Phelps-Roper v. Heineman

• Decision Date: 17 August 2010
• Docket Number: Case No. 4:09CV3268
• Parties: Shirley L. PHELPS-ROPER, Plaintiff, v. Dave HEINEMAN, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

710 F.Supp.2d 890

Shirley L. PHELPS-ROPER, Plaintiff,

v.Dave HEINEMAN, et al., Defendants.

Case No. 4:09CV3268.

United States District Court, D. Nebraska.

April 19, 2010.

Opinion Denying Reconsideration Aug. 17, 2010.

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

Michael F. Polk, Patrick J. Sullivan, Adams, Sullivan Law Firm, Papillion, NE, James D. Smith, Stephanie A. Caldwell, Attorney General's Office, Lincoln, NE, Michael A. Smith, Sarpy County Attorney's Office, Papillion, NE, Diane M. Carlson Douglas County Attorney's Office, Thomas O. Mumgaard, City of Omaha, Adam J. Sipple, Johnson, Mock Law Firm, Omaha, NE, Steven M. Curry, Sampson, Curry Law Firm, Central City, NE, Joseph M. Smith, Madison County Attorney's Office, Madison, NE, Clinton L. Schukei, City Attorney's Office, Norfolk, NE, Nathan B. Cox, Cass County Attorney, Plattsmouth, NE, for Defendants.

AMENDED MEMORANDUM & ORDER

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on the Joint Stipulation of Consent Decree (Filing No. 79) entered into by Plaintiff Shirley L. Phelps-Roper and Defendants City of Bellevue, John W. Stacey, Gary Mixan, Kay Dammast, and Gary Troutman (collectively the "Bellevue Defendants"); Objections to the Proposed Consent Decree (Filing Nos. 84, 85, 86, 87, 88); Motions to Dismiss and Abstain or to Stay Proceedings and for a Protective Order (Filing Nos. 42, 47, 51, 52, 56, 72); and the Motion to Dismiss filed by Defendants Steven M. Curry and Anthony McPhillips (Filing No. 68). For the reasons discussed below, the Court declines to enter the consent decree and the objections will be sustained. Themotions to abstain will be granted in part and denied in part, and the Defendants Curry and McPhillips's Motion to Dismiss will be denied.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Shirley L. 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, ¶ 1.) The Defendants in this action are city, county, and state government officials and officers, mainly in eastern Nebraska. ( Id. ¶¶ 2-22.) Phelps-Roper and members of her family picketed a soldier's funeral in Bellevue, Nebraska, on June 5, 2007. ( Id. ¶ 49.) During the protest, Bellevue police officers arrested Phelps-Roper for contributing to the delinquency of a minor after she allowed her son to step on an American flag. ( Id. ¶ 63.) On July 5, 2007, criminal complaints were filed in Sarpy County Court (the "county court") charging Phelps-Roper with one count each of mutilating a flag, disturbing the peace, contributing to the delinquency of a minor, and negligent child abuse. ( Id. ¶ 67.)

On February 3, 2009, Phelps-Roper filed a motion to quash with the county court, seeking relief from prosecution. ( Id. ¶ 68.) Phelps-Roper argued that Nebraska's flag mutilation statute, Neb.Rev.Stat. § 28-928 (Reissue 2008), was unconstitutional. ( Id.) The county court declined to rule on Phelps-Roper's constitutional challenges because of its limited jurisdiction. ( Id.) Phelps-Roper appealed the county court's decision and moved to bypass review by the state district court and court of appeals and to appeal directly to the Nebraska Supreme Court. ( Id.) The Nebraska Supreme Court granted the bypass but dismissed the appeal for lack of jurisdiction. ( Id.) Phelps-Roper's appeal is currently pending before the Nebraska Supreme Court on a motion for rehearing and the matter has not yet returned to the county court. ( Id.)

Phelps-Roper filed this case on December 30, 2009 (Filing No. 1). She amended her complaint on January 20, 2010, to add Defendant Gary Troutman and new allegations. (Filing No. 17, Amended Complaint.) In the Amended Complaint, Phelps-Roper asserts five general causes of action: (1) Counts I and II challenge the constitutionality of the Nebraska Funeral Picketing Law ("NFPL"), ¹ facially and as applied to Phelps-Roper. ( Id. ¶¶ 79-94.)(2) Counts III and IV challenge the Nebraska Flag Mutilation Statute,² facially and as applied. ( Id. ¶¶ 95-110.) (3) Count V alleges Phelps-Roper's pending criminal actions were brought in violation of the United States Constitution, and that the statutes under which she is charged are unconstitutional as applied to her. ( Id. ¶¶ 111-22.)(4) Counts VI and VII challenge the City of Bellevue's parade/assembly permit ordinances facially and as applied. ( Id. ¶¶ 123-40.)(5) Count VIII alleges Phelps-Roper's arrest and prosecution violate her substantive due process rights to religious demonstration and to raise her children in accordance with her religious beliefs. ( Id. ¶¶ 142-143.)

With the original Complaint, Phelps-Roper filed a Motion for Preliminary Injunction with respect to the criminal proceedings and the enforcement of the statutes and ordinances she challenges. (Filing No. 5.) A hearing on the Motion for Preliminary Injunction was set for February 25, 2010. (Filing No. 41.) On February 23, 2010, the Court granted Defendants Heineman, Bruning, Hutton,and Nebraska Supreme Court's Motion to Continue the hearing on the preliminary injunction until this Court resolved the Defendants' Motions 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 reserve ruling on the motions to dismiss and abstain until Phelps-Roper and the Bellevue Defendants could submit a joint stipulation to enter a consent decree. (Filing No. 76.) On March 10, 2010, Phelps-Roper and the Bellevue Defendants filed the Joint Stipulation to Enter a Consent Decree and submitted a Proposed Consent Decree. (Filing No. 79.) Several other Defendants have objected to the Proposed Consent Decree ( See Filing Nos. 84, 85, 86, 87, 88.)

The Proposed Consent Decree purports to settle the claims between Phelps-Roper and the Bellevue Defendants. Regarding the NFPL, the Proposed Consent Decree states:

The Bellevue defendants and each of them agree, and it is ordered, that the Bellevue defendants and their agents, employees, successors, or assigns, will not issue citations, make arrests, or file or further prosecute or pursue criminal charges against the plaintiff for violations of Neb.Rev.Stat. §§ 28-130.01, 28-1320.02 and 28-1320.03gives [sic] the statute an authoritative construction, in which case Bellevue defendants will enforce that more narrowly-construed statute.

(Filing No. 79-1, Proposed Consent Decree, ¶ 2.)

Regarding the Nebraska Flag Mutilation Statute, the proposed consent decree states:

The Bellevue defendants and each of them agree, and it is ordered, that the Bellevue defendants and their agents, employees, successors, or assigns, will not issue citations, make arrests, or file or further prosecute or pursue criminal charges against the plaintiff for violations of Neb.Rev.Stat. § 28-928.

( Id. ¶ 3.)

The Proposed Consent Decree also notes that Phelps-Roper was being prosecuted under the flag mutilation statute, contributing to the delinquency of a minor, and negligent child abuse. Regarding these charges in criminal actions pending against her, the Proposed Consent Decree states:

5. The Bellevue defendants agree, and it is ordered, that none of the Bellevue defendants, or any of their agents, employees, successors, or assigns, including any police officer of the Bellevue Police Department, will in their capacity as an employee or official for the City assist in the prosecution of the criminal cases pending in Sarpy County Court against the Plaintiff, unless subpoenaed, in which case s/he shall in his/her official capacity not give any evidence or testimony inconsistent with this Consent Decree. The parties agree and understand that individuals cannot be restricted from personally appearing at the criminal proceedings.

6. The Bellevue defendants agree, and the Court finds, that the arrest of plaintiff on June 5, 2007, under the flag mutilation statute, and/or the contributing to the delinquency of a minor statute (the two statutes listed on the citation), was not a valid arrest, and was contrary to the First Amendment of the United States Constitution and the Nebraska State Constitution, because plaintiff and her minor son ... were engaged in non-disruptive lawful peaceful picketing and use of the American flag for expressive activities; no breach of the peace occurred; none of plaintiff's children includingJonah were in any danger or exposed to danger or acting delinquently, and were instead themselves engaged in protected activity; and the application of those two statutes to that activity was unconstitutional.

7. The Bellevue defendants agree, and the Court finds, that the criminal citations issued against the Plaintiff and the preconditions placed upon the Plaintiff prior to engaging in protected expressive activity were an attempt to unconstitutionally restrict Plaintiff's expressive rights under the First Amendment of the United States Constitution and the Nebraska State Constitution. Further, the Bellevue defendants agree that the Nebraska Funeral Picketing statute was unconstitutionally applied to restrict Plaintiff's expressive activities in the City of Bellevue.

( Id. ¶¶ 5-7.)

The Proposed Consent Decree also forbids the City of Bellevue or its employees, agents, or assigns from arresting Phelps-Roper for disturbing the peace, contributing to the delinquency of a minor, or negligent child abuse for conduct associated with her picketing activities. ( Id. ¶ 9.) The Proposed Consent Decree concludes by obligating the parties to attempt to reach an amicable agreement before involving the Court in an action to enforce the obligations. ( Id. ¶ 10.) Last, the parties agree to dismiss Phelps-Roper's claims against the Bellevue Defendants at the Bellevue Defendants' cost, and ask the Court to retain jurisdiction for the purpose of enforcing the terms of...