                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                         STATE V. MEINTS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                              V.
                                 DANIEL A. MEINTS, APPELLANT.


                            Filed February 25, 2014.     No. A-13-509.


        Appeal from the District Court for Saline County, VICKY L. JOHNSON, Judge, on appeal
thereto from the County Court for Saline County, J. PATRICK MCARDLE, Judge. Judgment of
District Court affirmed.
       Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.
       Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


       IRWIN, MOORE, and BISHOP, Judges.
       IRWIN, Judge.
                                       I. INTRODUCTION
        Daniel A. Meints appeals his conviction on a charge of disturbing the peace. His claim on
appeal is that the conviction should have been barred on the basis of First Amendment
protections. Meints was not convicted on the basis of protected speech, and we find no merit to
his appeal. We affirm.
                                       II. BACKGROUND
        The events giving rise to this action occurred in March 2012. A consignment auction was
held at the Saline Center, in Saline County, Nebraska. One of the items placed for sale at the
auction was a .22-caliber rifle. The record reflects that guns sold at the auction were available for
inspection prior to the auction and that trigger locks were placed on them prior to the auction “so
they [could not] be utilized or used in any way” prior to being purchased.




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         Meints purchased the rifle during the auction, paying “around $80” for it. After Meints
paid for the rifle and took possession of it, he approached Jeffrey Kotas, an employee at the
auction who handled the gun transactions. Meints “shoved [the rifle] towards [Kotas] sideways,
the barrel was not pointed towards [Kotas]” and said, “Where the hell’s that elevator at?”
Apparently an “elevation piece” that allows the user to change the elevation of the rear sight on
the rifle was missing.
         Meints asked Kotas, “What are you guys going to do about this?” According to Kotas, he
and his younger brother looked around the facility in an attempt to locate the piece, but were
unable to find it. As a result, Kotas sent for Don Homolka, the president of the auction facility.
         When Homolka arrived, Meints showed him the rifle and indicated that the elevation
piece was missing. Homolka informed Meints that there was little that could be done. The
advertising materials for the auction specifically indicated that all items were being sold on an
“as-is basis,” that there were no warranties or representations implied or intended, and that all
sales were final. The sales posters further specifically indicated that the “[b]idder agree[d] that
everything [was] sold as-is and they may not return any item.” Nonetheless, Homolka offered to
reimburse Meints and purchase the rifle back from him.
         Meints did not accept the offer. Instead, “[h]e wanted to be reimbursed for his time, . . .
his effort for being [at the auction] since 8 o’clock that morning looking at these items, and this
was the item of the day that he picked out to stay for and he wanted to be reimbursed for all
that.” According to Kotas, Meints became “belligerent.”
         Meints became “[l]oud, raised [his] voice on more than one occasion about wanting to be
reimbursed for his time and his efforts for the day.”
         Deputy Anthony Lytle, of the Saline County sheriff’s office, was called to assist with the
situation. Homolka explained to Lytle that Meints was upset over a gun purchase, and Lytle had
a conversation with Meints. Meints told Lytle that the elevation piece was on the rifle prior to
bidding at the auction, but was missing when he received the rifle after the purchase. Lytle
testified that Meints “was very upset, advised [Lytle] that he had been there since early morning,
[and] demanded that they find this piece or get this piece back for his gun.” Homolka’s offers to
purchase the rifle back and refund Meints’ money were not “good enough” for Meints.
         There was evidence that the missing piece would likely “cost $4 to replace.” Lytle
testified that he told Meints that he could probably get “a $3 or $4 part to fix it.”
         Lytle testified that Meints “started raising his voice . . . and [g]ot pretty close to [Lytle]
and was telling [Lytle] how, you know, this was ridiculous and that he wasn’t going to pay for
this part out of his own pocket.” Meints asked, “Who’s paying for my gas? It’s $3-and-some a
gallon. My time?” Meints “expected and demanded that they pay him for his time and his gas
money while he was there all day.” According to Lytle, when Meints was informed that it was
“probably not going to happen, . . . Meints got upset, started clinching his teeth, his fists, and was
all upset about it.” Meints also demanded that Homolka “talk to the auctioneer to find the
[previous] owner of the gun.” Homolka agreed to try to locate the previous owner, and “things
were calmed down somewhat then.”
         There is evidence that at some point during the incident, Meints left the scene. He
returned, however, still possessing the rifle.



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          Lytle left the scene. He testified, however, that he only “drove about a half-mile away
because [he] knew [he] was going to be back there.” “Two minutes later [he] got called by
dispatch [and was informed] they needed [him] back there because [Meints] was acting a little
crazy.” Lytle returned to the scene.
          Lytle testified that he “could hear [Meints] as [he] was walking up the stairs” of the
facility. Meints “was raising his voice and causing a stink with the guys, arguing, basically the
same thing as [before Lytle had left].” Lytle testified that “[t]here were lots of people outside
[and] you could look out the door and see several of those people staring in at the ordeal that was
going on.”
          Lytle spoke to Meints and explained to him that he could either leave the scene “or he
could be charged with disturbing the peace if he continued his behavior.” Meints “continued on
and on about how somebody had to pay him for his gas and his time and all this.” According to
Lytle, Meints’s voice “was raised” and Meints “was very upset.” “It was very obvious.”
According to Lytle, Meints told him that he “wasn’t doing [his] job and justice needed to be
done.” Meints “just continued on and on and on and wouldn’t quit, and pretty soon it got so bad
that one of the guys went back and closed the door because there were so many people looking in
at what was going on.”
          Lytle testified that he could not recall whether there was a trigger lock still on the rifle
when Meints was handling it. Homolka testified that Meints had already paid for the rifle and
that he returned to the building with it, so that it was likely that “the gun lock was off the gun
when he was walking around with it.”
          Homolka testified that his peace was disturbed and that he was concerned about Meints’
actions because “it’s not good to have a guy yelling holding a rifle.” Kotas testified that his peace
was disturbed by the incident, that he was very upset, and that his “gut was tied in a knot” as a
result of the incident. Kotas’ brother also testified that his peace was disturbed, “and everybody
else” in the area, because of the shouting. Kotas’ brother also testified that the incident
interrupted the business of vendors in the area who had difficulty communicating and doing
business because of the disturbance.
          On March 21, 2012, Meints was charged by complaint with disturbing the peace. Trial
was held in the county court on August 21, and the county court found Meints guilty. The county
court rejected Meints’ assertion that conviction would be contrary to the First Amendment.
Specifically, the court concluded that “it’s not so much the words that [Meints] used in this case .
. . it’s the manner in which [he] utilized his words and his actions” and “the way [he] was acting,
[his] refusal to act in a reasonable manner, [his] leaving after he was told to leave and returning,
and the general loudness and actions that are testified to by the witnesses that do, in fact,
constitute disturbing the peace.” The county court imposed a $500 fine.
          Meints appealed to the district court, and his assertions in the district court again included
an assertion that conviction would be contrary to the First Amendment. The district court held
that “it is clear that the words that [Meints] spoke were made in a loud and demanding voice,
while he was holding a gun, from which the gun lock may or may not have been removed.” The
court further held that it agreed with the county court’s conclusion “that it was the conduct of
[Meints], including the thrusting of a gun at one of the witnesses, and not the content of his



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words, that constituted the crime for which he was convicted. This was not constitutionally
protected speech.” The court affirmed the county court’s order. This appeal followed.
                                III. ASSIGNMENT OF ERROR
       Meints’ sole assignment of error on appeal is that his conduct constituted protected
speech and that his conviction must, therefore, be vacated.
                                        IV. ANALYSIS
        Meints’ sole argument on appeal is that his conviction for disturbing the peace was
contrary to the First Amendment. We find no merit to this assertion.
        The First Amendment provides, in relevant part, that “Congress shall make no law . . .
abridging the freedom of speech . . . .” U.S. Const. amend. I; State v. Drahota, 280 Neb. 627,
788 N.W.2d 796 (2010). The First Amendment limits the State’s ability to prosecute certain
criminal offenses. State v. Drahota, supra.
        The First Amendment protects wide swaths of speech, but its protections are not absolute.
State v. Drahota, supra. Historically, the Supreme Court has held that the First Amendment does
not apply to certain categories of speech, including libel, obscenity, incitements to imminent
lawlessness, true threats, and fighting words. State v. Drahota, supra.
        “‘Whether the First Amendment protects the activity which constitutes the violation of
[a] statute must depend upon a judicial determination of the scope of the First Amendment
applied to the circumstances of the case.’” State v. McKee, 253 Neb. 100, 106, 568 N.W.2d 559,
564 (1997), quoting Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 2d 1137
(1951). The question as to whether speech or conduct that led to a conviction is protected by the
First Amendment is one of law to be determined by the appellate court. See State v. McKee,
supra.
        In State v. McKee, supra, the Nebraska Supreme Court reviewed a case in which an
abortion protestor, Sharon McKee, was convicted of knowingly violating a protection order and
urged on appeal that the conviction was contrary to the First Amendment. In that case, an
obstetrician and gynecologist obtained a protection order against McKee which, in pertinent part,
prohibited her from harassing him either by telephone or in person. During the period of the
protection order, McKee and another individual went to the parking lot of the doctor’s office
building. McKee and the other individual followed the doctor into the building, and McKee
stated to the doctor that “they dropped [the previous charge brought against me]. It’s a waste of
time calling the police. You don’t need the police, you need to stop killing babies. That’s what
you need to do--killing beautiful, unborn children . . . .” Id. at 101, 568 N.W.2d at 561.
        McKee was charged with knowingly violating a protection order. McKee filed a motion
to dismiss, asserting that the protection order statute was contrary to the First Amendment as
applied to her. The trial court denied the motion, and McKee was ultimately convicted.
        On appeal, the Supreme Court determined that the words spoken by McKee did not fit
into any of the exceptions to First Amendment protection. State v. McKee, supra. The court held
that McKee was entitled to state her opinions about abortion within the confines of the First
Amendment. The court held that any application of the protection order which would prohibit
such speech would be unconstitutional. State v. McKee, supra.


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        The Supreme Court, however, did not conclude that conviction for violating the
protection order necessarily violated the First Amendment. State v. McKee, supra. Instead, the
court recognized that in addition to speaking to the doctor, McKee had also followed the doctor
across the parking lot and into the office building housing his clinic. The Supreme Court
concluded that this was sufficient evidence to submit to a fact finder to determine whether her
conduct violated the protection order. Id. Thus, the court reversed and remanded for a new trial
with directions to the trial court to instruct the jury to consider only McKee’s conduct in
determining whether she had violated the protection order. Id.
        In State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010), the Supreme Court reversed
and remanded a conviction for disturbing the peace on the basis of the First Amendment. In State
v. Drahota, the disturbing the peace conviction was based on two e-mails sent by the defendant
to a political science professor at the University of Nebraska. The issue on appeal was whether
the defendant’s speech fell within the category of “fighting words,” which would make the
speech unprotected. The Supreme Court concluded that the State cannot constitutionally
criminalize speech solely because it inflicts emotional injury, annoys, offends, or angers another
person. Id. The court concluded that the e-mails at issue were not “fighting words” and that the
disturbing the peace conviction could not be constitutionally upheld when based solely on
protected speech. Id. Compare State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989)
(upholding disturbing peace conviction based on speech that constituted fighting words).
        In the present case, Meints asserts that “[t]he applicable principles may be found in a
variety of cases.” Brief for appellant at 9. He then indicates that State v. Mitchell, 343 S.W.3d
381 (Tenn. 2011) “is one such case.” Brief for appellant at 9. The defendant in that case
challenged his conviction for disorderly conduct on the basis of First Amendment protections.
The Tennessee Supreme Court, however, rejected the defendant’s First Amendment assertion.
State v. Mitchell, supra. The court in that case specifically concluded that the jury had found that
the defendant’s “aggressive conduct and his loud and rude behavior” violated the state’s
disorderly conduct statute and that “while words and also conduct expressive of an idea may
qualify as protected ‘speech,’ the threatening behavior demonstrated” by the defendant was not
protected by the First Amendment. State v. Mitchell, 343 S.W.3d at 394. In short, the conclusion
of the Tennessee Supreme Court in the case cited by Meints as being indicative of the applicable
principles to guide resolution of a case such as this one was precisely the opposite conclusion
that Meints urges us to find in this case.
        In his appellate brief, Meints presented approximately 8 pages of argument. After
asserting that State v. Mitchell, supra, is indicative of the applicable principles for resolving this
case, Meints presented us with an approximately 5½-page block quote, from the dissenting
opinion of a single judge in that case. We are not persuaded that the dissenting opinion of a
single appellate court judge in another jurisdiction should guide us to conclude that Meints’
conviction was constitutionally impermissible.
        Based on the precedent from Nebraska, discussed above, we conclude that Meints’
conviction was not prohibited by the First Amendment. Unlike the conviction in State v.
Drahota, supra, Meints was not convicted on the basis of speech. Rather, the record in the
present case makes it clear that the county court based its conclusion on Meints’ aggressive
conduct and his loud and disruptive behavior. As the Nebraska Supreme Court specifically


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recognized in State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997), a conviction based on the
conduct that accompanies what might otherwise be protected speech is permissible. In this case,
the county court and the district court both specifically noted that the conviction was based on
Meints’ loud and aggressive behavior, accompanied by the facts that he was brandishing a rifle
and that at one point, he thrust the rifle at one of the witnesses. There was evidence that his
behavior disturbed the peace of several witnesses and that it also disrupted the business of others
being conducted nearby. Meints was not convicted because of his speech or because of any
protected expressive conduct.
        We find no merit to Meints’ assertion on appeal. We affirm.
                                                                                        AFFIRMED.




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