By Cy Ryan (contact)
CARSON CITY — The Nevada Supreme Court has ruled that a Carson City ordinance that prevents people from interfering with an officer making an arrest is unconstitutional because it is too broad.
In a 5-2 decision today, the court overturned the conviction of William A. Scott on a misdemeanor charge of hindering or obstructing an officer in making an arrest, according to court records.
In February 2014, Scott was a passenger in a car that was stopped for allegedly running a stop sign. The officer said he smelled alcohol and asked the driver if he would consent to an alcohol test, according to court records.
Scott interrupted the officer several times and told the driver he didn’t have to do anything the deputy suggested, according to records.
Scott was then arrested for hindering the officer from doing his duty, according to the court records. He was convicted and received a 30-day suspended sentence with probation and a $305 fine, according to court records.
The ordinance says it is unlawful to hinder, obstruct, resist, delay, molest or threaten to hinder, resist, delay or molest any city officer or member of the sheriff’s office in the discharge of official duties.
The court’s decision, authored by Justice Mark Gibbons, said the court agreed with Scott that the ordinance is unconstitutionally too broad because its criminalizes speech protected by the First Amendment.
Gibbons said the ordinance failed to list specific standards and allows deputies to enforce the law “in an arbitrary and discriminatory fashion.”
He said the ordinance gives deputies “unfettered discretion to arrest individuals for words or conduct that annoy or offend them.”
Chief Justice James Hardesty and Justice Kristina Pickering agreed the Scott’s petition should be granted but disagreed that the ordinance is unconstitutional. The dissent said a new trial should be granted for Scott.
Hardesty said many local governments have similar ordinances. He said the ordinance is ambiguous but it is not unconstitutional.
The ordinance would be valid if it was interpreted to mean the language referred to physical interference with an officer or spoken fighting words, Hardesty said.
The Nevada Supreme Court has ruled the Carson City ordinance used to arrest a man who advised a friend not to do a field sobriety test is unconstitutional.
William Allen Scott was arrested on a charge of obstructing or delaying a police officer who was investigating a possible DUI and when he asked the driver to submit to a sobriety test, told the driver he didn’t have to take the test. The second time Scott made that statement, the deputy threatened to arrest him if he did it again. When Scott interrupted a third time, he was arrested.
He was convicted in Justice Court and the conviction was upheld in District Court, which rejected his argument the ordinance was “unconstitutionally overbroad and vague because it restricts constitutional speech.”
But on appeal, five of the seven Nevada Supreme Court Justices agreed. They quoted a Clark County case from 2006 stating “the overbreadth doctrine applies to statutes that have a seemingly legitimate purpose but are worded so broadly that they also apply to protected speech.”
The Carson ordinance says it’s “unlawful for any person to hinder, obstruct, resist, delay, molest or threaten to hider, obstruct, resist, delay or molest any city officer or member of the sheriff’s office or fire department….”
The opinion by Justice Mark Gibbons says the U.S. Supreme Court has ruled similar ordinances or laws are invalid because it essentially “criminalized all speech that interrupts a police officer.”
That Supreme Court ruling in a Texas case stated, “The freedom of individuals to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”
The Carson DA’s office argued Scott was arrested for his conduct, not speech because his speech interrupted the deputy. The high court rejected that distinction saying in Scott’s case, there’s no evidence he intended to incite a breach of the peace.
The opinion says the ordinance is unconstitutionally vague because it doesn’t tell people what conduct or speech is permitted and allows the sheriff to enforce it in an arbitrary and discriminatory fashion. It says the ordinance is so vague it gives deputies “unfettered discretion to arrest individuals for words or conduct that annoy of offend them. The decision to arrest, it argues, is entirely within the deputy’s discretion and, therefore, too broad to stand constitutional muster.”
The ordinance is overbroad because, the opinion states, “it is not narrowly tailored to prohibit only disorderly conduct or fighting words.”
The majority opinion throws out the conviction and the ordinance itself.
Two members of the court, Chief Justice Jim Hardesty and Kris Pickering, agreed with the decision to grant Scott’s petition and overturn the conviction. But they argued the ordinance shouldn’t be ruled unconstitutional just because it’s ambiguous. They wrote the ordinance could, instead, be interpreted to applying only to physical conduct or “fighting words” interfering with the deputy’s duties or as applying only with actual intent to interfere with the officer. Instead of throwing the conviction out completely, they argued Scott should get a new trial.