Advising friend: free speech or obstruction?

Members of the Nevada Supreme Court were told Tuesday advising a friend he doesn’t have to take a field sobriety test constitutes free speech, not the crime of obstructing a sheriff’s deputy.

William Scott was a passenger in a vehicle that was stopped in February 2014 after reportedly running a stop sign at 4 a.m. The deputy said he noticed a smell of alcohol coming from the SUV and began a DUI investigation.

Scott advised the driver, identified as a Mr. Bradley, he didn’t have to submit to the field sobriety test. The deputy told Scott to be quiet or he would be arrested for interfering, but as the deputy continued to question the driver, Scott interrupted him a second and a third time to advise his friend the test was optional.

He was charged and convicted of obstructing and delaying a peace officer. That conviction was upheld by District Judge Todd Russell. Scott appealed.

In Tuesday’s Supreme Court hearing, Appellate Public Defender Sally DeSoto said Scott “was arrested for accurately advising his friend of the law.”

She argued his conduct was not threatening or abusive even by the deputy’s account and not directed at the deputy but toward his friend. She said what he did was free speech and the officer didn’t have a right to arrest him.

DeSoto said that ordinance should be tossed out as unconstitutionally broad because it included no instruction as to what actually constituted interfering with a peace officer.

She got some support from more than one of the seven high court justices.

“The verbiage was not aimed at the officer,” said Justice Michael Douglas. “This is not resisting, not delaying, not threatening. It’s just kind of free speech.”

Melanie Porter of the Carson City District Attorney’s Office argued Scott’s conduct “went beyond advising his friend.”

“It was the loudness with which he spoke, the intensity with which he spoke.”

She argued at the point the deputy felt Scott’s conduct was preventing him from his investigation, he had the right to arrest Scott.

She also said the court has a high standard to meet to rule an ordinance or any law unconstitutional.

Justice Nancy Saitta pointed out the city ordinance in question, “provides no guidance as to what level” of conduct constitutes interfering with an officer. And she along with Justice Kris Pickering made the point there’s a difference between conduct and speech.

“Why wasn’t it OK for Mr. Scott to just say zip it even if he said it three times?” Saitta asked.

“I’m very concerned with the application of this when you have some one who’s not threatening,” said Douglas.

Justices, however, often act as a devil’s advocate in questioning lawyers, so what they ask and say during a hearing can’t be reliably interpreted as indicating how they will vote.

The court took the case under submission.