Opposition Brief — City of Omaha v. Buffkins

‘

THE CITY OF OMAHA, DOUGLAS COUNTY,

NEBRASKA, A Municipal Corporation;

ALVIN GRIGSBY: and JOHN FRIEND,

Petitioners,

vs.

LU ANN BUFFKINS, ;

Respondent.

- ORIGINAL

iE COURT OF THE UNITED STATES OF AMERIC

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FILS D

JUN 14 1091

OFFICE OF THE CLERK

NO. 90-1763

MOTION FOR LEAVE

TO PROCEED

INFORMA PAUPERIS

Lu Ann Buffkins, the Respondent, respectfully moves the

Court for leave to proceed herein informa pauperis, in accordance

with the provisions of Title 28, United States Code, Section

1915, and Rule 46 of this Court, and to file herein her response

to the Petition for Writ of Certiorari filed by Petitioners in

single counterpart, without printing the same.

Respondent applied for, and was granted by the Eighth

Circuit Court of Appeals, leave to proceed therein informa

pauperis.

The Affidavit of Respondent in support of this Motion is

filed herewith.

DATED THIS LI day of June, 1991.

RESPECTFULLY SUBMITTED,

LU “AAW...

BY:

Robert V. Broom #410444

Mary P. Clarkson #10701

BROOM, JOHNSON, FAHEY & CLARKSON

1722 St. Mary’s Avenue

310 Flatiron Building

Omaha, NE 68102

(402) 346-8323

Attorney for Respondent

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

THE CITY OF OMAHA, DOUGLAS COUNTY,

NEBRASKA, A Municipal Corporation;

ALVIN GRIGSBY: and JOHN FRIEND,

NO. 90-1763

AFFIDAVIT OF LU ANN

BUFFKINS IN SUPPORT OF

MOTION TO PROCEED

INFORMA PAUPERIS

Petitioners,

vs.

LU ANN BUFFKINS,

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Respondent.

STATE OF NEBRASKA )

) ss:

COUNTY OF DOUGLAS )

Lu Ann Buffkins, being duly sworn on oath, deposes and says:

(1) She is the Respondent in the above-entitled

proceeding and makes this Affidavit in support of her Motion for

Leave to Proceed Informa Pauperis;

(2) Affiant is unable, because of her poverty, to pay

fees and costs of this case or to pay the costs of printing

required herein or give security therefore;

(3) Affiant is currently unemployed and dependent upon

relatives for shelter and support;

(4) Affiant has not received within the past twelve

months any income from a business, profession, or other form of

self-employment or income in the form of rent payments, interest

dividends or other sources;

(5) For the past several months, neither affiant’s

cash, checking or savings account balances have exceeded at any

one time $100.00 and affiant owns no real estate, stocks, bonds,

notes or other valuable property excluding ordinary household

furnishings and clothing;

(6) Affiant owns a 1963 Chevrolet truck worth less

than $400.00;

(7) Affiant currently owes over $6,000.00 in student

loans and several thousand dollars in other debts.

FURTHER AFFIANT SAYETH NOT.

Dated this ///1 day of June, 1991.

Lu Ann Buffkins

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Subscribed and sworn to before me this // day of June,

1991.

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IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

THE CITY OF OMAHA, DOUGLAS COUNTY, NO. 90-1763

NEBRASKA, A Municipal Corporation;

ALVIN GRIGSBY: and JOHN FRIEND,

Petitioners,

vs. PROOF OF SERVICE

LU ANN BUFFKINS,

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Respondent.

I, Robert V. Broom, a member of the Bar of the Supreme Court

of the United States and counselor of record for Lu Ann Buffkins,

Respondent herein, hereby certify that, pursuant to Rule 33,

Rules of the-Supreme Court, I served three (3) copies of the

foregoing Motion to Proceed Informa Pauperis on each of the

parties herein as follows:

The City of Omaha, Douglas County, Nebraska

Alvin Grigsby

John Friend

by delivering the copies thereof to James E. Fellows, Deputy City

Attorney, counseler of record, and Thomas O. Mumgaard, Assistant

City Attorney, 804 Omaha/Douglas Civic Center, 1819 Farnam

Street, Omaha, NE 68183.

All parties required to be served have been served.

R

DATED THIS if day of June, VAM 2...

Robert V. Broom

BROOM, JOHNSON, FAHEY &

CLARKSON

1722 St. Mary’s Avenue

310 Flatiron Building

Omaha, NE 68102

(402) 346-8323

Attorney for Respondent

TABLE OF CONTENTS

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Grounds in Opposition to Jurisdiction .........-. 1

Constitutional Provisions, Statutes, and

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QUESTION PRESENTED

Whether the United States Court of Appeals for the Eighth

Circuit’s decision regarding the violation of Respondent’s First

Amendment rights by the Petitioners is in conflict with other

appeals court or state supreme court decisions on the same issues

or whether the Eighth Circuit has decided an important question

of federal law which has not been, but should be, settled by this

Court.

iii

TABLE OF AUTHORITIES

Page

CASES:

Buffkins v. City of Omaha, Douglas

County, Neb., 922 F.2d 465 (8th Cir. 1990) S20» 68) @b-< 8,10

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .... 10,12

Houston v. Hill, 482 U.S. 451 (1986) .... + «2 « « « s 11,12

CONSTITUTIONAL AMENDMENTS:

First Amendment to the United States Constitution foes 2,9

Fourth Amendment to the United States Constitution ... 8

Fourteenth Amendment to the United States Constitution . 2

OTHER AUTHORITIES:

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26 UsB. CoM. BOSCRON 2101(G) . «es es ee ee wv ewww ee 1

28 UeG.0.B. Beeesem 2206 « «© © we we se eee www ee 1

Municipal Code of Omaha, NE, Section 20-42. ...... + 3; Fam

Supreme Court Rule 10 ....+ +++ «© «© «© «© © «© © © @ 1

GROUNDS IN OPPOSITION TO JURISDICTION

The Petition for Writ of Certiorari is properly and timely

filed pursuant to 28 U.S.C.A. Sections 1254(1), 2101(c) and 2106.

However, no considerations, as defined by Rules of the Supreme

Court 10, exist which justify examination of this case by the

Court.

CONSTITUTIONAL PROVISIONS, STATUTES, AND

ORDINANCES INVOLVED IN THE CASE

FIRST AMENDMENT TO THE CONSTITUTION

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble, and

to petition the Government 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.8.C. Bection 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 the 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

Columbia shall be considered to be a statute

of the District of Columbia.

SECTION 20-42 OF THE MUNICIPAL CODE

OF OMAHA, NEBRASKA

Bec. 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 language or gestures; or

(c) Making unreasonable noise.

STATEMENT OF THE CASE

THE FACTS

Unfortunately, Petitioners’ Statement of the Case is, at

best, incomplete and one-sided and, at worst, misleading.

Accordingly, a more complete statement of the case is necessary.

Around noon on March 17, 1987, Omaha police heard from an

informant that cocaine would be brought to Omaha by black

individuals coming from Denver on a flight to arrive sometime

before 5:00 p.m. In response to this tip, Petitioner Officers

Grigsby and Friend went to Omaha Eppley Airport where they

learned that several flights were scheduled to arrive after noon

from Denver that day. By the time they reached the airport

(around 2:30 p.m.), two afternoon flights had already landed, so

they focused their attention on the remaining flight which was

due to arrive at 3:40 p.m. In plain clothes, they began

surveillance at the arrival gate. After the plane’s late

arrival, they saw only one black person exit, the Respondent

LuAnn Buffkins. She was met by her sister, Hollis Buffkins, and,

as they walked to the escalator area, they were joined by another

sister named Cheryl Nwachakwu.

Nothing in the behavior of either Buffkins or her two

sisters, other than a little pre-arrival nervousness by Hollis,

aroused suspicion. The only factor identified by the police

officers which they contend could possibly fit the "drug courier

profile” was Buffkins’ carrying a red Teddy bear. However,

es tel

contrary to the profile expectation, the Teddy bear was not taken

from the airport when Hollis left her sisters at the escalator

area and went to the parking garage. Rather, the bear stayed

with Buffkins and Nwachakwu throughout the time they waited for

luggage which Buffkins had checked -- an action also contrary to

the drug courier profile. Furthermore, the Teddy Bear was bright

red -- hardly the kind of "cover" one would expect a drug courier

to use. Also contrary to the profile, Buffkins did not arrive on

a plane in the early morning or late night hours and she was

traveling in the rear rather than the forward portion of the

plane and she carried a large piece of luggage and other carry-on

items.

Despite these objective factors which allayed rather than

aroused suspicion, the officers approached Respondent and her

sister, identified themselves as officers conducting a narcotics

investigation and requested her to allow them to search her

luggage and ask her questions.

Buffkins questioned the need for the investigation and

protested that their conduct was racist and unconstitutional.

Nevertheless, the officers continued their questioning, picked up

Buffkins’s suitcases and escorted her and Nwachakwu to the

security office. Nwachakwu was specifically told she was free to

go but no such statement was ever made to Buffkins.

During the walk to the security room, one of the officers

examined and felt the Teddy bear but found no indication of

illegal content, thus dispelling the only possible remnant of

suspicion.

In the security room, Buffkins provided identification and

showed the officers her airplane tickets. The tickets had been

prepaid, not purchased with cash, and showed a return flight

several days later. Both of these factors were also inconsistent

with the drug courier profile. Despite this, the questioning

continued.

During the walk and also during conversations in the

security room, Buffkins loudly protested the interrogation.

Eventually the questioning was ended and Buffkins was told she

was free to go. One of the officers told her to have a nice day

and, as she picked up her luggage, turned away from the officer

and exited the room, she replied either "asshole system" or "I

will have a nice day, asshole". At that point, the officers

decided to arrest her for disorderly conduct citing both her loud

voice and attitude and her use of the word "asshole" as grounds

for the arrest.

Once arrested, Buffkins was told that procedure required

them to confiscate and inventory her luggage. She once again

refused this and as an alternative, the officers allowed her

sister to open and inspect the suitcases in their presence. All

agree no drugs or other contraband were contained in Buffkins’

possessions.

THIS LAWSUIT

LuAnn Buffkins filed her Complaint in the United States

District Court for the District of Nebraska against the City of

Omaha and the two arresting officers, Alvin Grigsby and John

Friend. Her Complaint was brought to enforce rights pursuant to

41 U.S.C., Sections 1981, 1983 and 1988 and pursuant to her

rights under the First, Fourth and Fourteenth Amendments to the

United States Constitution. She alleged that her detention and

arrest was due to her race; that the detention violated her

Fourth Amendment rights; that her arrest under the disorderly

conduct ordinance was unconstitutional on its face in that it was

based in part on Section (c) of the ordinance which had been

declared unconstitutional by the United States District Court for

the District of Nebraska, Chief Judge Lyle E. Strom (and not

appealed by the City of Omaha); that her arrest was without

probable cause; and that the ordinance was unconstitutional as

applied to her.

THE DISTRICT COURT’S RULINGS:

AFFIRMATION OR REVERSAL BY THE APPEALS COURT.

Jury trial was held beginning August 29, 1989 and at the end

of the Plaintiff’s evidence, the trial judge dismissed the City

of Omaha as a Defendant and dismissed Plaintiff’s Section 1981

race discrimination claim. At the end of evidence, the trial

judge denied the Plaintiff’s motion for directed verdict that her

initial stop and detention violated her Fourth Amendment rights.

The court overruled Ms. Buffkins’ motion for directed verdict

against the City for the implementation and enforcement of an

unconstitutional disorderly wonteck ordinance and her motion for

a directed verdict that her arrest was an unconstitutional

application of the ordinance. The case was submitted to the jury

which returned a verdict for the Defendants on all remaining

claims. A motion for judgment notwithstanding the verdict on the

Fourth and First Amendment claims and on objections to jury

instructions (including an erroneous instruction on the qualified

immunity defense which was given to the jury as opposed to being

determined by the court), were also overruled.

The Eighth Circuit Court of Appeals affirmed the Court’s

finding with regard to the Section 1981 race claim but reversed

on the First, Fourth and Fourteenth Amendment claims. The Eighth

Circuit found that, as a matter of law, the police officers did

not "possess any reasonable articulable suspicion to detain

Buffkins .. . [{and) the district court erred in directing a

verdict for the police officers on Buffkins’ Fourth Amendment

claim." Buffkins v. City of Omaha, Douglas County, Neb., 922

F.2d 465, 470 (8th Cir. 1990). As to the arrest itself, the

Eighth Circuit found that the City should not have been dismissed

because it had failed to repeal Subsection (c), the “unreasonable

noise" section of the disorderly conduct ordinance which had been

found in 1985 by the Nebraska Supreme Court to be

"unconstitutionally suspect" and in 1989 had been specifically

declared unconstitutional by the United States District Court for

the District of Nebraska. The Eighth Circuit also found that as

a matter of law, the arresting officers had no probable cause to

arrest Buffkins for using a "fighting word". It is only on this

last ruling, regarding the First Amendment violation, that

Petitioners now seek a writ of certiorari for review by this

Court.

10

ARGUMENT

Both sections of the Petitioners’ Argument argue the same

point: The Eighth Circuit’s opinion was based on a notion that

there is a "different fighting words doctrine" for police

officers; that the speech being punished should be judged by the

tolerance or self-control of the listener rather than a general

“reasonable person" standard of likelihood to incite violence.

Petitioners misread the grounds for the Eighth Circuit’s opinion

and are creating conflict where none exists.

Central to the Eighth Circuit’s finding that Respondent

should not have been arrested were the facts that Buffkins never

became violent or threatened violence and no one outside the

interview room heard her words. The officers agreed at trial

that the words were said while Buffkins was physically turned

away from them and on her way out the door. They said they felt

no personal abuse and were not incited to retaliate physically

because of her speech. This was the foundation for the Court’s

finding that "There is no evidence that Buffkins’ speech was an

incitement to immediate lawless action". Buffkins, supra at 472.

This judgment is based on the Chaplinsky standard of words which

are "likely to cause an average addressee to fight". Chaplinsky

v. New Hampshire, 315 U.S. 568, 573 (1942), cited in Buffkins,

supra at 473. Once facts establish there is no likelihood of

immediate lawless or violent action, the inquiry ends.

11

The Petitioners grossly mischaracterize the facts of this

case when they describe what occurred as "calling a police

officer an ‘asshole’ in an antagonistic, confrontational manner".

(Pet. for Cert., p.14) By the time Respondent used the word

"asshole", the confrontation, unlawfully created by the officers,

was over. Buffkins was on her way out of the interrogation roon.

Indeed, she said it so softly that neither her sister nor Officer

Grigsby even heard the full sentence. These facts repudiate

Petitioners’ hyperbolic description.

The Eighth Circuit’s reference to the Houston v. Hill, 482

U.S. 451 (1986), comment about communications to police officers

appears after its finding that violence was not imminent when

Buffkins said "asshole" and was an additional factor which

buttressed its finding. There was no application of a different

standard for police officers; such was not necessary for the

court’s analysis. To the extent commentary on that aspect

appears, it is as an addition to the essential analysis and

supports the conclusion that the "asshole" comment is protected

criticism of the police officers’ prior unlawful conduct rather

than personal abuse directed at them as individuals.

Petitioners make no effort to deal with the virtual

unanimity of authority that the word "asshole" is not a fighting

word. Rather, they focus on a supplemental factor noted by the

Eighth Circuit as if the fact that two police officers were

12

involved was dispositive to the decision. The Petitioners spend

thirteen pages of argument emphasizing and arguing a point that

the Eighth Circuit noted in passing in less than a half page.

Even then, the Eighth Circuit notes specifically this

Court’s quote in Houston v. Hill, 482 U.S. 451, 462 (1986) ina

manner clearly consistent with this Court’s position. So, even

if reliance on Houston v. Hill by the Eighth Circuit was somehow

critical, it is consistent with Houston v. Hill -- and thus to

grant certiorari would be clearly inappropriate.

CONCLUSION

This case is a logical and proper application of standards

enunciated in Chaplinsky and its progeny. No conflict with other

courts of appeals or state court decisions was created and it

presents no unsettled or important issue which this Court needs

to resolve.

[~ A”

DATED THIS /5S* day of Tukey, , 1991.

LU ANN BUFFKINS,

Respondent

ro

BY:

Robert V. Broom #10444

Mary P. Clarkson #10701

BROOM, JOHNSON, FAHEY & CLARKSON

1722 St. Mary’s Avenue

310 Flatiron Building

Omaha, NE 68102

(402) 346-8323

Attorneys for Respondent

13

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct

copy of the foregoing was served upon James E. Fellows, Deputy

City Attorney, Counsel of Record, and Thomas O. Mumgaard, Asst.

City Attorney, 804 Omaha/Douglas Civic Center, 1819 Farnam

Street, Omaha, NE 68183, by U.S. First Class mail, postage

prepaid, this 1S'* day of July, 1991.