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.