretion in enforcement of the Ordinance in violation of the Fourteenth Amendment Due Process Clause. Based on these claims, Plaintiffs asked this Court to impose a temporary restraining order and/or preliminary injunction preventing the City from enforcing Article 733 against any speaker or attendee at the November 28, 1998 demonstration.

Following a hearing on Plaintiffs' motion, the Court found that Plaintiffs had shown a likelihood of success on the merits and had satisfied the other requisite elements for preliminary injunctive relief. In particular, the Court found that Plaintiffs would likely be able to demonstrate that the subject Ordinance was unconstitutionally vague, at least in part, in violation of the Fourteenth Amendment. Accordingly, the Court entered a preliminary injunction which enjoined the City from enforcing most aspects of the Ordinance¹ pending a hearing on final injunctive relief. A hearing on the request for a permanent injunction was set for December 14, 1998.

At the December 14 hearing, additional testimony was taken from city officials concerning the intent and purpose of Article 733. At the close of that hearing, the Court ordered that the preliminary injunction remain in effect until a final ruling could be made on Plaintiffs' request for permanent injunctive relief. That matter is now before the Court and is ripe for disposition.

II. DISCUSSION

Article 733 prohibits the concealment of an individual's identity in public places under certain circumstances. Section 733.02 generally provides as follows:

733.02 CONCEALING IDENTITY IN PUBLIC PROHIBITED

Wearing hoods which conceal the identity by hiding the face or masks in a public place² is hereby prohibited. No person shall, while wearing any hood which conceals the identity by hiding the face, mask or device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, enter, be or appear in any public place within the City.

Section 733.02. Certain persons are explicitly exempted from this general prohibition, including: (a) persons under sixteen years of age; (b) persons wearing a traditional holiday costume in season; (c) persons using masks in theatrical productions; (d) persons lawfully engaged in trades or employment or in a sporting activity where a mask or facial covering is worn for physical safety; (e) persons wearing a gas mask in drills, exercises or emergencies; (f) persons wearing a mask for purposes of protection against cold weather; (g) persons wearing a mask because of any illness, allergy or on the advice of a physician. Section 733.04.

Furthermore, the general prohibition applies only where the individual is wearing the hood, mask or other identity-concealing device with one or more specified "intents," to wit:

(a) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of the United States or of this State or any subdivision thereof from giving or securing to all persons within this State the equal protection of the laws; or

(b) With the intent, by force or threat of force, to injure, intimidate or interfere with any person because of his exercise of any right secured by Federal, State or local laws, or to intimidate such person or any other person or any class of person from exercising any right secured by Federal, State or local law; or

(c) With the intent to intimidate, threaten, abuse or harass any other person; or

(d) With the intent to cause another person to fear for his or her personal safety, or, where it is probable that reasonable persons will be put in fear for their personal safety by the defendant's actions, with reckless disregard for such probability; or (e) While engaged in conduct prohibited by civil or criminal law, with the intent of avoiding identification.

Section 733.05.

Plaintiffs assert a facial attack on the ordinance under several theories. Primarily, they assert that the ordinance is overly broad, is unduly vague, and infringes Klan members' rights to free speech and anonymous political association. While we initially agree with Plaintiffs' assertion that their hoods are a form of protected symbolic speech, we do not agree that Article 733 enacts an unconstitutional content-based prohibition on speech.

Plaintiffs contend that the hoods which cover the Klan members' faces and heads constitute a form of symbolic speech which is protected by the First Amendment. At the preliminary injunction hearing, Ms. Ryan asserted that the hoods worn by her organization's members symbolically represent the members' unity as well as their "Christian humility" and "unselfish devotion to the organization." The Supreme Court has instructed that conduct may qualify as protected "speech" when there is "[a]n intent to convey a particularized message" and when "the likelihood [i]s great that the message [will] be understood by those who view[] it." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). We have little trouble accepting the proposition that the white hood worn by the Klan members is symbolic speech, albeit speech whose content may understandably be offensive to most citizens. At least one court has recognized that a Klan member's white robes and hoods "symbolize[] the Klan's beliefs and [a]re likely to be so understood by those who viewed them." Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Security Ctr., 800 F.Supp. 1344, 1351 (E.D.Va.1992).³ See also American Knights of the Ku Klux Klan v. County of Bedford, Pennsylvania, Civ. A. No. 97-114J at 3-4 (slip op. May 22, 1997) (Smith, J.) (anti-mask ordinance was "transparent attempt to restrict public rallies of KKK whose organization members are notorious for the hoods that are part of their regalia"; holding that antimask ordinance was unconstitutional "because it may be used to stifle symbolic political expression which is protected by the First Amendment") (quoting Ku Klux Klan v. Martin Luther...