Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge

• Decision Date: 27 December 2012
• Docket Number: Case No. 4:12CV02085 AGF.
• Citation: 914 F.Supp.2d 1041
• Parties: TRADITIONALIST AMERICAN KNIGHTS OF the KU KLUX KLAN, et al., Plaintiffs, v. CITY OF DESLOGE, MISSOURI, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

914 F.Supp.2d 1041

TRADITIONALIST AMERICAN KNIGHTS OF the KU KLUX KLAN, et al., Plaintiffs,

v.CITY OF DESLOGE, MISSOURI, Defendant.

Case No. 4:12CV02085 AGF.

United States District Court,

E.D. Missouri,

Eastern Division.

Dec. 27, 2012.

Grant R. Doty, Anthony E. Rothert, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, for Plaintiffs.

Joseph L. Goff, Sr., Reeves and Goff, P.C., Farmington, MO, for Defendant.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the motion of Plaintiffs Frank Ancona and other members of the Traditionalist American Knights of the Ku Klux Klan (collectively, “TAK”) for preliminary injunction. (Doc. No. 3.) Plaintiffs seek to enjoin Defendant, the City of Desloge, Missouri, from enforcing a city ordinance entitled “Prohibition Against Solicitation in the Streets,” City of Desloge Code of Ordinances (the “Code”) § 615.070, (the “Ordinance”) until such time as this case is resolved on its merits. Plaintiffs assert that enforcement of the Ordinance will violate their First Amendment free speech and assembly rights. The Court held a hearing on the motion on December 20, 2012. The parties agreed to proceed without testimony on the basis of stipulated facts (the “Stipulation”; Doc. No. 14) and exhibits, and presented argument. For the reasons set forth below, Plaintiffs' motion for preliminary injunction will be granted.

I. BACKGROUND

The Ordinance provides:

PROHIBITION AGAINST SOLICITATION IN STREETS

No peddler nor any other person, association, corporation or other entity shall be authorized to conduct any solicitation activities, or to occupy, use or operate in or upon any public highway, thoroughfare or street within the City of Desloge.

Code § 615.070. (Def. Hearing Ex. D.)

The parties have stipulated that § 100.070 of the Code defines “street” to “mean and include any public way, highway, street, avenue, boulevard, parkway, alley or other public thoroughfare, and each of such words shall include all of them.” (Stipulation, ¶ 6.) Section 100.070 defines “public way” to include “any street, alley, boulevard, parkway, highway, sidewalk or other public thoroughfare.” Id. ¶ 7. Section 100.070 further provides that the definitions set forth in the Code “shall be observed, unless it shall be otherwise expressly provided in any Section or ordinance, or unless inconsistent with the manifest intent of the Board of Aldermen, or unless the context clearly requires otherwise[.]” Id. ¶ 5. In addition, the Code mandates that “[t]he headings of the Chapters and Sections of this Code are intended as guides and not as part of this Code for purposes of interpretation or construction.” Code § 100.100.1.

An officer of the City of Desloge's police department “may arrest on view, and without a warrant, any person the officer sees violating or who such officer has reasonable grounds to believe ... has violated any ordinance over which such officer has jurisdiction.” Mo.Rev.Stat. § 544.216. (Stipulation, ¶ 9.) A violation of the Ordinance is punishable by a fine of up to $500.00, imprisonment of up to 90 days, or both. Code § 100.210.A.

The City adopted the Ordinance on or about June 14, 1999. Defendant has filed the affidavit of Greg Camp, the City Administrator,who was a member of the Board of Alderman at the time the Ordinance was adopted. He attests that the Ordinance was adopted in response to concerns about traffic congestion and safety risks for motorists and pedestrians “arising from individuals standing in or upon public streets to engage in peddling, solicitation and similar activities, including the acts of handing out ... handbills and other materials in support of various organizations.” (Doc. No. 18–1, ¶ 5.) He further attests that the intended purpose of the Ordinance was to avoid such congestion and disruption of traffic by prohibiting individuals and various organizations from peddling, soliciting, or distributing handbills and leaflets in the streets. Id. No contrary evidence was presented. Since the City adopted the Ordinance, there is no dispute that it has been enforced against all organizations, regardless of their stated purpose or message. (Doc. No. 18–2.)

Plaintiffs have regularly distributed handbills on public streets and sidewalks as an efficient way of spreading their messages to a large number of persons living in, or found in, an area in a short period of time. (Stipulation, ¶ 10.) The literature that Plaintiffs propose to distribute is informational and does not request any contribution from or immediate action by the recipient. (Doc. No. 18–3; Pl. Hearing Exs. 4–7.) The leaflets cover such topics as the impact of Shariah law on the United States, risks to “White Americans” from racially-motivated attacks, information about Klansmen, and the risks posed by methamphetamine. Id.

Plaintiffs planned to distribute handbills in the City on October 27, 2012, and on unspecified dates thereafter. (Stipulation, ¶ 11.) In preparation for this solicitation activity, Ancona contacted the City and asked if he could approach individuals within stopped vehicles at the intersection of Desloge Drive and Oak Street in the City and distribute leaflets to them. (Doc. No. 18–2, ¶ 4.) Desloge Police Corporal Sean Roney advised Ancona that he could stand on the sidewalks or other areas not within the intersection to hand out his leaflets, could hand out the leaflets upon the City's sidewalks and could also display signs on the sidewalk, but for safety and traffic purposes, could not stand within the intersection. Id., ¶ 5. Further, Corporal Roney advised Ancona that Plaintiffs could approach drivers and/or pedestrians in other public, private, or semiprivate areas, including public parking lots near the intersection, and that Plaintiffs also could go from door to door to distribute leaflets on private property. Id.

As a result of Ancona's discussions with the police department and City Administrator, Plaintiffs canceled their plans to distribute literature in Desloge on October 27, 2012, and rescheduled their plans for November 3, 2012. (Stipulation, ¶ 14.) On October 29, 2012, Plaintiffs' attorney wrote to the City Administrator asserting that Plaintiffs' distribution of literature is not solicitation, and that the application of the Ordinance to prohibit the distribution of their literature on public streets and sidewalks would violate the First Amendment. On October 30, 2012, the City's attorney responded in writing, stating that the Ordinance would be enforced, that the term solicitation applies to activities “other than selling” and includes the distribution of handbills, and that Ancona would be allowed to go door to door to disseminate his literature. Id. ¶ 16. After receiving a copy of the October 30, 2012 letter from the City's attorney, Plaintiffs canceled their plans to distribute literature in the City on November 3, 2012, and have refrained from distributing literature in the City, or planning to do so, on dates thereafter. Id. ¶ 17.

II. STANDARD OF REVIEW

In determining whether to issue a preliminary injunction, the Court must consider the following four factors: (1) the threat of irreparable harm to the movants if the injunction were not granted; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movants will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc).

“In a First Amendment case, ... the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008), overruled on other grounds by Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir.2012). Because Plaintiffs are challenging a duly enacted ordinance, they must show that they are “likely” to prevail on the merits, not merely that they have “a fair chance” to prevail. Id. “ ‘When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.’ ” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir.2012) (quoting Phelps–Roper v. Troutman, 662 F.3d 485, 488 (8th Cir.2011) (per curiam)).

III. ARGUMENTS OF THE PARTIES

Plaintiffs assert that they are likely to succeed on the merits of their First Amendment claim. They assert a facial challenge to the Ordinance, arguing that it applies to streets and sidewalks, and is overbroad, prohibiting expressive activity on public streets, sidewalks, curbs and alleyways, and criminalizes speech on matters of public concern within traditionally public forums. In addition, Plaintiffs contend that the Ordinance is not narrowly tailored to serve a significant governmental interest. Plaintiffs also assert that they will be irreparably harmed if an injunction does not issue because their right to free expression will be chilled. Finally, Plaintiffs claim that the public interest and the balancing of the equities weigh in their favor because the Ordinance infringes on the First Amendment rights of persons seeking to express their views by distributing literature on public streets.

In response, Defendant argues that while the Ordinance applies to leafletting, it prohibits such conduct only in the street, and not on curbs or sidewalks. As evidence of the Board's intent to this effect, Defendant relies on Camp's affidavit. Consistent with this interpretation, Defendant asserts that it does not intend to enforce the Ordinance to prevent Plaintiffs from handing out leaflets when standing on sidewalks or curbs, or in parking lots, or from delivering leaflets to private homes. Defendant contends that the Ordinance, so construed, therefore does not unreasonably limit alternative avenues of...