Traditionalist Am. Knights Klan v. City of Desloge

983 F.Supp.2d 1137

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

v.CITY OF DESLOGE, MISSOURI, Defendant.

Case No. 4:13–CV–810 NAB.

United States District Court,

E.D. Missouri,

Eastern Division.

Oct. 1, 2013.

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

John G. Young, Jr., Neal B. Griffin, Stinson and Morrison, St. Louis, MO, Joseph L. Goff, Sr., Reeves and Goff, P.C., Farmington, MO, for Defendant.

MEMORANDUM AND ORDER

NANNETTE A. BAKER, United States Magistrate Judge.

This matter is before the Court on Plaintiffs Traditionalist American Knights of the Ku Klux Klan (“KKK”) and KKK Imperial Wizard Frank Ancona's Motion for Preliminary Injunction. [Doc. 5.] Plaintiffs seek to enjoin Defendant City of Desloge, Missouri from enforcing an ordinance, which prohibits pedestrians from soliciting or distributing in roadways. Plaintiffs assert that the ordinance impermissiblyinfringes upon Plaintiffs' rights under the free speech clause of the First Amendment and is impermissibly vague under the due process clause of the Fourteenth Amendment. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Court will grant Plaintiffs' motion.

I. Background

On or about June 14, 1999, the Aldermen of the City of Desloge (“City”) enacted § 615.070 entitled “PROHIBITION AGAINST SOLICITATION IN STREETS” in an attempt to prohibit pedestrians from soliciting in roadways. City of Desloge, Mo. Ord. § 615.070 (“1999 Ordinance”). Section 615.070 provided: “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.” On December 27, 2012, the Honorable Audrey G. Fleissig for the Eastern District of Missouri preliminarily enjoined enforcement of § 615.070. Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, 914 F.Supp.2d 1041 (E.D.Mo.2012).

On April 8, 2013, the City passed Ordinance 2013.04, which repealed § 615.070 and enacted § 220.205 entitled “PEDESTRIANS PROHIBITED FROM SOLICTING [ sic ] IN ROADWAYS.” City of Desloge, Mo. Ord. § 220.205 (effective Apr. 8, 2013) (“April 8 Ordinance”). Section 220.205 provided: “No person shall stand in or enter upon a roadway for the purpose of soliciting rides, employment, business or charitable contributions from, or distribute anything to, the occupant of any vehicle, except from the occupants of motor vehicles parked off the traveled portion of a roadway adjacent to a sidewalk if the solicitor is on a sidewalk.”

On April 26, 2013, Mr. Ancona and several other members of the KKK attempted to distribute handbills at Oak Street and Desloge Drive, a four-way stop in the City of Desloge. The “main” handbill distributed that day described the KKK's views on gun rights. The organization also distributes handbills on topics like pedophilia and drugs and some members have worn traditional KKK regalia while distributing literature in the roadways of Desloge. Mr. Ancona testified that members stood on the sidewalk holding up the handbills and, if the occupant of a stopped vehicle signaled he wanted one, a member would step out into the street to hand it to him. Police Corporal Sean Roney was coming up on the intersection of Oak and Desloge when he saw a member do just that. Recognizing Mr. Ancona, Corporal Roney approached him, informed him of the new ordinance, and said he had observed a violation. Mr. Ancona then voluntarily accompanied Corporal Roney to City Hall where he was given a copy of § 220.205. At the direction of his police chief, Corporal Roney told Mr. Ancona he had to comply with the ordinance. After scanning the ordinance, Mr. Ancona instructed his members to leave. Mr. Ancona testified that he was told all ordinances on the books would be enforced, that he believed this ordinance to be on the books, and that he therefore feared arrest and prosecution if the KKK continued to distribute handbills. City officials have had no further contact with the KKK.

On April 29, 2013, Plaintiffs filed this action against the City seeking to enjoin enforcement of § 220.205.

On August 12, 2013, the City passed Ordinance 2013.09 amending § 220.205, now entitled “PEDESTRIANS PROHIBITED FROM SOLICITING OR DISTRIBUTING IN ROADWAYS.” City of Desloge, Mo. Ord. § 220.205 (effective Aug. 22, 2013) (“August 12 Ordinance” or simply “Ordinance” or “ § 220.205”). As amended, § 220.205 provides:

1. No person shall stand in or enter upon a Roadway for the purpose of:

(i) soliciting rides from the occupant of any vehicle;

(ii) soliciting employment from the occupant of any vehicle;

(iii) soliciting business or sales of anything from the occupant of any vehicle; or

(iv) soliciting charitable contributions from the occupant of any vehicle.

2. No person shall stand in or enter upon a Roadway for the purpose of distributing anything to the occupant of any vehicle.

3. The Solicitation described in subparagraph 1 and the Distribution described in subparagraph 2, are each permissible to an occupant of a non-moving vehicle on the Roadway adjacent to the sidewalk and if the person doing so is on the adjacent sidewalk.

4. Nothing contained herein is intended to prohibit Solicitation or Distribution by any person on a sidewalk, to another person on the sidewalk, or by and among persons in a city parking lot or city park.

Terms are defined as follows:

“ROADWAY”: “[t]he portion of a public street, road, or highway improved, designed, or ordinarily used for vehicular travel and extending from one (1) curb or edge of pavement to the opposite curb or edge of pavement, including lanes commonly used for parking and including center medians and lane dividers.”

“SIDEWALK”: “[t]hat portion of a public right-of-way between the curb lines or the lateral lines of the pavement on the Roadway and the adjacent property lines, intended for use by pedestrians.”

“Solicitation”: “an exchange between the person within the Roadway and an occupant of a vehicle on the Roadway that often requires the passing or exchange of money and/or other items.”

“Distribution”: “an exchange between the person in the Roadway and an occupant of a vehicle on the roadway, which requires an acceptance or rejection of the item being distributed.”

City of Desloge, Mo. Ord. § 220.205 (effective Aug. 22, 2013).

On August 21, 2013, Plaintiffs filed an Amended Complaint. On August 22, 2013, the Ordinance went into effect. Violation can result in a fine not to exceed $500.00, imprisonment not to exceed ninety (90) days, or both. City of Desloge, Mo. Ord.2001.06 § 5(a) (effective March 12, 2001). Mr. Ancona testified that he has read a copy of the Ordinance provided to him by counsel and assumes if KKK members return to Desloge and step into the street to distribute handbills, they will be in violation of the Ordinance. He testified that it would be difficult to distribute literature at the intersection of Oak and Desloge without stepping off the sidewalk and that the KKK prefers to distribute at that intersection because it provides the most visibility and efficiency.

The Court held a hearing on the matter on September 11, 2013. The City agreed to an abeyance until the issuing of this Order. The City also agreed not to arrest or prosecute Mr. Ancona or any other member of the KKK for their April 26 distribution activity and Plaintiffs in turn dropped their challenge to the April 8 Ordinance. The only ordinance now under review is the August 12 Ordinance.

II. Standard of Review

“Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (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 movant 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). “It is well-settled law that a loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008) (internal quotations omitted), overruled on other grounds by Phelps–Roper v. City of Manchester, 697 F.3d 678 (8th Cir.2012). Thus, if Plaintiffs can establish a sufficient likelihood of success on the merits of their First Amendment claim, they will also have established irreparable harm. See id. “Likewise, the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights.” Id. “The balance of equities, too, generally favors the constitutionally-protected freedom of expression. In a First Amendment case, therefore, the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue.” Id.

III. Discussion

As a threshold matter, the Court must determine whether Plaintiffs having standing to challenge the Ordinance and whether, as the City has argued, their challenge is limited to those provisions of the Ordinance which govern distribution (“Distribution Provisions”).

A. Standing

To establish standing, Plaintiffs must show injury in fact, causation, and redressibility. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury in fact is a concrete and particularized invasion of a legally protected interest, which is actual or imminent, not conjectural or hypothetical. Id. It must be fairly traceable to the challenged conduct and capable of redress by a favorable decision. Id. at 560–61, 112 S.Ct. 2130. Plaintiffs...