In Fall 2007, I blogged about a flag desecration prosecution involving the Phelpsians:
[Shirley Phelps-Roper] appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier….
According to Bellevue police, Phelps-Roper had her 10-year-old son stomp on an American flag….
The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.
Now the City of Bellevue has apparently been willing to stipulate in a proposed consent decree that
6. The Bellevue defendants agree, and the Court finds, that the arrest of plaintiff on June 5, 2007, under the flag mutilation statute, and/or the contributing to the delinquency of a minor statute (the two statutes listed on the citation), was not a valid arrest, and was contrary to the First Amendment of the United States Constitution and the Nebraska State Constitution, because plaintiff and her minor son, Jonah Phelps-Roper, were engaged in non-disruptive lawful peaceful picketing and use of the American flag for expressive activities; no breach of the peace occurred; none of plaintiff’s children including Jonah were in any danger or exposed to danger or acting delinquently, and were instead themselves engaged in protected activity; and the application of those two statutes to that activity was unconstitutional.
7. The Bellevue defendants agree, and the Court finds, that the criminal citations issued against the Plaintiff and the preconditions placed upon the Plaintiff prior to engaging in protected expressive activity were an attempt to unconstitutionally restrict Plaintiff’s expressive rights under the First Amendment …. Further, the Bellevue defendants agree that the Nebraska Funeral Picketing statute was unconstitutionally applied to restrict Plaintiff’s expressive activities in the City of Bellevue.
8. The Bellevue defendants expressly agree that all times when Plaintiff was engaged in expressive activity within the City of Bellevue that her conduct was lawful and in accordance with the rights afforded to her under the First Amendment ….
The proposed consent decree would also have bound the City not to assist the County prosecution of Phelps-Roper.
But the court didn’t accept this:
First, the Bellevue Defendants may not abrogate duties in the manner provided in the Proposed Consent Decree. In Nebraska, police chiefs and officers have a “duty to arrest all offenders against the laws of the state or the city.” The proposed consent decree states, inter alia, that Bellevue Defendants will not arrest or issue citations against Phelps-Roper for violations of the [Nebraska Funeral Picketing Law] and the Nebraska flag mutilation statute. The parties also agree that the Bellevue Defendants will not arrest or issue citations to Phelps-Roper for disturbing the peace, contributing to the delinquency of a minor, or negligent child abuse in connection with her protest activities. Though police officers have considerable discretion in issuing citations or making arrests, the duty to enforce valid state law is statutorily imposed. Thus, the Court cannot place its judicial force behind a decree that expressly purports to abrogate this duty.
The Proposed Consent Decree also affects the rights and duties of parties who did not consent to its terms. The Proposed Consent Decree states that the criminal citations and preconditions placed on Phelps-Roper were unconstitutional. At this early stage of the litigation, it is not apparent that a court order is necessary to rectify a violation of the federal constitution. A decree that the underlying arrest was unconstitutional would be a complete defense, backed by judicial force, to Phelps-Roper’s criminal action pending in the county court. Thus, the terms would affect the rights and duties of the county attorney who prosecutes the crime, and the State of Nebraska which delegates enforcement of its laws to county and municipal authorities. Absent the affected parties’ consent or a supported finding that the statutes and enforcement methods used by the Bellevue Defendants were unconstitutional, court approval is improper.
Last, the Proposed Consent Decree’s language forbidding testimony unduly interferes with state court processes and would be overly burdensome to enforce. The enforcement mechanism of a consent decree makes it a judicial act. Further, a consent decree must use the least restrictive means and be narrowly drawn to address a particular problem. The Proposed Consent Decree bars the Bellevue Defendants or their agents or assigns from assisting in the prosecution of Phelps-Roper’s criminal actions pending in the county court unless subpoenaed. If subpoenaed, the Bellevue Defendants, their agents, employees, or assigns may not give any evidence or testimony inconsistent with the Proposed Consent Decree.
This provision presents at least two problems. First, the stated guideline that testimony and evidence “be consistent with the Proposed Consent Decree” is overly broad. Blanket injunctions are disfavored. A consent decree that requires future testimony to be consistent with the decree’s terms lacks the same specificity. Nearly every statement a witness makes would need to be reviewed to ensure consistency with the broad spectrum of the Proposed Consent Decree. This process makes enforcement overly burdensome and intrusive. Second, this term places judicial restriction on the content of a witness’s testimony. While the Bellevue Defendants are free to adopt an “official position” regarding their future conduct, the Court will not enter a decree that expressly limits a witness’s testimony in this manner. Because the Proposed Consent Decree is not narrowly drawn and is too broad to enforce, it will not be approved.
In sum, the Court encourages parties to settle their disputes amicably, and respects such efforts. The Proposed Consent Decree, however, affects the rights and duties of Defendants who did not consent to its terms. Further, some of the terms are so broad as to be difficult if not impossible to enforce. The Court concludes, therefore, that the Objections to the Joint Submission of Consent Decree will be sustained and the Proposed Consent Decree will not be entered.
So Phelps-Roper may yet prevail with her First Amendment defense; she certainly should as to the flag mutilation statute, which is clearly unconstitutional, and I think as to the contributing to the delinquency of a minor and child abuse charges as well. (I don’t know enough details to opine on the funeral picketing prosecution.) And the City of Bellevue apparently thought her First Amendment argument was persuasive, or at least didn’t want to litigate the matter further. But she’ll have to do it without this consent decree.