Petition for Writ of Certiorari — City of Omaha v. Buffkins

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ete CLERK

In The

Supreme Court of the United States

October Term, 1990

+

THE CITY OF OMAHA, DOUGLAS COUNTY,

NEBRASKA, A MUNICIPAL CORPORATION;

ALVIN GRIGSBY; AND JOHN FRIEND,

Petitioners,

VS.

LU ANN BUFFKINS,

Respondent.

¢

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The

Eighth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

James E. FeELLows

Deputy City Attorney

Counsel of Record

THomMas O. MUMGAARD

Assistant City Attorney

804 Omaha/Douglas Civic Center

1819 Farnam Street

Omaha, NE 68183

(402) 444-5115

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

I.

Whether it is the proper exercise of First Amendment free

speech rights for a person to call a police officer an

“asshole” in a confrontational setting or whether estab-

lished Supreme Court precedent extends to police officers

the protections of the “fighting words” exception to free

speech rights.

Il.

Whether the “fighting words” exception to First Amend-

ment free speech rights should view police officers as less

susceptible to verbal abuse and incitement and should

extend greater First Amendment freedoms for persons to

direct verbal abuse towards police officers which would

not be constitutionaliy protected if addressed to the ordi-

nary person.

il

LIST OF PARTIES TO THE PROCEEDING

All the parties to the proceeding are named in the

caption.

iil

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

fist Of Parties to the Proceeding................... il

sees bibs ne sos sess eves cee iv

Official and Unofficial Reports..................... vi

EE 1

Constitutional Provisions, Statutes, and Ordinances

a I ee 1

en uledubeeecscvrce 3

I Or 8

I. THE EIGHTH CIRCUIT'S DECISION THAT A

PERSON HAS THE FIRST AMENDMENT

RIGHT TO CALL A POLICE OFFICER AN “ASS-

HOLE” IN A CONFRONTATIONAL SETTING IS

CONTRARY TO ESTABLISHED SUPREME

COURT PRECEDENT AND DIRECTLY CON-

FLICTS WITH A DECISION BY THE

Nomen SUememe COURT................ 8

Il. THIS COURT SHOULD CLARIFY THE EXTENT

TO WHICH FIRST AMENDMENT FREEDOMS

PERMIT VERBAL ABUSE OF POLICE IN THE

PERFORMANCE OF THEIR DUTIES........... 14

EE ig AS 20

iv

TABLE OF AUTHORITIES

Pages

CASES

Bousquet v. State, 548 S.W.2d 125 to os ee 11

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

We Re Sy athe Te gh es MA eee eR IHD 4 Ste ore tee pe 5, passim

City of Alamogordo v. Ohlrach, 625 P.2d 1242, 1243

(N.M. Ct. App. 1981).........-.- eee ee ree cence: 11

City of Cincinnati v. Karlan, 298 N.E.2d 573, 577

og nn rr re Pe Py eT ree Tee errr ee 11

City of Little Falls v. Witucki, 295 N.W.2d 243,

205-46 CAI. TSBD). . . ona os ccc cee cde nse recess 11

City of St. Paul v. Azzone, 177 N.W.2d 559 (Minn.

1 SES i enbans eenrns rree Sr ON ee ret cea 11

City of St. Paul v. Morris, 104 N.W.2d 902, 903

(1960), cert. denied 365 U.S. 815 (1961) ........... 11

Cohen v. California, 403 U.S. 15 (1971) ...---.------+. 17

Commonwealth v. Pringle, 450 A.2d 103, 106 (Pa.

Sup. 1967)......-..0ccccereecencrsceeenesseececees 11

Diehl v. State, 451 A.2d 115 (Md. 1982), cert. den.

a S5G SU CO ingots ecw see 7

Duncan v. United States, 219 A.2d 110, 112-13 (D.C.

1966), remanded on other grounds, 379 F.2d 148

ET ics cn cccc ec ncgurss ensue cet eks wenh hs 1]

Houston v. Hill, 482 U.S. 451 (1986) .. 7, 8, 9, 14, 17, 18

Lane v. Collins, 138 N.W.2d 264, 267 (Wis. 1965)..... 11

Lewis v. New Orleans, 408 U.S. 913 (1972)............ 17

TABLE OF AUTHORITIES — Continued

Pages

Lewis v. New Orleans, 415 U.S. 130 274) ee 9, passim

Musselman v. Commonwealth, 705 $.W.2d 476, 477

oo Be . Anemia paar aly AI LP Ph ane hile on SB tk ts 11

Phillips v. State, 314 So. 2d 619, 621-622 (Fla. App.

| SRE nti ee PAR en ren cat g wat phen rsh 1]

Pringle v. Court of Common Pleas, 604 F.Supp. 623,

Cae We: PO. Ce one ocean ee tae

State v. Beck, 682 P.2d 135 (Kan. App. 1984)......... 11

State v. Brown, 303 A.2d 886, 888 (N.]J. | eee 11

State v. Duhan, 460 A.2d 496, 499 (Conn. 1982),

rev'd on other grounds, 481 A.2d 48 (1984)....... 1]

State v. Graves, 219 Neb. 382, 363 N.W.2d 507 (Neb.

i EP a Pee GAD ee toy Um ct be thy be eae 5. 13

State v. John W., 418 A.2d 1097 (Me. ei nae 1]

State v. Nelson, 448 A.2d 214 (Conn. 1982)........... 1]

State v. Yoakum, 638 P.2d 1264, 1266 (1982) .......... 11

CONSTITUTIONAL AMENDMENTS

Ist Amendment, Constitution of the United States

Re ee ON re rier ARG ALC Te WTA ye RS eRe gl ase oe 1, passim

STATUTES

yo |: | nee ene eee cen Lace ns ths ]

me WIA Be TRS (4). 5 os ove ocak ceacecck 5

PN SR oe ays WS nore oh ee ee ee 5

Te TC IO ng oe eee

v1

TABLE OF AUTHORITIES — Continued

Pages

SS ME IMM, ck ng os Sees eens one choos Ka ae he bs we 1

ME eaves es sdeeb eer erence te akwane ae

MM sy be rnc sods ecscbbandvnteksvecees >>

SEE TR EU 5 eee cc chen sca ncvretsnsecsuernesees 5

§ 20-42 Municipal Code, City of Omaha,

I SEU, noc ciivius seek vrestonevencwewe yO

OTHER AUTHORITIES

Tribe, American Constitutional Law............++++45: 17

THE OFFICIAL AND UNOFFICIAL REPORTS OF

OPINIONS DELIVERED IN THE CASE BY OTHER

COURTS

1. The United States Court of Appeals

For the Eighth Circuit

No. 90-1319

Submitted: November 14, 1990

Filed: December 28, 1990

The opinion, in the form of a slip opinion, is set forth

in full in Appendix A (App. 1). The opinion is

reported at 922 F.2d 465 (1990).

2. The United States District Court

For the District of Nebraska

CV 87-0-370

Filed: September 1, 1989 ;

The judgment is set forth in full in Appendix E (App.

25). A copy of the transcript of the district court's oral

ruling denying plaintiff's motion for a directed ver-

dict on the “fighting words” issue is attached as

Appendix D (App. 23) and the instruction upon

which the court submitted the issue to the jury is

attached as Appendix G (App. 28).

re |

GROUNDS FOR JURISDICTION

On December 28, 1990, judgment was entered by the

Eighth Circuit Court of Appeals affirming the judgment

of the district court as to the dismissal of Appellant

LuAnn Buffkins’ claim under 42 USCS § 1981, but other-

wise vacating the judgment in favor of the defendants

(petitioners), and remanding all of Buffkins’ remaining

claims, both state and federal, to the district court for a

new trial. The Eighth Circuit specifically held that Buff-

kins’ speech directed at the defendant police officers

could not constitute “fighting words” which are not pro-

tected by the First Amendment. On February 15, 1991, the

Eighth Circuit issued an order denying appellee’s Petition

for Rehearing and Suggestion for Rehearing En Banc.

Petitioners seek review by Petition for Certiorari.

Jurisdiction to review the judgment of the Eighth Circuit

Court of Appeals is conferred upon this Court by 28

USCS §§ 1254(1), 2101(c), and 2106.

¢

CONSTITUTIONAL PROVISIONS, STATUTES, AND

ORDINANCES INVOLVED IN THE CASE

FIRST AMENDMENT TO THE CONSTITUTION

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

SECTION 1 OF THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

42 U.S.C. § 1983

Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to tie

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Coium-

bia shall be considered to be a statute of the

District of Columbia.

SECTION 20-42 OF THE MUNICIPAL CODE

OF OMAHA, NEBRASKA

Sec. 20-42. Disorderly conduct.

It shall be unlawful for any person purposely or

knowingly to cause inconvenience, annoyance

or alarm or create the risk thereof to any person

by:

(a) Engaging in fighting, threatening or violent

conduct; or

(b) Using abusive, threatening or other fight-

ing language or gestures; or

‘c) Making unreasonable noise.

¢

STATEMENT OF THE CASE

The Airport Stop and Arrest

The evidence at trial showed that on March 17, 1987,

Omaha Police Officers Alvin Grigsby and John Friend

went to Omaha’s Eppley Airport after receiving a tip

from a reliable informant that a black person or persons

would be carrying cocaine into Omaka on a flight from

Denver, Colorado. Upon arriving at the airport the offi-

cers began to observe persons waiting for the only flight

which would arrive from Denver at the time specified by

the tip. When the flight arrived, the officers saw only one

black person leave the plane: LuAnn Buffkins. Buffkins

immediately joined a woman the officers testified they

had seen waiting nervously. The women then left the ~ate

area and the officers followed.

As the women rode the escalator down into the air-

port ticketing and baggage area the officers could see that

Buffkins carried a Teddy bear with seams which appeared

to have been opened and resewn. The officers recognized

such a parcel as a common means to transport illegal

drugs. When the women stopped at the baggage carousel,

the officers approached them. After showing their police

badges and identifying themselves, the police officers

engaged the women in conversation. All witnesses agreed

that neither officer told Buffkins she was under arrest but

merely said they were conducting an investigation into

possible drug transporting and asked if the women

would answer some questions. Buffkins became defen-

sive and demanded more identification, which was

promptly given. After some discussion about the officers’

identities, Buffkins went with the officers to a private

office to continue the discussion. During their walk, Buf-

fkins repeatedly asserted she knew her rights and cited

several constitutional provisions; however, in her testi-

mony she agreed that she made no attempt to walk away

or disengage the officers.

When they reached the office, the officers asked Buf-

fkins questions about her trip. The officers testified that

Buffkins asserted she didn’t have to answer any ques-

tions and refused permission for the officers to look at

her luggage. No search of the luggage was then con-

ducted. During the conversation Buffkins became increas-

ingly belligerent. She began to taunt and personally

insult the officers, saying their breath stunk, and that

they were “Starsky and Hutch” television cops. After a

short time, the officers told Buffkins she was free to go

and motioned toward the door.

All witnesses agreed that, as Officer Friend opened

the door for Buffkins, he apologized for the inconve-

nience and said: “Have a nice day.” The officers testified

Buffkins responded: “I will have a nice day, asshole.”

Buffkins contended at trial that she responded: “ Asshole

system.” Professor Timothy Jay, a professor of psychology

specializing in the use of taboo or obscene speech who

testified on behalf of plaintiff, testified he doubted that a

person would use the word “asshole” in the manner

plaintiff claimed.

Buffkins was arrested and charged with violating

Omaha Municipal Ordinance 20-42 which prohibits disor-

derly conduct through the use of fighting words or con-

duct or the making of unreasonable noise. In State v.

Groves, 219 Neb. 382, 363 N.W.2d 507 (Neb. 1985), the

Nebraska Suprer-e Court had construed the first two

subsections of Omaha Municipal Code § 20-42 as prohib-

iting fighting words or conduct. That is, “those words

which by their very utterance inflict injury or tend to

incite an immediate breach of the peace.” 363 N.W.2d at

510, quoting Chaplinsky v. New Hampshire, 315 U.S. 568

(1942). (A copy of the Nebraska Supreme Court’s decision

is attached as Appendix H, App. 30-48). Officer Friend

testified he arrested plaintiff because of the words she

used against him.

This Lawsuit

In May 1987, LuAnn Buffkins filed her Complaint in

the United States District Court for the District of

Nebraska against the City of Omaha and the two police

officers, Alvin Grigsby and John Friend. The plaintiff

invoked the district court’s jurisdiction under 28 U.S.CS.

§ 1343(a)(3) and (4) and 28 U.S.C.S. § 1331. The action was

brought to enforce rights accorded by 42 U.S.C.S. §§ 1981,

1983 and 1988, and the First, Fourth, and Fourteenth

Amendments to the United States Constitution.

In her Complaint, Buffkins alleged her arrest was due

to her race, that the disorderiy conduct ordinance is

unconstitutional on its face, that her arrest was without

probable cause, and that her arrest violated her First

Amendment rights.

The District Court’s Rulings and the Jury’s Verdict

By order of March 31, 1989, the District Court for the

District of Nebraska, Chief Judge Lyle E. Strom, ruled

that the subsection of Omaha ordinance § 20-42 prohibit-

ing disorderly conduct by the making of unreasonable

noise is unconstitutionally vague and violates the Four-

teenth Amendment to the United States Constitution.

That ruling was not appealed.

After a three day trial, Judge John B. Jones, visiting

judge, denied plaintiff's motion for a directed verdict on

whether the officers had probable cause to support plain-

tiff’s arrest. The trial judge rejected plaintiff's argument

that plaintiff's use of the word “asshole” to Officer Friend

as a matter of law is not a fighting word. [App. F, 26-27].

The trial court submitted to the jury the question of

whether plaintiff used fighting words toward Officer

Friend [App. G, 28].

The jury returned a verdict in favor of all defendants

and judgment was entered on the verdict. [App. E, 25].

Plaintiff’s motion for judgment notwithstanding the ver-

dict was subsequently denied [App. D, 23] and plaintiff

perfected her appeal.

The Court of Appeals’ Opinion

The Eighth Circuit Court of Appeals reversed the

verdict, holding that Buffkins’ words were not, as a mat-

ter of law, “fighting words” as defined by Chaplinsky v.

New Hampshire, 315 U.S. 568, 572 (1942) and its suc-

cessors. The appeals court gave little explanation and

cited only a case from the City Court of Rochester, New

York, and a case from the Indiana Supreme Court to

support its position.

The appeals court used a result-determinative test to

decide whether Buffkins’ words were fighting words not

protected by the First Amendment and reasoned that the

words could not be fighting words because Buffkins had

not “become violent or threatened violence”. Further, the

appeals court used a subjective, listener-oriented test,

concluding that, because great restraint is expected from

police officers and the First Amendment protects “criti-

cism and challenge” directed toward police, the words at

issue here could not, as a matter of law, be fighting words

when directed to police officers. The appeals court said:

In addition, Buffkins’ use of the word “asshole”

could not reasonably have prompted a violent

response from the arresting officers. In Houston

v. Hill, 482 U.S. 451, 462 (1986), the Supreme

Court recognized that the “fighting words” doc-

trine may be limited in the case of communica-

tions addressed to properly trained police

officers because police officers are expected to

exercise greater restraint in their response than

the average citizen.

The Houston Court stated:

[T]he First Amendment protects a signifi-

cant amount of verbal criticism and chal-

lenge directed at police officers. . . . The

freedom of individuals verbally to oppose

or challenge police action without thereby

risking arrest is one of the principal charac-

teristics by which we distinguish a free

nation from a police state.

Id. at 461-63.

[App. A, 17-18]. The appeals court did not note the

express distinction this Court made in Houston v. Hill, 482

U.S. at 463, n.12 between the freedom of persons to

oppose or challenge police action and the lack of constitu-

tional protection accorded “fighting words” addressed to

police.

¢

ARGUMENT

I.

THE EIGHTH CIRCUIT’S DECISION THAT A PER-

SON HAS THE FIRST AMENDMENT RIGHT TO

CALL A POLICE OFFICER AN “ASSHOLE” IN A CON-

FRONTATIONAL SETTING IS CONTRARY TO

ESTABLISHED SUPREME COURT PRECEDENT AND

DIRECTLY CONFLICTS WITH A DECISION BY THE

NEBRASKA SUPREME COURT.

Twice before, the question of whether society has

sufficiently changed so as to extend First Amendment

freedoms to a person verbally taunting, ridiculing and

cursing police officers has stood at the edge of this

Court’s rulings. This Court has twice issued opinions

mentioning the First Amendment right to verbally criti-

cize and challenge police officers performing their duties

in conjunction with mention of verbal confrontations with

police which would otherwise not be constitutionally

protected. This dicta has been seized upon by the Eighth

Circuit Court of Appeals as a statement refashioning and

limiting the long-established “fighting words” exception

to First Amendment rights.

In concurring in the result of Lewis v. City of New

Orleans, 415 U.S. 130, 135 (1974), Mr. Justice Powell

agreed that the ordinance at issue created a per-se fight-

ing words rule for words used toward police and, for that

reason, was unconstitutionally overbroad. He pointed out

that “words may or may not be ‘fighting words,’ depend-

ing upon the circumstances of their utterance.” 415 U.S.

135. To illustrate circumstances where the ordinance

could encroach upon constitutionally protected speech,

Mr. Justice Powell noted that the words at issue in the

case would be unlikely to precipitate a physical confron-

tation between a middle-aged woman and a police officer.

He then used a more general illustration:

Moreover, as noted in my previous concurrence

[in the remand of the case], a properly trained

officer may reasonably be expected to “exercise

a higher degree of restraint” than the average

citizen, and thus be less likely to respond bellig-

erently to “fighting words.”

415 U.S. 135. Justice Powell's general illustration of why a

per-se fighting words rule was unwise was later repeated

by the majority opinion in City siass v. Hill, 482 U.S.

451, 462 (1987).

The general language of the concurring opinion in

Lewis v. New Orleans, supra, and it’s repetition in Houston

v. Hill, supra, has blurred the boundaries of the “fighting

words” exception to First Amendment freedoms. This

Court needs to clearly state whether words which could

10

otherwise tend to invoke a violent response in the ordi-

nary listener gain constitutional protection simply

because the words are addressed to a police officer.

As a result of Mr. Justice Powell’s comments in Lewis

v. New Orleans and the lack of clarification, a hodgepodge

of rules has arisen in the state courts and the lower

federal courts. These decisions present conflicts in the

proper constitutional rule to apply in judging the First

Amendment’s scope when verbal abuse is aimed toward

a police officer. The Eighth Circuit Court of Appeals has

now joined in this array of cases. The Eight Circuit,

however, went beyond any reasonable implication which

can be read from Mr. Justice Powell’s comments and

adopted a rute as constitutionally and socially undesir-

able as the per-se rule struck down in Lewis v. New

Orleans, supra. The Eighth Circuit Court of Appeals has

adopted a per-se rule implying that virtually no words

can be “fighting words” when used toward a properly

trained police officer.

In circumstances where the words at issue are spoken

to a police officer, the state courts have gained little

direction from this Court’s most recent pronouncements

on the fighting words doctrine. Some courts have estab-

lished a special standard in judging fighting words used

toward a police officer. Other courts have rejected any

special standard. Because the rule has now become fur-

ther clouded, the issue presents fertile ground for further

split of opinion and should be clarified by this Court.

The state courts have established two main bodies of

law interpreting the fighting words doctrine when the

words are spoken to a police officer. Cases favoring a

11

standard requiring a higher degree of inflammatory lan-

guage when the police officer is the offended listener

include State v. Duhan, 460 A.2d 496, 499 (Conn. 1982),

rev'd on other grounds, 481 A.2d 48 (1984); State v.

Nelson, 448 A.2d 214 (Conn. 1982); Phillips v. State, 314 So.

2d 619, 621-622 (Fla. App. 1975); State v. John W., 418 A.2d

1097 (Me. 1980); Diehl v. State, 451 A.2d 115 (Md. 1982),

cert. den. 460 U.S. 1098 (1983); City of Alamogordo v.

Ohlrach, 625 P.2d 1242, 1243 (N.M. Ct. App. 1981); and

State v. Yoakum, 638 P.2d 1264, 1266 (1982). On the other

hand, other jurisdictions have refused to apply a special

standard or have not imposed special standards in cases

involving a police officer listener. Bousquet v. State, 548

S.W.2d 125 (Ark. 1977); Duncan v. United States, 219 A.2d

110, 112-13 (D.C. 1966), remanded on other grounds, 379

F.2d 148 (D.C. Cir. 1967); City of Little Falls v. Witucki, 295

N.W.2d 243, 245-46 (Minn. 1980); City of St. Paul v. Azzone,

177 N.W.2d 559 (Minn. 1970); City of St. Paul v. Morris, 104

N.W.2d 902, 903 (1960), cert. denied 365 U.S. 815 (1961);

State v. Brown, 303 A.2d 886, 888 (N.J. 1973); Lane v.

Collins, 138 N.W.2d 264, 267 (Wis. 1965); State v. Beck, 682

P.2d 135 (Kan. App. 1984); Commonwealth v. Pringle, 450

A.2d 103, 106 (Pa. Superior 1967); Pringle v. Court of

Common Pleas, 604 F. Supp. 623, 629 (M.D. Pa. 1985); City

of Cincinnati v. Karlan, 298 N.E.2d 573, 577 (Ohio 1973);

see Musselman v. Commonwealth, 705 S.W.2d 476, 477 (Ky.

1986); see Bolden v. State, 251 S.E. 2d 165, 166 (Ga. App.

1978).

The lack of clear direction from this Court has led to

such differing positions as those taken by the courts of

Maine, Pennsylvania, and Nebraska. In State v. John W.,

supra, the Maine Supreme Court attempted to analyze

12

this Court’s First Amendment “fighting words” cases and

expressly adopted a view it distilled from Justice Powell’s

concurring opinion in Lewis v. New Orleans, supra. The

court said:

We presume that a police officer would not so

readily respond violently to conduct of the sort

engaged in by John W. To constitute a violation

in these circumstances the conduct must be

egregiously offensive, so offensive as to have a

direct tendency to cause a violent response even

from a police officer.

But epithets directed at police officers are not

fighting words merely because they might be so

if directed at some other person. The nature of

the experience, training and responsibilities of

police officers must be considered in determin-

ing whether a given defendant’s language con-

stituted fighting words.

418 A.2d at 1106-07. However, in Pringle v. Court of Common

Pleas, 604 F. Supp. 623, 629 (M.D. Pa. 1985) the United States

District Court for the Middle District of Pennsylvania saw

police in a very different light. The court said:

Petitioner argues that since her words were

addressed to police officers - individuals who

by virtue of their occupation are trained to

remain disspassionate under pressure — that we

cannot logically conclude that her words were

likely to provoke violence from these

addressees. In other words, Petitioner seems to

be implying that it is virtually impossible to find

the phrase which, when addressed to a police

officer, will constitute ‘fighting words’. Com-

mon sense dictates otherwise.

Police officers, notwithstanding their devotion

to their duty and the excellence of their training,

ee |

13

are human beings and subject to the same fail-

ings as butchers, bakers and candlestick makers.

We do not see the logic in finding that police

officers can be expected to remain stoic in the

face of vitriolic comments that one would expect

to elicit violence from someone else. Moreover,

we think it contrary to public policy to send out

a signal to the general public that policemen are

fair game for any amount of verbal abuse some

may choose to heap upon them.

604 F. Supp. at 629. Similarly, in State v. Groves, 219 Neb.

382, 363 N.W.2d 507 (Neb. 1985), the Supreme Court of

Nebraska has said:

[W]e again specifically reject the implicit argu-

ment advanced by appellant that a police officer

is somehow less susceptible to abuse than other

members of the general public. As we said in

[State v.] Boss [195 Neb. 467, 471, 238 N.W.2d

639, 643 (1976)]:

We specifically reject the authority of

Williams v. District of Columbia, 419 F.2d 638,

and the concurrence of Mr. Justice Powell in

Lewis v. City of New Orleans, supra, wherein

it is suggested that the words here used

cannot be fighting words when directed to a

police officer because he is trained to accept

such abuse without violent reaction.

219 Neb. at 386. [App. H, 33-34].

The Eighth Circuit Court of Appeals has accepted the

“fighting words” rule rejected by the Pennsylvania fed-

eral court, the Supreme Court of Nebraska, and the high-

est court of many other states. In holding that, as a matter

of law, Buffkin’s words could not incite a violent response

in a police officer, the court is reasoning that a word’s

ability to incite persons must be measured by the self

control expected of the person to whom it is directed.

14

This holding misreads the decision in Houston v. Hill, 482

U.S. 451 (1986) and fashions a new standard of constitu-

tional protections in conflict with the long-established

rule of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

These cases do not support a holding that calling a police

officer an “asshole” in an antagonistic, confrontational

manner is, as a matter of law, protected speech.

Police officers in Nebraska and other states where the

judiciary has viewed police officers as human beings

susceptible to abuse are now caught between that view

and the conflicting rule pronounced by courts such as the

Eighth Circuit Court of Appeals which see the Lewis v.

New Orleans, supra, concurring opinion as establishing a

new boundary for free speech toward police. The

Nebraska legislature, and the legislatures of other states

within this circuit, are unable to criminalize the conduct

which would. otherwise be permitted by this Court's pro-

nouncements in Chaplinsky, supra, and its progeny. This

Court should grant review to resolve this conflict.

Il.

THIS COURT SHOULD CLARIFY THE EXTENT TO

WHICH FIRST AMENDMENT FREEDOMS PERMIT

VERBAL ABUSE OF POLICE IN THE PERFORMANCE

OF THEIR DUTIES.

The circuit court went further than just defining “ass-

hole” as a matter of law; it crafted an exception to this

Court’s definition of “fighting words”. The circuit has

changed the focus of the definition from the reaction of

an “average addressee” to the reaction of “properly

trained police officers” and has called personal abuse of

police a form of protected expression.

15

The Eighth Circuit’s holding that the fighting words

doctrine has a subjective, listener-oriented element cre-

ates confusion in applying the doctrine to any circum-

stance where the speaker should believe the listener is

self-disciplined and not likely to respond with violence

regardless of the abuse. The Eighth Circuit’s holding

implies that the true test of “fighting words” is not the

words’ ability to incite, but the speaker’s expectation that

the listener will turn the other cheek instead of reacting

violently. Such a rule opens every “fighting words” deter-

mination to an examination of the expected sensitivities

and restraint of the listener. For example, would not a

speaker expect a priest or nun to exercise greater restraint

than the average citizen? If the listener’s expected

restraint is the test, as the Circuit suggests, then a priest

or nun cannot be the target of “fighting words” under the

Eighth Circuit’s test. The list of immune persons will

inevitably grow beyond any capability to predict. With-

out direction from this Court, courts adopting the ratio-

nale of the Eighth Circuit will be left to force the “fighting

words” doctrine further from the purpose expressed in

long-established opinions of this Court, an effective stan-

dard for determining constitutionally unprotected speech

will be lost, and First Amendment case determinations

will be left to degenerate into a petty examination of the

listener’s sensitivity to abuse.

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),

this Court fashioned the expression of the “fighting

words” exception to free speech. The concept was not

new or one requiring leaps of logic. The concept of which

the Court spoke was one familiar to anyone exposed to

human existence on the streets of society in 1942 or today.

16

Of course, this person is most commonly the police offi-

cer. And, it was in the context of verbal abuse of a law

enforcement officer that the “fighting words” doctrine

was initially stated. In upholding a statute under which

the defendant was charged with addressing offensive

words to a City Marshall, the Court said:

[I]t is well understood that the right of free

speech is not absolute at all times and under all

circumstances. There are certain well defined

and narrowly limited classes of speech, the pre-

vention and punishment of which have never

been thought to raise any constitutional prob-

lem. These include the lewd, and obscene, the

profane, the libelous, and the insulting or

‘fighting’ words — those which by their very

utterance inflict injury or tend to incite an

immediate breach of the peace. It has been well

observed that such utterances are no essential

part of any exposition of ideas, and are of such

slight social value as a step to truth that any

benefit that may be derived from them is clearly

outweighed by the social interest in order and

morality. Resort to epithets or personal abuse is

not in any proper sense communication of infor-

mation or opinion safeguarded by the constitu-

tion, and its punishment as a criminal act would

raise no question under that instrument.

Id. at 572. Significantly, the Court spoke of measuring

“fighting words” by the epithets’ likelihood to “provoke

the average person to retaliation, and thereby cause a

breach of the peace.” Id. at 574 (emphasis added).

The Court subsequently refined and reaffirmed the

formulation and application of the “fighting words” doc-

trine, but continued to speak of the test as an objective

err

17

test measured by the “ordinary citizen.” Cohen v. Califor-

nia, 403 U.S. 15, 20 (1971). A different standard for the

police officer to whom the epithets were so often

addressed was not felt necessary. When faced with the

opportunity to fashion a special test for fighting words

addressed to police officers, the Court generally

remanded the case to the state courts for reconsideration

in light of existing announced standards. See, Tribe,

American Constitutional Law, sections 12-10, pages

617-623, and cases cited at n. 5.

The comments by Mr. Justice Powell which the

Eighth Circuit Court of Appeals here elevated to the

status of a federal constitutional principle were first made

in justice Powell’s concurrence when the Court remanded

the case for the Louisiana Supreme Court to construe the

meaning of the challenged ordinance. Lewis v. New

Orleans, 408 U.S. 913 (1972). When the case was consid-

ered after remand, Mr. Justice Powell merely repeated his

comments in recounting his reasons for concurring in the

majority’s finding that the ordinance was facially over-

broad. Lewis v. New Orleans, 415 U.S. 130, 135 (1974).

A concern with the direction inappropriate reliance

on his concurring comments could lead was expressed by

Justice Powell when he concurred in the judgment in part

and dissented in part in Houston v. Hill, 482 U.S. 451,

479-480 (1987). Justice Powell agreed that the ordinance

in question could be applied to reach First Amendment

protected speech, but he warned that the statements in

the court’s opinion regarding First Amendment protec-

tions of speech directed at police officers were unneces-

sarily broad. 482 U.S. at 474. He suggested the majority

opinion was misapplying his Lewis concurring comments.

18

The Eighth Circuit Court of Appeals here, and other

courts which view the constitution as expecting police to

be immune from those words likely to provoke the “aver-

’

age” or “ordinary” person, should read closely Justice

Powell’s statements in Houston v. Hill, supra: ©

I do agree that the ordinance can be applied

to speech in some cases. And I also agree that

the First Amendment protects a good deal of

speech that may be directed at police officers.

On occasion, this may include verbal criticism,

but I question the Court's opinion that the First

Amendment generally protects verbal “chal-

lenge{s] directed at police officers,” ante, at

2509. A “challenge” often takes the form of

opposition or interruption of performance of

duty. In many situations, speech of this type

directed at police officers will be functionally

indistinguishable from conduct that the First

Amendment clearly does not protect... .

... To be sure, there is a fine line between

legitimate criticism of police and the type of

criticism that interferes with the very purpose of

having police officers. But the Court unfor-

tunately seems to ignore this fine line and to

extend First Amendment protection to any type

of verbal molestation or interruption of an offi-

cer in the performance of his duty.

482 U.S., 479-80.

This Court should grant certiorari and use this case

as an opportunity to narrow the emphasis placed by the

Eighth Circuit and other courts upon Mr. Justice Powell’s

concurring comments in Lewis. It serves no purpose for

constitutional doctrines to evolve in the lower courts

through misapplication of illustrative comments in a

Supreme Court concurring opinion. The doctrine of

19

“fighting words” when applied to confrontations with

police officers should be permitted to continue to reflect

the purpose for which the doctrine was intended when it

was fashioned in Chaplinsky v. New Hampshire, supra,

many years ago. As was stated by Mr. Justice Blackmun

in dissenting from the court’s opinion in Lewis v. New

Orleans, supra:

Police officers in this day perhaps must be thick

skinned and prepared for abuse, but a wanton,

high-velocity, verbal attack often is but a step

away from violence or passioned reaction, no

matter how self-disciplined the individuals

involved. In the interest of the arrested person

who could become the victim of police over-

bearance, and in the interest of the officer, who

must anticipate violence and who, like the rest

of us, is fallibly human, legislatures have

enacted laws of the kind challenged in this case

to serve a legitimate social purpose and to

restrict only speech that is “of such slight social

value as a step to truth that any benefit that may

be derived from [it] is clearly outweighed by the

social interest in order and morality.” Chap-

linsky, supra, at 572, 86 L. Ed 1031. In such

circumstances we should stay our hand and not

yield to the absolutes of doctrine.

415 U.S. 141-142, Chief Justice Burger and Justice Rehnquist,

joining in dissent. The decision of the Eighth Circuit Court of

Appeals, here, has effectively eliminated a legislature’s abil-

ity to enact laws to serve that legitimate social purpose and

eliminated the police officer’s ability to enforce such laws by

arrest for verbal attacks upon the officer.

The jury should here be allowed to decide if Buffkins

used the word “asshole” to express criticism of the police

actions or as a personal epithet and personal abuse. It should

20

not stretch the imagination of this Court or any reader of the

Circuit Court’s opinion to envision a situation where this

epithet provokes a violent response from an “ordinary citi-

zen” or from a trained police officer. The Eighth Circuit's

decision has prevented the jury from making that determina-

tion solely due to a misapprehension of the boundaries of

free speech. The constitution does not, and should not, grant

persons uttering fighting words greater protection simply

because the object of the words is trained to exercise

restraint.

Without more, the resolution of the conflict in constitu-

tional interpretation between the courts using a stricter stan-

dard in applying the “fighting words” doctrine to verbal

attacks upon police and the courts viewing police as fallible

human beings merits review in this Court. But, further,

review is appropriate so a generally stated comment used to

illustrate potential problems of overbreadth in an ordinance

does not become elevated through misapplication to the

status of a constitutional principle.

¢

CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

James E. FeLLows

Deputy City Attorney

Counsel of Record

THomMas O. MUMGAARD

Assistant City Attorney

804 Omaha/Douglas Civic Center

1819 Farnam Street

Omaha, NE 68183

(402) 444-5115

Counsel for Petitioners

App. 1

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1319

Lu Ann Buffkins, Appeal from the

United States

District Court

for the

District of

Nebraska.

Appellant,

V.

City of Omaha, Douglas County,

Nebraska, a Municipal

Corporation; Alvin Grigsby;

and, John Friend,

eae * ss 6s #

Appellees.

Submitted: November 14, 1990

Filed: December 28, 1990

Before LAY, Chief Judge, FAGG, Circuit Judge, and LAR-

SON,” Senior District Judge.

LAY, Chief Judge.

*The HONORABLE EARL R. LARSON, Senior United States

District Judge for the District of Minnesota, sitting by designa-

tion.

App. 2

Lu Ann Buffkins brought suit against the City of

Omaha and two Omaha police officers, Alvin Grigsby

and John Friend, for deprivation of her constitutional

rights under Title 42 section 1983 of the Civil Rights act.’

The suit arose out of an alleged illegal search and seizure

and wrongful arrest. The complaint also challenged the

constitutionality of a disorderly conduct ordinance of the

City of Omaha under which the arrest was allegedly

made. Buffkins also claimed she had been discriminated

against because of her race in violation of section 1981.7

1 Section 1983 provides as follows:

Every person who, under color of [state law]... .

subjects, or causes to be subjected, any citizen of the

United States .. . to the deprivation of any rights,

privileges or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law .. . for redress.

42 US.C. § 1983 (1988).

2 Section 1981 states:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to... sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings

for the security of persons and property as is enjoyed

by white citizens.

42 USC. § 1981 (1988).

App. 3

At the close of Buffkins’ case in chief the district

court? concluded that there was insufficient evidence that

the City of Omaha had any policy or custom that would

subject it to liability under either section 1981 or 1983 and

therefore dismissed the City of Omaha from the case. The

district court also found no evidence of racial discrimina-

tion and therefore dismissed plaintiff’s claim under sec-

tion 1981. The district court further ruled as a matter of

law that the officers did not illegally seize Buffkins and

accordingly directed a verdict on behalf of the defendants

on plaintiff’s Fourth Amendment claim. Buffkins’

motions for directed verdict and judgment notwithstand-

ing the verdict were overruled. The court submitted the

state pendant claims of false arrest, false imprisonment,

malicious prosecution, and intentional infliction of emo-

tional distress to the jury. The jury returned a verdict in

favor of the defendant officers.

We affirm the district court’s dismissal of plaintiff’s

claim under section 1981. We otherwise reverse and

remand for a new trial all of plaintiff's other claims. We

also order the reinstatement of plaintiff’s claim against

the City of Omaha.

FACTS

On March 17, 1987, Omaha police received a tip that

cocaine would be imported into the Omaha area before

5:00 p.m. by a black person or persons arriving ona flight

from Denver. Officers Grigsby and Friend planned to

+ The Honorable John B. Jones, United States District

Judge for the District of South Dakota, sitting by designation.

App. 4

meet at the Omaha airport to follow up on the tip. Both

officers had a working knowledge of the “drug courier

profile’4 and Grigsby had received special training from

the Drug Enforcement Agency (“DEA”) concerning inter-

ception of drug couriers in airports. Officer Grigsby

expressed concern over the vagueness of the tip but

decided to proceed to the airport to meet Friend.

The officers, dressed in plain clothes, met at the

airport at approximately 2:30 p.m. The officers decided to

monitor a flight that was scheduled to arrive from

Denver at 3:40 p.m. The flight the officers watched was

approximately one-half hour late. While surveying the

deplaning passengers, the officers noticed Buffkins, the

only black person exiting the plane. Buffkins was met by

her sister, Hollis, at the gate. The officers later claimed

that Hollis appeared nervous. Buffkins’ other sister,

Cheryl Nwachakwu, joined Buffkins and Hollis near the

escalator leading down to the baggage carousel. The offi-

cers noticed that Buffkins carried a teddy bear with

seams that appeared to have been resewn. Buffkins

handed the teddy bear to Nwachakwu. Hollis left the

airport without taking the teddy bear with her.

Grigsby approached Buffkins and Nwachakwu, iden-

tified himself as an officer conducting a narcotics investi-

gation, and upon Buffkins’ request presented

identification. Grigsby and Friend then requested Buff-

kins to bring her luggage and come with them to answer

4 The drug courier profile is an informal compilation of

characteristic behaviors believed to be typical of persons carry-

ing unlawful narcotics. Reid v. Georgia, 448 U.S. 438, 440 (1979)

(per curiam).

App. 5

questions. Nwachakwu was told she could leave. When

Buffkins asked the officers who they were looking for, the

officers told her about the tip.

The Officers picked up two of Buffkins’ suitcases and

escorted Buffkins and Nwachakwu to an office located on

the other side of the terminal. On the way to the office,

Buffkins protested that the officers’ conduct was racist

and unconstitutional. Buffkins claims that she believed

she has no choice but to cooperate with the officers’

investigation and that neither officer told her she was free

to go. Inside the security room, Buffkins gave the officers

her driver’s license and airline ticket, neither of which

were suspicious. When Friend kneaded and felt the teddy

bear, he did not detect any indication of contraband.

Buffkins allegedly became increasingly loud during the

interrogation. When the officers asked Buffkins if they

could search her luggage, she refused, citing her rights

under the Fourth Amendment. The officers eventually

informed Buffkins that she was free to go and told her to

“have a nice day,” to which she replied “asshole system”

or “I will have a nice day, asshole.”> The officers then

decided to arrest Buffkins for disorderly conduct. When

> Buffkins testified that she said the words “asshole sys-

tem.” Jt. App. at 82. Officer Friend testified that Buffkins said

“I will have a nice day, asshole.” Jt. App. at 202. Officer

Grigsby and Nwachakwu heard only the word “asshole.” Jt.

App. at 242.

© Buffkins was then taken to Central Headquarters,

booked and released on bond. On May 4, 1987, she returned to

Omaha to defend herself against the charge of disorderly con-

duct and was found not guilty.

App. 6

the officers told Buffkins they would have to confiscate

her luggage and inventory it, Buffkins refused. The offi-

cers then allowed Nwachakwu to open and inspect Buf-

fkins’ luggage in their presence. It is undisputed that

Buffkins was not carrying any drugs or contraband.

Both officers testified that Buffkins did not fit the

drug courier profile and that they did not rely on the

profile as a basis to stop Buffkins.”

ANALYSIS

I. Race Discrimination

Buffkins contends that the officers violated 42 U.S.C.

§ 1981 (1988) because they detained her solely on the

basis of her race. We disagree.

Buffkins failed to show that the officers’ actions were

racially motivated by purposeful discrimination. See Gen-

eral Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375,

391 (1982); Washington v. Simpson, 806 F.2d 192, 197 (8th

Cir. 1986). The officers admittedly identified Buffkins in

part because of her race. We conclude, however, that the

officers’ identification of Buffkins’ was reasonable and

nondiscriminatory in light of the fact that her race

matched the racial description of the person described in

the tip. See United States v. Bautista, 684 F.2d 1286, 1289

7 Unlike many individuals who fit the “drug courier pro-

file,” Buffkins was neither the first nor the last passenger to

deplane, she did not pay cash for her plane ticket, and she was

not making a quick turn-around trip. Moreover, she had identi-

fication that was consistent with her airline ticket, she checked

her luggage, and she did not arrive on an early flight when few

police are present.

App. 7

(9th Cir. 1982) (police may detain a person for further

investigation when, together with other relevant facts, the

person’s race matches the racial description of persons

suspected of criminal activity), cert. denied, 459 U.S. 1211

(1983).6

II. Fourth Amendment Claim

Buffkins argues that the district court erred by direct-

ing a verdict in favor of the police officers on the ground

that they had a reasonable and articulable suspicion to

detain her at the airport. We agree. We hold as a matter of

law that the seizure of Buffkins’ by the police officers was

illegal and violative of the plaintiff’s constitutional right

to be free from an unreasonable search and seizure. Thus,

Buffkins is entitled to redress under 42 U.S.C. § 1983.

A. “Seizure”

Not all encounters between police officers and citi-

zens involve “seizures” of persons within the meaning of

the Fourth Amendment. See, e.g., Florida v. Royer, 460 U.S.

491, 497 (1983) (recognizing that officers do not violate

the Fourth Amendment simply by approaching an indi-

vidual in a public place and asking the individual to

answer some questions); United States v. Mendenhall, 446

5’ We note, however, that our conclusion would be very

different if the officers, acting without a tip, focused their

investigation on Buffkins solely because of her race. See infra

note 12.

App. 8

U.S. 544, 555 (1980). The Fourth Amendment's proscrip-

tion against unreasonable seizures is implicated, how-

ever, if an “officer, by means of physical force or show of

authority, . . . in some way restrain{s] the liberty of a

citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). In United

States v. Mendenhall, 446 U.S. at 554, a plurality of the

Supreme Court held that a person is seized “if, in view of

all of the circumstances surrounding the incident, a rea-

sonable person would have believed that he was not free

to leave.”

The defendants argue that Buffkins voluntarily con

sented to be taken from the main terminal to a private

office for a search and further questioning. The record

refutes this claim.’ Buffkins protested the search and the

questioning, accusing the officers of racial bias. Although

Buffkins went to the office willingly, this fact does not

establish any more than acquiescence to authority, not

’ Butfkins testified that the officers informed her that they

needed her to come with them and told her to bring her bags.

It. App. at 65. She stated that she never agreed nor wanted to

go with the officers but that she followed the officers because

she felt she was “supposed to do what [they] asked [her to do]

as long as it [was] not something illegal.” Id. She also stated

that she did not believe she could leave at that point because

she feared a “physical altercation” with the officers. Id. at 65-6.

She testified that each of the officers picked up a bag and

escorted her and her sister to the office on the other side of the

terminal. /d. at 66. The officers walked directly behind the two

women and carried the luggage with their outside hand. /d.

Moreover, Officer Friend testified that Buffkins was “abusive

and confrontational the entire time that she was with us.” /d. at

378.

App. 9

voluntary consent. See Florida v. Royer, 460 U.S. at 497

(State’s burden of showing that the necessary consent

was freely and voluntarily given is not satisfied by

merely showing submission to a claim of lawful author-

ity).

We conclude that the initial consensual encounter

between Buffkins and the officers became a seizure at

least at the point when the officers requested Buffkins to

accompany them to the office. The officers at that time

seized her luggage. In addition, the officers specifically

asked Buffkins to accompany them to the office but they

informed her sister Nwachakwu that she was free to go.!°

A reasonable person would reasonably infer from the

officers’ conflicting statements to her and Nwachakwu

that she had no choice but to go with the officers. Under

the existing circumstances, Buffkins could not have rea

sonably believed that she was free to leave. The officers

concede they never told Buffkins that she was free to

leave. Although a seizure does not automatically occur if

an officer does not inform a detainee that he or she is free

to leave, the absence of such notice may imply that the

detainee is being restrained. Florida v. Royer, 460 U.S. at

501. Moreover, Buffkins’ protestations that the officers’

conduct was racist and unconstitutional and the officers’

actions in picking up her luggage reinforces our belief

© Buffkins testified as follows: “I was told that I and my

baggage had to go with Officer Grigsby and Officer Friend. At

that time they turned to my sister Cheryl and they told Chery!

that she could leave, if she wanted to.” Jt. App. at 117.

App. 10

that Buffkins reasonably believed she was seized for the

purposes of the Fourth Amendment."!

B. Reasonable Articulable Suspicion

For the seizure of Buffkins to be constitutional under

the Fourth Amendment, the officers must have had a

reasonable articulable suspicion that she had committed

or was about to commit a crime. See Terry v. Ohio, 392 U.S.

at 21. Reasonable suspicion must be formed before the

seizure occurs. Although the officers did not need to have

probable cause before they seized Buffkins, they must

have had more than an unparticularized hunch or suspi-

cion that she was importing cocaine into the Omaha area.

Id. at 27. To determine whether reasonable suspicion

exists, it is necessary to consider the totality of the cir-

cumstances. United States v. Cortez, 449 U.S. 411, 417

(1981). In United States v. Sokolow, 490 U.S. 1, ___, 109 S.

Ct. 1581, 1586-87 (1989), the Supreme Court recognized

11 The facts in United States v. Drinkard, 900 F.2d 140 (8th

Cir. 1990), are similar to the facts in the present case. In

Drinkard, the DEA received a tip that a person with Drinkard’s

characteristics would smuggle drugs into Kansas City from

Houston by air. When the officers saw Drinkard at the airport,

they approached him, asked him if he had any drugs in his

bag, told him they were attempting to stop drugs from entering

the Kansas City airport and asked him if they could search his

luggage. One agent identified himself twice as a DEA agent

and Drinkard was never told that he was free to leave. We held

that Drinkard was subjected to a Terry-type investigative stop.

Id. at 142. As in Drinkard, the officers in the present case did

not tell Buffkins she could leave, they identified themselves as

officers conducting a narcotics investigation, and they asked

Buffkins if they could search her luggage.

App. 11

that under certain circumstances, “wholly lawful conduct

might justify the suspicion that criminal activity was

afoot” depending upon the “degree of suspicion that

attaches to particular types of noncriminal acts.”

After viewing the totality of the circumstances in the

present case, we find the record totally devoid of any

facts or circumstances that would permit a finding that

the officers possessed a reasonable articulable suspicion

that Buffkins was carrying drugs into the Omaha area.

Both officers testified that Buffkins did not have any of

the characteristics common to drug couriers. The officers

stopped Buffkins solely because her race fit the racial

description of the person described in the tip. Contrary to

the district court’s holding, Buffkins’ race, apart from any

other information known to the officers, clearly could not

create a reasonable and articulable suspicion of criminal

activity.'? Innocent travellers cannot “be subject to vir-

tually random seizures” merely because of their race. See

Reid v. Georgia, 448 U.S. at 441. The officers could not

'2 In United States v. Taylor, 917 F.2d 1402, 1996 WL 161263

(6th Cir.), Taylor, a black individual, was detained by three

plainclothes officers at the Memphis International Airport. At

the time Taylor was stopped, he was the only black person who

had deplaned a flight arriving from Miami, Florida. At the

evidentiary hearing, one of the officers who detained Taylor

testified that seventy-five percent of the people that the drug

task force follows are black. Jd. at =, WL at 6. The Sixth

Circuit held that the detention was unlawful. Jd. at, WL at

5. The court noted that “the agents were more apt to stop

Taylor because of his race” and that it could not “allow blacks

and other minorities to become subject to unreasonable stops

and governmental intrusions in airports because of their race.”

Id. at __, WL at 6.

App. 12

have narrowed their suspicion to a particular individual

based on the tip alone. The tip was very indefinite in that

it did not state how many individuals on the flight were

involved in the illicit activity or give a physical descrip-

tion of the sex, height, weight, clothing, or other charac-

teristics of the person[s] who would be carrying the

drugs. In order to constitute a reasonable articulable sus-

picion the known facts must reasonably relate to the

person about to be stopped and demonstrate a reasonable

suspicion that the person has engaged or will engage in

criminal activity. The officers also assert that prior to

their approach of Buffkins, they noticed that Buffkins was

carrying a teddy bear with seams that appeared to have

been resewn. However, this additional fact cannot create

a reasonable articulable suspicion. There is nothing sus-

picious about a passenger deplaning an airplane carrying

a toy animal. Furthermore, Hollis left the airport without

taking the bear with her. Officer Friend specifically testi-

fied at trial that a drug courier would have wanted to get

the teddy bear out of the airport as soon as possible if it

contained drugs.’*

“Based upon the whole picture, [the officers could

not have] . . . reasonably surmise[d] that . . . [Buffkins]

was engaged in criminal activity.” Cortez, 449 US. at

'% The defendants also argue that they believed that Hollis

appeared nervous while waiting for the plane to land. Ner-

vousness alone, however, would not have supplied the officers

with the ‘suspicion necessary for a Terry-type stop. See United

States v. Andrews, 600 F.2d 563, 566 (6th Cir.) (nervousness is

entitled to no weight because it is consistent with behavior of

innocent airport travellers), cert. denied, 444 U.S. 878 (1979),

United States v. Gooding, 695 F.2d 78, 84 (4th Cir. 1982).

App. 13

421-22. Thus, we conclude that the officers did not, as a

matter of law, possess any reasonable articulable suspi-

cion to detain Buffkins in the manner described. We hold

the district court erred in directing a verdict for the police

officers on Buffkins’ Fourth Amendment claim.'4

Ill. Unlawful Arrest

The officers arrested Buffkins for violating section

20-42 of the Omaha disorderly conduct ordinance which

provides as follows:

It shall be unlawful for any person purposely or

knowingly to cause inconvenience, annoyance

or alarm or create the risk thereof to any person

by: (a) Engaging in fighting, threatening or vio-

lent conduct; or (b) Using abusive, threatening

or other fighting language or gestures; or (c)

Making unreasonable noise.

Omaha Mun. Code § 20-42. Buffkins contends her arrest

was unlawful because the officers could not have rea-

sonably believed that they had probable cause to arrest

her for using fighting words. She also argues that the City

of Omaha was improperly dismissed as a defendant in

this lawsuit because the City was partly responsible for

her unlawful arrest.

'4 In a section 1983 action, the jury decides whether or not

an individuals has been seized within the meaning of the

Fourth Amendment only if reasonable persons could differ on

the conclusions to be drawn from the evidence. See Pliska v.

City of Stevens Point, Wisconsin, 823 F.2d 1168, 1177 (7th Cir.

1987). In the present case, however, no evidentiary facts exist

which validate the officers’ conduct in making the seizure and

search.

App. 14

A. Dismissal of the City of Omaha

Buffkins argues the district court erred by dismissing

the City of Omaha as a defendant. She contends that her

unlawful arrest was caused in part by the City’s failure to

repeal subsection (c) of the Omaha disorderly conduct

ordinance. See City of Canton v. Harris, 489 U.S. 378 (1989)

(holding that a municipality may be liable under 42

U.S.C. § 1983 if there is a direct causal connection

between a municipal policy or custom and the alleged

constitutional deprivation). We agree.

In 1985, the Nebraska Supreme Court observed that

subsection (c) of the disorderly conduct ordinance was

“unconstitutionally suspect” but held that in the particu-

lar case the defendant lacked standing to challenge the

subsection. State v. Groves, 219 Neb. 382, 385, 363 N.W.2d

507, 510 (1985). Four years later, the United States District

Court for the District of Nebraska declared the unreason-

able noise subsection of the Omaha disorderly conduct

ordinance (subsection (c)) unconstitutional. Langford v.

City of Omaha, CV 86-0-331 (Memorandum Op. Feb. 17,

1989). The court reached the “inescapable” conclusion:

that the instant ordinance, using no more than

the word ‘unreasonable’ to define what noise is

prohibited and being void of indication as to

whose sensitivity shall measure a violation lacks

that definiteness, both in notice of what conduct

is prescribed and in establishment of guidelines

for enforcement which precedent has firmly

declared to be essential.

Langford _v. City of Omaha, CV. 86-0-331 (quoting Magis-

trate’s Findings and Recommendations, slip op. at 13).

Based on the holding in Langford v. City of Omaha, the trial

App. 15

court in the present case declared section 20-42(c) of the

Omaha disorderly conduct ordinance unconstitutional

and granted Buffkins’ summary judgment motion with

respect to her claim that section 20-42(c) is facially uncon-

stitutional. At the time of Buffkins’ arrest, the City of

Omaha had not repealed subsection (c) of the disorderly

conduct ordinance even though the Nebraska Supreme

Court had questioned the constitutionality of that subsec-

tion approximately two years before Buffkins was

arrested. Moreover, when the Nebraska federal district

court finally declared section 20-42(c) unconstitutional, it

relied on caselaw that clearly predated the arrest of Buf-

fkins. In addition, at the time of Buffkins arrest, several

other federal courts had held statutes or ordinances with

provisions similar to subsection (c) of the Omaha disor-

derly conduct ordinance unconstitutional. See, e.g., Pri-

tikin v. Thurman, 311 F. Supp. 1400, 1402 (S.D. Fla. 1970);

Original Fayette County Civic v. Welfare League, Inc. v.

Ellington, 309 F. Supp. 89, 92 (W.D. Tenn. 1970). As a

result of the City’s failure to repeal subsection (c), Offi-

cers Friend and Grigsby relied on the unconstitutional

portion of the disorderly conduct ordinance to arrest

Buffkins.15 We therefore hold the City of Omaha was

improperly dismissed as a party defendant in this law-

suit.

15 Under the circumstances, we find the record undisputed

that the officers arrested the plaintiff under the unconstitu-

tional subsection of the ordinance. Officer Friend testified at

trial that he arrested Buffkins for violating the “fighting

words” subsection and the “unreasonable noise” subsection of

(Continued on following page)

App. 16

B. Fighting Words

Buffkins also argues the district court should have

found as a matter of law that the arresting officers could

not have reasonably concluded that they had probable

cause to arrest her for using a “fighting word.” We agree.

The Supreme Court held in Chaplinsky v. New Hamp-

shire, 315 U.S. 568, 572 (1942), that “fighting words” are

not protected speech under the First and Fourteenth

Amendments. The Chaplinsky Court defines “fighting

words” as words “which by their very utterance inflict

injury or tend to incite an immediate breach of the

peace.” Id. “Fighting words” are words that are “likely to

cause an average addressee to fight.” Id. at/573. Based on

the holding in Chaplinsky, the Nebraska Supreme Court

construed subsections (a) and (b) of the Omaha disor-

derly conduct ordinance as prohibiting fighting words or

(Continued from previous page)

the disorderly conduct ordinance. He testified as follows: “dur-

ing the entire time she was in that room, she spoke several

octaves higher than the average conversational tone, and | took

that into consideration upon arresting her for calling me an

‘asshole.’ ” Jt. App. at 206. Friend also admitted that he consid-

ered it “abusive” that she was loud and vigorous and used

certain mannerisms while she advocated her constitutional

rights. Jt. App. at 386.

Officer Grigsby also testified at trial that he assisted and

concurred in the arrest because Buffkins used the word asshole

and exhibited a loud attitude throughout the interview. Jt.

App. at 242. He admitted that Buffkins’ loud attitude was

covered by subsection (c), the unreasonable noise subsection of

the disorderly conduct ordinance. Jt. App. at 243.

App. 17

conduct. State v. Groves, 219 Neb. 382, , 363 N.W.2d

507, 510 (1985).

We conclude that the district court should have

found as a matter of law that the officers did not have

probable cause to arrest Buffkins for using “fighting

words.”!6 See Cavazos v. State, 455 N.E.2d 618 (Ind. 1983)

(holding as a matter of law that calling a police officer an

“asshole” does not constitute fighting words); People v.

Gingello, 324 N.Y.2d 122 (1971) (holding that the words

“you are an asshole” directed to a police officer are not

“fighting words”). There is no evidence that Buffkins’

speech was an incitement to immediate lawless action.

Neither arresting officer contended that Buffkins became

violent or threatened violence. Moreover, both officers

admitted that nobody outside the interview room heard

Buffkins’ comment. In addition, Buffkins’ use of the word

“asshole” could not reasonably have prompted a violent

response from the arresting officers. In Houston v. Hill,

482 U.S. 451, 462 (1986), the Supreme Court recognized

that the “fighting words” doctrine may be limited in the

case of communications addressed to properly trained

police officers because police officers are expected to

exercise greater restraint in their response than the aver-

age citizen. The Houston Court stated:

16 Because of our holding, we need not determine whether

the district court erred by failing to instruct the jury as tc the

legal definition of “fighting words” or by failing to instruct the

jury as to the personal liability of the officers for arresting

Buffkins under subsection (c) of the Omaha disorderly conduct

ordinance.

(Continued on following page)

App. 18

[T]he First Amendment protects a significant

amount of verbal criticism and challenge

directed at police officers. ... The freedom of

individuals verbally to oppose or challenge

police action without thereby risking arrest is

one of the principal characteristics by which we

distinguish a free nation from a police state.

Id. at 461-63.

CONCLUSION

In summary, we affirm the district court’s holding

that the investigatory stop of Buffkins was not racially

motivated. However, we hold the officers did not have a

reasonable and articulable suspicion to effect a seizure of

Buffkins as a mater of law. We find that Buffkins’ arrest

was made under both the “fighting language” and

“unreasonable noise” subsections of the city ordinance.

The City had notice of the unconstitutionality of the

“unreasonable noise” subsection and therefore the City

was improperly dismissed. We also hold that Buffkins’

(Continued from previous page)

The district court also erred in submitting the legal ques-

tion of qualified immunity to the jury. See Fields v. City of

Omaha, 810 F.2d 830, 834 (8th Cir. 1987). This is a question of

law to be determined from all of the existing facts and circum-

stances based on whether reasonable officers knew or should

have known that their conduct was violative of constitutional

law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, as we

have discussed, no evidentiary facts exist to allow a reasonable

officer to believe the seizure and subsequent arrest of Buffkins

were legal. We hold as a matter of law the officers possessed no

evidentiary basis on which to assert a qualified immunity

defense.

App. 19

speech directed at the officers did not constitute “fighting

words.” Accordingly, the judgment of the district court is

affirmed as to the dismissal of plaintiff's claim under

section 1981; we otherwise vacate the judgment in favor

of the defendants and remand all of plaintiff’s other

claims, both state and federal, to the district court for a

new trial.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

App. 20

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1319NE

Lu Ann Buffkins,

2 arc Order Denying

Petition for

Rehearing and

VS.

City of Omaha, Douglas

County, Nebraska, a Municipal oo.

Corporation; Alvin Grigsby; a

En banc.

and, John Friend,

Appellees.

e238 © €.8. 4&8 2 ®@

Appellees’ suggestion for rehearing en banc has been

considered by the court and is denied by reason of the

lack of a majority of the active judges voting to rehear the

case en banc.

Petition for rehearing by the panel is also denied.

February 15, 1991

ORDER ENTERED AT THE DIRECTION OF THE COURT

/s/ Robert D. St. Vrain

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

App. 21

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1319NE

Lu Ann Buffkins,

Appellant, Appeal from the

United States

District Court

for the District

of Nebraska

Cv 87-0-370

Vs .

City of Omaha, Douglas County,

Nebraska, a Municipal

Corporation; Alvin Grigsby; and,

John Friend,

Appellee.

. 6 ee 2 ere ee

JUDGMENT

(Filed Apr. 8, 1991)

This appeal from the United States District Court was

submitted on the record of the district court, briefs of the

parties and was argued by counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in this

cause is affirmed in part, vacated in part and remanded

with directions for proceedings consistent with the opin-

ion of this Court.

App. 22

December 28, 1990

A true copy.

ATTEST: /s/ Robert D. St. Vrain

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

MANDATE ISSUED: 4/2/91

App. 23

APPENDIX “D”

UNITED STATES DISTRICT COURT

DISTRICT OF NEBRASKA

he he he he he hee he ee ee AAA AAA

LU ANN BUFFKINS, :

Plaintiff, m CIV 87-0-370

ag ‘ ORDER

CITY OF OMAHA, Douglas PS (Filed

County, Nebraska, a Municipal . Dec. 28, 1989)

Corporation; ALVIN GRIGSBY, .

and JOHN FRIEND, r

Defendants. °

The he he he ee ee he ee a RA

The plaintiff’s Motion for Judgment Notwithstanding

the Verdict came on for hearing on December 27, 1989 by

conference telephone, with the plaintiff appearing by

Robert V. Broom and with the defendants appearing by

Thomas O. Mumgaard, and

After arguments of counsel and upon the record

herein,

IT IS ORDERED:

(1) That plaintiff's Motion for Judgment Notwith-

standing the Verdict is denied

App. 24

Dated this 27th day of December, 1989.

BY THE COURT:

/s/ John B. Jones

United States District Judge

ATTEST:

WILLIAM L. OLSON, CLERK

BY: /s/ Illegible

(SEAL) DEPUTY

App. 25

APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

LU ANN BUFFKINS

Plaintiff, Cv. 87-0-370

vs JUDGMENT

(Filed Sep. 1,

ALVIN GRIGSBY AND 1989)

JOHN FRIEND

Defendants.

ee a a a a a a

This action came on for trial before the Court and

jury; Honorable John B. Jones, Judge, presiding, the

issues having been duly tried and the jury having duly

rendered its verdict;

IT IS ORDERED AND ADJUDGED that the plaintiff

take nothing; that the action is dismissed on the merits

with prejudice; and that the defendants, Alvin Grigsby

and John Friend, recover of the plaintiff, Lu Ann Buf-

fkins, taxable costs of this action.

Dated at Omaha, Nebraska, this Ist day of September

1989.

WILLIAM L. OLSON

CLERK OF THE COURT

/s/ Nancy C. Vadnais

NANCY C. VADNAIS

DEPUTY CLERK

App. 26

APPENDIX “F”

[p. 520] THE COURT: Very well. The defendant

has rested. Does the plaintiff desire to make any motions

at this time?

MR. BROOM: Plaintiff would move the Court for a

directed verdict as to liability of the City of Omaha for

implementing, enacting and maintaining an un-Constitu-

tional ordinance under which LuAnn Buffkins was

arrested, both as to [p. 521] subsections (b) and (c), and

for not limiting the application of the ordinance to fight-

ing words only, in light of the fact that for many years

back the State Supreme Court said it must be fighting

language, but it continues to reflect words other than

fighting language under the ordinance. So we wouid

move for a directed verdict on the liability of the City.

We would move for a directed verdict, as a matter of

law, the defendants Crigsby and Friend are liable for

having falsely arrested and imprisoned Miss Buffkins,

and for having prosecuted and brought charges against

her in violation of her First Amendment rights, in view of

the fact as a matter of law the use of the word “asshole”

in this case is not a fighting word.

We further move for a directed verdict against the

individual defendants Grigsby and Friend for having

arrested her based solely on her race.

We would move for a directed verdict as to the State

claims for false arrest, false imprisonment, for the same

reasons as to the Section 1983 claims previously noted.

App. 27

And for the record, we would once again request the

Court to reconsider its ruling with respect to the initial

stop and detention. As a matter of law, we believe the

plaintiff is entitled to a directed verdict that in fact the

initial stop and detention by the officers was a violation

of Miss Buffkins’ Constitutional rights pursuant to Sec-

tion [p. 522] 1983, and we think she is entitled to a

directed verdict in that regard.

MR. FELLOWS: We are willing to submit the

motion without argument, Your Honor.

THE COURT: The plaintiff's motion for

directed verdicts will be denied, and the motion to recon-

sider the Court’s prior ruling will be likewise denied.

App. 28

APPENDIX “G”

JURY INSTRUCTION

NO. 15

You are instructed that the Omaha disorderly con-

duct ordinance provides:

Section 20-42. Disorderly Conduct

It shall be unlawful for any person purposely or

knowingly to cause inconvenience, annoyance or alarm

or create the risk thereof to any person by:

(a) Engaging in fighting, threatening or violent con-

duct; or

(b) Using abusive, threatening or other fighting lan-

guage or gestures; or

(c) Making unreasonable noise.

You are instructed that subsection (c) of the disor-

derly conduct ordinance has been ruled by this court to

be unconstitutionally vague.

You must first determine whether defendants

Grigsby and Friend had probable cause to believe that the

conduct of the plaintiff in using the word “asshole” vio-

lated subsection (b) of the disorderly conduct ordinance.

If you find they did have probable cause for plaintiff's

arrest, you must return a verdict for the defendants.

If you find that the defendants did not have probable

cause to arrest the plaintiff under this ordinance, you

must then determine whether the defendants Grigsby

and Friend are entitled to qualified immunity, as set out

in Instruction 18.

App. 29

If you find that defendants Grigsby and Friend did

not have probable cause to arrest the plaintiff and are not

entitled to qualified immunity, you must return a verdict

for the plaintiff and against defendants Grigsby and

Friend on both the civil rights claim and the false arrest

claim.

App. 30

APPENDIX “H”

STATE OF NEBRASKA, APPELLEE, V.

Kevin R. GrOvES, APPELLANT.

363 N.W.2d 507

Filed March 1, 1985. No. 84-282.

Appeal from the District Court for Douglas County:

James M. Murpny, Judge. Affirmed.

Michael T. Levy of Levy & Lazer, P.C., for appellant.

Herbert M. Fitle, Omaha City Attorney, Gary P. Buc-

chino, Omaha City Prosecutor, Richard M. Jones, and

David F. Smalheiser, for appellee.

KrivosHa, C.J., Bostaucu, Wuite, Hastincs, CAPoraie,

and SHANAHAN, J.J., and Cotwe i, D.J., Retired.

Wuite, J.

Appellant, Kevin R. Groves, was convicted after trial

in the municipal court of the city of Omaha, Douglas

County, Nebraska, of the offense of disorderly conduct as

defined by Omaha Mun. Code § 20-42 (1980). The district

court for Douglas County affirmed the conviction but

modified the sentence of the municipal court from 75 to

20 days. He appeals to this court.

Two assignments of error are advanced, which may

be summarized as follows. Section 20-42 is unconstitu-

tional because it is overbroad in that it applies to pro-

tected conduct under the Constitution of the United

States and the Constitution of the State of Nebraska, and

this section is vague in that it fails to give fair and

adequate notice of the type of conduct prohibited and is

susceptible to arbitrary enforcement. We shall consider

App. 31

the assignments together. A brief recitation of the facts is

necessary.

On October 5, 1983, Edward Hale, a police officer of

the city of Omaha, was working as a private security

guard at the Holiday Inn motel complex at 3321 South

72d Street, Omaha, Nebraska. The complex consists of a

number of buildings and a large 14-acre parking lot.

Officer Hale’s employment included patrolling the park-

ing lot in a truck to provide security for vehicles parked

there. At about 3:40 a.m. Officer Hale observed the appel-

lant, Groves, in the far east part of a parking lot, standing

next to a Cadillac automobile. The parking lot was

located approximately 200 feet from the nearest building.

Officer Hale approached Groves, who was about 100 feet

from him. As the officer neared Groves, he observed what

appeared to be a pair of boltcutters in his right rear

pocket. When Officer Hale pulled within 10 feet of

Groves, Groves started to walk away. Officer Hale identi-

fied himself as a police officer, produced his badge, and

showed it to Groves. Groves’ response was, “What the

fuck do you want?” Officer Hale responded that he

wished to see his identification. Groves reached into his

pocket, got out his driver’s license, gave it to the police

officer, and advanced toward Officer Hale in what Hale

described as a menacing manner. Groves’ words at that

time were, “I don’t give a fuck, give a fuck who you are.”

In response, Officer Hale produced his revolver and

pointed it at Groves. Groves then started walking to his

own automobile about 40 feet from where the Cadillac

was parked. Officer Hale summoned assistance from the

Omaha Police Department and, approximately 8 minutes

later, several cruisers responded.

App. 32

Before assistance arrived, appellant stepped inside

his car, backed it out, and parked it near where Officer

Hale’s truck was stopped. Groves came out of his car,

aware the Officer Hale had called for assistance, and

called Officer Hale a “motherfucker” and a “pig” and

requested the officer to try to arrest him singlehandedly.

At the time of this confrontation Officer Hale observed a

sheath on the defendant’s hip, partially concealed

beneath his coat. Officer Hale recognized the sheath as

one that typically contained a “Buck knife.” When addi-

tional police officers arrived, Groves called one of the

summoned officers a “fuckhead,” and a struggle ensued

with the officer before Groves was forcibly handcuffed

and arrested. The boltcutters observed by Officer Hale

were recovered from under the front seat of Groves’ car.

Section 20-42 of the Omaha Municipal Code provides

as follows: “It shall be unlawful for any person purposely

or knowingly to cause inconvenience, annoyance or

alarm or create the risk thereof to any person by: (a)

Engaging in fighting, threatening or violent conduct; or

(b) Using abusive, threatening or other fighting language

or gestures; or (c) Making unreasonable noise.” We shall

address the vagueness and overbreadth arguments

together.

Recently, in State v. Frey, 218 Neb. 558, 357 N.W.2d

216 (1984), we had occasion to consider the constitu-

tionality of Neb. Rev. Stat. § 28-305(1) (Reissue 1979) with

respect to a manslaughter charge. We said in that case at

561-62, 357 N.W.2d at 219:

Hoffman Estates v. Flipside, Hoffman Estates,

455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362

App. 33

(1982), teaches that in a facial challenge to the

overbreadth and vagueness of a law, that is, in

this context, a claim that the law is invalid in

toto and therefore incapable of any valid appli-

cation, our first task is to determine whether the

enactment reaches a substantial amount of con-

Stitutionally protected conduct. If it does not,

then the overbreadth challenge must fail. We are

to then examine the facial vagueness challenge

and, assuming the enactment implicates no con-

stitutionally protected conduct, uphold the chal-

lenge only if the enactment is impermissibly

vague in all its applications. In order to have

standing to challenge a vague statute, one must

not have engaged in conduct which is clearly

proscribed by the statute, and cannot complain

of the vagueness of the law as applied to the

conduct of others.

Therefore, applying the language of State v. Frey to this

case, our first question, then, is whether or not the enact-

ment reaches a substantial amount of constitutionally

protected conduct. It does not. As we observed in State v.

Boss, 195 Neb. 467, 471, 238 N.W.2d 639, 643 (1976):

The word abuse and similarly broad terms in

like statutes have been held to pass constitu-

tional muster under the First Amendment to the

Constitution of the United States only if they are

construed so as to apply the statute to punish

only what have been called “fighting words.”

Chaplinsky v. New Hampshire, 315 U.S. 568, 62

S.Ct. 766, 86 L.Ed. 1031.... ” “[FJighting’ words

[are] ‘those which by their very utterance inflict

injury or tend to incite an immediate breach of

the peace.’ ”

We hold that the words “fuckhead” and “mother-

fucker” are such fighting words, and we again specifi-

cally reject the implicit argument advanced by appellant

le

App. 34

that a police officer is somehow less susceptible to abuse

than other members of the general public. As we said in

Boss:

We specifically reject the authority of Wil-

liams v. District of Columbia, 419 F.2d 638, and

the concurrence of Mr. Justice Powell in Lewis v.

City of New Orleans, supra, wherein it is sug-

gested that the words here used cannot be fight-

ing words when directed to a police officer

because he is trained to accept such abuse with-

out violent reaction.

Id.

As Groves’ conduct is not constitutionally protected,

the overbreadth argument must be rejected. We are, then,

now to conclude whether or not the ordinance is vague.

Section 20-42(c) is constitutionally suspect. We are again

faced with the defendant's lack of standing to attack this

record. We have said, to repeat the words in State v. Frey,

supra at 561-62, 357 N.W.2d at 219: “In order to have

standing to challenge a vague statute, one must not have

engaged in conduct which is clearly proscribed by the

statute, and cannot complain of the vagueness of the law

as applied to the conduct of others.” As the ordinance

clearly applied to prohibited conduct engaged in by

Groves, he lacks standing to suggest that the ordinance

may be impermissibly applied to others. The assignments

of error are without merit. The judgment and sentence of

the trial court are affirmed.

AFFIRMED.

Krivosua, C.J., dissenting.

I must respectfully dissent from the majority opinion

in this case. | do so on three specific grounds. First, |

App. 35

believe that the majority opinion is in error in its declara-

tion that in order for one to maintain a facial challenge to

the overbreadth and vagueness of a law where the enact-

ment does not reach a substantial amount of constitu-

tionally protected conduct, the challenge can be upheld

only if the enactment is impermissibly vague in all of its

applications. Second, I| believe that the language of the

statute is impermissibly vague, and therefore unconstitu-

tional. Third, I believe that the facts of the case fail to

establish that the defendant committed the crime for

which he was charged and convicted.

I turn first to the question of when a facial challenge

as to overbreadth or vagueness can be maintained. I am

afraid that just as the U.S. Supreme Court got onto a

wrong track when it decided the case of Hoffman Estates v.

Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71

L.Ed.2d 362 (1982), so too did this court get onto the

wrong track when we recently decided the case of State v.

Frey, 218 Neb. 558, 357 N.W.2d 216 (1984). The majority

opinion in the instant case continues along that wrong

trail.

In Frey, relying upon what we perceived to be the

position of the U.S. Supreme Court in Hoffman Estates, we

held that Frey lacked standing to challenge the constitu-

tionality of the statute in question, because in order for

one to have standing to challenge a vague statute, one

must not have engaged in conduct which is clearly pro-

scribed by the statute, and cannot complain of the vague-

ness of the law as applied to the conduct of others unless

the statute is impermissibly vague in all its applications.

a

App. 36

A closer examination of the opinion in Hoffman

Estates, in light of a later decision of the U.S. Supreme

Court, Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75

L.Ed.2d 903 (1983), leads one to the inescapable conclu-

sion that Hoffman Estates does not stand for such a rule

and, in any event, does not reflect the law in this jurisdic-

tion.

First, Hoffman Estates involved a preenforcement

facial challenge of a civil statute seeking to regulate an

economic matter. As observed by the majority in Hoffman

Estates, supra at 498-99:

These standards should not, of course, be

mechanically applied. The degree of vagueness

that the Constitution tolerates — as well as the

relative importance of fair notice and fair

enforcement — depends in part on the nature of

the enactment. Thus, economic regulation is

subject to a less strict vagueness test because its

subject matter is often more narrow, and

because businesses, which face economic

demands to plan behavior carefully, can be

expected to consult relevant legislation in

advance of action. Indeed, the regulated enter-

prise may have the ability to clarify the meaning

of the regulation by its own inquiry, or by resort

to an administrative process. The Court has also

expressed greater tolerance of enactments with

civil rather than criminal penalties because the

consequences of imprecision are qualitatively

less severe. And the Court has recognized that a

scienter requirement may mitigate a law’s

vagueness, especially with respect to the ade-

quacy of notice to the complainant that his con-

duct is proscribed.

Finally, perhaps the most important factor

affecting the clarity that the Constitution

App. 37

demands of a law is whether it threatens to

inhibit the exercise of constitutionally protected

rights. If, for example, the law interferes with

the right of free speech or of association, a more

stringent vagueness test should apply.

This ordinance simply regulates business

behavior and contains a scienter requirement

with respect to the alternative “marketed for

”7

use” standard. The ordinance nominally

imposes only civil penalties.

Any other reference in the Hoffman Estates opinion to

criminal action and the standards required in such crimi-

nal actions is mere dicta.

The majority opinion in Hoffman Estates, supra at 497,

said:

A law that does not reach constitutionally

protected conduct and therefore satisfies the

overbreadth test may nevertheless be challenged

on its face as unduly vague, in violation of due

process. To succeed, however, the complainant

must demonstrate that the law is impermissibly

vague in all of its applications.

No authority was cited for that proposition other than

Hoffman Estates itself. Furthermore, this passage must be

read in light of the Court’s specific acknowledgment that

commercial regulation is subject to a relaxed vagueness

analysis. As noted earlier, even the Hoffman Estates opin-

ion recognizes that legislation interfering with first

amendment interests is examined under “a more strin-

gent vagueness test.”

Apparently, the U.S. Supreme Court has recognized

the error of Hoffman Estates and has already abandoned

App. 38

its teachings. We should do likewise. In Kolender v. Law-

son, supra, the U.S. Supreme Court was asked to pass

upon the constitutionality of a California penal statute

which provided:

Every person who commits any of the fol-

lowing acts shall be guilty of disorderly con-

duct, a misdemeanor: .. . (e) Who loiters or

wanders upon the streets or from place to place

without apparent reason or business and who

refuses to identify himself and to account for his

presence when requested by any peace officer so

to do, if the surrounding circumstances are such

as to indicate to a reasonable man that the pub-

lic safety demands such identification.

See Cal. Penal Code § 647(e) (West 1970). The petitioner

was detained or arrested on approximately 15 occasions,

though he was only prosecuted twice and convicted once.

He then brought a civil action seeking a declaratory judg-

ment that § 647(e) is unconstitutional. Neither the facts as

presented to the U.S. Supreme Court nor the statute itself

is such that it would be vague in all of its applications.

Obviously, one who had just committed a crime and was

wandering about the street without apparent reason

might be asked to identify himself and to account for his

presence. Nevertheless, the U.S. Supreme Court struck

the statute down as being unconstitutionally vague. In

doing so the Court said:

As generally stated, the void-for-vagueness

doctrine requires that a penal statute define the

criminal offense with sufficient definiteness that

ordinary people can understand what conduct is

prohibited and in a manner that does not

encourage arbitrary and discriminatory enforce-

ment. [Citations omitted.] Although the doctrine

~ focuses both on actual notice to citizens and

App. 39

arbitrary enforcement, we have recognized

recently that the more important aspect of

vagueness doctrine “is not actual notice, but the

other principal element of the doctrine - the

requirement that a legislature establish minimal

guidelines to govern law enforcement.”

Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75

L. Ed. 2d 903 (1983). In n.8 to the opinion the Court

addressed the Hoffman Estates opinion, saying at 358-59:

In his dissent, JUSTICE WHITE claims that

“{t]he upshot of our cases... is that whether or

not a statute purports to regulate constitu-

tionally protected conduct, it should not be held

unconstitutionally vague on its face unless it is

vague in all of its possible applications.” [Cita-

tion omitted.] The description of our holdings is

inaccurate in several respects. First, it neglects

the fact that we permit a facial challenge if a law

reaches “a substantial amount of constitu-

tionally protected conduct.” [Citation omitted.]

Second, where a statute imposes criminal penal-

ties, the standard of certainty is higher. [Citation

omitted.] This concern has, at times, led us to

invalidate a criminal statute on its face even

when it could conceivably have some valid

application. See, e.g., Colautti v. Franklin, 439

U.S. 379, 394-401 (1979); Lanzetta v. New Jersey,

306 U.S. 451 (1939). The dissent concedes that

“the overbreadth doctrine permits facial chal-

lenge of a law that reaches a substantial amount

of conduct protected by the First Amend-

men.... ” [Citation omitted.] However, in the

dissent’s view, one may not “confuse vagueness

and overbreadth by attacking the enactment as

being vague as applied to conduct other than his

own.” [Citation omitted.] But we have tradi-

tionally viewed vagueness and overbreadth as

logically related and similar doctrines. See, e.g.,

Keyishian v. Board of Regents, 385 U.S. 589, 609

eterna

App. 40

(1967); NAACP v. Button, 371 U.S. 415, 433

(1963). ...

No authority cited by the dissent supports

its argument about facial challenges in the arbi-

trary enforcement context. . . . Hoffman Estates,

supra, also relied upon by the dissent, does not

support its position. In addition to reaffirming

the validity of facial challenges in situations

where free speech or free association are

affected [citation omitted], the Court empha-

sized that the ordinance in Hoffman Estates “sim-

ply regulates business behavior” and that

“economic regulation is subject to a less strict

vagueness test because its subject matter is often

more narrow.” [Citation omitted.)

I am firmly convinced that should we continue to

follow the trail mistakenly set out for us by the unsup-

ported authority in Hoffman Estates, we shail wind up at a

dead end and be compelled to find our own way back.

We should abandon that trail now, concede that we were

misled, and once again reestablish what has long been the

rule, both in this jurisdiction and in the federal jurisdic-

tion as well. See State v. Hamilton, 215 Neb. 694, 340

N.W.2d 397 (1983).

At least where the legislation arguably impinges on

first amendment values, I believe the rule to be as

expressed by the U.S. Supreme Court in Gooding v.

Wilson, 405 U.S. 518, 521, 92 S. Ct. 1103, 31 L. Ed. 2d 408

(1971), wherein the Court said:

“Although a statute may be neither vague,

overbroad, nor otherwise invalid as applied to

the conduct charged against a particular defen-

dant, he is permitted to raise its vagueness or

unconstitutional overbreadth as applied to

others. And if the law is found deficient in one

App. 41

of these respects, it may not be applied to him

either, until and unless a satisfactory limiting

construction is placed on the statute. The stat-

ute, in effect, is stricken down on its face. This

result is deemed justified since the otherwise

continued existence of the statute in unnar-

rowed form would tend to suppress constitu-

tionally protected rights.”

See, also, Lewis v. City of New Orleans, 415 U.S. 130, 94 S.

Ct. 970, 39 L. Ed. 2d 214 (1974); Plummer v. City of Col-

umbus, 414 U.S. 2, 94S. Ct. 17, 38 L. Ed. 2d 3 (1973). All

that one can say with regard to the decision in Hoffman

Estates is that it is an anomaly in the law and, as an

anomaly, should be disregarded.

I turn next to the question of whether the ordinance

is unconstitutionally vague. As noted by the majority, and

as conceded by the city of Omaha, unless this court is

able to apply some valid judicial construction limiting the

reach of the ordinance solely to constitutionally

unprotected speech, we have no choice but to declare the

ordinance invalid. I believe that the judicial gloss sought

to be applied by the court simply does not adhere and

therefore fails to make the test.

The majority has determined that the words

“fuckhead” and “motherfucker” are fighting words per

se. I believe that not to be the law. In State v. Boss, 195

Neb. 467, 472, 238 N.W.2d 639, 643 (1976), relied upon by

the majority, we said “we agree that whether any particu-

lar use of abusive language constitutes ‘fighting words,’

depends not only upon the words, but upon the circum-

stances as well.” I believe that under the facts of this case

the use of those words could not have constituted fight-

ing words, but I defer that for a moment. At this juncture

App. 42

I simply address the question of whether the ordinance is

vague. In doing so we are reminded that ” ‘[a] crime must

be defined with sufficient definiteness and there must be

ascertainable standards of guilt to inform those subject

thereto as to what conduct will render them liable to

punishment thereunder. ...‘’” State v. Hamilton, supra at

695, 340 N.W.2d at 398. The dividing line between what is

lawful and unlawful cannot be left to conjecture. The

citizen cannot be held to answer charges based upon

penal statutes whose mandates are so uncertain that they

will reasonably admit of different constructions. A crimi-

nal statute cannot rest upon an uncertain foundation. The

crime and the elements constituting it must be so clearly

expressed that the ordinary person can intelligently

choose in advance what course it is lawful for him to

pursue. Penal statutes prohibiting the doing of certain

things and providing a punishment for their violation

should not permit such a double meaning that the citizen

may act upon one conception of its requirements and the

courts upon another. A statute which forbids the doing of

an act in terms so vague that men of common intelligence

must necessarily guess as to its meaning and differ as to

its application violates the first essential element of due

process of law. In Grayned v. City of Rockford, 408 U.S. 104,

108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972), the U.S.

Supreme Court referred to these principles in the follow-

ing manner:

Vague laws offend several important values.

First, because we assume that man is free to

steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary

intelligence a reasonable opportunity to know

App. 43

what is prohibited, so that he may act accord-

ingly. Vague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented,

laws must provide explicit standards for those

who apply them. A vague law impermissibly

delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and

subjective basis, with the attendant dangers of

arbitrary and discriminatory application.

See, also, State v. Hamilton, 215 Neb. 694, 340 N.W.2d 397

(1983).

An examination of the ordinance in question is a

perfect example of what it was in Hamilton about which

we were concerned. To begin with, this ordinance on its

face not only makes it a crime to use fighting words but,

likewise, makes it a crime to engage in a whole host of

activities, including making unreasonable noise in such a

manner as to cause inconvenience, annoyance, or alarm,

or create the risk thereof to any person. If two individuals

on the street, enjoying the fact that they have accom-

plished some task, make unreasonable noise, thereby

causing annoyance to a third person, the ordinance has

been violated. It is difficult to imagine how one could

draft an ordinance more vague than the one under con-

sideration. In Coates v. City of Cincinnati, 402 U.S. 611, 91

S. Ct. 1686, 29 L. Ed. 2d 214 (1971), the U.S. Supreme

Court struck down an unlawful assembly statute prohib-

iting conduct “annoying to persons passing by.” In doing

so the U.S. Supreme Court said at 614:

Conduct that annoys some people does not

annoy others. Thus, the ordinance is vague, not

in the sense that it requires a person to conform

his conduct to an imprecise but comprehensible

App. 44

normative standard, but rather in the sense that

no standard of conduct is specified at all. As a

result, “men of common intelligence must neces-

sarily guess at its meaning.”

See, also, Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93

L. Ed. 1131 (1949); Gooding v. Wilson, 405 U.S. 518, 92 S.

Ct. 1103, 31 L. Ed. 2d 408 (1971).

The Alaska Supreme Court was called upon to exam-

ine a similar ordinance in Marks v. City of Anchorage, 500

P.2d 644 (Alaska 1972). In striking down the ordinance

the court said at 652-53:

When these fundamental and long-estab-

lished principles of constitutional law are

applied to the Anchorage ordinance, there is no

escape from the conclusion that the ordinance is

likewise void for vagueness. Since the prefatory

language of the ordinance, containing the mens

rea for the specifically enumerated prohibited

acts, is itself impermissibly vague, no part of the

ordinance can stand. The defective prefatory

language is “with purpose and intent to cause

public inconvenience, annoyance or alarm or reck-

lessly create a risk thereof.” (emphasis added).

Coates v. Cincinnati, supra, specifically declared

the word “annoying” to be unconstitutionally

vague and the words “inconvenience” and

“alarm” are not less so. The rest of the ordinance

is also peppered with indefinite words... .

In sum, not only does the ordinance fail to

give adequate notice of what conduct is prohib-

ited, but it is particularly subject to the abuse of

uneven enforcement.

The majority seeks to avoid the difficulty presented

to us by the ordinance by suggesting that even though

some of the ordinance may be invalid, that portion of

App. 45

Omaha Mun. Code § 20-42(b) (1980) specifically referring

to “fighting language” was sufficient to convict. The diffi-

culty with all of that is that Groves was not charged with

violating § 20-42(b) by using fighting language. He was

charged with a violation of al! three parts of § 20-42, and

he was found guilty of violating all of § 20-42. We have

no way of knowing whether he was found guilty by

reason of the court finding that he had in fact used

fighting words or simply because he was making unrea-

sonable noise. See Williams v. District of Columbia, 419 F.2d

638 (D.C. App. 1968). It is not suggested by this dissent

that there may not be a manner in which a constitutional

ordinance might be drafted. It is, however, suggested that

where the drafters have failed to perform their duties,

this court should not undertake to do so.

The simple fact of the matter is that no reasonable

person can know in advance what activity is truly prohib-

ited by the provisions of § 20-42. For that reason the

ordinance must be declared unconstitutional.

The final reason I| believe the majority opinion is in

error is because I do not believe the evidence was suffi-

cient to convict Groves of causing inconvenience, annoy-

ance, or alarm by using fighting language.

It is difficult for me to conceive how an officer, with a

drawn, loaded service revolver, who is being specifically

paid by a private business to provide security of the type

that the officer was providing at the moment the alterca-

tion occurred, could be either inconvenienced, annoyed,

or alarmed by a man with a foul mouth. The only testi-

mony in the record which even remotely establishes

net

App. 46

inconvenience, annoyance, or alarm on the part of the

police officer is as follows:

Q. All right. Can you, rather than state a

conclusion, “menacing,” can you describe what

sort of actions or what sort of posture he was in,

words expressed to you as he approached you?

A. He says, “I don’t give a fuck, give a

fuck who you are.” And he started towards me

in a fashion I felt was menacing to me, to my

own Safety.

It was at this point that the officer drew his loaded

revolver.

It is difficult to conclude that this evidence was suffi-

cient to establish inconvenience, annoyance, or alarm of a

man who is being paid to be inconvenienced, annoyed, or

alarmed, and therefore permitted to carry a loaded

revolver. That fact is further borne out when, on cross-

examination, Officer Hale testified as follows:

Q. Officer Hale, how long have you been a

police officer?

A. Twelve years.

Q. You’ve been called names before,

haven’t you...

A. Many times.

Q. In connection with your duties...

A. Yes.

Q. Asa police officer? You’ ve been called a

motherfucker before, in connection with your

duties as a police officer?

A. I have.

App. 47

Q. It goes with the territory, doesn’t it?

A. It does

Furthermore, it is apparent from the testimony that

the arrest occurred before the officer could, under any

reasonable circumstance, be inconvenienced, annoyed, or

alarmed, even if we knew what those terms meant. One

of the arresting officers testified as follows:

Q. Do you recall any specific language that

he used that led you to that conclusion, did you

hear any abusive language or threatening lan-

guage?

A. Yes, quite a bit of swearing in a rather

loud tone.

©. At who?

A. It wasn’t directed intitially [sic] at any

one in particular, just in a manner of conversa-

tion; however...

Q. What specific words were used?

A. He used the word fuck several times. |

told the party to quiet down or he’d be placed

under arrest for disorderly conduct.

Q. What was his response to that?

A. He said, “You’re nothin’ but a

fuckhead.”

Q. What happened next?

A. I said, “You’re under arrest for disor-

derly conduct,” placed him under arrest.

In effect, then, we have now made words expressed

to no one in particular fighting words, thereby permitting

an individual to be arrested. The officer had already

determined that he was going to arrest Groves if he

ll

App. 48

continued to make noise, whether he used fighting words

directed at anyone or not.

No one condones the use of foul language addressed

to anyone, and in particular to a law enforcement officer;

yet, finding the use of foul language to be socially unac-

ceptable is not the same as making it the basis for deny-

ing one a first amendment right to free speech.

In my view the ordinance is vague and, therefore, in

violation of the Constitution. I believe that this is a case

in which we can make that determination. I further

believe that the evidence is insufficient to establish

beyond a reasonable doubt that the officer in question

could have been inconvenienced, annoyed, or alarmed. |

have difficulty believing that one with a loaded revolver

can be annoyed by one with a loaded mouth.

SHANAHAN, J., dissenting.

I join Chief Justice Krivosha in his dissent that the

questioned ordinance is unconstitutionally vague, but

make additional comment about the ordinance’s vague-

ness. What is sought to be prohibited by the ordinance is

“inconvenience, annoyance or alarm,” or creating the risk

of causing such situations or conditions. To paraphrase

the basic prohibition of the ordinance, it is unlawful to

make trouble for somebody, to irritate someone, to

frighten anybody, or to bring about the possibility or

danger of causing trouble, irritation, or fright to anyone.

Such nebulous and subjective situations cannot constitu-

tionally be the basis for prosecution. The various sub-

parts of the ordinance are only a futile facade for

vagueness.

App. 49

APPENDIX “1”

OMAHA

MUNICIPAL CODE

Sec. 20-42. Disorderly conduct.

It shall be unlawful for any person purposely or

knowingly to cause inconvenience, annoyance or alarm

or create the risk thereof to any person by:

(a) Engaging in fighting, threatening or violent conduct;

or

(b) Using abusive, threatening or other fighting lan-

guage or gestures; or

(c) Making unreasonable noise.