Weicherding claims he did not talk about the Ku Klux Klan to
any staff at Graham, did not distribute literature at Graham,
and did not display any Klan signals to other Klan members.
Furthermore, Weicherding claims that no disruption at the
prison occurred because of his beliefs.
Weicherding brought this action against Riegel, Dobucki, and
Peters claiming that he was terminated in violation of his
First Amendment right of association. The Defendants filed a
motion for summary judgment claiming they are entitled to
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if' the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed. R.
Civ. Pro. 56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01
(7th Cir. 1995). The moving party has the burden of providing
proper documentary evidence to show the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of
material fact exists when "there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact
exists, the Court must consider the evidence in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the
moving party has met its burden, the opposing party must come
forward with specific evidence, not mere allegations or denials
of the pleadings, which demonstrates that there is a genuine
issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.
The doctrine of qualified immunity affords public officials
some measure of protection from personal liability in their
performance of discretionary duties. Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
Qualified immunity protects a state official's discretionary
actions so long as the official's actions co not violate
clearly established rights of which a reasonable person would
have known. Id. As made clear by the Seventh Circuit, when the
issue of qualified immunity is raised, a court must employ a
two-part analysis: (1) Does the alleged conduct set out a
constitutional violation? and (2) Were the constitutional
standards clearly established at the time in question? Burns v.
Reed, 44 F.3d 524, 526-27 (7th Cir. 1995).
Plaintiff claims that he was discharged from his employment
because of his association with the Ku Klux Klan and that his
discharge violated his First Amendment right of association.
When a public employee alleges that he was fired in violation
of his constitutional right to associate freely with others,
the claim is analyzed under the right of free speech cases,
Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731,
20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983). See Griffin v. Thomas,
929 F.2d 1210, 1212-14 (7th Cir. 1991) (applying Connick-Pickering
approach to freedom of association claims). "To be protected, a
public employee's expressive activity must `be on a matter of
public concern' and his interest in the expression must
outweigh the State's interest in promoting the efficiency of
its public services." Gregorich v. Lund, 54 F.3d 410, 414 (7th
Cir. 1995) (quoting Waters v. Churchill, 511 U.S. 661, 667-69,
114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994)).
1. Public Concern
Applying the above principles to the instant case, the Court
must first determine whether Plaintiff's expressive activity
touched upon a matter of public concern. The determination of
whether associational rights touch upon a matter of public
concern must be based on "the content, form and context" of
the expression as revealed by the whole record.
Gregorich, 54 F.3d at 415, citing Connick, 461 U.S. at 147-48,
103 S.Ct. at 1690-91. The Court must also examine
"the point" of Plaintiff's expression. Gregorich, 54 F.3d at
Reviewing the record, the Court finds that Plaintiff's
associational activities do touch upon a matter of public
concern. Plaintiff held a Ku Klux Klan rally at his house and
distributed Ku Klux Klan literature. Plaintiff's deposition
testimony reflects that he perceives the Ku Klux Klan as a
"Christian organization" and "fraternal order" comprised
mostly of members of the white race. The flyers Weicherding
participated in handing out advertising the rally at his house
set forth the mission and ideals of the Ku Klux Klan:
There are thousands of organizations working for
the interest of Blacks. How many groups stand up
for the culture, values and ideals of the White
Majority? Not many, as a result we are faced with
reverse discrimination in jobs, promotions, and
scholarships — busing for forced integration —
high taxes for minority welfare — a high rate of
brutal crime — gun control — Anti-White movies
and TV programs — in short, a society oriented
to the wishes of minorities. We of the Ku Klux Klan
are unapologetically committed to the interests,
ideas, and cultural values of the White Majority.
We are determined to maintain and enrich our
cultural and racial heritage.
The Court finds that the message Plaintiff sought to convey
and his associational activity touch upon a matter of public
2. Balancing Test
Having determined that Plaintiff's speech involved a matter
of public concern, the next step is to "balance the interests
of the [employee], as a citizen, in commenting upon matters of
public concern and the State's interest, as an employer, in
promoting the efficiency of the public services it performs."
Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. While it is
certainly clear that a public employee has a right to
associate, that right is not absolute and it is "subject to the
countervailing concerns of governmental interest contemplated
by Pickering and Connick." Gregorich, 54 F.3d at 416. Factors
to consider in deciding the extent to which an employer may
legitimately take adverse employment action: 1) the effect of
the Plaintiff's conduct on discipline and harmony among
co-workers; 2) whether the employment relationship is one in
which personal loyalty and confidence are necessary; 3) whether
the speech impeded Plaintiff's ability to competently perform
his daily duties; 4) the time, place or manner of the speech;
5) the context in which the underlying dispute arose; 6)
whether the matter was one on which debate was vital to
informed decisionmaking; and 7) whether the speaker should be
regarded as a member of the general public. Wright v. Illinois
Dep't of Children & Family Servs., 40 F.3d 1492, 1502 (7th Cir.
In the qualified immunity context, this Court must determine
whether, at the time Plaintiff was discharged, it was clearly
established that his interest outweighed the State's interest.
Gregorich, 54 F.3d at 416.
Defendant Dobucki submitted an affidavit stating that Graham
houses approximately 1,505 male felons. Over 60% are Black or
Hispanic; approximately 60% have been convicted of serious
violent crimes. Furthermore, while gang activity is prohibited
by Department of Corrections' rules, approximately 48% of the
inmates housed at Graham are affiliated with a gang. These
gangs include the Black Gangster Disciples, Vice Lords, Black
Disciples, El Rukns, and Northsiders.
Dobucki's affidavit indicates his belief that the racial
composition and violent criminal history of the Illinois
prison population have generated racial tensions and a high
potential for racially motivated attacks and disturbances. He
believes that it is vital to maintain racial harmony.
Moreover, it is critical to the safe operation of the
correctional facility for the staff to be sensitive to the
potential for race violence. Permitting a sergeant who has
affiliation with the Ku Klux Klan to continue working would
seriously impair security and could lead to incidents of
racially motivated violence. Finally, Dobucki was concerned
that by permitting a sergeant who was affiliated with the Ku
Klux Klan to remain at Graham would create a perception to
inmates and staff that the facility condones or supports the
philosophy advocated by the Ku Klux Klan and would therefore
any perception of fairness by prison administrators, which
would exacerbate existing racial tensions and endanger staff
Defendants believe they are entitled to qualified immunity
because it was not clearly established that the Department of
Corrections was powerless to interfere when a correctional
officer's private actions raised the potential of interference
with the goals of the Department. Additionally, Defendants
argue that in every analogous case found, the courts have
sided with the employer.
Plaintiff argues that although he could not find a prison
case involving the Ku Klux Klan at the Seventh Circuit or
Supreme Court level, there are many analogous cases which
clearly define Plaintiff's rights.
When it comes to the Pickering-Connick balancing test, the
Seventh Circuit has noted that:
[i]t is important to underscore the significance
that the latter part of the analysis announced in
Pickering plays in qualified immunity cases.
Differences in the nature of the competing
interests from case to case make it difficult for a
government official to determine, in the absence of
case law that is very closely analogous, whether
the balance that he strikes is an appropriate
accommodation of the competing individual and
governmental interests. We must remember that
government officials are not expected to be
prescient and are not liable for damages simply
because they legitimately but mistakenly believed
that the balancing of interests tipped in the
State's favor.[citation omitted]. . . . Thus, in
such circumstances, "`the facts of the existing
case law must closely correspond to the contested
action before the defendant official is subject to
liability.'" Rakovich v. Wade, 850 F.2d 1180, 1213
(7th Cir. 1988) (en banc) (quoting Benson v.
Allphin, 786 F.2d 268, 276 (7th Cir.)(Benson II),
cert. denied 479 U.S. 848, 107 S.Ct. 172, 93
L.Ed.2d 109(1986)). Although the protection
afforded the government official is indeed
substantial, it is not necessary that the plaintiff
produce a case that is on "all fours" with the
situation at issue. As the Supreme Court said in
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 3039, 97 L.Ed.2d 523 (1987), a plaintiff must
allege the violation of a "sufficiently
particularized" right but need not establish that
the very action in question has previously been
Gregorich, 54 F.3d at 414-15.
Plaintiff cannot present a closely analogous case that
demonstrates that clearly established law existed
demonstrating that Plaintiff's interest in his association
with the Ku Klux Klan outweighed the State's interest in
maintaining racial harmony in the prison system. The three
cases Plaintiff cites as most analogous consist of two
district court cases and one state court case. The Seventh
Circuit has held that district court decisions "[t]aken
together with other evidence . . . might show that the law has
been clearly established. But by themselves they cannot
clearly establish the Law. . . ." Anderson v. Romero,
72 F.3d 518, 525 (7th Cir. 1995). Certainly, if a United States
district court case cannot establish "clearly established law,"
then neither can a state law case. Nonetheless, this Court has
examined those cases and does not find them supportive of
Plaintiff's claim that the law was clearly established.
Plaintiff first cites Murray v. Jamison, 333 F. Supp. 1379
(W.D.N.C. 1971), in which the plaintiff, a city employee who
worked as a dispatcher for the Charlotte Building Inspection
Department, was discharged immediately upon his employer's
discovery that he was the Grand Dragon of the Ku Klux Klan of
North Carolina. This case did not involve a correctional
officer or a person even remotely employed in a similar
capacity. Because the occupations are different, the balancing
test would be different. In fact, the case itself recognizes
that the result may be different if membership in the Klan
produced or could produce a "lower quality of performance of
the employee's duties." Id. at 1381-82.
The second alleged analogous case cited by Plaintiff,
Savina v. Gebhart, 497 F. Supp. 65 (D.Md. 1980), involved a
school night watchman and applied pre-Harlow qualified immunity
standards. Therefore, it is of no help to Plaintiff.
The third case cited by Plaintiff, Curle v. Ward, 46 N.Y.2d
1049, 416 N.Y.S.2d 549, 389 N.E.2d 1070 (1979), is certainly
analogous. In that case, a correctional officer was terminated
for his alleged membership in the Ku Klux Klan. The Court of
Appeals of New York, in a two paragraph. opinion, held that
the defendants failed to tender sufficient evidence of the
claimed detrimental impact on the operation of the
correctional facility. A state court case is certainly not the
proper source for "clearly established law." Therefore, this
decision is of no help to Plaintiff. Furthermore, this Court
finds the dissent of that case more persuasive. As the dissent
in that case points out, "common sense is proof enough of the
effect prison guards who are members of the Klan would have on
a prison population comprised mainly of Blacks and hispanics."
Id. at 1051, 416 N.Y.S.2d 549, 389 N.E.2d 1070 (Wachtler, J.
Consequently, the Court finds ample support for Defendants'
conclusion that the balancing of interests would weigh in
their favor. The case of McMullen v. Carson, 754 F.2d 936 (11th
Cir. 1985), involved a clerical employee for the Sheriff's
department. After an incident in the town involving a cross
left in the yard of a black woman's home, the plaintiff and the
"Imperial Wizard" of the Klan faction to which they belonged,
held a news conference disclaiming involvement in the incident.
Id. at 937. During that televised news conference, plaintiff
identified himself as a Klan recruiter and a Sheriff's office
employee. After the Sheriff learned of plaintiff's activities,
he dismissed him. The Sheriff testified that he thought
retaining the plaintiff would lead to morale problems and
affect his department's ability to perform its duties. Id.
After balancing the competing interests, the Court found that
the interests balanced in favor of the defendants. Id. at 940.
See also Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995)
(finding that a police officer's interest in attending a party
dressed in blackface did not outweigh the police department's
interest; "[b]ecause police departments function as
paramilitary organizations charged with maintaining public
safety and order, they are given more latitude in their
decisions regarding discipline and personnel regulations than
an ordinary government employer." Id. at 971, (citations
omitted)). Lawrenz v. James, 852 F. Supp. 986 (M.D.Fla. 1994),
aff'd 46 F.3d 70 (11th Cir. 1995) (holding that correctional
institution defendant's interest in the efficient operation of
the correctional facility outweighed plaintiff's First
Amendment right to wear, off-duty, a T-shirt adorned with a
swastika and the words "White Power.").
Plaintiff tries to distinguish the cases cited by Defendants
arguing that no negative reactions occurred as a result of
Plaintiff's Klan membership nor after he appeared on
television stating that the Klan rally would be held at his
house. Therefore, unlike McMullen, where the violent reaction
of the community affected the balancing test, the balancing
test in the instant case would not necessarily tip in favor of
The Court finds this argument unavailing. There is no
requirement that the Defendants wait for "events to unfold to
the extent that the disruption of the office and the
destruction of working relationships [was] manifest" before
acting. Connick, 461 U.S. at 152, 103 S.Ct. at 1692. See also
Lawrenz v. James, 852 F. Supp. at 994 (holding that defendants
"did not have to wait until racial tensions erupted before
It is well-accepted that the Ku Klux Klan is not merely, as
Plaintiff stated, a "fraternal, Christian organization." As
noted by the Eleventh Circuit, "violent racism" is the "Klan's
hallmark." McMullen, 754 F.2d at 938. Correctional facilities
and their officers have a responsibility to operate the
correctional facility in a safe manner — safe for inmates and
safe for staff. As Dobucki's affidavit suggests, it is critical
that staff be sensitive to the potential for race violence.
Plaintiff's affiliation with the Klan could lead to racial
tension aid incite violence — and Defendants were not required
to wait until such violence resulted before taking action.
Furthermore, the perception by the inmates and the community
regarding the philosophy of the correctional facility is
crucial. Permitting a sergeant affiliated with the Klan to
remain at Graham could send the message that the facility
condones or even supports the philosophy of the Klan This could
further exacerbate racial tensions in the prison and in the
The Court finds that it was not clearly established that
Plaintiff's interest outweighed
the State's interest. In fact, the case law clearly supports
Defendants' conclusion that their interests would outweigh
For the foregoing reasons, the Court finds Defendants are
entitled to qualified immunity. Summary judgment is granted to
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