Finally, nothing in the language of the ordinance indicates a potential to chill First Amendment freedoms, nor is the language used explicitly directed at acts involving First Amendment protections. In Fair v. City of Galveston, 915 F. Supp. 873 (S.D.Tex. 1996), aff'd, 100 F.3d 953 (5th Cir. 1996), the court addressed a First Amendment overbreadth challenge to an ordinance similar to the ordinance at issue here. The ordinance provided: "`It shall be unlawful for any person to obstruct, prevent or interfere with, or to attempt to obstruct, prevent or interfere with any peace officer in the lawful discharge of his duty.'"
See City of Houston, 482 U.S. at 455, 462-63, 107 S.Ct. 2502. The Fifth and Sixth Circuits have since considered similar ordinances, but found them distinguishable from the Houston ordinance, which used the term "interrupt." Specifically, the Fifth Circuit affirmed the rejection of an overbreadth challenge to an ordinance making it unlawful to "obstruct, prevent or interfere with" an officer's lawful discharge of his duties, see Fair v. City of Galveston, 915 F.Supp. 873, 879-80 (S.D.Tex.), aff'd, 100 F.3d 953 (5th Cir. 1996); and the Sixth Circuit found that an ordinance prohibiting resisting, interfering, or hindering a police officer suggested physical interference, not speech, see Lawrence v. 48th Dist. Court, 560 F.3d 475, 482 (6th Cir. 2009); cf. Dorman v. Satti, 862 F.2d 432, 436-37 (2d Cir. 1988) (citing City of Houston for proposition that statute which used terms "interfere" and "harass" criminalized substantial amount of First Amendment protected speech). Also, in State v. Krawsky, 426 N.W.2d 875, 875-78 (Minn.
The statute here does not prohibit mere interruption, but requires instead some form of "obstruction." See Fair v. City of Galveston, 915 F.Supp. 873, 879 (S.D.Tex. 1996) (distinguishing Hill in a case involving a statute that prohibited "`interfering' with a police officer lawfully executing his duty" because the statute "facially pertains to acts which pose an actual hindrance to the accomplishment of a specified task, as opposed to the ordinance considered in Hill, which pertained primarily to verbal acts through use of the term `interrupt'"). The Supreme Court's holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), further demonstrates that King's repeated interruptions of Officer Ambs' investigation were not protected by the First Amendment.
That is, by using the term interfere, 49 C.F.R. § 1540.109 prohibits only that conduct which poses "an actual hindrance to the accomplishment of a specified task." Fair v. Galveston, 915 F.Supp. 873, 879 (S.D.Tex.) (distinguishing the use of the term "interrupt" from the narrower term "interferes").
See McDermott v. Royal , 613 F.3d 1192, 1193–94 (8th Cir.2010) (discussing cases); see also Lawrence v. 48th Judicial Dist. Ct. , 560 F.3d 475, 482 (6th Cir.2009) (ordinance that prohibited resisting, interfering, and hindering police officers suggested “some kind of physical interference” and was not overbroad). In fact, an overbreadth challenge to a municipal ordinance that, like Section 30-68, made it “unlawful for any person to obstruct, prevent, or interfere with, or to attempt to obstruct, prevent, or interfere with any peace officer in the lawful discharge of his duty” was expressly rejected in Fair v. City of Galveston , 915 F.Supp. 873, 879 (S.D.Tex.), aff'd , 100 F.3d 953 (5th Cir.1996). Here too, the Court finds that Section 30-68 is not constitutionally overbroad or facially invalid.
Bloomfield Township Ordinance No. 137, § 16.01(a), by contrast, prohibits a person from interfering with or hindering a police officer in the discharge of his or her duty. By using the terms interfere or hinder, this ordinance facially applies to acts which pose an actual hindrance to the accomplishment of a specified task by the police, as opposed to the ordinance considered in Hill, which pertained primarily to verbal acts. See Fair v. City of Galveston, 915 F. Supp. 873, 879 (S.D. Tex. 1996). This Court recently rejected a similar challenge to a Columbia Township ordinance which prohibited conduct where "[a] person obstructs, resists, impedes, hinders or opposes a peace officer in the discharge of his or her official duties," finding that the defendant's active interference with a police officer's questioning of another suspect was not speech that was protected by the First Amendment.
See also State v. Krawsky, 426 N.W.2d 875, 876–78 (Minn. 1988) (finding that the terms "obstructs," "hinders," "prevents," and "interferes," applied only to physical acts substantially frustrating or hindering an officer’s performance of his duties); McDermott v. Royal, 613 F.3d 1192, 1194 (8th Cir. 2010) (holding that "obstruct" "cover[s] only physical acts or fighting words"); Fair v. City of Galveston, 915 F.Supp. 873, 879 (S.D. Tex. 1996), aff'd, 100 F.3d 953 (5th Cir. 1996) ("[b]y using the term ‘interfere,’ [the questioned ordinance] facially pertains to acts which pose an actual hinderance to the accomplishment of a specified task, as opposed to the ordinance considered in Hill, which pertained primarily to verbal acts through the use of the term ‘interrupt.’ ").
Consequently, the finding of overbreadth in Hill does not compel the conclusion that the Lincoln ordinance is overbroad. The State, on the other hand, points to several cases from other jurisdictions in which courts have rejected overbreadth challenges to ordinances penalizing "obstruction" of police officers, Wilkerson v. State, 556 So.2d 453 (Fla.App. 1990), and Seattle v. Abercrombie, 85 Wn. App. 393, 945 P.2d 1132 (1997), or "interfering" with police officers, Fair v. City of Galveston, 915 F. Supp. 873 (S.D.Tex. 1996), aff'd 100 F.3d 953 (5th Cir.). The State argues that the Lincoln ordinance, similar to the "obstruction" ordinances discussed in those cases, penalizes criminal conduct and not speech.