Invisible Empire Knights of KKK v. City of W. Haven

• Decision Date: 14 January 1985
• Docket Number: Civ. No. N-84-259.
• Citation: 600 F. Supp. 1427
• Parties: INVISIBLE EMPIRE KNIGHTS OF the KU KLUX KLAN v. CITY OF WEST HAVEN.
• Court: U.S. District Court — District of Connecticut

600 F. Supp. 1427

INVISIBLE EMPIRE KNIGHTS OF the KU KLUX KLAN v. CITY OF WEST HAVEN.

Civ. No. N-84-259.

United States District Court, D. Connecticut.

January 14, 1985.

COPYRIGHT MATERIAL OMITTED

Martha Stone, Civil Liberties Union, Hartford, Conn., for plaintiffs.

Jonathan J. Einhorn, Corp. Counsel, West Haven, Conn., for defendant.

RULING ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

ELLEN B. BURNS, District Judge.

Plaintiffs in this action are the Invisible Empire Knights of the Ku Klux Klan (the "Klan"); Bill Wilkinson, "Imperial Wizard" of the Klan; John Dillon, "Great Titan" of the Klan in Connecticut; James Farrands, "Grand Dragon" of the Klan in Connecticut; and William Dunlap, a law professor who is neither a member of, nor sympathizer with, the Klan but who desires to attend a Klan rally. Defendants are the City of West Haven; members of West Haven's city council (the "Council"); Lawrence Minichino, Mayor of West Haven; Michael D'Errico, West Haven's Chief of Police; Barbara Barry, West Haven's Director of the Department of Parks and Recreation (the "Department"); Arthur Orio, Chairman of West Haven's Parks and Recreation Commission; and the West Haven Parks and Recreation Commission (the "Commission").

On April 17, 1984, the plaintiffs initiated this action, challenging certain sections of the West Haven ordinance regulating parks and recreation areas (the "Ordinance") as violating their First Amendment rights to freedom of expression and of assembly. The plaintiffs also requested a temporary restraining order prohibiting the defendants from enforcing the challenged ordinance with respect to a rally that the plaintiffs had planned to hold on the West Haven Green on April 28, 1984, which order was granted on April 23, 1984. The rally was held on April 28, 1984, but at an alternate site agreed to by the parties. The plaintiffs have now moved for summary judgment seeking a declaration that the Ordinance is unconstitutional and an injunction barring its future enforcement. Plaintiffs also seek compensatory and punitive damages.

I. Background

The Ku Klux Klan is an organization dedicated to the ignoble goal of white supremacy. To achieve this goal, the Klan planned a number of rallies throughout the State of Connecticut during the past several years. On two prior occasions, the plaintiff Dillon requested, and was denied, a permit to assemble on the West Haven Green. In anticipation of another Klan rally to be held on the West Haven Green on April 28, 1984, Dillon wrote to the defendant Barry in December, 1983, to request a permit. Barry responded that the Department was not processing applications for the following year and informed Dillon that he should reapply in 1984. Dillon reapplied by letter dated January 20, 1984. No written response was ever received by the Klan. On March 12, 1984, the Council unanimously passed an amendment to the Ordinance, to be effective April 13, 1984, which required, inter alia, that an applicant who anticipates use of city facilities by more than twenty-five persons, or which the Chief of Police reasonably believes will attract more than twenty-five persons, post a bond for the city's costs of police protection and maintenance.¹

The plaintiffs were unsuccessful in obtaining the bond required by the Ordinance. Through their attorney the plaintiffs wrote to Chief of Police D'Errico, declaring their belief that the amendment was unconstitutional and requesting a demonstration permit without having to comply with the amended Ordinance. On April 9 the plaintiffs were informed by the city's attorney during a telephone conversation that their request for a permit would be denied. The plaintiffs thereafter filed the instant action.

The plaintiffs claim that their First Amendment rights to freedom of speech and of association have been impaired by the enforcement of sections 5D and 5L of the Ordinance.² They further assert that the possibility of enforcement of the Ordinance serves to "chill" their First Amendment rights. They, therefore, seek declaratory and injunctive relief to prevent future enforcement of the Ordinance and also seek compensatory and punitive damages.

II. Appropriateness of Summary Judgment

Plaintiffs claim that the challenged provisions of the Ordinance are facially invalid. Summary judgment is appropriate where there is "no genuine issue as to any material fact." Federal Rules of Civil Procedure 56(c). An attack on a statute as facially invalid may only succeed when the statute would be invalid regardless of the factual situation to which it is applied. See International Society for Krishna Consciousness, Inc. v. Rochford, 425 F.Supp. 734, 738 (N.D.Ill.1977), aff'd in part, rev'd in part, 585 F.2d 263 (7th Cir.1978). Therefore, no material issues of fact preclude this court from granting a motion for summary judgment as to the declaratory and injunctive relief sought. However, as to the relief for damages, material issues of fact exist.

Plaintiffs claim compensatory damages resulting from the defendants' enforcement of the Ordinance. However, plaintiffs' complaint and supporting affidavits make no showing that plaintiffs were in fact damaged.³ The rally occurred as planned and plaintiffs had the opportunity to exercise their First Amendment rights. Plaintiffs have also failed to make any showing of consequential damages resulting from defendants' actions. Furthermore, the individual defendants, acting as government officials, may well be protected by qualified immunity for their actions. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).⁴ Although qualified immunity exists only where the official's conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person should have known," Id. at 818, 102 S.Ct. at 2738, an official may plead in defense that he neither knew nor should have known of the relevant legal standard. Id. at 819, 102 S.Ct. at 2739. This court requires a more complete record before deciding that the defendant city officials are not entitled to the defense of qualified immunity.

Plaintiffs further claim that this court should award punitive damages against the individual defendants. As plaintiffs acknowledge, punitive damages are available against officials whose conduct demonstrates "reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632, 651 (1983). The defendants' state of mind is therefore an important, in fact crucial, element of an award of punitive damages. Such a determination of state of mind can rarely, if ever, be made on a motion for summary judgment. See Wechsler v. Steinberg, 733 F.2d 1054, 1058 (2d Cir. 1984).

Therefore, plaintiffs' motion for summary judgment is denied with respect to all claims for damages.

III. Declaratory Judgment

Plaintiffs have now on three occasions sought permission to conduct rallies in the City of West Haven. On each occasion the city denied that permission. The instant action was brought as a result of the last of these denials. If this court were now to dismiss this action because the plaintiffs no longer have a pending application for a permit, the defendants would be able to continue to enforce the challenged ordinances. While plaintiffs could conceivably continue to seek temporary restraining orders to exercise their rights to free public expression of their ideas, the Constitution does not impose such a burden on First Amendment liberties.

In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the Supreme Court recognized that an overly broad statute which tended to "seriously inhibit the exercise of protected freedoms" could provide a basis for equitable relief. Id. at 489, 85 S.Ct. at 1122. Similarly, in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Court unanimously approved issuance of a declaratory judgment to protect the future exercise of the right to free expression.

In the instant case, plaintiffs have demonstrated that their attempts to exercise their First Amendment rights have been previously hindered by the defendants. They have further asserted their intent to hold future rallies in West Haven. However, the prospect of having to engage in continuous litigation, or expose themselves to monetary penalties for violating the Ordinance,⁵ certainly imposes a chilling effect on plaintiffs' First Amendment rights.⁶ It is, therefore, appropriate to address the constitutionality of the Ordinance in consideration of the granting of a declaratory judgment. Steffel, supra at 475, 94 S.Ct. at 1223. Cf. Dombrowski v. Pfister, 380 U.S. at 489, 85 S.Ct. at 1122 (injunctive relief appropriate).

A. CONSTITUTIONALITY OF SECTION 5L

Section 5L, which is set out in note 1, requires that an individual or organization obtain a permit from the Department if use of city property by more than twenty-five persons is anticipated. A permit is also required if the Chief of Police reasonably believes that the planned use will attract more than twenty-five people. In order to obtain such a permit, the Ordinance requires that the applicant post a bond for the city's costs of police protection and maintenance in an amount to be "estimated" by the Chief of Police. If the applicant cannot obtain a bond, he may submit an "individual guarantee of any acceptable person having sufficient financial means to cover such expenses." The Ordinance makes no mention of any criteria for the granting of a permit other than the bond or surety requirement. It does not, by its terms, require that the Department issue a permit once the bond or surety requirement is met.

Plaintiffs make several facial attacks on section 5L. Among the alleged constitutional deficiencies of the Ordinance is its lack of standards for the granting of permits, its failure to give adequate notice of when a permit is...