Wilkinson v. Forst, Civ. No. H-80-755 (JAC).

• Decision Date: 22 May 1989
• Docket Number: Civ. No. H-80-755 (JAC).
• Citation: 717 F. Supp. 49
• Court: U.S. District Court — District of Connecticut
• Parties: Bill WILKINSON and James Farrands v. Lester FORST, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Donald Long, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Austin McGuigan, Chief State's Attorney for the State of Connecticut at all times relevant hereto, in his official capacity; and the City of Meriden.

717 F. Supp. 49

Bill WILKINSON and James Farrands v. Lester FORST, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Donald Long, Commissioner of Public Safety for the State of Connecticut at certain times relevant hereto, individually and in his official capacity; Austin McGuigan, Chief State's Attorney for the State of Connecticut at all times relevant hereto, in his official capacity; and the City of Meriden.

Civ. No. H-80-755 (JAC).

United States District Court, D. Connecticut.

May 22, 1989.

Philip D. Tegeler, Martha Stone, Connecticut Civil Liberties Union, Hartford, Conn., for plaintiffs.

Carl J. Schuman, Asst. Atty. Gen., Hartford, Conn., for defendants.

RULING ON APPLICATION FOR MODIFIED INJUNCTION

JOSÉ A. CABRANES, District Judge:

This matter is before this court as a result of a remand by the Court of Appeals, see Wilkinson v. Forst, 832 F.2d 1330, 1342 (2d Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1593, 99 L.Ed.2d 907 (1988). On June 30, 1986, this court held that weapons searches at rallies of the Ku Klux Klan violated Klan members' Fourth Amendment rights, and the court enjoined state police from conducting such searches at future Klan events in the absence of individualized suspicion or probable cause. Wilkinson v. Forst, 639 F.Supp. 518 (D.Conn.1986). This court later denied a post-judgment application to permit use of magnetometer searches for weapons at Klan rallies. Wilkinson v. Forst, 656 F.Supp. 710 (D.Conn.1986).

On the appeal of the state officials, the Court of Appeals affirmed the injunction against pat-down and automobile searches without reasonable suspicion or probable cause, Wilkinson v. Forst, 832 F.2d at 1340, but reversed and remanded with a direction to modify the injunction to allow general magnetometer searches without regard to standards of reasonable suspicion or probable cause, id. at 1342. The Court of Appeals directed that the modified injunction "should allow magnetometer searches of persons and packages at such rallies," id. at 1340, but expressed "no view concerning the employment of standing, as against hand-held, magnetometers," id. at 1340 n. 15. While indicating that automobile searches without individualized cause should not be necessary in the circumstances presented, the Court of Appeals noted that it did not "purport to provide a rule for all future contingencies that may be presented to the district court." Id. at 1340.

Evidentiary hearings on this matter were held September 27, 1988, October 13, 1988, and January 13, 1989, and final arguments were heard on May 12, 1989. The record of this case also includes exhibits submitted at the hearings and supplemental affidavits,¹ along with proposed orders regarding magnetometer use from each side.²

In the hearings in this matter, the parties agreed that the questions before this court are (1) when magnetometer searches may be used, and (2) what procedures should be followed when such searches are used, that is, in particular, when "portal" or "walk-through" magnetometers should be used and when use of hand-held magnetometers is appropriate.

DISCUSSION

By the time of the final oral argument in this matter on May 12, 1989, the parties had effectively reached substantial agreement regarding magnetometer procedures.³ The two remaining points of significant disagreement between the parties are: (1) what form of court order or authorization would be required to permit magnetometer searches of rally-goers; and (2) whether "first use" of hand-held, rather than portal, magnetometers should be prohibited.

I. Court Authorization

Plaintiffs urge that magnetometer searches should be permitted only after both a court order prohibiting dangerous weapons and firearms at the rally site and an application thereafter to a federal court for an additional order allowing the use of magnetometers. Plaintiffs argue that defendants should be required to seek a form of "warrant" from a federal court before the defendants are authorized to conduct magnetometer searches of demonstrators entering rally sites where weapons have been banned.

The ruling of the Court of Appeals appears to assume, and the parties do not dispute, that a weapons ban for a Klan rally site would be issued by a state court where public authorities presented evidence of a need for preventive measures. 832 F.2d at 1339. The Court of Appeals stated that magnetometer searches are prima facie permissible where there is evidence of the intention and practice of the Klan to bring firearms to their rallies along with the established potential for violence at such rallies. See id. at 1341.⁴ The defendants agreed at oral argument on May 12, 1989 that weapons bans for Klan rallies would be sought by public authorities on a rally-by-rally basis and would be based on demonstrations of the potential for violence at a given rally.⁵

Under the ruling of the Court of Appeals in Wilkinson v. Forst, a state court order banning firearms and dangerous weapons from a particular rally site, when based on specific findings of an articulable suspicion of violence at the rally, is sufficient to permit magnetometer searches of persons and packages at the rally in question. See 832 F.2d at 1341 ("Given the entire record presented here, including the stated intention and practice of the Klan to bring firearms to their rallies ... and the continuing potential for violent confrontations at these events, we conclude that the injunction entered below should be modified so as to exclude from its prohibition general magnetometer screenings at future Klan rallies in Connecticut."). In effect, the state court's determination that a scheduled rally will be attended by opposition groups who have historically clashed with the sponsoring organization, that there is evidence that the rally could erupt into violence, and that weapons should be banned at a Klan rally site would constitute sufficient authority for state law enforcement authorities to conduct magnetometer searches at that site.⁶ This court is not persuaded that any particular competence or expertise of the federal courts requires that such authority be issued by federal courts, as plaintiffs urged at oral argument on May 12, 1989. Nothing in the decision of the Court of Appeals, or in general principles of federalism, suggests that it is either necessary or appropriate in these circumstances for a federal court to hover over a state court that in presumed good faith seeks to discharge its responsibilities under the United States Constitution and relevant law, including directives of our Court of Appeals.⁷

II. Use of Hand-Held Magnetometers

Plaintiffs argue that defendants should not have the discretion ever to use hand-held magnetometers in the first instance when magnetometer searches of persons entering a rally site have been authorized. Plaintiffs do not object to the use of hand-held magnetometers as a supplement to the free-standing magnetometer after the presence of metal has been detected; indeed, the parties are in substantial agreement regarding general magnetometer procedures.⁸ However, plaintiffs argue that first-instance use of hand-held magnetometers should be prohibited because there is "never any need to use hand-held magnetometers first." Plaintiffs' Brief at 8. Defendants respond that it is "not possible for this Court to say that free-standing metal detectors will always work in all conditions or that the remedial measures suggested by the Klan are reasonable under the circumstances." Post-Trial Brief of the Commissioner at 14.

It is not seriously disputed, and this court finds, that a walk-through or portal magnetometer search is much less intrusive than a search with a hand-held magnetometer.⁹ Further, portal magnetometer searches would promote security at rallies, principally because hand-held magnetometer searches are more prone to operator error.¹⁰ Finally, portal magnetometers can be effectively employed in nearly all conditions and environments.¹¹ Accordingly, portal magnetometer searches should be used in the first instance in all reasonably foreseeable circumstances.¹²

Nonetheless, it does not seem either appropriate or necessary for this court to issue a blanket prohibition of all first-instance use of hand-held magnetometers. Under unexpected and extraordinary circumstances, including, for example, equipment failure of all available walk-through magnetometers, the public authorities implementing a court-ordered weapons ban should have the discretion to conduct hand-held magnetometer searches in the first instance.¹³

III. Additional Points in Dispute

Plaintiffs' proposed order would require defendants to purchase items on an extensive list of equipment and to conduct specific training and consultation on magnetometer use prior to any Klan rally.¹⁴ Although it is arguable that an order including such measures is within the equitable power of court in fashioning an injunctive remedy, this court will decline in these circumstances to issue a mandatory injunction that regulates in detail the training and procurement practices of state law enforcement agencies. Defendants' obligations under the modified injunction are clear, and this court will not assume that defendants will fail to prepare to meet those obligations in the absence of a detailed supervisory order of this court.¹⁵

Finally, the proposed orders diverge on the question of the notice to be provided when the defendants seek a weapons ban for a rally or seek to modify this court's order.¹⁶ If and when the defendants seek any court orders relevant to this matter, simple fairness and orderliness require that the defendants provide plaintiffs and their current counsel with reasonable notice of their intention to seek an order—notice reasonable under the particular circumstances that are presented—prior to any hearing on defendants' application.¹⁷

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