United States District Court, District of Nebraska
SHIRLEY L. PHELPS-ROPER, Plaintiff,
DONALD KLEINE, in his capacity as Douglas County Attorney; JOHN/JANE DOES, in their official capacities; PETE RICKETTS, in his capacity as Governor of the State of Nebraska; DOUG PETERSON, in his capacity as Attorney General of the State of Nebraska; and TODD SCHMADERER, Defendants.
MEMORANDUM AND ORDER
Laurie Smith Camp Chief United States District Judge
This matter is before the Court on the Motion in Limine (Filing No. 279) filed by Plaintiff Shirley L. Phelps-Roper (“Phelps-Roper”); the Motion in Limine (Filing No. 281) filed by Defendant Don Kleine (“Kleine”); and the Motions in Limine (Filing No. 283) and for Partial Summary Judgment (Filing No. 285) filed by Defendant Todd Schmaderer (“Schmaderer”). For the reasons discussed below, Phelps-Roper’s Motion in Limine will be denied; Kleine’s Motion in Limine will be denied; Schmaderer’s Motion in Limine will be granted, in part; and Schmaderer’s Motion for Partial Summary Judgment will be denied.
On October 30, 2014, this Court denied Phelps-Roper’s Motion for Summary Judgment. (Filing No. 258.) The Court determined that it would apply intermediate scrutiny to Phelps-Roper’s facial challenge to the amended Nebraska Funeral Picketing Law (“NFPL”), Neb. Rev. Stat. §§ 28-1320.01-1320.03 (Reissue 2008 & Cum. Supp. 2012). (Filing No. 258 at 26-30.) The Court reasoned that the term “targeted, ” as used in the NFPL, was content neutral because it regulated persons “disrupting or attempting to disrupt a funeral or burial service with speech concerning any topic or viewpoint.” (Id. (quoting City of Manchester, 697 F.3d at 689.).) The Court also held that the NFPL advances a significant government interest: protecting the privacy of grieving families and preserving the peaceful character of funerals, balanced against the rights of protesters and picketers. (Filing No. 258 at 30-31. (citing City of Manchester, 697 F.3d at 693.).)
The Court held that several aspects of the NFPL were narrowly tailored, e.g., its restrictions are limited to a defined period of time (Filing No. 258 at 32); it does not attempt to regulate any floating zones such as funeral processions (Filing No. 258 at 32); its restrictions are limited to specific events rather than locations, so protesters can protest at the locations outside the regulated window of time (Filing No. 258 at 32); and the protest activities addressed by the NFPL were capable of definition (Filing No. 258 at 33). The Court also held that the amended NFPL was neither vague nor overbroad. (Filing No. 258 at 33.)
Remaining before the Court for determination at trial on Phelps-Roper’s facial challenge is whether the State’s significant governmental interest in protecting mourners at a funeral justifies a 500-foot buffer zone, and whether the amended NFPL leaves ample alternative channels for communication. The Court also must determine whether the amended NFPL has been unconstitutionally applied to Phelps-Roper.
1. Motions in Limine Regarding Picketing Events Prior to August 2011
The Motions in Limine filed by Phelps-Roper and Schmaderer request the Court to rule on the admissibility of evidence of Phelps-Roper’s picketing activity prior to August 2011. Phelps-Roper argues that the Court should consider evidence of events prior to August 2011 in considering her as-applied challenges because the events show a pattern of application of the law. Phelps-Roper also argues that pre-2011 events tend to demonstrate there is no legitimate state interest in a 500-foot buffer zone. The Court considers each argument.
a. Consideration of Pre-2011 Events in As-Applied Challenge
In its order remanding this case, the Eighth Circuit instructed the Court “to consider Phelps–Roper's facial and as applied First Amendment challenges to the amended NFPL.” Phelps-Roper v. Troutman, 712 F.3d 412, 417 (8th Cir. 2013). The Eighth Circuit noted that “[t]he record . . . has not been developed as to whether and, if so, how the amended statute has been applied after August 2011.” Id. For these reasons, the Eighth Circuit concluded “that the better course is to afford the district court an opportunity to make appropriate findings of fact and conclusions of law before evaluating the validity of the new statute.” Id. (emphasis added). Phelps-Roper notes that the Eighth Circuit stated that the “district court may consider all of the evidence concerning application of the NFPL in resolving the as applied challenge.” Id.
As to Phelps-Roper’s argument regarding pre-August 2011 events and her as-applied challenge, the Court disagrees that application of the previous NFPL will show a “pattern of application of the law.” (Pl’s. Br., Filing No. 279 at 2.) The “law” that Phelps- Roper references is the amended NFPL. Phelps-Roper does not seek damages based upon previous versions of the NFPL and only seeks declaratory and injunctive relief regarding application of the amended NFPL. (Third Amended Compl., Filing No. 153 at 30-31.) Any declaratory or injunctive relief must necessarily concern application of the current NFPL. Consideration of events prior to August 2011 would fall outside the Eighth Circuit’s instruction that the Court must determine “whether and, if so, how the amended statute has been applied after August 2011.” Troutman, 712 F.3d at 417.
b. Consideration of Pre-2011 Events in Facial Challenge
Facts regarding events prior to August 2011 may be relevant to Phelps-Roper’s claim that the NFPL is not narrowly tailored, and fails to leave ample alternative channels of communication. For example, Phelps-Roper has indicated in her trial brief that evidence of her protesting activity, including protests prior to August 2011, will show empirically that the State’s safety concerns do not justify a 500-foot buffer zone. See Survivors Network of Those Abused by Priests, Inc. (“SNAP”) v. Joyce, No. 13-3036, 2015 WL 1003121, at *8 (8th Cir. Mar. 9, 2015) (considering the lack of any evidence that plaintiffs actually disrupted a church service in evaluating the constitutionality of a ban on profane speech near places of worship). ...