Nebraska Appeals Court: First Amendment doesn’t allow for heckling of police

Tuesday, June 5, 2001

Editor’s note: The Nebraska Supreme Court heard arguments Nov. 8 in the case of Kip Hookstra. The court was asked to decide whether heckling a police officer is free speech or interfering with law enforcement.

The Nebraska Appeals Court recently ruled that a bystander watching a police officer administer an early-morning sobriety test to a drunken-driving suspect didn’t have a First Amendment right to heckle the cop.

The court, in its May 22 decision, said police properly detained and charged Kip Hookstra of Lincoln for interfering with the test and did not violate his free-speech rights. The ruling upheld Hookstra’s conviction in a trial last year when he was found guilty of violating a city ordinance that prohibits disobeying police commands and ordered to pay a $100 fine and court costs.

“A state can curtail speech when necessary to advance a significant and legitimate state interest,” Judge Richard Sievers wrote for the court.

Robert Bartle, a Lincoln attorney representing Hookstra, said his client likely would ask the Nebraska Supreme Court to review the appeals court ruling. Bartle faulted the ordinance, saying it was so broad that it could have been used to prosecute the man who videotaped the Rodney King beating.

“The public has a right to witness, speak about or videotape things that occur in the course of an investigation or arrest,” Bartle said. “But intentionally violating [an officer's] order (to stop such activity) would be made criminal by this ordinance.”

According to court testimony and reports, Hookstra was walking with two friends in the early hours of March 20, 1999, near downtown Lincoln when they came upon city Police Officer Mitchell Evans conducting a sobriety test on a drunken-driving suspect. Evans, in court, testified that Hookstra shouted “power to the people” while shaking his fist in the air and telling the suspect that he didn’t have to cooperate.

Evans further testified that Hookstra’s actions made him worried for the safety of both himself and the suspect. He said that while Hookstra’s comments weren’t derogatory, they made it difficult for him to handle traffic and the suspect. Evans also said he feared that the comments would encourage the suspect to act violently.

Evans said he ordered Hookstra to leave the area several times. Two other officers later arrested Hookstra for violating the city ordinance, which allows the arrest of people who disobey orders by police “performing official duties at the scene of an arrest, accident or investigation.”

A trial in Lancaster County Court ended with Hookstra found guilty of disobeying a police order. The court fined him $100. A state District Court Judge affirmed the decision, and the appeals court ruled unanimously against Hookstra on further appeal.

A spokesman for the Lincoln Police Department referred a phone call to the city attorney’s office, which did not return several messages.

But Bartle said that the ordinance was so broad it enabled police to order “onlookers to remove their clothing” or to support accounts of events favoring the police.

“On its face, such an ordinance would have a chilling effect on First Amendment rights to observe what happens in public, to express oneself, or to assemble,” Bartle said.

But Judge Sievers disagreed, writing that the ordinance was narrowly tailored to prohibit noncompliance with police orders that are lawful.

“Clearly, an officer may order onlookers whose disruptive behavior poses a threat to the safety of the officer and his suspect to leave the scene of an arrest,” he said.

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