"Causing a Stink" is NOT Always Protected By The First Amendment

Don’t show up with a knife at a gun fight. Don’t get into a fight at a gun show. And if you do, don’t claim your First Amendment rights have been violated.

A little-noticed lawsuit over a temper tantrum thrown at an auction in rural Saline County, Neb. provided an interesting study in what can be defined as “free speech” under the First Amendment. The recently released Nebraska Court of Appeals ruling on the case helps explain the boundaries between what’s threatening and what’s sharing a point of view.

Dan Meints wanted to buy a gun. At a consignment auction at the Saline Center he bought a .22-caliber rifle for about $80. The rules of the sale were pretty straight forward: everything sold “as is” and no returns. 

After the sale Meints complained a piece of the gun was missing. Still holding the gun, Meints became “belligerent” when talking to the auction managers, according to police reports. He didn't let up even after the guys running the auction offered to buy back the rifle.

The tirade escalated to the point a deputy sheriff intervened. Meints was “raising his voice,” “causing a stink” and “acting a little crazy” according to witnesses and he still had the gun in his hand. Meints landed in jail for disturbing the peace.

A county court judge found Meints guilty and fined him $500. He appealed the case to the district court. He lost. In both courtrooms Meints relied on the same defense: even if belligerent, free speech covered complaining about the sale. Saline County District Court Judge Vicky Johnson disagreed. “It was the conduct of [Meints]… and not the content of his words,” she wrote.

Meints took the case to the Court of Appeals. Again, he lost.  The ruling issued on Feb. 25 said “Meints was not convicted on the basis of speech,” the three judge panel concluded. It was his "loud and aggressive behavior, accompanied by the fact that he was brandishing a rifle.” (Read the Supreme Court's Meints ruling here)

That doesn’t mean all loud, obnoxious or even threatening behavior is created equal, especially when talking about free speech.  Two Nebraska Supreme Court cases cited in the Meints decision make that clear.

Sharon McKee
(Photo: Operation Rescue)

There was the case of the persistent abortion protester. Sharon McKee became a familiar figure in the media and the courts when she picketed outside abortion clinics. Her contact with Dr. Winston Crabb earned her a protection order from the court. She was arrested in 1994, having followed Dr. Crabb into the building housing his abortion clinic and telling him he should "stop killing babies." 

Once convicted, McKee appealed to the Nebraska Supreme Court claiming the protection order stifled free speech. The ruling offered a split message.  On one hand McKee earned a new trial.  “While Crabb may disagree with McKee's views, she is entitled to state her opinion within the confines of the First Amendment,” the justices wrote. What McKee said to the doctor in this instance “was not threatening, intimidating, or terrifying” so it was protected speech and the protection order had been enforced “in an unconstitutional manner.”

But here’s the kicker. McKee did not, as she hoped, get the whole case tossed. The evidence showed McKee “came up behind Crabb as he got out of his car and followed him across the parking lot into the office building.” That went too far. After her second trial McKee was handed a $500 fine. (Read the Supreme Court's McKee ruling here.)

The second was the case of the ticked off college student. Darren Drahota had a beef with one of his political science instructors at the University of Nebraska-Lincoln. Bill Avery taught the course and also served as Nebraska state senator. In 2006, there was an exchange of 18 e-mails, begun by Drahota, concerning Avery’s liberal politics. The tone of the messages, some sent anonymously, swung wildly between admiring to angry. In the most heated exchanges the student claimed Avery was a traitor and called him “a liberal American coward.” There were also threats of violence. In other messages Drahota apologized.

Avery called police and Drahota was charged with disturbing the peace. Again, the First Amendment was the first line of defense. This time it succeeded. (Read Drahota's opening brief here.) The State of Nebraska argued the emails met the definition of “fighting words.”  In free speech cases those statements, causing great personal injury or designed to incite violence, fall outside constitutional protection. 

The Nebraska justices said  “we conclude that the State cannot criminalize speech under the fighting words exception solely because it inflicts emo­tional injury, annoys, offends, or angers another person.”  The emails may have been upsetting but they were not sufficiently harmful to justify a charge of disturbing the peace.

In all three rulings Nebraska courts gave some leeway to speak one's mind but with caution. What made the difference in the Meints and McKee cases were actions speaking louder than words.

Wed Lock: Two Nebraska Prison Inmates Sue for the Right to Marry

Love finds a way, even in jail. 

However two inmates in Nebraska prisons 50 miles apart can’t get married. Both are convicted murderers. The Department of Correctional Services declined to bring them together for a ceremony.  The determined couple is taking it to court.

In their complaint filed this morning in Lancaster County District Court, Paul Gillpatrick and Niccole Wetherell claim “the right to marry is a fundamental right protected by the United States Constitution that cannot be denied because the partners to the marriage are incarcerated.”  They request the judge find Corrections violated the constitution and require a wedding be accommodated.

The case boils down to who gets the bride to the church.   

The lawsuit claims the couple filled out the necessary paperwork, a “Marriage Intention Form,” but the request and an appeal through the prison grievance procedure were denied.  Wardens at the Nebraska State Penitentiary in Lincoln and the Correctional Center for Women in York refused “to make arrangements to transport” Gillpatrick or Wetherell to the other prison for a ceremony and “refused to make alternative arrangements” which would permit a wedding to take place.  An alternative would include exchanging vows by video hook-up.

There is a policy for prison weddings in Nebraska.  It does not specifically block matrimony between prisoners.   

Paul Gillpatrick (DCS)

Weddings are allowed “unless  the Warden finds that the marriage presents a threat to security or  order of the institution or to public safety.”  DCS regulations  state corrections employees “will not transport inmates from one institution to another for the marriage ceremony.”  There lies the problem for the engaged couple.

Gillpatrick, 42, and Wetherell, 33, met through a mutual friend in 1998, before they both ended up in jail.  In a statement released by their attorney with the American Civil Liberties Union, Gillpatrick is quoted saying “she makes me laugh, she brings smiles to my face every day and I want to marry her.”

In 2009 Gillpatrick, murdered Robby Robinson in Omaha.  It was a messy case involving meth.  He’d killed the man at the request of his sister, Jennifer Gillpatrick.  Both family members were guilty of second-degree murder.

 

Niccole Wetherell (DCS)

Wetherell went to prison ten years earlier.  In 1999 she and two other teenagers were convicted of participating in the murder of Scott Catenacci in Sarpy County.  Presiding Judge Ronald Reagan said the killing had no motive other than being “the result of idle minds with little or no moral or ethical guidance.”

She's got a life sentence.  He's in for 90 years.

The spokesperson with the Department of Correctional Services, as is standard procedure when lawsuits are filed, declined comment.  (Read the DCS marriage policy here)

Last year DCS also turned down the request of a transgender inmate, Gracy Sedlak, to marry a former prisoner.  A federal court judge rejected the lawsuit that also challenged the state’s ban on same sex marriages.

How the Murder of a Police Officer led to Greeks Fleeing Omaha.

                               COURTS & COPS CRIMINAL HISTORY

It started with the killing of a police officer 100 years ago. Within hours an ugly and violent bit of history scarred Omaha. The Greeks were all but driven out of town. Those “filthy Greeks,” according to a flyer that made the rounds. As bad as it was, Omaha today knows almost nothing about it.

Headline in the Omaha Bee, February 21, 1909.

John Masourides moved from his native Greece, drifting occasionally to South Omaha where he had family. This was before it had merged with Omaha. The Greeks worked side by side with immigrants fresh from all over Europe. The Irish got there first and didn’t like the newcomers. 

Police kept their eyes on Masourides, a man with a reputation. Some people complained he kept company with a 17-year-old girl. She’d made a little bit of money teaching English to the Greeks. That was reason enough for police officer Ed Lowery to arrest Masourides for vagrancy. It was a Friday, Feb. 20, 1909. 

On the way to the police department there was a struggle and gunshots. One bullet wounded Masourides and another killed Officer Lowery. There were conflicting stories about whether the officer tried to kill his suspect and Masourides fought back, or if the suspect attempted an escape. Either way, South Omaha exploded.

More than a hundred men, ready for a lynching, attacked the horse-drawn ambulance carrying Masourides. Police managed to get their suspect locked in the county jail but the anger did not let up.

The next day a leader in the Irish community told a protesting crowd “it is about time for the citizens to take steps to rid the city of this menace.” He meant the Greeks. 

On Sunday, Feb. 21, an armed mob stormed the neighborhood where most Greek families lived. Shouting “Kill the Greeks” and throwing rocks, they began to set fire to homes, beating people who fled the fires. Stoked by their own hatred, they found new targets: the Poles, Italians, Hungarians…anyone with an olive complexion or suspect accent. The riot lasted more than six hours, only calming by midnight. Dozens were wounded. Homes and businesses worth a quarter of a million dollars were destroyed.(Read The Los Angeles Herald's coverage of the riot here)

Headline from the Ogden, Utah Standard

Newspapers reported at the time that every Greek family fled South Omaha. The meatpacking houses, where many had jobs, suddenly found themselves with a labor shortage. Hundreds packed up what belongings they had left and never returned to Nebraska. The census counted up to 3,000 Greeks in the area before the riot. The next census counted slightly more than 500 in Omaha and South Omaha combined.

The man whose arrest stirred the anti-Greek sentiment was convicted of murder. Twice. John Masourides was sentenced to death by hanging at his first trial. The verdict was thrown out by the Nebraska Supreme Court, which found the evidence insufficient to support a charge of first-degree murder. A year later Masourides was found guilty of second-degree murder. He was released from prison five years later. 

(Background for this story comes from an article in Nebraska History magazine, The Anti-Greek Riot of 1909, newspaper accounts of the day, and a report prepared on the riot for the United States House of Representatives). 

After 37 Years, A New DNA Test for a Convicted Rapist

The Nebraska State Legislature passed the DNA Testing Act in 2001 to open an avenue for appeal for those convicted of a crime before that technology even existed.  Few cases made it through the gauntlet of objections.  Juneal Pratt did it today.

A Douglas County District Court put Pratt in jail 37 years ago for a pair of rapes he claims he did not commit.  In a ruling handed down today the justices acknowledge improvements in DNA testing are reason enough to justify new testing of the victim’s clothing to determine if there is a clear match to Pratt.

Tracy Hightower-Henne, an attorney with the Nebraska Innocence Project, called the ruling  “incredibly exciting.”  Hightower-Henne, a volunteer who argued on Pratt’s behalf, said in a prepared statement “the Nebraska Supreme Court rightly recognized that state law requires broad access to DNA testing when it might show that someone was wrongly convicted.” (Read the court's ruling here.)

Omaha World-Herald 1975

In 1975, Pratt’s arrest and conviction barely caused a ripple in Omaha.  He was 19 years old “with a history of minor, petty crimes” according to Hightower-Henne. Police accused him of raping two sisters from Sioux City, Iowa staying at an Omaha hotel. The woman each pointed out Pratt in a police lineup and claimed to recognize his voice.  His shoes and a ring he wore also seemed familiar to the women. 

The case presented the jury was nearly all circumstantial but convincing enough that Pratt was found guilty.  In jail waiting for his trial he got in a fight with a guard, adding a charge of assault to the list.  In all, Pratt’s sentence totaled 95 years in prison. 

Through it all Pratt insisted he is innocent, making repeated attempts to get the evidence reviewed.  The State of Nebraska objected throughout. 

In 2005 the courts agreed to DNA testing of the clothing worn by the victims at the scene of the rape.  That type of sophisticated lab work did not exist in 1975. The Nebraska Legislature didn’t add post-conviction DNA testing into state law until 2001. 

Tests were done at the University of Nebraska Medical Center DNA laboratory.  As summarized in the Supreme Court’s brief “most of the 2005 DNA test results were inconclusive” in linking Pratt to the crime scene.  One stain on a victim’s shirt showed DNA originating from a male other than Pratt.  Prosecuting attorneys argued it was impossible to tell if the poorly stored evidence had been contaminated.  The District Court judge felt the evidence did not warrant overturning the original conviction and, at the time, the Nebraska Supreme Court agreed. 

Pratt and volunteer attorneys from the Innocence Project and the ACLU did not give up.  In 2011 they returned to district court with a nationally recognized DNA expert who testified significant advances in methods and research made it possible to identify and segregate DNA left behind by multiple individuals.  He also stated labs were better equipped to work with aging and degraded evidence.  “The previous test was not the final answer,” Hightower-Henne said.  “Scientific improvements in DNA testing mean that while the last test gave no definitive answer, a test today will show whether Mr. Pratt’s or another male’s DNA was present.” 

 

Juneal Pratt (Dept. of Corrections)

The District Court denied the request for additional testing.  The Supreme Court disagreed. Relying on the language in Nebraska’s DNA Testing Act the court’s majority wrote “the district court clearly erred in determining that test results that could identify another male’s semen on the victims’ clothing would have no bearing on Pratt’s guilt or culpability.”

While the court ordered an immediate, updated inventory of all the evidence still being held in the original rape case, it is not clear how quickly the new tests can be performed.  

Listen to the original oral arguments before the Nebraska Supreme Court here.