State v. Hookstra, A-00-791.

Citation630 N.W.2d 469,10 Neb. App. 199
Decision Date22 May 2001
Docket NumberNo. A-00-791.,A-00-791.
PartiesSTATE of Nebraska, Appellee, v. Kip P. HOOKSTRA, Appellant.
CourtNebraska Court of Appeals

Robert F. Bartle, of Bartle & Geier, for appellant.

John C. McQuinn, Chief Lincoln City Prosecutor, for appellee.

IRWIN, C.J., and SIEVERS and INBODY, JJ.

SIEVERS, Judge.

BACKGROUND

In the early morning of March 20, 1999, Kip P. Hookstra, walking with two friends near the intersection of 13th and O Streets in Lincoln, Nebraska, came upon Officer Mitchell Evans of the Lincoln Police Department, who was administering field sobriety tests on an individual. Hookstra and his two friends crossed 13th Street, walking behind Officer Evans' police car, which was parked along 13th Street. Once the group had crossed the street, they stood on the sidewalk on the northeast corner of the intersection, located about 20 feet from where Officer Evans was conducting the field sobriety tests, and silently watched the investigation, As Officer Evans walked the person suspected of driving under the influence of alcoholic liquor (DUI) to the backseat of his police car, Hookstra and his friends began to "heckle" Officer Evans and his suspect. Officer Evans testified that Hookstra "was putting his fist in the air and yelling things like `power to the people' " and was shouting to the suspect that he did not have to cooperate. Officer Evans further testified that Hookstra's "heckling" was not derogatory or abusive, but was distracting and upsetting the DUI suspect so that Officer Evans had to tell the suspect to ignore the heckling. Officer Evans stated that he was concerned for his and the suspect's safety, because the commotion detracted from his ability to pay attention to the traffic around him and to his DUI suspect, who could have potentially been hostile, anxious, or violent, at a time when he was standing in a downtown street at "bar break."

After Officer Evans secured the DUI suspect in the backseat of his patrol car, he "told [Hookstra] that he needed to leave. I told [Hookstra] they had to walk away, just go away." However, Hookstra stood his ground, replying that he was on a public sidewalk and did not have to leave. Meanwhile, Hookstra's friends were tugging on Hookstra's clothing and pleading with him to walk away. After Officer Evans ordered Hookstra to leave two or three times, Officer Evans walked toward the group, which was still standing on the sidewalk, whereupon, Hookstra began to walk backward, facing Officer Evans with his fist raised in the air. Officer Evans did not pursue Hookstra, but instead radioed other officers for help. Two other officers picked up Hookstra about a block from the scene and took him into custody.

Hookstra was charged in the county court for Lancaster County with violating Lincoln Mun.Code § 9.08.050 (rev.1997), which makes it unlawful "for any person to intentionally or knowingly refuse to comply with an order of a police officer made in the performance of official duties at the scene of an arrest, accident, or investigation." Hookstra filed a motion to quash the complaint, arguing that the ordinance was unconstitutionally vague, overbroad, and uncertain, or that it reached a substantial level of constitutionally protected activity. The motion was overruled, Hookstra eventually went to trial, and he renewed his motion to quash the complaint. We note that for purposes of this appeal, a motion to quash or a demurrer is the proper procedural method for challenging the facial validity of a statute. State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997). Hookstra adduced no evidence at trial, was found guilty, and was fined $100 plus court costs. The district court for Lancaster County affirmed Hookstra's conviction. Hookstra timely appealed.

ASSIGNMENT OF ERROR

Restated, Hookstra assigns as error the district court's ruling that § 9.08.050 is not, on its face, an unconstitutional infringement of free speech because of its vagueness and overbreadth.

STANDARD OF REVIEW

The Court of Appeals has jurisdiction to decide the constitutionality of a municipal ordinance. See State v. Champoux, 5 Neb.App. 68, 555 N.W.2d 69 (1996). The constitutionality of an ordinance is a question of law, regarding which an appellate court has an obligation to reach a conclusion independent of the decision reached by the trial court. Id.

ANALYSIS

Hookstra argues that the First Amendment bars his conviction because the Lincoln ordinance under which he was convicted is facially overbroad and vague. A facial challenge asserts that no valid application of a statute exists because it is unconstitutional on its face. State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996). The doctrine of overbreadth pertains to a statute that is designed to burden, punish, or prohibit an activity that is not constitutionally protected, but which includes within its scope activities that are protected by the First Amendment to the U.S. Constitution. State v. Schmailzl, 243 Neb. 734, 502 N.W.2d 463 (1993). Speech protected by the First Amendment to the U.S. Constitution includes the free expression or exchange of ideas, the communication of information or opinions, and the dissemination and propagation of views and ideas, as well as the advocacy of causes. McKee, supra.

The overbreadth doctrine departs from traditional rules of standing, enabling persons who are themselves unharmed by a statute to challenge it facially on the ground that it may be applied unconstitutionally to others in situations not before the court, and derives from recognition that unconstitutional restriction of expression may deter protected speech by parties not before the court and thereby escape judicial review. Desnick v. Dept. of Prof. Reg., 171 Ill.2d 510, 665 N.E.2d 1346, 216 Ill.Dec. 789 (1996). See State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).

Hookstra does not argue that the evidence does not sustain his conviction if the ordinance is constitutional. Thus, as a facial challenge to the ordinance, Hookstra's actions are of secondary importance. At issue is the facial invalidity of the ordinance and not whether Hookstra has improperly been denied the right of free speech. In a facial challenge to the overbreadth and vagueness of an ordinance, a court's first task is to determine whether the ordinance reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge fails. The court then examines the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, upholds the challenge only if the enactment is impermissibly vague in all its applications. State v. Groves, 219 Neb. 382, 363 N.W.2d 507 (1985).

Hookstra alleges violations of both Nebraska and federal constitutional provisions governing due process and free speech. We note that article I, § 5, of the Nebraska Constitution, providing that every person "may freely speak ... being responsible for the abuse of that liberty," does not provide any greater protection regarding the overbreadth of statutes than does the 1st Amendment to the U.S. Constitution, which prohibits the Congress and, through the 14th Amendment, the several states from making any law "abridging the freedom of speech." State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990). Thus, we need not address Hookstra's state and federal constitutional claims separately.

Overbreadth.

"A statute may be invalidated on its face ... only if its overbreadth is `substantial,' i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies." Id. at 238, 450 N.W.2d at 406. The requirement that the overbreadth be substantial arose from a recognition that the application of the overbreadth doctrine is "`"manifestly strong medicine,"'" and that "`"there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds."'" Kipf, 234 Neb. at 238,450 N.W.2d at 406, quoting Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987).

To support his overbreadth claim, Hookstra relies heavily on Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), by comparing Lincoln's ordinance to a city ordinance in Hill which the court found to be facially overbroad. In Hill, the pertinent portion of the ordinance made it unlawful for any person to "`"in any manner ... interrupt any policeman in the execution of his duty...."'" 482 U.S. at 455, 107 S.Ct. 2502. Similar to the State's argument here, the city of Houston argued in Hill that its ordinance banned "`core criminal conduct'" not protected by the First Amendment. 482 U.S. at 459, 107 S.Ct. 2502. The majority disagreed, concluding that "interrupting" a police officer meant verbal interruption and that therefore the ordinance dealt not with core criminal conduct, but with speech. Because the ordinance criminalized verbal interruption of an officer "in any manner," the ordinance swept beyond unprotected speech, such as "fighting" words, thereby encompassing constitutionally protected expression, and invited unfettered police discretion in enforcement of the ordinance. Nor could the plain, unambiguous language of the ordinance be "cured" with a limiting construction because the enforceable portion of the ordinance amounted to "a general prohibition of speech that `simply has no core' of constitutionally unprotected expression to which it might be limited." Id. at 468, 107 S.Ct. 2502, quoting Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). Hill stands for the proposition that an unambiguous ordinance directed at pure speech is constitutionally suspect if it reaches expression beyond unprotected speech, i.e., "`fighting' words," Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and therefore,...

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2 cases
  • State v. Hookstra
    • United States
    • Nebraska Supreme Court
    • February 8, 2002
    ...FACTS We briefly summarize the operative facts which are fully set forth in the opinion of the Court of Appeals. State v. Hookstra, 10 Neb.App. 199, 630 N.W.2d 469 (2001). In the early morning hours of March 20, 1999, Lincoln police officer Mitchell Evans was administering field sobriety te......
  • State v. Sparr
    • United States
    • Nebraska Court of Appeals
    • November 23, 2004
    ...with the conduct of the investigation and jeopardize the safety of the officer and those being investigated. See State v. Hookstra, 10 Neb. App. 199, 630 N.W.2d 469 (2001), aff'd 263 Neb. 116, 638 N.W.2d 829 (2002). Thus, when Sparr attempted to maneuver her vehicle into the area where Reyn......

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