INTERN. SOC. FOR KRISHNA CONSCIOUSNESS v. Enz

• Decision Date: 19 November 1979
• Docket Number: Civ. 78-056-TUC-WCF (TFM).
• Citation: INTERN. SOC. FOR KRISHNA CONSCIOUSNESS v. Enz, 495 F.Supp. 373 (D. Ariz. 1979)
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Eugene Tapp, Individually and on behalf of all International Society for Krishna Consciousness members, Plaintiffs, v. David ENZ, Chief, Tucson Airport Authority Police; Stephen Neely, County Attorney for Pima County, Individually and in their official capacities, Defendants.
• Court: U.S. District Court — District of Arizona

495 F. Supp. 373

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Eugene Tapp, Individually and on behalf of all International Society for Krishna Consciousness members, Plaintiffs, v. David ENZ, Chief, Tucson Airport Authority Police; Stephen Neely, County Attorney for Pima County, Individually and in their official capacities, Defendants.

Civ. 78-056-TUC-WCF (TFM).

United States District Court, D. Arizona.

November 19, 1979.

Robert C. Moest, Barry A. Fisher Law Offices, Los Angeles, Cal., Mark B. Raven, Risner, Raven & Collins, Tucson, Ariz., for plaintiffs.

John A. Robertson, Bilby, Shoenhair, Warnock & Dolph, P. C., Tucson, Ariz., for defendant David Enz.

John C. Gabroy and Ronald M. Lehman, Deputy County Attys., Civ. Div., Tucson, Ariz., for defendant Stephen Neely.

MEMORANDUM

THOMAS F. MURPHY, Senior District Judge.

The complaint, by way of "INTRODUCTION," summarizes plaintiffs' claim in these words:

"This is a civil rights suit for `declaratory and injunctive relief' pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02 brought by the INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and EUGENE TAPP, an individual devotee, to enjoin Defendants from enforcing the Rules and Regulations concerning picketing, where Plaintiffs' conduct is limited to peaceably walking about the public portions of the Terminal Building of the Tucson International Airport, talking to members of the public about their religion, distributing religious tracts, and soliciting contributions to support their Church. Plaintiffs seek temporary injunctive relief so that they may proceed with their prosetelyzing, which is the very mainstay and life blood of their religious movement."

"JURISDICTION"

"Jurisdiction * * * is invoked under 28 U.S.C. § 1331 (federal question) and § 1343(3-4) (civil rights). The matter in controversy exceeds $10,000 exclusive of interest and costs."

Defendants are the Chief of the Tucson Airport Authority Police, David Enz, and the County Attorney for Pima County, Arizona, Stephen Neely.

A hearing on plaintiffs' motion for a temporary injunction was held on November 4, 1978. The hearing was before the Honorable William C. Frey, who died before filing a decision. The attorneys for the parties subsequently stipulated that: "This matter may be submitted for consideration on the record and for decision by a new United States District Judge to whom this matter may be assigned by the Honorable Mary Anne Richey. Dated: April 2, 1979." The "matter" was referred to us on April 4, 1979 by Judge Richey while we were sitting by designation in the District Court of Arizona.

Although each defendant, in his answer, denied plaintiffs' allegations concerning their religion, "Krishna Consciousness," including the allegations of its history, precepts and practices, neither defendant offered any evidence at the hearing to contradict these allegations or plaintiff Tapp's "Declaration" setting forth the same in great detail.

Tapp had signed a 13-page "Declaration" which was filed with the complaint in support of an ex parte motion (later withdrawn) for a temporary restraining order. At the hearing for a temporary injunction plaintiffs' counsel told the Court that under a new law¹ the "Declaration" "is sufficient evidence at least for my direct case." After a short discussion, the parties agreed that if Tapp swore to or affirmed the truth of the allegations in the "Declaration," it would be considered as his direct testimony. Tapp then affirmed its truth, and was cross-examined by both defendants' attorneys and by his own on redirect.

We therefore will summarize and quote from the allegations in the "Declaration," plaintiffs' case in chief, and compare them with the proof. Tapp's "Declaration" states that the International Society of Krishna Consciousness is an International religious society which espouses the "religious and missionary views of Hinduism as expressed by the Hindu denomination Krishna Consciousness." Its scriptural foundations are the Vedas, ancient Hindu religious texts. "Veda means knowledge descending from the Supreme Lord or Godhead to man, * * *." Tapp's "Declaration" continues with the following:

"* * * the recommended means for achieving the mature state of love of God in this age of Kali, or quarrel, is to chant the holy names of the Lord. The easiest method is to chant Hare Krsna Mantra: Hare Krsna, Hare Krsna, Krsna, Krsna, Hare, Hare, Hare Rama, Hare Rama, Rama Rama, Hare Hare.

* * * Lord Caitanya taught that public broadcasting and publishing of the glories of God is the only effective means of revival of Krishna Consciousness in the present age. This process of glorification is called `sankirtan yajna' in Sanskrit, * * *.

* * * * * *

* * * The Sankirtan movement was brought to the Western World ten years ago by his Divine Grace A. C. Bhaktivedanta Swami Prabhupada, * * *."

The devotees have been instructed to

"go wherever people publicly gather, collect alms, and distribute literature describing the glories of God. Therefore, the profuse distribution of books has become our life and soul.

* * * * * *

In contrast to the complexity and anxiety of modern life, the Krishna Consciousness life is based strictly upon the Vedic principle of `simple living and high thinking.' Meat eating, nonmarital, nonprocreational sex, intoxication and drugs, and gambling are absolutely prohibited.

* * * * * *

ISKCON's purpose is two-fold. First, it provides a living situation in which devotees can peacefully execute their spiritual life, secondly, it seeks to make this knowledge available to as wide a number and cross-section of the population as possible. It is a devotee's duty and sincere desire to benedict sic everyone, regardless of race, creed, color or nationality, with this sublime wisdom of Vedic knowledge that leads back to Godhead.

* * * * * *

Our practice is to attempt to talk to members of the public about our faith, to advocate the reading of our literature, and to encourage donations to support our religion. The distribution of prasadam in the form of a piece of candy is sometimes involved in Sankirtan."

Since defendants offered no proof to contradict any of these statements, we will assume as an uncontested fact that Tapp is a devotee of a religion, Krishna Consciousness, which requires him to prosetelyze the public and attempt to convert them to his religion, to distribute religious tracts, and solicit funds for the spread of Krishna Consciousness.

Paragraph 10 of the complaint states:

"10. Plaintiffs have been informed by defendants and by Airport Authority General Manager Charles Broman that the Rules and Regulations concerning picketing and demonstrations at Tucson International Airport * * * prohibit first amendment related activities except in certain remote areas outside the terminal building, and that devotees of International Society for Krishna Consciousness would not be permitted to distribute religious tracts, prosetelyze, or to solicit contributions, except in the areas set aside in the rules for such activities. Plaintiffs have been further advised that any devotee of Krishna Consciousness who engages in such activities within the terminal building, or in any other area not designated in the regulations, would be asked to leave the airport grounds. If the individual persisted in the activities, he or she would be arrested and prosecuted." (Emphasis ours)

And paragraph 3 of Tapp's "Declaration":

"3. During the week of January 30, 1978 I called the Tucson Airport Authority and spoke with Airport General Manager Charles BROMAN. He informed me that the Rules and Regulations Concerning Picketing and Demonstrations at Tucson International Airport * * * prohibited First Amendment related activities except in certain areas outside the terminal building, and that devotees of the International Society for Krishna Consciousness would not be permitted to distribute religious tracts, to prosetelyze, or to solicit contributions, except in the areas set aside for such activities. Mr. Broman further advised me that any devotee of Krishna Consciousness who engaged in such activities within the terminal building, or in any other area not designated in the regulations, would be asked to leave the airport grounds. If the individual persisted in the activities, he or she would be arrested and prosecuted." (Emphasis ours)

The allegations of the complaint and paragraph 3 of Tapp's "Declaration" charging a First Amendment free exercise of religion violation are based on one telephone conversation between Tapp and Broman, the General Manager of the Tucson Airport. Although there is some contradiction of Tapp's testimony concerning his phone call in January, 1978 by Broman,² we will adopt as facts Tapp's oral testimony of the call and summarize it as follows:

Some time in January, 1978 Tapp telephoned Broman requesting permission to distribute literature and collect donations within the Tucson International Airport terminal building for his movement. Broman advised Tapp that they wouldn't be allowed to do this activity in the building.

We have based our finding on the transcript of the Court's questioning of Tapp at the hearing on November 4, 1978, which reads (Tr. p. 43-45):

"THE COURT: Getting to your affidavit or statement in support of this request for an injunction, I believe you just telephoned the Airport for permission to solicit; is that correct?

A. Yes.

* * * * * *

Q. You never made any effort to gain admittance to the Airport Terminal Building?

A. No.

Q. You never undertook to solicit in any manner on the Airport property?

A. No.

Q. Where were you when you telephoned the Tucson Airport?

A. San Diego.

* * * * * *

Q. And what did you say; do you remember?

A. I asked Mr. Broman if it was allowed for our movement to distribute literature and collect donations.

Q. Where?

A. In the Airport terminal.

* * * * * *

Q. And what response did you get?

A. He said there were designated areas outside

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