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October 29, 1990

THE DISTRICT OF COLUMBIA, et al., Defendants

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 On October 23, 1990 plaintiffs Christian Knights of the Ku Klux Klan Invisible Empire, Inc., (the "Ku Klux Klan") and their Imperial Wizard, Virgil Griffin, filed motions for a temporary restraining order and a preliminary injunction enjoining the District of Columbia or, in the alternative, the United States to allow them to march on October 28, 1990 from the Washington Monument to the Capitol to hold a political rally. Defendants United States and the District of Columbia supplied briefs after 12:00 noon on October 25, 1990, a hearing on the matter was held at 4:00 p.m. that same day, and a Memorandum and Order were issued that night, ordering defendant District of Columbia to issue a permit for the entire requested route of plaintiffs' march and denying plaintiffs' motions against defendant United States. See Christian Knights of the Ku Klux Klan, 751 F. Supp. 212 (D.D.C. 1990). That decision was appealed and, on October 27, the Court of Appeals remanded the case for additional findings of fact and conclusions of law. See Christian Knights of the Ku Klux Klan, 287 U.S. App. D.C. 39, 919 F.2d 148 (D.C. Cir. 1990). On remand, the parties filed proposed findings of fact and a three-and-one-half hour evidentiary hearing was held on the evening of October 27, 1990 and into October 28, 1990. Early on October 28, 1990, an Order was issued. 751 F. Supp. 216. This Memorandum further explains the reasons for the rulings in that Order.

 This Court's October 25 Memorandum noted that plaintiffs had applied for a permit from the District of Columbia to walk from their staging area under the Washington Monument to 14th Street and Constitution Avenue, N.W., and down to 3rd Street and Constitution Avenue, N.W., and the District had denied the permit in part, permitting the march to start only from 7th Street and Constitution Avenue, N.W. The Memorandum noted that Deputy Chief Carroll, in charge of security for the march, had detailed all available men, some 2,500 officers, but believed that 1,000 more would be necessary to protect the eleven block route. See Memorandum of October 25, 1990. It also noted with favor that United States Government, through the Park Police who are responsible for protecting the Mall area, had found the estimates of Chief Carroll to be "incredible," and represented that the United States would provide any additional resources necessary. See id. [slip op.] at 4. The United States also asserted that it would be unable to find 1,000 trained law enforcement personnel, which the Memorandum found "also inherently incredible." See id.

 Considering the four factors for granting preliminary injunctive relief, the Memorandum found that the plaintiffs had established that they were likely to succeed on the merits because the District's concern for "the violent reaction anticipated from those who disagree with (indeed loathe) plaintiffs and their message" was not likely "proper grounds for imposing a restriction upon speech" because there was ample precedent suggesting that the threat of audience hostility was not a reason for denying a permit altogether. See id. [slip op.] at 6 - 7. That Memorandum also found that the injury from the violation of plaintiffs' First Amendment rights was irreparable and that the public had a paramount interest in the protection of First Amendment rights. See id. [slip op.] at 8.

 On October 27, 1990, the Court of Appeal vacated and remanded. See Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. The District of Columbia, slip op. at 1 (per curiam). In his concurring opinion, Judge Edwards held that no findings were made as to whether "the modification of the requested route was consistent with normal permitting procedures," whether absent the threat of violence plaintiffs "would have been granted the permit sought," and "whether the threat of violence is truly real, substantial and beyond reasonable control." Id. at 2, 4, 6 (Edwards, J., concurring). As a consequence, Judge Edwards could not find a showing of irreparable injury. He did not attempt to reconcile the "so-called 'heckler's veto' cases" with the Supreme Court's indication that "concern for public safety is a proper government interest." See id. at 3 - 5.

 Judge Randolph, in his separate concurring opinion asserted that the District of Columbia had found that 2,500 law enforcement officers were necessary for protection of the four block area from 7th Street and Constitution Avenue, N.W., to 4th Street and Constitution Avenue, N.W., and he found that "the district court has permitted the Klan to march from 14th Street regardless of whether the additional officers can be rounded up." See id. at 1 - 2 (Randolph, J.). Judge Randolph also observed that reasonable time, place, and manner restrictions were a proper response to the probability of violence, that Deputy Chief Carroll had testified that more than 1,000 additional officers were necessary to secure seven additional blocks, and that the District of Columbia was forced to restrict the plaintiffs' march because there were "no more officers available." See id. at 3. Finally, he noted that "the case would be different if there were evidence that the authorities discriminated against the Klan on some improper basis." See id. at 4.

 Dissenting, Chief Judge Wald found that the trial court had found that the Metropolitan Police had not established that 2,500 police officers were necessary to protect a four-block march and that therefore "there is not sufficient justification for the severe curtailment of the traditional route imposed here." See id. at 1 - 2 (Wald, C.J., dissenting).

 These opinions suggest several things. First, if the District of Columbia fails to show a threat of violence "beyond reasonable control," then the plaintiffs are substantially likely to succeed on the merits. Judge Edwards' concurrence suggests that if there were a finding that there was no threat of violence "beyond reasonable control," restrictions based upon the potential violence of a hostile audience would be improper; Chief Judge Wald in dissent held that without a showing that the police could not protect the eleven block route the District of Columbia's restriction of plaintiffs' permit request must be struck down. Second, both Judge Edwards and Judge Randolph indicated that limiting plaintiffs' permit in contravention of the District's practice in similar circumstances would be arbitrary and also invalid. Third, the question of whether, absent clear and present danger, the threat of a hostile audience can ever be proper grounds for limiting the length of a permit is still open: Although Judge Randolph firmly rejected the principle, neither Judge Edwards nor Chief Judge Wald joined him.

 While the Court of Appeals did not articulate the appropriate standard for reviewing the District of Columbia's assertion that there was a threat of violence "beyond reasonable control," Judges Edwards and Randolph did suggest that some "hesitancy" to intervene is appropriate. See id. at 5 (Edwards, J., concurring) (citing Belknap v. Leary, 427 F.2d 496 (2d Cir. 1970) (holding that there is strong presumption that police responsibly perform their duties)); see id. at 4 (Randolph, J., concurring) (same). This hesitancy is based upon the reality that the police are far more expert on questions of crowd control and the risks of violence than the judiciary. In this case, however, there is an additional complication. The assertions of the Metropolitan Police Department are controverted by their federal colleagues, the Park Police, who are involved in the same operation. The Park Police have the same interest as the Metropolitan Police Department in protecting the Capitol City and in reducing violence and potential risk to the public and their officers, and they also have a interest in maintaining good relations with the Metropolitan Police with whom they cooperate frequently. Declaration of Carl J. Holmberg at para. 9. The Court is therefore faced with direction by the Court of Appeals to defer to the police and two police forces making conflicting assertions. Accordingly, the Metropolitan Police Department deserves considerable deference in their factual determinations but, in equal deference to the Park Police, the differences between them must be resolved based upon the normal judicial criteria of demeanor, credibility, and consistency.

 Findings of Fact

 Upon careful consideration of the order and opinions of the Court of Appeals, the parties' filings in this matter, the two hour hearing held on October 25, and the more than three hour post-remand hearing on October 27, and in further explanation of the Order issued on October 28, 1990, I find that:

 1. The route along Constitution Avenue for demonstrations assembling at the Monument and demonstrating at the Capitol is a traditional segment of the nation's premiere public forum.

 2. The National Park Service and the Park Police have jurisdiction over the entire mall area, including an area under the Washington Monument at the corner of 14th Street and Constitution Avenue, N.W., often used as a staging point for marches to the capitol. The District of Columbia Metropolitan Police Department has jurisdiction over Constitution Avenue, N.W., east of 14th Street to 3rd Street, N.W. The United States ...

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