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Phelps-Roper v. Heineman

United States District Court, D. Nebraska

October 30, 2014

DAVE HEINEMAN, In His Capacity as Governor of the State of Nebraska; JON BRUNING, In His Capacity as Attorney General of the State of Nebraska; DONALD KLEINE, In His Capacity as Douglas County Attorney; ALEX HAYES, In His Capacity as Chief of the Omaha Police Department; and JOHN/JANE DOE(S), in Their Official Capacities; Defendants

Decided: October 29, 2014.

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[Copyrighted Material Omitted]

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For Shirley L. Phelps-Roper, Plaintiff: Margie J. Phelps, PRO HAC VICE, PHELPS LAW FIRM, Topeka, KS.

For Dave Heineman, In His Capacity as Governor of the State of Nebraska, Jon Bruning, In His Capacity as Attorney General of the State of Nebraska, Defendants: David A. Lopez, James D. Smith, Jessica M. Forch, Ryan S. Post, Stephanie A. Caldwell, ATTORNEY GENERAL'S OFFICE - NEBRASKA, Lincoln, NE.

For Donald Kleine, In His Capacity as Douglas County Attorney, Defendant: Sandra K. Connolly, DOUGLAS COUNTY ATTORNEY'S OFFICE - CIVIL DIVISION, Omaha, NE.

For Alex Hayes, In His Capacity as Chief of the Omaha Police Department, Defendant: Thomas O. Mumgaard, CITY OF OMAHA, Omaha, NE.

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Laurie Smith Camp, Chief United States District Judge.

This matter is before the Court on the Motion for Summary Judgment (Filing No. 223) and Motion in Limine (Filing No. 244) filed by Plaintiff Shirley L. Phelps-Roper (" Phelps-Roper" ). Also before the Court is the Motion to Strike (Filing No. 249) filed by Defendants Jon Bruning (" Bruning" ) and Dave Heineman (" Heineman" )

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(collectively the " State Defendants" ). For the reasons stated below, the Motion for Summary Judgment and Motion in Limine will be denied, and the Motion to Strike will be denied as moot.


On December 30, 2009, Phelps-Roper brought this action to enjoin the enforcement of the Nebraska Funeral Picketing Law (" NFPL" ), Neb. Rev. Stat. § § 28-1320.01-1320.03 (Reissue 2006). The NFPL originally prohibited picketing within 300 feet of a funeral. Neb. Rev. Stat. § § 28-1320.01(1), .03(1) (Reissue 2006). The Court denied Phelps-Roper's Motion for Preliminary Injunction, concluding that the State of Nebraska (the " State" ) demonstrated a significant interest in protecting funeral attendees. (Filing No. 116).

Phelps-Roper appealed the decision to the United States Court of Appeals for the Eighth Circuit on July 16, 2010. (Filing No. 119.) The Eighth Circuit Court initially reversed this Court's decision, concluding that Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), controlled, and that " since Phelps-Roper was likely to succeed on the merits of her facial challenge under Nixon, the district court should have enjoined enforcement of the NFPL." Phelps-Roper v. Troutman et al., 662 F.3d 485, 490 (2011).

The Eighth Circuit Court later granted rehearing en banc after it overruled aspects of the Nixon case in Phelps-Roper v. City of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) ( en banc ). In City of Manchester, the Eighth Circuit said the government's interest in " protecting citizens from unwanted speech" was not limited to a residence and may " extend beyond the privacy of the home." City of Manchester, 697 F.3d at 691. The privacy interest of " mourners attending a funeral" is " analogous to those which the Supreme Court has recognized for individuals in their homes." Id. at 692. The Eighth Circuit concluded that the ordinance at issue in Manchester was constitutional because the government had an interest in protecting citizens attending a funeral. Id. at 695. Further, the 300-foot buffer zone contemplated by that ordinance furthered the government interest and was narrowly tailored. Id. at 695.

On August 27, 2011, the Nebraska legislature amended the NFPL. The amendment extended the buffer zone from 300 feet to 500 feet. Neb. Rev. Stat. § 28-1320.02 (Reissue 2008 & Cum. Supp. 2012). The NFPL was otherwise unchanged.

The Eighth Circuit issued its opinion with respect to this case after its decision in City of Manchester, and after the amendment to the NFPL. Phelps-Roper v. Troutman, 712 F.3d 412, 415, 416 (8th Cir. 2013). The Eighth Circuit noted that because the NFPL was amended after Phelps-Roper filed her appeal, this Court did not have an opportunity to address the 500-foot buffer. Id. at 416. The Eight Circuit Court concluded that Phelps-Roper's facial and as-applied First Amendment challenges to the amended NFPL should be considered by this Court before being given consideration by the Eighth Circuit. Id. at 416-17. Accordingly, the Eighth Circuit remanded the case to this Court to consider the constitutionality of the 500-foot buffer zone, and whether the NFPL was unconstitutionally applied to Phelps-Roper. Id. at 417.


I. Parties

Phelps-Roper is a United States citizen, a resident of Kansas, and a member of the Westboro Baptist Church (" WBC" ). As part of her sincerely held religious beliefs, she regularly protests at funerals including

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funerals of United States soldiers. She has participated in such protests throughout the United States, including Nebraska, and wants to continue her protests in Nebraska.

Heineman is and was at all relevant times the Governor of the State of Nebraska. The civil administration of the laws of the State of Nebraska is vested in the Governor of Nebraska. Bruning is and was at all relevant times the Attorney General of the State of Nebraska. Neb. Rev. Stat. § 84-203 (Reissue 2008) provides, in part, " The Attorney General is authorized to appear for the state and prosecute and defend, in any court or before any officer, board or tribunal, any cause or matter, civil or criminal, in which the state may be a party or interested." Defendants dispute that § 84-203 supports Phelps-Roper's assertion that the Attorney General is responsible for the enforcement of the NFPL.

Donald Kleine (" Kleine" ) is and was at all relevant times the County Attorney for Douglas County, Nebraska. Kleine has the duty to prosecute criminal actions arising under the laws of the state, based on conduct occurring in Douglas County. Alex Hayes (" Hayes" ) was the Chief of Police for the City of Omaha at some of the times alleged in the Third Amended Complaint, but is not the current chief (Kleine and Hayes are referred to collectively as the " Omaha Defendants" ). Because Omaha is a Metropolitan Class City, the Omaha police have the power to arrest persons for violations of state laws and city ordinances. See Neb. Rev. Stat. § 14-606 (Reissue 2012).

II. The Nebraska Funeral Picketing Law

The NFPL was enacted on April 4, 2006, and generally provides that " [a] person commits the offense of unlawful picketing of a funeral if he or she engages in picketing from one hour prior to through two hours following the commencement of a funeral." Neb. Rev. Stat. § 28-1320.03[1]. Before the enactment of LB 284 in 2011, Neb. Rev. Stat. § 28-1320.02(2) provided: " Picketing of a funeral means protest activities engaged in by a person or persons located within three hundred feet of a cemetery, mortuary, church or other place of worship during a funeral."

At a hearing on January 25, 2006, a proponent of the NFPL bill, former Senator Mike Friend, stated: " There is one particular group that travels the nation to a degree, and lately the Midwest, to protest funerals, and notably military funerals. They have visited Nebraska on a couple occasions, and last month, I guess, they were in Papillion. Their speech is utterly despicable and to me it's deplorable." (Filing No. 7 at ECF 38.) At the same hearing, the President of the Nebraska Funeral Directors Association (and general manager of a Lincoln funeral home) requested that the buffer zone proposed in the NFPL bill be increased from 100 to 300 feet, saying: " First and foremost, it would help ensure that the actions and appearance of demonstrators do not interrupt the solemnity of the occasion. Imagine, if you can, the funeral service that was recently held to commemorate the life of Senator Exon being disrupted by a group of demonstrators that did not have the same beliefs as the senator. A distance of 100 feet would have allowed them to gather on the grounds of the Capitol here." ( Id.) The same person testified: " If [the NFPL bill] were amended to 300 feet, it would still allow for those citizens to exercise their right to protest, yet it would keep them far enough away to shield the families from additional stress and grief." ( Id. at 38-39.)

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In a May 2006 Legislative Research Division's publication, A Review: Ninety-Ninth Legislature Second Session, 2006, the NFPL is described as follows:

Nebraska becomes the sixth state to restrict protests at funerals with the passage of LB 287. The bill responds directly to the actions of the congregants of a small Baptist church in Topeka, Ks., who picket at the funerals of soldiers killed in Iraq and Afghanistan, including at least two in Nebraska, because they believe God is striking down Americans for harboring homosexuals. Members of this church have protested at the funerals of AIDS victims and prominent individuals for years.

(Filing No. 7 at ECF 49-50.)

The language of the NFPL as enacted in 2006 stated:

Section 28-1320.01 -- Unlawful picketing of a funeral; legislative findings.
(1) The Legislature finds that families have a legitimate and legally cognizable interest in organizing and attending funerals for deceased relatives and that the rights of families to peacefully and privately mourn the death of relatives are violated when funerals are targeted for picketing or protest activities.
(2) The Legislature also recognizes that individuals have a constitutional right to free speech and that in the context of funeral ceremonies, the competing interests of picketers and funeral participants must be balanced. Therefor, the Legislature declares that the purposes of sections 28-1320.01 to 28-1320.03 are to protect the privacy of grieving families and to preserve the peaceful character of cemeteries, mortuaries, churches, and other places of worship during a funeral while still providing picketers and protestors the opportunity to communicate their message at a time and place that minimizes the interference with the rights of funeral participants.
Section 28-1320.02 -- Unlawful picketing of a funeral; terms, defined.
For purposes of sections 28-1320.01 to 28-1320.03, the following definitions apply:
(1) Funeral means the ceremonies and memorial services held in connection with the burial or cremation of the dead but does not include funeral processions on public streets or highways; and
(2) Picketing of a funeral means protest activities engaged in by a person or persons located within three hundred feet of a cemetery, mortuary, church, or other place of worship during a funeral.
Section 28-1320.03 - Unlawful picketing of a funeral; penalty.
(1) A person commits the offense of unlawful picketing of a funeral if he or she engages in picketing from one hour prior to through two hours following the commencement of a funeral.
(2) Unlawful picketing of a funeral is a Class III misdemeanor.

Neb. Rev. Stat. § § 28-1320.01 to 28-1320.03 (Reissue 2006).

On August 27, 2011, the amendment to the NFPL went into effect, and the buffer zone was increased from 300 feet to 500 feet. During a Judiciary Committee Hearing on February 4, 2011, regarding the amendment, Senator Tyson Larson and Senator Bob Krist (sponsor of the bill) had this exchange:

Senator Larson: [500] feet was to try to strike a balance between First Amendment rights and family rights? Is that how you came up with 500 feet or ...
Senator Krist: ... I believe that in looking at cemeteries around the area, when we truly respect the rights and privilege of those families and those that grieve, 500 feet may be more appropriate

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for our topography, our terrain, our geography. I think it's a good step in the right direction to enforce that distance.
. . .
Senator Larson: But you wouldn't be opposed to 1,000 or . . .
Senator Krist: Oh, absolutely. I think it would be a great statement to go further than that. . . . But I would balance that, particularly in today's economic times with the potential of a lawsuit, that could balance. But that inherently was my rationale for the 500 foot.

(Filing No. 223-2 at ECF 47-48.)

Robert Swanson, a member of American Legion Post 1 in Omaha, stated during the same hearing:

In answer to your question on how we arrived at 500 feet: 500 feet is more than 300 feet. (Laughter) If you would suggest 1,000 feet, I'd be here again, or two miles for that matter. But the bottom line is the more protection, if you will, we can provide for the families of those who are going through what has to be just the most horrific time in their life, I think we have an obligation to do it.

(Filing No. 223-2 at 46.)

During the Floor Debate of February 24, 2011, Senator Krist said:

LB284, my priority bill for this session is a bill I introduced on behalf of a constituent, Robert Swanson, who is a [member] and past commander of the American Legion Post 1 in Omaha. He also was a founding member of the American Legion Riders. Mr. Swanson worked with my predecessor, Senator Mike Friend, in 2006, to encourage the Legislature to enact laws to prohibit picketing within 300 feet of a funeral or memorial service. Mr. Swanson approached me this past summer and asked me to consider increasing the distance to 500 feet. This consideration I took very seriously, especially because it's based upon his own personal experience and his safety concerns during actual funeral ceremonies that he participated in as a Freedom Rider.

(Filing No. 223-2 at ECF 63.)

During the Floor Debate on February 24, 2011, Senator Gloor said:

I can't imagine . . . in my mind's eye I can't imagine a protest group being within visibility or even sound of that event going on. And to me, 500 feet is not far enough. One-thousand feet, 1,500 feet, 1,500 miles is a little too close. Yet, I trust the judgment on this. I understand the rights of people to freedom of speech, yet on the other hand I am uncomfortable that 500 feet is a distance far too close for an event that we all should honor and respect, for this ... for a military funeral or any funeral as far as that goes. So I'll be monitoring this, asking questions, working with veterans' groups on it. I may, in fact, feel more comfortable coming back to expand on this at some future date.

(Filing No. 223-2 at ECF 66.)

Senator Annette Dubas agreed with Senator Gloor and said " If the body saw fit to expand that distance, I would have no problem supporting that." ( Id. at ECF 67.) The late Senator Dennis Utter added:

I would say as we move to the more rural parts of our state there should also be consideration for strong justification of moving it on up to the 1,000-feet level as they have in our neighboring state to the north. And I would . . . if there were a movement in this body to increase

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that space to 1,000 feet, I certainly would support that too.

(Filing No. 223-2 at ECF 72.)

During the Floor Debate of February 24, 2011, Senator Krist said: " And the compelling argument that I heard from the law enforcement is its line of sight. If I can keep the two parties' line of sight away from each other, there's a respect given for the ceremony and a respect given for a person's right to exercise the First Amendment and protest." (Filing No. 223-2 at ECF 66.)

During the Floor Debate of February 24, 2011, Senator Bill Avery said:

It's interesting that I follow Senator Adams, because he and I both have spent a lot of time in the classroom probably having to defend this kind of speech. I know I used to have some vigorous debates with my students, because often the kinds of speech that we must be so careful about protecting is the most obnoxious. This kind of protest, as Senator Adams said, does not belong at these funerals. All of us know that. In fact, my office looked into possibly coming forward with some legislation this session, and we were looking at possibly defining this kind of protest as obscenity, and our objective was to bar it altogether. Because what is obscenity? It's foul. It's repulsive. It's detestable. It carries a strong moral repugnance. And I don't know anyone, except perhaps some of the people at Westboro, who would disagree that this is obscene. But Senator Adams is right. The First Amendment protects the most obnoxious speech, the most despicable, the most repulsive. And why is that so? It is important that we understand that if we protect the most repulsive, if we protect the most obnoxious among us through the First Amendment, if we do that than those of us who are more ordinary, those of us who express acceptable speech, those of us who are not going to engage in obnoxious and despicable and repulsive speech can be sure that our right to free speech is protected. One of the great difficulties in a democracy is balancing the rights of the minority against the rights of the majority. I don't think there's any doubt that the majority of us in this country condemn what Westboro group does. We condemn it. We find it repulsive. But if we protect that speech, then those of us who are more mainstream, those of us who are likely to engage in speech that is not so offensive, we can be sure that our right to free speech will be protected. The First Amendment sometimes is inconvenient, but nonetheless, it's important. It's what makes this country a viable democracy that Ronald Reagan used to say: a beacon on the hill. We are an example for the rest of the world because of the very things that we do in this country that other democracies don't do.

(Filing No. 223-2 at ECF 69-70.)

During the Floor Debate of February 24, 2011, Senator Dave Bloomfield said:

We have people going around, torturing the families of folks that have paid the ultimate price. I thank Senator Krist for bringing this bill. I wish it was five miles. If, God forbid, something should happen to my son, I certainly would not pretend to guarantee the safety of anybody protesting that funeral. I know too many of Mark's friends too well to guarantee that safety.

(Filing No. 223-2 at ECF 70.)

During the Floor Debate of February 24, 2011, Senator Krist then said:

In my opening I said I bring this on their behalf and for the families. In my closing, I'll talk to it again. I think this

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is what we need to do. I've been asked, off the mike [sic, mic], at least twice, how did you pick 200? Why didn't you pick 15? Why didn't you pick five miles? Why didn't you pick another state? I drove around in Omaha and looked at the cemeteries that are in my district and those close. And I saw that along the outsides of some of the cemeteries themselves another 200 feet would potentially take you to the next row over, it would allow law enforcement to stand in between. I find that ...

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