Phelps-roper v. Heineman

• Decision Date: 21 June 2010
• Docket Number: Case No. 4:09CV3268.
• Citation: 720 F.Supp.2d 1090
• Parties: Shirley L. PHELPS-ROPER, Plaintiff, v. Dave HEINEMAN, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

720 F.Supp.2d 1090

Shirley L. PHELPS-ROPER, Plaintiff,

v.Dave HEINEMAN, et al., Defendants.

Case No. 4:09CV3268.

United States District Court,D. Nebraska.

June 21, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Margie J. Phelps, Phelps Law Firm, Topeka, KS, for Plaintiff.

James D. Smith, Stephanie A. Caldwell, Attorney General's Office, Lincoln, NE, Michael A. Smith, Michael F. Polk, Patrick J. Sullivan, Adams, Sullivan Law Firm, Papillion, NE, Diane M. Carlson, Thomas O. Mumgaard, City of Omaha, Adam J. Sipple, Johnson, Mock Law Firm, Omaha, NE, Nathan B. Cox, Plattsmouth, NE, for Defendants.

Steven M. Curry, Sampson, Curry Law Firm, Central City, NE, pro se.

MEMORANDUM & ORDER

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on the Motion for Preliminary Injunction (Filing No. 5) and the Proposed Order (Filing No. 37) submitted by Plaintiff Shirley L. Phelps-Roper against all Defendants. For the reasons discussed below, the Plaintiff's Motion for Preliminary Injunction and Proposed Order will be denied.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Shirley Phelps-Roper (“Phelps-Roper”) is a member of the Westboro Baptist Church (“WBC”) and regularly protests at funerals, including the funerals of United States soldiers. (Filing No. 17, Amended Complaint, ¶ 28.) During these demonstrations, Phelps-Roper and other WBC members sing, carry signs, and use the American flag to express their religious beliefs. ( Id. ¶ 24.) These demonstrations typically focus on the belief of the WBC that “God is punishing America for its sins ... by killing Americans, including American soldiers.” (Filing No. 6, Brief in Support of Motion for Preliminary Injunction, ¶ 4.)

In Counts I and II of her Amended Complaint, Phelps-Roper challenges the constitutionality of the Nebraska Funeral Picketing Law (“NFPL”) both on its face and as applied to her. (Filing No. 17 ¶¶ 79-94.)

I. The Plain Language of the Statute

The NFPL reads as follows:

§ 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 purpose 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.

§ 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.

§ 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 2008).

II. Application of the Statute to Phelps-Roper

Phelps-Roper contends that the NFPL is unconstitutional on its face, and she describes several instances when the law has been applied to her in a manner that she believes was unconstitutional. (Filing No. 6, ¶ 2.) Specifically, her Brief in Support of Motion for Preliminary Injunction alleges that the following incidents occurred:

During a picket in Bellevue, Nebraska, on May 28, 2006, law enforcement officials required WBC members to stay 300 feet away from the curb line while other citizens engaging in “protest activities” were permitted to stand on church property. ( Id. ¶ 20.)

During a June 20, 2006, protest in Beatrice, Nebraska, law enforcement officials denied a WBC-proposed protest location that was in compliance with the 300-foot restriction, instead requiring the WBC members to protest from a different area at a distance greater than 300 feet from the funeral. ( Id. ¶ 21.) During that same protest, some 60-70 bikers were allowed to engage in “protest activities” within the 300-foot perimeter. ( Id.)

A separate WBC protest planned for June 20, 2006, was thwarted when Defendant Sheriff Anthony McPhillips allegedly told WBC members that he planned to arrest them even if they protested in compliance with the NFPL. ( Id. ¶ 22.) During the funeral, other citizens, including bikers and veterans, were permitted to be present. ( Id.)

WBC members picketed on July 8, 2006, in Omaha, Nebraska, but law enforcement personnel pushed them beyond the 300-foot limit. At this event, WBC members noted that firefighters displaying a large flag were allowed to stand “right by the location of the funeral.” ( Id. ¶ 23.)

On August 10, 2006, WBC members picketed in Pender, Nebraska, and were surrounded by law enforcement officers, while bikers and other citizens were allowed to engage in “protest activities” on the sidewalk in front of the church. ( Id. ¶ 24.)

At a September 5, 2006, picket in Minden, Nebraska, WBC members were required to comply with the 300-foot limit while other citizens were permitted to engage in “protest activities” within the restricted perimeter. ( Id. ¶ 25.)

WBC members picketed in McCook, Nebraska, on February 16, 2007, and were required to comply with the statutory 300-foot limit while other groups were allowed inside the perimeter. ( Id. ¶ 26.)

During an April 17, 2007, protest in York, Nebraska, WBC members were required to protest from a distance of 600 feet while other citizens were allowed to engage in “protest activities” on the public sidewalk directly in front of the building. ( Id. ¶ 27.)

During a June 5, 2007, protest in Bellevue, Nebraska, WBC members were required to protest from within a space delineated by law enforcement at a distance exceeding the 300-foot statutory perimeter. ( Id. ¶ 28.) Bikers and other citizens present were not required to stay within the spray-painted space. ( Id.)

Phelps-Roper contends that these incidents demonstrate that the NFPL has been applied to limit or bar her protected speech. ( Id. ¶ 11.) She argues that the incidents are part of a greater scheme to “punish, silence, prohibit, and restrain [Phelps-Roper's] speech” in violation of the First and Fourteenth Amendments of the United States Constitution. ( Id. ¶ 2.)

III. Procedural Background

Phelps-Roper filed her Complaint and Motion for Preliminary Injunction on December 30, 2009. (Filing Nos. 1, 5.) She filed her First Amended Complaint on January 20, 2010, adding claims and defendants. (Filing No. 17.) On January 26, 2010, she filed a Submission of Proposed Order (Filing No. 37) and a proposed Order Granting Preliminary Injunction, arguing that the time to respond to her motion had passed, and the facts should be deemed admitted and the motion deemed uncontested. (Filing No. 37-1). After service on all Defendants was effected, and after the Court conferred with all parties, the Motion for Preliminary Injunction was set for hearing on February 25, 2010. (Filing No. 41.) Several Defendants filed Motions to Abstain and Dismiss beginning February 8, 2010. (Filing Nos. 42, 47, 51, 52, 56, 72.) Defendants Bruning, Heineman, Hutton, and Nebraska Supreme Court moved to continue the hearing until the Court decided whether to grant or deny the Defendants' respective Motions to Abstain and Dismiss. (Filing No. 45.) On February 23, 2010, this Court granted Defendants' Motion to Continue until the Court was able to resolve the Defendants' Motion to Abstain and Dismiss. (Filing No. 70.)

On March 1, 2010, this Court granted the joint motion of Phelps-Roper and Defendants City of Bellevue, Kay Dammast, Gary Mixan, John W. Stacey, and Gary Troutman, to stay and reserve ruling on the Motions to Abstain and Dismiss until Phelps-Roper and the Bellevue Defendants could submit a joint stipulation to enter a consent decree. (Filing No. 76.) Their Joint Submission of Consent Decree was filed on March 10, 2010 (Filing No. 79). The Court declined to enter the consent decree on April 19, 2010. (Amended Memorandum and Order, 710 F.Supp.2d 890, 905, 2010 WL 1610450 at *10 (D.Neb.2010).) In the same order, the Court dismissed Counts VI and VII of the Amended Complaint as moot and dismissed Counts III through V, and VII, under the Younger abstention doctrine, because of ongoing state criminal proceedings in which Phelps-Roper could raise her constitutional challenges. ( Id. at 906, at **10-11.) Defendants Judge Hutton and the Nebraska Supreme Court also were dismissed from the case. ( Id. at 906, at **10-11.)

On April 26, 2010, the Court denied Phelps-Roper's Motion for Preliminary Injunction to the extent that the Motion sought to enjoin acts alleged in the dismissed Counts III through VIII. (Order, Filing No. 95.) The Court also set the hearing on the Motion for Preliminary Injunction with respect to Phelps-Roper's remaining claims for May 10, 2010. ( Id. 1-2.) Prior to the hearing, the State Defendants moved to continue the hearing until the Eighth Circuit could rule on Phelps-Roper's interlocutory appeal...