Krystal Johnson v. Jesse Quattlebaum , 664 F. App'x 290 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2133
KRYSTAL JOHNSON,
Plaintiff – Appellant,
v.
JESSE QUATTLEBAUM, in his individual and official
capacities; TOWN OF SALUDA; HONORABLE ALAN WILSON, in his
official capacity,
Defendants – Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Bruce H. Hendricks, District
Judge. (8:14-cv-03751-MGL-JDA)
Argued: September 21, 2016 Decided: November 2, 2016
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Keenan and Judge Diaz joined.
ARGUED: Howard Walton Anderson III, LAW OFFICE OF HOWARD W.
ANDERSON III, LLC, Pendleton, South Carolina, for Appellant.
Eugene Matthews, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia,
South Carolina, for Appellees. ON BRIEF: Sheila M. Bias,
RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina;
Alan Wilson, Attorney General, Robert D. Cook, Solicitor
General, J. Emory Smith, Jr., Deputy Solicitor General, OFFICE
OF THE SOUTH CAROLINA ATTORNEY GENERAL, Columbia, South
Carolina, for Appellee Honorable Alan Wilson; Michael S. Pauley,
THE PAULEY LAW FIRM, LLC, Lexington, South Carolina, for
Appellees Jesse Quattlebaum and Town of Saluda.
Unpublished opinions are not binding precedent in this circuit.
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DUNCAN, Circuit Judge:
Krystal Johnson (“Johnson”) challenges the
constitutionality of a South Carolina statute that prohibits the
“use [of] obscene or profane language” within “hearing distance
of any schoolhouse or church.” S.C. Code § 16-17-530(b).
Finding that an authoritative state court decision sufficiently
narrowed the statute to cover only unprotected speech, and that
it was not unconstitutionally vague, the district court
dismissed her claims for declaratory and injunctive relief. For
the reasons that follow, we affirm.
I.
In March 2014, Johnson summoned police to a house she was
visiting in the Town of Saluda, South Carolina, seeking
assistance retrieving her car keys from a family member. The
house to which Officer Jesse Quattlebaum (“Quattlebaum”) and
another officer responded was located within 50 to 60 yards of a
local church. When the officers arrived, Johnson allegedly
exclaimed, “[t]his is some motherfucking shit,” J.A. 24, and
Quattlebaum placed her under arrest.
In July 2014, Quattlebaum prosecuted Johnson in Saluda
Municipal Court for violating a provision of South Carolina’s
public disorderly conduct statute, S.C. Code Section 16-17-
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530(b) (“the Statute”). 1 The Statute provides that a person is
guilty of a misdemeanor if they “use obscene or profane language
on any highway or at any public place or gathering or in hearing
distance of any schoolhouse or church.” S.C. Code § 16-17-
530(b). At trial, Quattlebaum testified both as to the words
Johnson used and the distance from the church. The trial court
granted Johnson’s motion for a directed verdict, ruling that
Johnson’s speech did not qualify as “profane language” under the
Statute. J.A. 27.
In September 2014, Johnson filed this complaint in the
United States District for the District of South Carolina,
alleging four causes of action, only one of which--Count IV--is
at issue in this appeal. Count IV alleged that the Statute is
unconstitutionally overbroad and vague. Johnson sought
declaratory and injunctive relief under Ex parte Young, 209 U.S.
123 (1908), and 42 U.S.C. § 1983 against Quattlebaum and South
Carolina Attorney General Alan Wilson (“Wilson”). The district
court granted Wilson’s motion to dismiss Count IV and denied
Johnson’s motion for summary judgment on Count IV, concluding
1 In South Carolina, the state supreme court has “approved
the practice of allowing law enforcement officers to prosecute
misdemeanor cases in magistrate’s and municipal court.”
Easley v. Cartee, 424 S.E.2d 491, 492 (S.C. 1992).
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that the Statute is not unconstitutionally overbroad or vague on
its face.
II.
We review the district court’s granting of a motion to
dismiss and denial of summary judgment de novo. Johnson v. Am.
Towers, LLC, 781 F.3d 693, 706 (4th Cir. 2015); Francis v. Booz,
Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006).
In considering a constitutional challenge, we bear in mind
that “[e]very statute is presumed to be constitutional.” United
States v. Bollinger, 798 F.3d 201, 207 (4th Cir. 2015)
(alteration in original) (quoting Munn v. Illinois, 94 U.S. 113,
123 (1876)), cert. denied, 136 S. Ct. 2448 (2016). On a facial
challenge to a state statute, this court “must take the statute
as though it read precisely as the highest court of the State
has interpreted it.” Kolender v. Lawson, 461 U.S. 352, 355 n.4
(1983) (quoting Wainwright v. Stone, 414 U.S. 21, 22–23 (1973))
(internal quotation mark omitted). If there is no authoritative
precedent from the state supreme court, this court may look to
an intermediate appellate court’s construction of the statute.
Gooding v. Wilson, 405 U.S. 518, 525 n.3 (1972); see also Vill.
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 n.5 (1982) (“In evaluating a facial challenge to a
state law, a federal court must, of course, consider any
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limiting construction that a state court or enforcement agency
has proffered.”).
III.
For the reasons that follow, we first conclude that the
Statute reaches only speech unprotected by the First Amendment
and is therefore not unconstitutionally overbroad. Next, we
conclude that the Statute is not impermissibly vague under the
Due Process Clause of the Fourteenth Amendment because it
sufficiently defines the conduct it proscribes.
A.
Under the First Amendment, “a law may be invalidated as
overbroad if ‘a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473
(2010) (quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 n.6 (2008)). On a facial overbreadth
challenge, “a court’s first task is to determine whether the
enactment reaches a substantial amount of constitutionally
protected conduct. If it does not, then the overbreadth
challenge must fail.” Vill. of Hoffman Estates, 455 U.S.
at 494. Because the South Carolina Supreme Court has not
authoritatively construed the provision, we look to the South
Carolina Court of Appeals for guidance in determining whether
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the Statute reaches a substantial amount of constitutionally
protected conduct. Gooding, 405 U.S. at 527 n.3.
In City of Landrum v. Sarratt, 572 S.E.2d 476 (S.C. Ct.
App. 2002), the Court of Appeals reviewed a conviction under the
Statute in the context of facts not unlike those presented here.
Sarratt was arrested for “yelling profanities” at two family
members in a municipal parking lot. 2 572 S.E.2d at 477. In
appealing his conviction, he argued that, in light of the First
Amendment, the Statute cannot criminalize profane language
absent fighting words. The Court of Appeals recognized that the
First Amendment erects a barrier to speech restrictions and
analyzed what kind of speech constitutes unprotected fighting
words. Id. at 477–79. The court concluded that, in the context
and manner in which they were uttered, Sarratt’s curse words
constituted fighting words. Id. at 479. It therefore upheld
his conviction. Id.
Johnson does not dispute that Sarratt construed the Statute
to require fighting words to sustain a conviction. Appellant’s
Br. at 14. Rather, she urges us to disregard that narrowing
construction. She contends that Sarratt is not authoritative
because it (1) conflicts with South Carolina Supreme Court
2Sarratt used “the ‘f’ word,” and also called a man a
“crack head” and the man’s mother a “bitch.” 572 S.E.2d at 477.
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precedent, (2) did not receive the tacit approval of the South
Carolina Supreme Court through denial of a petition for
certiorari, and (3) sustains a conviction for constitutionally
protected speech. After reviewing each argument in turn, we
find no compelling reason to reject Sarratt.
First, Johnson argues that Sarratt cannot be authoritative
because it conflicts with two prior South Carolina Supreme Court
decisions, State v. Roper, 260 S.E.2d 705 (S.C. 1979), and
Georgetown v. Scurry, 73 S.E. 353 (S.C. 1912). We disagree.
Roper concerned an evidentiary issue, and the court did not
need to consider the Statute’s constitutionality. In Roper,
officers arrested the defendants for violating the Statute when
they “shout[ed] profanities” at the officers who pulled them
over. 260 S.E.2d at 706. The defendants argued that evidence
obtained after their arrest should be excluded because the
officers lacked probable cause to arrest them under the Statute,
which they argued is unconstitutionally overbroad. Id. The
court held that, even assuming the Statute was
unconstitutionally overbroad, the officers had probable cause to
arrest the defendants because the officers acted in good faith
pursuant to a presumptively valid statute. Id. at 707. Sarratt
is thus not inconsistent with Roper.
Nor does the South Carolina Supreme Court’s decision in
Scurry undermine Sarratt. In Scurry, a case decided three
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decades before the United States Supreme Court officially
recognized the fighting words doctrine, the South Carolina
Supreme Court considered a conviction under a local ordinance
that prohibited, among other things, “using any profane or
obscene language, to the annoyance of any citizen.” 260 S.E.2d
at 353. The Scurry court defined profane language as “language
irreverent toward God or holy things.” Id. at 354. The court
did not mention the First Amendment or suggest any
constitutional concerns with the ordinance at issue. Scurry’s
definition of “profane language” applied to a different
enactment than the one under review here. And Sarratt
appropriately narrowed the definition in the Statute in light of
First Amendment concerns. Scurry therefore does not affect
Sarratt’s precedential value. 3
3
The two supplemental cases Johnson submitted interpreting
a prior version of the Statute also do not alter our conclusion
about Sarratt. In State v. Hanapole, 178 S.E.2d 247 (S.C.
1970), the South Carolina Supreme Court ruled that the trial
court should have directed a verdict in favor of several
protesters who were charged with violating the Statute, but as
to whom there was no evidence they “used vulgar or obscene
language or conducted themselves in a disorderly or boisterous
manner.” 178 S.E.2d at 267. The case stands for the
uncontroversial proposition that a directed verdict is
appropriate where there is no evidence that defendants committed
acts punishable under the law. Similarly, in State v. Gist,
116 S.E.2d 856 (S.C. 1960), the South Carolina Supreme Court set
aside a minor’s guilty plea for violating the Statute when he
used “abusive, obscene, vulgar, and profane language” over the
telephone, but not, as required under the Statute, in a public
place or within hearing distance of a school or church.
(Continued)
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Second, Johnson argues that because Sarratt did not appeal
his conviction to the South Carolina Supreme Court, it does not
have that court’s imprimatur and thus lacks authority. This
argument has no merit. Intermediate appellate opinions can
authoritatively construe state law, particularly where, as here,
they are binding statewide and have been so for a number of
years. Gooding, 405 U.S. at 525 n.3; Kolender, 461 U.S. at 357
n.4. 4
Third, Johnson argues that Sarratt lacks authority because
it upheld a conviction for what Johnson calls constitutionally
protected speech. Johnson misconstrues our inquiry. We rely on
Sarratt insofar as it provides the state’s interpretation of the
Statute. Sarratt construed the Statute to require fighting
words to sustain a conviction. We are not reviewing whether
Sarratt correctly applied that standard to the facts of its case
or whether the facts of this case would warrant a conviction.
Future courts would rightly look to Chaplinsky v. State of New
116 S.E.2d at 857. Like Hanapole, Gist does not hold that such
vulgar or abusive language would be sufficient for a conviction,
but only that where one necessary element of the crime is
missing, a conviction cannot stand. No First Amendment issues
were discussed in either case.
4
The Kolender Court did note that in the state appellate
case it relied on, the state supreme court had also “refused
review,” 461 U.S. at 355 n.4, but we do not think this one
factor determinative.
10
Hampshire, 315 U.S. 568 (1942), and its progeny to determine
exactly what constitutes “fighting words,” not a solitary
appellate court application.
In sum, we conclude that Sarratt authoritatively construes
the Statute to require fighting words for a conviction, speech
that Johnson concedes is unprotected by the First Amendment.
Therefore, because the Statute covers only constitutionally
unprotected speech, it is not overbroad.
B.
We turn next to Johnson’s argument that the Statute is
unconstitutionally vague under the Due Process Clause of the
Fourteenth Amendment. A state violates due process if it
deprives a person of “life, liberty, or property under a
criminal law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Johnson v. United States,
135 S. Ct. 2551, 2556 (2015). 5 Although courts sometimes
5 We note that, in its ruling, the district court relied on
the statement in Vill. of Hoffman Estates that, where no
constitutionally protected conduct is concerned, courts “should
uphold the [vagueness] challenge only if the enactment is
impermissibly vague in all of its applications.” 455 U.S.
at 495 (emphasis added). However, the Supreme Court recently
backed away from this pronouncement: “[O]ur holdings squarely
contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within
the provision’s grasp.” Johnson, 135 S. Ct. at 2561. That
clarification does not affect the outcome here.
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separately analyze whether a challenged law provides sufficient
notice to citizens and guidance to law enforcement, these
analyses often converge, as they do here. See, e.g., Hill v.
Colorado, 530 U.S. 703, 732–33 (2000) (concluding that both
standards were met for the same reason).
Johnson argues that the phrases “profane speech” and
“hearing distance” are impermissibly vague. In Chaplinsky, the
Supreme Court concluded that the state court’s construction of a
statute to cover only unprotected fighting words “necessarily
dispose[d] of appellant's contention that the statute [was] so
vague and indefinite as to render a conviction thereunder a
violation of due process.” 315 U.S. at 574. Therefore, our
conclusion that Sarratt authoritatively narrowed the Statute to
fighting words disposes of Johnson’s argument that the phrase
“profane speech” is vague. Johnson’s arguments about the phrase
“hearing distance” are similarly unpersuasive. She offers two
ways that the legislature could clarify the Statute, but neither
clarification is constitutionally required.
Johnson first argues that the legislature could clarify the
law by stating an exact distance, such as “within 50 feet of a
schoolhouse or church.” But the Supreme Court has never
required this kind of precision. In Cox v. State of Louisiana,
379 U.S. 559 (1965), the Supreme Court reviewed a statute that
prohibited picketing or parading “near” a courthouse. The Court
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determined that the “lack of specificity in a word such as
‘near’” did not render the statute unconstitutionally vague.
Id. at 568. Instead, the statute “fore[saw] a degree of on-the-
spot administrative interpretation by officials charged with
responsibility for administering and enforcing it.” Id.; 6 see
also Grayned v. City of Rockford, 408 U.S. 104, 111 (1972)
(concluding that the term “adjacent” in a criminal ordinance set
“a sufficiently fixed place” in which certain actions were
prohibited). Furthermore, the South Carolina legislature may
have desired a flexible standard to account for the fact that
speech can vary in volume; thus, the “hearing distance” from
one’s speech varies with the loudness of one’s words.
Johnson also argues that the law could be more precise if
it included a scienter requirement, such that a person could
only be punished if she knew a school or church was within
hearing distance. Although a scienter requirement can be a
relevant factor in judging the contours of a law, Hill, 530 U.S.
6
It is true, as Johnson points out, that the officers in
Cox informed the protesters where they could assemble, which the
protesters relied on as an official interpretation of the term
“near.” But the challenger in Cox was raising “constitutional
objections arising from [his] conviction on the particular facts
of [his] case,” 379 U.S. at 568, not the facial vagueness
challenge that Johnson asserts. As to any facial vagueness, Cox
stated that “this lack of specificity [in the word “near”] may
not render the statute unconstitutionally vague, at least as
applied to a demonstration within the sight and hearing of those
in the courthouse.” Id.
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at 732, Johnson cites no authority for the proposition that such
a requirement is necessary. In the Statute, the phrase “hearing
distance” necessarily encompasses only a relatively short
distance from the speech, which will often be readily apparent
to the speaker. Because the phrase “hearing distance” limits
where conduct must occur to be punishable, some flexibility in
the terms used does not offend due process.
In short, the South Carolina Statute here does not violate
the Due Process Clause of the Fourteenth Amendment. It does not
“fail[] to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits.” Hill,
530 U.S. at 732. On the contrary, it forbids a narrow category
of unprotected speech--fighting words--and only when that speech
occurs within hearing distance of a school or church.
Similarly, it is not “so standardless that it invites arbitrary
enforcement.” Johnson, 135 S. Ct. at 2556. Police officers
cannot arbitrarily decide what conduct to punish under the
Statute; both the fighting-words requirement and the proximity
limitation circumscribe their discretion. “‘As always,
enforcement requires the exercise of some degree of police
judgment,’ and the degree of judgment involved here is
acceptable.” Hill, 530 U.S. at 733 (quoting Grayned, 408 U.S.
at 114).
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IV.
We conclude that the Statute is not unconstitutionally
overbroad or vague. South Carolina’s appellate court has
confined the Statute to fighting words, obviating any
overbreadth concerns, and the Statute defines the conduct it
prohibits with sufficient definiteness. Accordingly, Johnson’s
facial challenges fail.
The order of the district court is therefore
AFFIRMED.
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