Phelps-Roper v. Ricketts

• Decision Date: 11 August 2017
• Docket Number: No. 16-1902,16-1902
• Citation: 867 F.3d 883
• Parties: Shirley L. PHELPS-ROPER, Plaintiff-Appellant v. 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; Todd Schmaderer, In his Capacity as Chief of Police of the City of Omaha, Defendants-Appellees Gary Troutman, in his capacity as City Administrator of Bellevue, Nebraska; Leonard Houloose, in his capacity as Chief of the Papillion Police Department ; L. Kenneth Polikov, in his capacity as Sarpy County Attorney; John W. Stacey, in his capacity as Chief of the Bellevue Police Department; City of Bellevue, Nebraska ; Gary Mixan, in his capacity as Mayor of the City of Bellevue; Kay Dammast, in her capacity as City Clerk of Bellevue, Nebraska; Donald Kleine, in his capacity as Douglas County Attorney; Joe Smith, in his capacity as Madison County Attorney ; William L. Mizner, in his capacity as Chief of the Norfolk Police Department; Nathan Cox, in his capacity as Cass County Attorney; William Brueggemann, in his capacity as Sheriff of Cass County, also known as Bill; Honorable Todd J. Hutton, in his capacity as Sarpy County Judge; Nebraska Supreme Court; John/Jane Does, in their official capacities, Defendants
• Court: U.S. Court of Appeals — Eighth Circuit

867 F.3d 883

Shirley L. PHELPS-ROPER, Plaintiff-Appellant

v. 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; Todd Schmaderer, In his Capacity as Chief of Police of the City of Omaha, Defendants-AppelleesGary Troutman, in his capacity as City Administrator of Bellevue, Nebraska; Leonard Houloose, in his capacity as Chief of the Papillion Police Department ; L. Kenneth Polikov, in his capacity as Sarpy County Attorney; John W. Stacey, in his capacity as Chief of the Bellevue Police Department; City of Bellevue, Nebraska ; Gary Mixan, in his capacity as Mayor of the City of Bellevue; Kay Dammast, in her capacity as City Clerk of Bellevue, Nebraska; Donald Kleine, in his capacity as Douglas County Attorney; Joe Smith, in his capacity as Madison County Attorney ; William L. Mizner, in his capacity as Chief of the Norfolk Police Department; Nathan Cox, in his capacity as Cass County Attorney; William Brueggemann, in his capacity as Sheriff of Cass County, also known as Bill; Honorable Todd J. Hutton, in his capacity as Sarpy County Judge; Nebraska Supreme Court; John/Jane Does, in their official capacities, Defendants

No. 16-1902

United States Court of Appeals, Eighth Circuit.

Submitted: June 8, 2017

Filed: August 11, 2017

Margie Jean Phelps, Topeka, KS, for Plaintiff-Appellant.

Stephanie Anne Caldwell, David A. Lopez, Ryan Post, James D. Smith, Assistant Attorney Generals, Jessica Forch, ATTORNEY GENERAL'S OFFICE, for Defendants-Appellees Pete Ricketts and Doug Peterson.

Thomas O. Mumgaard, Ryan John Wiesen, CITY OF OMAHA, Legal Department, for Defendant-Appellee Todd Schmaderer.

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

This is another in a series of cases about the precise location of the line between the State's interest in protecting the privacy and peace of a vulnerable audience of mourners and the picketer's freedom to express herself under the Constitution.

Shirley Phelps-Roper and other Westboro Baptist Church (WBC) members consider military funerals to be "patriotic pep rallies" which suggest that God approves of national policies that WBC believes to be contrary to Biblical instruction. They therefore picketed such funerals in Nebraska to warn the nation and to assert their belief that God does not bless a nation that tolerates homosexuality and adultery.

Nebraska's Funeral Picketing Law (NFPL) prohibits picketing within 500 feet of a cemetery, mortuary, or church from one hour prior through two hours following the commencement of a funeral. Neb. Rev. Stat. §§ 28-1320.01 to .03. Phelps-Roper brought this action against the State of Nebraska and the Omaha Police Department (OPD) challenging the constitutionality of the NFPL, facially and as applied. After a bench trial, the district court¹ upheld the NFPL and entered judgment for the appellees. Phelps-Roper appeals the district court's judgment. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Twenty-six-year-old Caleb Nelson, a highly decorated Navy SEAL from Omaha, died in Afghanistan in October 2011 when his vehicle struck an improvised explosive device (IED). Days later, on a street corner in the soldier's hometown over 500 feet from his church funeral, a picketer in a t-shirt announcing "GOD HATES FAGS" held four colorful signs proclaiming in large font "THANK GOD FOR DEAD SOLDIERS," "SOLDIERS DIE 4 FAG MARRIAGE," "SHAME," and "DESTRUCTION IS IMMINENT." Another WBC picketer's signs added "NO PEACE FOR THE WICKED" and "GOD IS YOUR ENEMY," while the t-shirted picketer shouted "God is watching YOU" toward the passing cars to the blaring music of Bette Midler's "From a Distance."

Phelps-Roper, a longtime WBC member, has been participating in picketing for 25 years. She has attended "about half" of WBC's 46 funeral pickets in Nebraska. She and other WBC members picket funerals because they believe that patriotic displays during military funerals turn the funerals into "patriotic pep rallies" that erroneously suggest that God blesses and approves of national policies which WBC members consider contrary to Biblical teachings, including tolerance for homosexuality, adultery, and idolatry. The alleged "idolatry" includes "worshiping [the] dead body" of the soldier at each funeral they picket. Phelps-Roper believes that the funeral attendees do not really have a spirit of mourning or emotional distress; instead, she "perceive[s] a spirit of anger" and refers to funerals as "death events." WBC's target audience "is those people who are going into that funeral, those people who are presiding over that funeral, and all of the other people who are generally turning it into a patriotic hoopla." Their messages arguably generally focus on national issues.

WBC members plan their pickets in advance by contacting local law enforcement to inform them of their planned picket and to discuss locations. WBC seeks locations with high traffic volume, where the mourners can see and hear its message, and from which the members can exit quickly if confronted with violence. WBC members claim to have participated in over 55,000 pickets, with violence only occasionally resulting. Their pickets begin 45 minutes before the announced time of the funeral and end when the funeral starts. They notify law enforcement in advance of their picketing plans, follow law enforcement guidance regarding picketing location, do not approach family members or funeral goers, do not go on private property, do not engage in civil disobedience, and do not block ingress/egress. WBC has numerous lawyer members including at least three who testified and another who represented Phelps-Roper during this trial.

The Patriot Guard Riders (PGR) is a national group of motorcyclists that "come together to show honor and respect for ... military and first responder heroes." According to John Scott Knudsen, the Nebraska state PGR captain, there are around 3500 PGR members in Nebraska, and its members have attended over 500 events including military-related funerals, welcome-homes, and send-offs. The PGR does not engage in protests or protest activity, does not represent any particular political message or group, and has no target audience. When it comes to funerals, the PGR only attends events where it has been personally invited by close relatives of the decedent. At funerals, the PGR is not there to disrupt the funeral service; instead, its mission is to honor those who "paid the supreme sacrifice" and "shield the family from any distractions" by "simply form[ing] a flag line." It allows others who are not PGR members to join in its flag line as long as there are no signs or protest activities (including holding a flag upside down).

When the complaint in this lawsuit was filed on December 30, 2009, the NFPL was different from its current version. "The NFPL was originally enacted in 2006 to protect the ‘legitimate and legally cognizable interest in organizing and attending funerals for deceased relatives' and ‘the rights of families to peacefully and privately mourn the death of relatives.’ " Phelps-Roper v. Troutman , 712 F.3d 412, 414 (8th Cir. 2013) (quoting Neb. Rev. Stat. § 28-1320.01(1) ). "The 2006 version of the statute defined picketing as ‘protest activities ... within three hundred feet of a cemetery, mortuary, church, or other place of worship during a funeral.’ " Id. (emphasis added) (quoting Neb. Rev. Stat. § 28-1320.02(2) (2006) ).

Phelps-Roper's initial motion for a preliminary injunction against the 2006 NFPL was denied, and she appealed in July 2010. While her appeal was pending, Nebraska Legislative Bill 284 expanded the buffer zone from 300 to 500 feet. Id. at 415. The amendment went into effect on August 27, 2011.

In October 2011, a panel of this court initially reversed the district court's order denying a preliminary injunction to Phelps-Roper. Phelps-Roper v. Troutman , 662 F.3d 485, 490 (8th Cir. 2011), vacated on reh'g , 705 F.3d 845 (8th Cir. 2012). Nebraska officials filed a petition for rehearing en banc on November 1, 2011. The rehearing petition was held in abeyance in December 2011, pending an en banc decision in a related case with similar First Amendment issues, Phelps-Roper v. City of Manchester , 697 F.3d 678 (8th Cir. 2012) (en banc). Phelps-Roper v. Troutman , 712 F.3d at 416. The city ordinance under consideration in City of Manchester prohibited picketing within 300 feet of any funeral or burial site from one hour before to one hour after a funeral or burial service, 697 F.3d at 683. In a unanimous en banc opinion published in October 2012, we concluded that the Manchester ordinance survived constitutional scrutiny because "it serve[d] a significant government interest, it [was] narrowly tailored, and it [left] open ample alternative channels for communication." Id. at 695.

In December 2012, we ordered a panel rehearing in the current case, vacated our earlier judgment, and ordered the parties to file supplemental briefs "addressing the merits of the appeal in light of City of Manchester , ‘including the question of whether there are material differences between the ordinance at issue in City of Manchester and the Nebraska statute at issue in this appeal.’ "

Phelps-Roper v. Troutman , 712 F.3d at 416. Nebraska argued there were "no constitutionally significant differences." Id. Phelps-Roper argued the buffer zone of 500 feet was unconstitutional (and different from City of Manchester ) and also alleged that WBC was unconstitutionally targeted by the Nebraska legislature, citing a newspaper article in which a Nebraska legislator stated that he wished WBC protestors could be banned from picketing funerals. Id.

Because the NFPL's buffer zone changed from 300 feet to 500 feet while this case was on appeal, the district court had not had an opportunity to consider the larger buffer zone. We observed "[w]hen ‘a change in law does not...