Scott v. First Jud. Dist. Ct. , 2015 NV 101 ( 2015 )

131 Nev., Advance Opinion 10 I
IN THE SUPREME COURT OF THE STATE OF NEVADA
WILLIAM ALLEN SCOTT, No. 67331
Petitioner,
vs.
THE FIRST JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
FE
CARSON CITY; AND THE DEC 3 i 2 1615
HONORABLE JAMES TODD RUSSELL, K. ! ■ Nr
DISTRICT JUDGE,
BY -4-,
Respondents, CHIa- DEP kJ -MLLE
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of certiorari challenging Carson
City Municipal Code 8.04.050(1) as unconstitutionally overbroad and
vague.
Petition granted.
Karin K. Kreizenbeck, State Public Defender, and Sally S. DeSoto, Chief
Appellate Deputy Public Defender, Carson City,
for Petitioner.
Adam Paul Laxalt, Attorney General, Carson City; Jason D. Woodbury,
District Attorney, and Melanie Porter, Deputy District Attorney, Carson
City,
for Real Party in Interest.
BEFORE THE COURT EN BANC.
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OPINION
By the Court, GIBBONS, J.:
In this opinion, we consider whether Carson City Municipal
Code (CCMC) 8.04.050(1) is unconstitutionally overbroad and vague.
Petitioner William Scott was arrested and convicted for violating CCMC
8.04.050, which makes it "unlawful for any person to hinder, obstruct,
resist, delay, molest or threaten to hinder, obstruct, resist, delay or molest
any. . . member of the sheriffs office. . in the discharge of his official
duties." We grant Scott's petition for a writ of certiorari and conclude that
CCMC 8.04.050(1) is both unconstitutionally overbroad and vague on its
face.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 4:15 a.m., a Carson City sheriffs deputy
pulled over a vehicle for running a stop sign. The vehicle had three
occupants. When questioning the driver, the deputy smelled alcohol
coming from the vehicle. The deputy asked the driver if he would submit
to a voluntary field sobriety test. Before the driver could answer,
petitioner William Scott, who was a passenger in the vehicle, interrupted
the deputy. The deputy continued to question the driver, and according to
the deputy, Scott interrupted him a second time and told the driver not to
do anything the deputy said. Scott allegedly went on to state "that his dad
[was] a lawyer and he knows all about the law." After the second
interruption, the deputy threatened Scott with arrest "for obstructing and
delaying a peace officer" if he did not remain quiet.
After a third interruption, the deputy ordered Scott out of the
vehicle. The deputy arrested Scott and called for backup. Scott
cooperated during the arrest. A second deputy transported Scott to jail,
and the first deputy resumed his DUI investigation of the driver.
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The State charged Scott with obstructing a public officer in
violation of CCMC 8.04.050. After a bench trial in Carson City Justice
Court, Scott was convicted of obstructing a public officer in violation of
CCMC 8.04.050.
Scott appealed his conviction to the district court. On appeal,
Scott argued that CCMC 8.04.050(1) is unconstitutionally overbroad and
vague because it restricts constitutional speech. The district court,
however, affirmed the conviction, concluding that CCMC 8.04.050 is
constitutional. Specifically, the district court concluded that the deputy
did not arrest Scott for his speech, but rather for his conduct, i.e., the act of
speaking in a way that interrupted the deputy's investigation. This
petition for a writ of certiorari followed.
DISCUSSION
In this writ petition, Scott argues that CCMC 8.04.050(1) is
both unconstitutionally overbroad and vague. 1 We review the
constitutionality of a statute or ordinance de novo. Flamingo Paradise
Gaming, LLC v. Chanos, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009). The
municipal code at issue, CCMC 8.04.050, states:
1. It is unlawful for any person to hinder,
obstruct, resist, delay, molest or threaten to
hinder, obstruct, resist, delay or molest any city
officer or member of the sheriffs office or fire
department of Carson City in the discharge of his
official duties.
lAlthough the State charged Scott under CCMC 8.04.050 and uses
language from 8.04.050(2) to describe Scott's interference, we limit our
review to CCMC 8.04.050(1) because at oral argument Scott conceded that
his constitutional challenge was limited to section 1 of the ordinance.
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CCMC 8.04.050(1) is unconstitutionally overbroad
Scott argues that CCMC 8.04.050(1) is unconstitutionally
overbroad because it criminalizes speech that is protected by the First
Amendment of the United States Constitution. We agree.
"Whether or not a statute is overbroad depends upon the
extent to which it lends itself to improper application to protected
conduct." N. Nev. Co. v. Menicucci, 96 Nev. 533, 536, 611 P.2d 1068, 1069
(1980). Specifically, "Mhe overbreadth doctrine invalidates laws. . . that
infringe upon First Amendment rights." Silvar v. Eighth Judicial Dist.
Court, 122 Nev. 289, 297, 129 P.3d 682, 687 (2006). In other words, the
overbreadth doctrine applies to statutes that have a seemingly legitimate
purpose but are worded so broadly that they also apply to protected
speech. See id. We have held that "[then minor intrusions on First
Amendment rights will trigger the overbreadth doctrine." Id. at 297-98,
129 P.3d at 688. At the same time, however, we have warned that "the
overbreadth doctrine is strong medicine and that a statute should not be
void unless it is substantially overbroad in relation to the statute's plainly
legitimate sweep." Id. at 298, 129 P.3d at 688 (internal quotations
omitted).
The United States Supreme Court considered whether laws
similar to CCMC 8.04.050(1) were overbroad in Colten v. Kentucky, 407
U.S. 104 (1972), and City of Houston, Texas v. Hill, 482 U.S. 451 (1987),
and in doing so reached different results. In Cotten, the defendant was
arrested for violating Kentucky's disorderly conduct statute, which made
it illegal for a person "with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof. ... [Co [c]ongregate[ ] with
other persons in a public place and refuse[ to comply with a lawful order
of the police to disperse." Id. at 108 (emphasis added). Due in part to the
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statute's specific intent requirement, the Court affirmed the lower court's
determination that the statute was not overbroad. Id. at 108-09, 111.
In Hill, however, the Court determined that an ordinance
similar to the statute in Colten was facially invalid. 482 U.S. at 467. The
ordinance made it "unlawful for any person to . . . in any manner oppose,
molest, abuse or interrupt any policeman in the execution of his duty." Id.
at 461 (internal quotation omitted). 2 Ultimately, the Court concluded that
the challenged language was unconstitutionally overbroad for two reasons.
First, the Court concluded that the ordinance did not deal "with core
criminal conduct, but with speech." Id. at 460. The Court reasoned that
the challenged portion of the ordinance—making it unlawful to "oppose,
molest, abuse or interrupt" an officer—dealt with speech because it
prohibited "verbal interruptions of police officers." Id. at 461 (internal
quotation omitted).
Second, the Court concluded that "the First Amendment
protects a significant amount of verbal criticism and challenge directed at
police officers." Id. The Court recognized, however, that the First
Amendment does not protect "fighting words," or words "that by their very
utterance inflict injury or tend to incite an immediate breach of the peace."
Id. at 461-62 (internal quotations omitted). Thus, the Court concluded
that the ordinance was facially invalid because its application to speech
was not limited to "fighting words." Instead, the ordinance criminalized
all speech that interrupts a police officer. Id. at 462. The Court reasoned
that "[t]he Constitution does not allow such speech to be made a crime.
2The Court reasoned that the portions of the ordinance that clearly
dealt with conduct—making it unlawful to "assault" or "strike" an officer—
were preempted by state law and therefore did not address that portion of
the ordinance. Hill, 482 U.S. at 461 n.9.
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The freedom of individuals verbally 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." Id. at 462-63. In
sum, the Court found that the ordinance was unconstitutionally overbroad
because it was "not narrowly tailored to prohibit only disorderly conduct or
fighting words." Id. at 465.
While the statute in Colten and the ordinance in Hill feature
similar language, we conclude that CCMC 8.04.050(1) aligns more closely
with the ordinance in Hill. Unlike the statute in Colten, which required
specific intent, CCMC 8.04.050(1) does not contain a specific intent
requirement. 3 Like the ordinance in Hill, CCMC 8.04.050(1) prohibits any
conduct that may "hinder, obstruct, resist, delay, [or] molest" a police
officer, regardless of intent. 4 Under CCMC 8.04.050(1), inadvertent,
3 Our dissenting colleagues would read an intent requirement into
CCMC 8.04.050 to save the ordinance. However, the inclusion of an intent
requirement alone will not render CCMC 8.04.050 constitutional. CCMC
8.04.050(1) makes it unlawful to "threaten to hinder, obstruct, resist, delay
or molest" a sheriffs deputy in the discharge of his or her duties.
(Emphasis added.) For example, an individual may threaten to delay a
sheriffs deputy in the discharge of his duties by stating that she intends
to exercise her Miranda rights or by advising a counterpart to do so—
thereby delaying the deputy. As such, reading an intent requirement into
CCMC 8.04.050(1) will not render the law constitutional.
4 Our dissenting colleagues express concern that invalidating CCMC
8.040.050(1) will effectively invalidate similar provisions in other Nevada
municipalities. This concern is misplaced. The State could have charged
Scott for his interference under NRS 199.280. Unlike CCMC 8.04.050, the
state statute is explicitly limited by an intent requirement. Under NRS
199.280, it is a crime when one "willfully resists, delays or obstructs a
public officer in discharging or attempting to discharge any legal duty of
his or her office." (Emphasis added.) As such, NRS 199.280 provides a
corollary under which one may be charged for the same or similar willful
conduct.
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constitutionally protected speech or conduct is sufficient to trigger liability
should it hinder or obstruct a police officer in any way. For example, if a
sheriffs deputy is conducting an investigation in a public area and a
passerby inadvertently obstructs the deputy's view of a suspect, the
passerby could be arrested for hindering or delaying the deputy's
investigation—despite lacking the intent to do so.
We conclude that CCMC 8.04.050(1) is unconstitutionally
overbroad on its face for the same two reasons recognized in Hill. First,
CCMC 8.04.050(1) applies to speech. The State argues that Scott was not
arrested for his speech, but rather for his conduct, i.e., the act of speaking
in a way that interrupted the deputy's investigation. We deem this
narrow distinction unpersuasive under the facts. CCMC 8.04.050(1)
makes it "unlawful for any person to hinder, obstruct, resist, delay, [or]
molest" a police officer. Indeed, like the ordinance in Hill, CCMC
8.04.050(1) clearly affects speech because Scott was convicted under it for
his "verbal interruptions" of the sheriffs deputy. Hill, 482 U.S. at 461.
Moreover, CCMC 8.04.050(1) makes it unlawful to even "threaten to
hinder, obstruct, resist, delay or molest" a police officer. (Emphasis
added.) Criminalizing mere threats further implicates speech as opposed
to conduct.
Second, like in Hill, where the ordinance's application to
speech was not limited to "fighting words," CCMC 8.04.050(1) prohibits all
speech that "hinder [s], obstruct [s], resist Es], delay Es], [or] molest [s]" a
police officer. Scott stated that "he knows all about the law" and told the
driver that he was not required to cooperate with the deputy. These
statements cannot be construed as "fighting words," or words "that by
their very utterance inflict injury or tend to incite an immediate breach of
the peace." Hill, 482 U.S. at 461-62 (internal quotations omitted). Yet,
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"Mlle Constitution does not allow [Scott's verbal challenge to the deputy's
authority] to be made a crime." Hill, 482 U.S. at 462.
In sum, CCMC 8.04.050(1) encompasses protected speech and
"is not narrowly tailored to prohibit only disorderly conduct or fighting
words." Id. at 465. As such, we conclude that it is unconstitutionally
overbroad on its face.
GCMG 8.04.050(I) is unconstitutionally vague
Scott argues that CCMC 8.04.050(1) is unconstitutionally
vague because (1) ordinary people cannot tell what conduct or speech is
prohibited, and (2) its lack of guidelines allows the sheriff to enforce it in
an arbitrary and discriminatory fashion.
"The void-for-vagueness doctrine is predicated upon a statute's
repugnancy to the Due Process Clause of the Fourteenth Amendment to
the United States Constitution." Silvar, 122 Nev. at 293, 129 P.3d at 684-
85. A criminal statute can be invalidated for vagueness "(1) if it Tails to
provide a person of ordinary intelligence fair notice of what is prohibited';
or (2) if it 'is so standardless that it authorizes or encourages seriously
discriminatory enforcement." State v. Castaneda, 126 Nev. 478, 481-82,
245 P.3d 550,553 (2010) (quoting Holder v. Humanitarian Law Project,
561 U.S. 1, 18 (2010)). Although similar, "[t]he first prong is concerned
with guiding those who may be subject to potentially vague statutes, while
the second—and more important—prong is concerned with guiding the
enforcers of statutes." Silvar, 122 Nev. at 293, 129 P.3d at 685.
Additionally, "[a] statute containing a criminal penalty is facially vague
when vagueness permeates the text of the statute." Flamingo Paradise,
125 Nev. at 507, 217 P.3d at 550 (recognizing that while the two-factor
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test for vagueness challenges applies to both civil and criminal statutes,
criminal statutes are held to a higher standard). 5
CCMC 8.04.050(1) authorizes arbitrary and discriminatory
enforcement
We conclude that under the second prong—arbitrary and
discriminatory enforcement—CCMC 8.04.050(1) is unconstitutionally
vague. The second prong requires guidelines for when a criminal statute
will be enforced. When a city ordinance "does not enumerate
circumstances for which a person could be arrestedU . . . the enforcing
officer has discretion over deciding whether a particular unenumerated
circumstance supplies the necessary probable cause for arrest." Silvar,
122 Nev. at 295, 129 P.3d at 686. "This standard could shift from officer to
officer or circumstance to circumstance because the ordinance lacks
definitive guidelines." Id. Although drafting precise laws is often difficult,
the United States Supreme Court has "repeatedly invalidated laws that
provide the police with unfettered discretion to arrest individuals for
words or conduct that annoy or offend them." Hill, 482 U.S. at 465.
In the present case, CCMC 8.04.050(1) "lacks specific
standards," and thus, sheriffs deputies are allowed to enforce the law in
an arbitrary and discriminatory fashion. Silvar, 122 Nev. at 293, 129 P.3d
at 685. Specifically, the municipal code is worded so broadly that sheriffs
deputies are given "unfettered discretion to arrest individuals for words or
5 "Under the higher standard, the question becomes whether
vagueness so permeates the text that the statute cannot meet these
requirements in most applications; and thus, this standard provides for
the possibility that some applications of the law would not be void, but the
statute would still be invalid if void in most circumstances." Flamingo
Paradise, 125 Nev. at 513, 271 P.3d at 554 (emphasis added) (citing
Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983)).
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conduct that annoy or offend them." Hill, 482 U.S. at 465. As stated
above, the plain language of CCMC 8.04.050(1) criminalizes any conduct
or speech that in any way "hinder [s], obstruct Es], resist [s], delay[s],
molest[s] or threaten[s] to hinder, obstruct, resist, delay or molest" a
sheriffs deputy "in the discharge of his official duties." For example, if a
sheriffs deputy is directing traffic at an intersection, and a pedestrian
politely asks the deputy for directions, the pedestrian could be arrested for
hindering or delaying the deputy's ability to direct traffic. Vagueness
permeates the text of CCMC 8.04.050(1) because, as in this case, it is
entirely within the deputy's discretion to determine what conduct violates
the ordinance and at what point that conduct—including speech—reaches
a level that "hinder Es], obstruct [51, resist Es], delay[s], or molest Es]" him or
her in the discharge of their duties. It is obvious that the prohibitions in
CCMC 8.04.050(1) are "violated scores of times daily, yet only some
individuals—those chosen by the police in their unguided discretion—are
arrested." Hill, 482 U.S. at 466-67.
The dissent would read CCMC 8.04.050(1) to have "a core of
constitutionally unprotected expression to which it might be limited,"
unlike the ordinance in Hill. Id. at 468 (internal quotation omitted).
However, not only is the language used in CCMC 8.04.050(1) strikingly
similar to the language used in Hill, it explicitly includes speech.° See id.
at 461 (making it unlawful to "in any manner oppose, molest, abuse or
°Both the ordinance in Hill and CCMC 8.04.050 use the term
"molest." Compare 482 U.S. at 461 with CCMC 8.04.050(1). Further,
CCMC 8.04.050 uses the term "resist," which is defined as "[Co oppose,"
whereas the ordinance in Hill used the term "oppose." Compare Resist,
Black's Law Dictionary (6th ed. 1990) and Hill, 482 U.S. at 461 with
CCMC 8.04.050(1).
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interrupt any policeman in the execution of his duty" (internal quotation
omitted)). The language in CCMC 8.04.050(1) makes it unlawful to
"hinder, obstruct, resist, delay, molest or threaten• to hinder, obstruct,
resist, delay or molest" a sheriffs deputy in the discharge of his or her
duties. (Emphasis added.) We find the dissent's distinction between the
language in these laws unpersuasive. Further, CCMC 8.04.050(1)
explicitly applies to speech and is not in any way limited to fighting words.
A verbal "threat" to exercise a constitutional right that may delay an
arrest would clearly constitute an unlawful act. The Supreme Court could
not read the ordinance in Hill to find a core of criminal conduct, and we
are unable to do so with CCMC 8.04.050(1).
Further, despite the State's argument to the contrary, it is
inconsequential that an adjudicative body can determine, after the fact,
whether CCMC 8.04.050(1) was applied in an arbitrary or discriminatory
fashion. See id. at 465-66 ("As the Court observed over a century ago, litt
would certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the courts to step
inside and say who could be rightfully detained, and who should be set at
large." (quoting United States v. Reese, 92 U.S. 214, 221 (1876))).
Consequently, we conclude that CCMC 8.04.050(1) is unconstitutionally
vague because it lacks sufficient guidelines and gives the sheriff too much
discretion in its enforcement. 7
7 We do not address whether the ordinance fails to provide a person
of ordinary intelligence fair notice of what is prohibited because, as we
clarified in Castaneda, a statute is unconstitutionally vague if it fails
either prong of the vagueness test. 126 Nev. at 481-82, 245 P.3d at 553. It
is sufficient that the ordinance permits arbitrary and discriminatory
enforcement.
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CONCLUSION
CCMC 8.04.050(1) is unconstitutionally overbroad because it
"is not narrowly tailored to prohibit only disorderly conduct or fighting
words." Hill, 482 U.S. at 465. CCMC 8.04.050(1) is unconstitutionally
vague because it lacks sufficient guidelines and gives the sheriff too much
discretion in its enforcement. Accordingly, we grant Scott's petition and
direct the clerk of this court to issue a writ of certiorari instructing the
district court to vacate its order denying Scott's appeal. We further
remand to the district court with instructions to enter an order reversing
Scott's conviction in part on the grounds that CCMC 8.04.050(1) is
unconstitutional on its face and to determine whether Scott may properly
AG, .050.
be charged under the remainder of CC M
Gibbons
We concur:
Parraguirre
J.
J.
J.
Saitta
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HARDESTY, C.J., with whom PICKERING, J., agrees, concurring in part
and dissenting in part:
I concur only in the majority's decision that Scott's petition
should be granted; I dissent because I disagree that CCMC 8.04.050(1) is
unconstitutionally overbroad and vague on its face.
Pursuant to CCMC 8.04.050(1), it is illegal for a "person to
hinder, obstruct, resist, delay, molest or threaten to hinder, obstruct,
resist, delay or molest" an officer from performing his duties. The
majority's decision to facially invalidate CCMC 8.04.050(1) ignores
reasonable constitutional construction rules that would resolve the
overbreadth and vagueness claims.
CCMC 8.04.050(1) should be narrowly construed
While I recognize that CCMC 8.04.050(1) may be ambiguous
and as a result suggests overbreadth and vagueness issues, I disagree
with the majority's conclusion that it is facially unconstitutional thereby
voiding it. Many municipalities in this state have similar provisions to
CCMC 8.04.050(1). 1 Because the majority facially invalidates it, their
'See, e.g., Las Vegas Municipal Code 10.04.010 ("Any person who
shall interfere with, resist, molest or threaten to molest any Peace Officer
of the Las Vegas Metropolitan Police Department in the exercise of his
official duties shall be guilty of a misdemeanor."); North Las Vegas
Municipal Code 9.08.010 ("Any person who shall interfere with, obstruct,
resist, molest, strike or threaten to molest or strike any peace officer of the
city of North Las Vegas, while in the exercise of his official duties, shall be
guilty of a misdemeanor."); Fallon Municipal Code, 9.02.010(A) (1977) ("It
is unlawful for any person within the corporate limits of the city. . . [t] o
hinder, obstruct, resist, molest or attempt to hinder, obstruct, resist or
molest any city officer or member of the police department in the
discharge of his or her official duties.").
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decision almost certainly makes analogous laws around the state•
unconstitutional. 2
Moreover, voiding CCMC 8.04.050(1) is contrary to the
established requirement "that every reasonable construction must be
resorted to, in order to save a statute from unconstitutionality.' State v.
Castaneda, 126 Nev. 478, 481, 245 P.3d 550, 552 (2010) (quoting Hooper v.
California, 155 U.S. 648, 657 (1895)). We have consistently recognized
that "[e]nough clarity to defeat a vagueness challenge may be supplied by
judicial gloss on an otherwise uncertain statute." Id. at 483, 245 P.3d at
553 (internal quotations omitted); see also City of Houston, Tex. v. Hill,
482 U.S. 451, 467-68(1987) (noting that "limiting constructions" can be
adopted by state courts to bring ambiguous laws within constitutional
bounds). Accordingly, the majority is required to interpret the ordinance
in a constitutional manner.
Of course, before we interpret a law, we first must determine
whether "the language of [the ordinance] is plain and unambiguous, such
that it is capable of only one meaning" MGM Mirage v. Nev. Ins. Guar.
Ass'n, 125 Nev. 223, 228-29, 209 P.3d 766, 769 (2009). If the language is
2 The majority argues that concern over the constitutionality of other
municipality ordinances is misplaced because NRS 199.280 prevents the
same conduct. Majority opinion ante p. 6 n.4. NRS 199.280 states that it
is a misdemeanor or felony to "willfully resist[ ], delay[ ] or obstruct[ ] a
public officer in discharging or attempting to discharge any legal duty of
his or her office." Notably, "resist," "delay," and "obstruct" appear in both
NRS 199.280 and CCMC 8.04.050(1). The only difference between the two
provisions is that NRS 199.280 mandates willfulness—in other words
requiring intent. Thus, the majority either (1) tacitly concedes that
interpreting an intent requirement into CCMC 8.04.050(1) renders it
constitutional, or (2) points to a statute that under the majority's analysis
is also facially unconstitutional.
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unambiguous, we must give effect to the ordinance's plain meaning. Id. at
228, 209 P.3d at 769. But if the ordinance "is susceptible to differing
reasonable interpretations, [it] should be construed consistently with" the
enabling body's intent. Star Ins. Co. v. Neighbors, 122 Nev. 773, 776, 138
P.3d 507, 510 (2006) (internal quotations omitted).
I concede for purposes of this analysis that CCMC 8.04.050(1)
is ambiguous, but that does not result in the ordinance becoming
unconstitutionally vague. See City of Las Vegas v. Eighth Judicial Dist.
Court, 118 Nev. 859, 866-67, 59 P.3d 477, 482-83 (2002) (implying that the
difference between an ambiguous statute and an unconstitutionally vague
statute is the level of ambiguity), abrogated on different grounds by
Castaneda, 126 Nev. at 482 n.1, 245 P.3d at 553 n.1. Rather, "every
reasonable construction must be resorted to, in order to save [the
ordinance] from unconstitutionality." Castaneda, 126 Nev. at 481, 245
P.3d at 552 (internal quotations omitted); see also Panama Ref Co. v.
Ryan, 293 U.S. 388, 439 (1935) (Cardozo, J., dissenting) ("[W]hen a statute
is reasonably susceptible of two interpretations, by one of which it is
unconstitutional and by the other valid, the court prefers the meaning
that preserves to the meaning that destroys."); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 66 (2012) ("An
interpretation that validates outweighs one that invalidates. . . .").
Here, the majority chooses to invalidate CCMC 8.04.050(1)
despite there being reasonable unambiguous constructions that would
make the ordinance constitutional. There are two such reasonable
constructions, which together easily render CCMC 8.04.050(1)
constitutional: (1) interpret it as applying only when physical conduct or
fighting words interfere with an officer's job duties, and (2) require an
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intent to interfere with an officer, which would substantially narrow and
clarify the ordinance's meaning.
Interpreting CCMC 8.04.050(1) to require core criminal
conduct—physical assaults or fighting words—is consistent with the
United States Supreme Court's decision in Hill, the ordinance's language,
and proper statutory construction principles. hi Hill, the Court was asked
to determine the constitutionality of a Houston ordinance that stated that
"[it shall be unlawful for any person to assault, strike or in any manner
oppose, molest, abuse or interrupt any policeman in the execution of his
duty." 482 U.S. at 455 (internal quotations omitted). The Court
determined that the ordinance could not be reasonably. "limited to 'core
criminal conduce" because the words "assault" and "strike" were
preempted by Texas law. Id. at 468. Thus, the Court invalidated the
ordinance, determining that the remaining language in the ordinance
"simply has no core of constitutionally unprotected expression to which it
might be limited."3 Id. (internal quotations omitted).
Here, the crux of the majority's argument is that the words
"hinder, obstruct, resist, delay, [or] molest" unreasonably restrict persons
from exercising their constitutional right to expression when an officer is
discharging his duties. Majority opinion ante pp. 6-10. But, I believe that
3 The Supreme Court of Iowa did exactly this in State v. Bower,
where the relevant statute prohibited conduct that "willfully prevents or
attempts to prevent any public officer. . . from performing the
officer's. . . duty." 725 N.W.2d 435, 442 (Iowa 2006). "[Tic) avoid the risk
of constitutional infirmity," the court construed the statute "to prohibit
only physical conduct and fighting words that hinder or attempt to hinder
an officer from performing an officer's duty." Id. at 444. In so holding, the
court relied exclusively on the Hill analysis. Id. at 443-44.
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a reasonable reading of these words "has [a] core of constitutionally
unprotected expression to which it might be limited." Hill, 482 U.S. at 468
(internal quotation omitted). None of the phraseology in subsection 1 is
preempted by state law, unlike in Hill; thus all can be considered. The
plain meanings of hinder, obstruct, resist, delay, and molest' can be
reasonably construed to include physical conduct or fighting words.
Additionally, all five verbs are associated in a common list, so the canon of
construction noscitur a sociis ("it is known by its associates") should be
considered. Scalia & Garner, supra, at 195. The canon stands for the
proposition that "[al ssociated words bear on one another's meaning." Id.
As such, it is entirely reasonable to construe the five verbs as only
applying where there is core criminal conduct—physical interference with
an officer or spoken fighting words. 5 While I believe that this
construction, by itself, saves CCMC 8.04.050(1) from a facial constitutional
challenge, next I discuss a second construction that can further limit the
subsection's reach.
4 "Hinder" is defined as "to impede, delay, or prevent." Hinder,
Black's Law Dictionary (10th ed. 2014). "Obstruct" is defined as "[Co block
or stop up (a road, passageway, etc.); to close up or close off, esp[ecially] by
obstacle." Obstruct, Black's Law Dictionary (10th ed. 2014). "Resist" is
defined as "[t]o oppose. This word properly describes an opposition by
direct action and quasi forcible means." Resist, Black's Law. Dictionary
(6th ed. 1990). "Delay" is defined as "Whe act of postponing or slowing."
Delay, Black's Law Dictionary (10th ed. 2014). "Molest" is defined as "to
annoy, disturb, or persecute esp[ecially] with hostile intent or injurious
effect." Molest, Merriam-Webster's Collegiate Dictionary (11th ed. 2011).
5 Fighting words are words by which "their very utterance inflict
injury or tend to incite an immediate breach of the peace." Chaplinsky v.
New Hampshire, 315 U.S. 568, 572 (1942).
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The second construction is outlined in Hill's concurrence and
dissent, where the dissenting justices determined that the Houston
ordinance at issue did not have a mens rea term but that a Texas statute
required all criminal laws to mandate some form of culpability. 482 U.S.
at 473-74 (Powell, J., concurring in part and dissenting in part). Justice
Powell noted that Texas courts could read an intent requirement into the
ordinance based on the Texas statute. Id. at 474. Furthermore, Texas
courts could determine that the ordinance required intent to interfere with
an officer's duties, not simply an intent to speak. Id. Should a Texas
court construe the ordinance in such a way, Justice Powell surmised:
"This interpretation would change the
constitutional questions• in two ways: it would
narrow substantially the scope of the ordinance,
and possibly resolve the overbreadth question; it
also would make the language of the ordinance
more precise, and possibly satisfy the concern as
to vagueness."
Id.
Similarly, in Colten v. Kentucky, 407 U.S. 104 (1972), the
Court considered a Kentucky statute that criminalized an "intent to cause
public inconvenience, annoyance or alarm." Id. at 108 (internal quotations
omitted). The statute was challenged as being unconstitutionally
overbroad and vague, despite a Kentucky court narrowly construing the
statute to apply only "where there is no bona fide intention to exercise a
constitutional right or where the interest to be advanced by the
individual's exercise of the right is insignificant in comparison" to its
burden. Id. at 104. The Court held that because of the intent requirement
and narrow construction, the Kentucky "statute comes into operation only
when the individual's interest in expression, judged in the light of all
relevant factors, is minuscule compared to a particular public interest in
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preventing that expression or conduct at that time and place." Id. at 111
(internal quotations omitted).
Like the Houston ordinance in Hill, CCMC 8.04.050(1) does
not have a mens rea term. Additionally, Nevada, like Texas, requires that
"[in every crime or public offense there must exist a union, or joint
operation of act and intention." MRS 193.190. This court should construe
CCMC 8.04.050(1) pursuant to NRS 193.190 and conclude that "lilt is
unlawful for any person to hinder, obstruct, resist, delay, molest or
threaten to hinder, obstruct, resist, delay or molest," CCMC 8.04.050(1),
only if the person commits a physical act or speaks fighting words, and has
an intent to interfere with an officer's duties. 6 Such a construction would
resolve the claims of overbreadth and vagueness because the ordinance
would only come into operation when the right to expression "is
'minuscule' compared to" the public's interest in a functioning police force.
Colten, 407 U.S. at 111. Moreover, this construction would narrow the
application of CCMC 8.04.050(1) to those acts that are proven to violate
MRS 193.190.
6 The majority in Hill did note that an intent requirement, by itself,
would not bring the Houston ordinance within constitutional bounds. 482
U.S. at 469 n.18. However, the majority did not indicate that an intent
requirement would not narrow and clarify the statute, so as to bring it at
least closer to being within constitutional parameters. Therefore, when
the intent requirement is read in conjuncture with the core criminal
conduct requirement, there is little doubt that CCMC 8.04.050(1)
withstands constitutional scrutiny.
Notably, the majority only mentions this limiting construction by
stating that "an intent requirement alone will not render CCMC 8.04.050
constitutional." Majority opinion ante p. 6 n.3. As discuss in footnote 2
above, the majority's conclusion is inconsistent with its contention that
NRS 193.280 is constitutional because it contains the word "willful."
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For these reasons, I would grant the petition and instruct the
district court to vacate its order denying Scott's appeal and remand the
matter to the lower court for a new trial.
, CA.
Hardesty
I concur:
Pi acme J.
Pickering \--A
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