Traditionalist American Knights of the Ku Klux Klan et al v. Desloge, City of, Missouri

Filing 100

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment is GRANTED in part and DENIED in part. [Doc. 73.] The motion is GRANTED with respect to Counts I and II of Plaintiffs Amended Complaint. The motion is DENIED with r espect to Count III. IT IS FURTHER ORDERED that Plaintiffs Motion for Partial Summary Judgment is DENIED. IT IS FURTHER ORDERED that Counts I and II of Plaintiffs Amended Complaint are dismissed as moot. IT IS FINALLY ORDERED that a Rule 16 Conferenc e is set on Tuesday, March 8, 2016 at 10:00 a.m. in the chambers of the undersigned. An order setting forth the Rule 16 will accompany this Memorandum and Order.[Doc. 75.] 73 75 Signed by Magistrate Judge Nannette A. Baker on 2/23/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TRADITIONALIST AMERICAN KNIGHTS
OF THE KU KLUX KLAN, et al.,
Plaintiffs,
v.
CITY OF DESLOGE, MISSOURI,
Defendant.

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Case No. 4:13-CV-810 NAB

MEMORANDUM AND ORDER
The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). Plaintiffs Traditionalist American Knights of the Ku
Klux Klan and Imperial Wizard Frank Ancona (collectively “KKK”) allege free speech and due
process violations related to two iterations of an ordinance prohibiting solicitation and
distribution in the roadways of Defendant City of Desloge, Missouri (“City”). [Doc. 24.] This
Court previously granted a preliminary injunction barring enforcement of the ordinance. [Doc.
41.]

The Eighth Circuit Court of Appeals reversed and remanded for proceedings not

inconsistent with its opinion. Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge,
Mo., 775 F.3d 969 (8th Cir. 2014). On remand, the parties agreed to file early dispositive
motions before conducting any additional discovery. This matter is now before the Court on the
City’s Motion for Summary Judgment [Doc. 73] and the KKK’s Motion for Partial Summary
Judgment [Doc. 75]. Both motions have been fully briefed. For the reasons set forth below, the
Court will grant the City’s motion with respect to Counts I and II of the KKK’s Amended
Complaint, deny the City’s motion with respect to Count III, and deny the KKK’s motion.

I.

The City’s Motion for Summary Judgment
The KKK’s Amended Complaint raises three counts. [Doc. 24.]

Counts I and II

challenge a repealed prior version of the City’s ordinance (“repealed ordinance”). Count III
challenges the current ordinance. The City argues that Counts I and II should be dismissed as
moot and that it is entitled summary judgment on Count III because the Eighth Circuit’s decision
is the law of the case. The KKK counters that it suffered harm under the repealed ordinance and
maintains a claim for nominal damages and that the Eighth Circuit’s decision was a provisional
one based on the limited preliminary injunction record. The Court agrees with the City that
Counts I and II are moot. However, the Court finds that the Eighth Circuit’s decision should not
be afforded law-of-the-case status and therefore the KKK should be allowed to proceed with
Count III.
A.

Counts I and II Challenging the Repealed Ordinance Are Moot

“Mootness is akin to the doctrine of standing because the requisite personal interest that
must exist at the commencement of the litigation (standing) must continue throughout its
existence (mootness).” Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678, 687 (8th Cir.
2012) (en banc) (internal quotations omitted). “When a law has been amended or repealed,
[claims] seeking declaratory or injunctive relief for earlier versions are generally moot unless the
problems are capable of repetition yet evading review.” Id. (internal quotations omitted). If there
is a “reasonable expectation” that an earlier version will be reenacted, a claim challenging that
version is not moot. Id. A request for nominal damages that would have no more effect than
declaratory or injunctive relief will not save an otherwise moot claim. Morrison v. Bd. of Educ.
of Boyd Cty., 521 F.3d 602, 611 (6th Cir. 2008) (cited with approval in Phelps-Roper, 697 F.3d.
at 687).

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Here, there is no indication that the City intends to enforce or reenact the repealed
ordinance. Enacted shortly after the KKK filed this action, the current ordinance clarifies and
narrows the scope of the repealed ordinance. By contrast with the repealed ordinance, it defines
key terms, explicitly states that solicitation and distribution are permissible on sidewalks and in
city parking lots and parks, and provides for severability of the solicitation and distribution
provisions. 1 The current ordinance reflects the City’s intent to exempt expressive activity on

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The repealed ordinance 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.

City of Desloge, Mo. Ord. § 220.205 (effective Apr. 8, 2013). The current ordinance 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
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sidewalks, curbs, and parking lots and addresses infirmities that led the Honorable Audrey G.
Fleissig to enjoin the original version of the ordinance in previous litigation. Traditionalist Am.
Knights of Ku Klux Klan v. City of Desloge, Mo., 914 F. Supp. 2d 1041, 1045, 1050 (E.D. Mo.
2012); see Phelps-Roper, 697 F.3d at 687 (finding no reasonable expectation of reenactment
where funeral protest ordinance was amended in response to considered Sixth Circuit decision in

another person on the sidewalk, or by and among persons in
a city parking lot or city park.
City of Desloge, Mo. Ord. § 220.205 (effective Aug. 22, 2013). The current ordinance defines
terms 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.”
Id. In addition, the current ordinance contains the following severability clause:
In the event that any section, sentence clause, phrase or portion of this Ordinance
is held to be invalid by a court of competent jurisdiction, the remainder of the
Ordinance shall continue in full force and effect, to the extent the remainder can
be given effect without the invalid portion.
City of Desloge, Mo. Ord. § 220.205 § 2 (effective Aug. 22, 2013).
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emerging area of constitutional law). In addition, the severability clause cabined judicial review
in favor of the City in this litigation. [Doc. 41 p. 8.] The City has not arrested or prosecuted
KKK members for engaging in prohibited activity under the repealed ordinance and specifically
disavowed any intent to do so at the preliminary injunction hearing. Finally, the KKK is capable
of challenging any further changes to the ordinance, Phelps-Roper, 697 F.3d at 687, and it would
waste judicial resources to consider the constitutionality of the repealed ordinance, Morrison,
521 F.3d at 611. The Court finds that Counts I and II challenging the repealed ordinance are
moot.
B.

The Eighth Circuit’s Decision Is Not the Law of the Case

The City argues that it is entitled to summary judgment on Count III because the Eighth
Circuit’s decision should be afforded law-of-the-case status. The Court disagrees. Due to the
limited purpose of a preliminary injunction and the use of procedures that are less formal and
evidence that is less complete than a trial on the merits, “it is generally inappropriate for a federal
court at the preliminary-injunction stage to give a final judgment on the merits.” Univ. of Texas
v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834, 68 L. Ed. 2d 175 (1981). The Eighth
Circuit has “long held that findings of fact and conclusions of law made by a court granting a
preliminary injunction are not binding.” U.S. Sec. & Exch. Comm'n v. Zahareas, 272 F.3d 1102,
1104-05 (8th Cir. 2001) (internal quotations omitted).

“A preliminary determination of

likelihood of success on the merits in a ruling on a motion for preliminary injunction is ordinarily
tentative, pending a trial or motion for summary judgment.” Goodheart Clothing Co. v. Laura
Goodman Enterprises, Inc., 962 F.2d 268, 274 (2d Cir. 1992). “It would therefore be anomalous
at least in most cases … to regard the initial ruling as foreclosing the subsequent, more thorough
consideration of the merits that the preliminary injunction expressly envisions.” Id.

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This Court sees no reason to depart from the general rule that a preliminary injunction
decision will not foreclose further proceedings on the merits. The Eighth Circuit began its
analysis by reciting the preliminary injunction standard, repeatedly referenced the preliminary
injunction record, and suggested evidentiary deficiencies that might change the outcome on the
merits, namely, evidence indicating that “the city’s real motive for curtailing speech activities
was to discriminate against particular messages.” Traditionalist Am. Knights of the Ku Klux
Klan, 775 F.3d at 974, 979. Absent an explicit directive from the Eighth Circuit that the decision
should be treated as on the merits, this Court will not afford it law-of-the-case status. See Pitt
News v. Pappert, 379 F.3d 96, 104-05 (3d Cir. 2004) (Alito, J.) (holding preliminary injunction
decision by prior panel was not binding on later panel reviewing final judgment unless prior
panel had “taken an unequivocal position on the merits,” “particularly where important First
Amendment issues are raised”). The cases cited by the City are inapposite. Naser Jewelers, Inc.
v. City of Concord, N.H., 538 F.3d 17 (1st Cir. 2008) and Entergy, Arkansas, Inc. v. Nebraska,
241 F.3d 979, 987 (8th Cir. 2001) both involved courts of appeals determining whether their
prior decisions should be afforded law-of-the-case status following additional proceedings in the
district court. The Court will deny the City’s motion for summary judgment as to Count III.
II.

The KKK’s Motion for Partial Summary Judgment
In ruling on the KKK’s motion for preliminary injunction, this Court found that the KKK

could challenge the distribution provisions of the ordinance, but lacked standing to challenge the
solicitation provisions. [Doc. 41 p. 8.] The Court further found that the distribution provisions
were content neutral and therefore subject to intermediate scrutiny. [Id. at 9.] On appeal, the
KKK conceded that the distribution provisions were content neutral under prevailing precedent.
Following the Eighth Circuit’s decision in this case, the Supreme Court decided Reed v. Town of

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Gilbert, Arizona and vacated the First Circuit’s judgment in Thayer v. City of Worcester,
Massachusetts, remanding the case for further consideration in light of Reed. 135 S. Ct. 2218,
192 L. Ed. 2d 236 (2015); 135 S. Ct. 2887, 192 L. Ed. 2d 918 (2015). The KKK contends that
Reed and the Supreme Court’s decision vacating Thayer constitute intervening authority that
alters the content neutrality analysis in this case. The KKK argues that, under Reed, the City’s
ordinance is content based on its face and therefore the KKK is entitled to summary judgment on
Count III. The Court disagrees.
In Reed, the Supreme Court struck down a municipal code that applied differing
restrictions to signs depending on whether they were “ideological” (communicating a message or
idea), “political” (designed to influence the outcome of an election), or a “temporary directional
sign” (directing the public to church or some other qualifying event). 135 S. Ct. at 2227. Reed is
notable in that it clarified the content based inquiry and arguably expanded the universe of
content discrimination. The “crucial first step” is to evaluate a law on its face, without regard for
the law’s purpose. 135 S. Ct. at 2228. A law is content based if it targets speech based on
communicative content, including topic, idea, or subject matter, and, more subtly, “function or
purpose.” Id. at 2226-27. Reed makes clear that viewpoint discrimination is merely “a more
blatant and egregious form of content discrimination” and that “a speech regulation targeted at
specific subject matter is content based even if it does not discriminate among viewpoints within
that subject matter.” Id. at 2230 (internal quotations omitted).

The touchstone inquiry is

“whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker
conveys.” Id. at 2227.
In light of Reed, the Supreme Court vacated the First Circuit’s decision upholding a
panhandling ordinance in Thayer v. City of Worcester, Massachusetts. 135 S. Ct. 2887, 192 L.

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Ed. 2d 918 (2015). Thayer involved an ordinance that made it unlawful to beg, panhandle or
solicit, defined as seeking an immediate donation of money or other thing of value, in an
aggressive manner. The First Circuit found the ordinance was content neutral. 755 F.3d 60, 71
(1st Cir. 2014). On remand, the district court found it was content based: “Simply put, Reed
mandates a finding that [the ordinance] is content based because it targets anyone seeking to
engage in a specific type of speech, i.e., solicitation of donations.” No. CV 13-40057-TSH, 2015
WL 6872450 (D. Mass. Nov. 9, 2015).
Other courts have reached a similar conclusion. See McLaughlin v. City of Lowell, No.
14-10270-DPW, 2015 WL 6453144, at *4 (D. Mass. Oct. 23, 2015) (“It appears at this point
clear that regulations of solicitation which single out the solicitation of the immediate transfer of
funds for charitable purposes are content-based.”); Browne v. City of Grand Junction, No. 14CV-00809-CMA-KLM, 2015 WL 5728755, at *9 n. 8 (D. Colo. Sept. 30, 2015) (observing that
any law prohibiting all solicitation speech in a public forum constitutes content discrimination
under Reed); Norton v. City of Springfield, Ill., 806 F.3d 411 (7th Cir. 2015) (reversing rejection
of plaintiffs’ argument that targeting of oral requests for money now but not requests for money
later constitutes content discrimination).
If the solicitation provisions of the City’s ordinance were at issue, Reed would certainly
constitute intervening authority. However, the distribution provisions are distinguishable from
the panhandling ordinances struck down in the wake of Reed. The City’s ordinance provides
that, “No person shall stand in or enter upon a Roadway for the purpose of distributing anything
to the occupant of any vehicle.” City of Desloge, Mo. Ord. § 220.205 (effective Aug. 22, 2013)
(emphasis added). Distribution is defined as “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

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item being distributed.” Id. The distribution provisions plainly apply to the exchange of any item
without regard for communicative content. An officer enforcing the ordinance need not evaluate
what is being distributed to determine whether a violation has occurred. Reed, 135 S. Ct. at 222627. Reed, therefore, does not alter the Court’s finding that that the distribution provisions are
content neutral. See Thayer, 2015 WL 6872450, at *12 (ordinance prohibiting walking or
standing upon a roadway, subject to certain “lawful” exceptions, was content neutral); Watkins v.
City of Arlington, No. 4:14-CV-381-O, 2015 WL 4755523, at *7 (N.D. Tex. Aug. 12, 2015)
(ordinance prohibiting in-roadway distribution of “any material” to occupant of a vehicle stopped
at a signal was content neutral). Because the distribution provisions of the ordinance are content
neutral, they are not subject to strict scrutiny. Therefore, the KKK’s motion for partial summary
judgment will be denied.
III.

Conclusion
For the foregoing reasons, the Court will grant the City’s motion with respect to Counts I

and II of the KKK’s Amended Complaint, deny the City’s motion with respect to Count III, and
deny the KKK’s motion.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED in part and DENIED in part. [Doc. 73.] The motion is GRANTED with respect
to Counts I and II of Plaintiffs’ Amended Complaint. The motion is DENIED with respect to
Count III.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary Judgment is
DENIED. [Doc. 75.]

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IT IS FURTHER ORDERED that Counts I and II of Plaintiffs’ Amended Complaint
are dismissed as moot.
IT IS FINALLY ORDERED that a Rule 16 Conference is set on Tuesday, March 8,
2016 at 10:00 a.m. in the chambers of the undersigned. An order setting forth the Rule 16 will
accompany this Memorandum and Order.
Dated this 23rd day of February, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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