holding words "fuckhead" and "mother fucker" are fighting words, not constitutionally protected speechSummary of this case from In re of S.J.N.-K
Filed March 1, 1985.
1. Constitutional Law: Statutes: Appeal and Error. In a facial challenge to the overbreadth and vagueness of a law, that is, a claim that the law is invalid in toto and therefore incapable of any valid application, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge fails. The court then examines the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, upholds the challenge only if the enactment is impermissibly vague in all its applications. 2. Constitutional Law: Words and Phrases. The word "abuse" insofar as it includes verbal abuse is construed to include only those which have been described as "fighting" words, that is, those which by their very utterance tend to inflict injury or tend to incite an immediate breach of the peace. As so construed, a statute or ordinance violates neither the first amendment to the Constitution of the United States nor article I, 5, of the Constitution of Nebraska. 3. Words and Phrases. Whether any particular use of abusive language constitutes "fighting words" depends not only upon the words but also upon the circumstances in which they are used. 4. Statutes: Standing. In order to have standing to challenge a vague statute or ordinance, one must not have engaged in conduct which is clearly proscribed by the statute or ordinance, and cannot complain of the vagueness of the law as applied to the conduct of others.
Appeal from the District Court for Douglas County: JAMES M. MURPHY, Judge. Affirmed.
Michael T. Levy of Levy Lazer, P.C., for appellant.
Herbert M. Fitle, Omaha City Attorney, Gary P. Bucchino, Omaha City Prosecutor, Richard M. Jones, and David F. Smalheiser, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, D.J., Retired.
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 unconstitutional because it is overbroad in that it applies to protected 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 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 So. 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 parking lot in a truck to provide security for vehicles parked there. At about 3:40 a.m. Officer Hale observed the appellant, 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 identified 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.
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 that 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 additional 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 constitutionality 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 (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 application, our first task is to determine whether the enactment reaches a substantial amount of constitutionally 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 constitutionally protected conduct, uphold the challenge 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 enactment 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 constitutional 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. . . . "`[F]ighting' 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 "motherfucker" are such fighting words, and we again specifically reject the implicit argument advanced by appellant 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 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.
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.