Phelps-Roper v. Heineman

Decision Date29 October 2014
Docket NumberNo. 4:09CV3268.,4:09CV3268.
CourtU.S. District Court — District of Nebraska
PartiesShirley L. PHELPS–ROPER, Plaintiff, v. 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.

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

David A. Lopez, James D. Smith, Jessica M. Forch, Ryan S. Post, Stephanie A. Caldwell, Attorney General's Office, Lincoln, NE, Thomas O. Mumgaard, City of Omaha, Omaha, NE, for Defendants.



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) (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 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.)

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

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