Anderson Wright, s/k/a Anderson Jevon Wright v. City of Virginia Beach ( 2017 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Chafin and Malveaux
Argued at Norfolk, Virginia
ANDERSON WRIGHT, S/K/A
ANDERSON JEVON WRIGHT MEMORANDUM OPINION* BY
JUDGE MARY BENNETT MALVEAUX
v. Record No. 1399-16-1 AUGUST 1, 2017
CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Roger A. Whitus, Assistant Public Defender, for appellant.
Kathleen A. Keffer, Assistant City Attorney (Mark D. Stiles, City
Attorney; Christopher S. Boynton, Deputy City Attorney; Gerald L.
Harris, Associate City Attorney, on brief), for appellee.
Anderson Wright (“appellant”) appeals his conviction of disturbing the peace, in
violation of Virginia Beach City Code § 23-10. On appeal, he argues the trial court erred when it
denied his motion to dismiss because the city ordinance is both unconstitutionally vague and
overbroad. For the reasons stated below, we disagree and affirm the judgment of the trial court.
I. BACKGROUND
The parties stipulated to the following facts. On September 21, 2015, appellant’s
daughter was waiting at a bus stop. She became involved in an argument with another child,
B.B. Appellant’s daughter returned home and told appellant about the argument. Appellant and
his daughter returned to the bus stop, where appellant argued with B.B., poking and shoving him.
Appellant and B.B. then went to B.B.’s home, where appellant beat on the door and began an
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
argument with Laura Bellante, B.B.’s mother. When Bellante told appellant she was going to
call the police, appellant stated, “I don’t care about no cops. I’ll kill you and your whole
family.” Bellante testified that she was put in fear by appellant’s statement.
Appellant was charged with disturbing the peace, in violation of Virginia Beach City
Code § 23-10. Convicted of this charge in general district court, appellant appealed to the City
of Virginia Beach Circuit Court.1 In the circuit court, appellant filed a motion to dismiss the
charge of disturbing the peace, arguing that Virginia Beach City Code § 23-10 is
unconstitutionally vague on its face and overbroad as applied to speech.
The parties argued the motion, which the court took under advisement and subsequently
denied. Relying on an unpublished opinion of this Court, Tucker v. Commonwealth, No.
1697-00-1, 2001 Va. App. LEXIS 412 (Va. Ct. App. July 10, 2001), the trial court found the
plain meaning of the ordinance apparent from its face and concluded the ordinance is specifically
written to focus on conduct and actions leading to violence.2 Appellant entered a conditional
guilty plea pursuant to Code § 19.2-254 and timely noted his appeal to this Court.
1
Appellant was separately convicted in the juvenile and domestic relations district court
of assault and battery, in violation of Code § 18.2-57. After he appealed to the circuit court, the
Commonwealth entered a nolle prosequi to this charge.
2
The trial court acknowledged that the defendant in Tucker was prosecuted under an
earlier version of Virginia Beach City Code § 23-10, which prohibited “disturb[ing] the peace of
others by violent, tumultuous, offensive, or obstreperous conduct or by threatening, challenging
to fight, assaulting, fighting or striking another.” Tucker, 2001 Va. App. LEXIS 412, at *4
(emphasis added). The term “offensive” was struck from the ordinance two years prior to
appellant’s charged conduct. See Va. Beach, Va. Ordinance 3302 (Aug. 13, 2013) (amending
Va. Beach City Code § 23-10 to strike “offensive” from the phrase “violent, tumultuous,
offensive or obstreperous conduct”).
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II. ANALYSIS
Appellant’s assignments of error raise questions of both constitutional interpretation and
statutory construction, which we review de novo.3 Turner v. Commonwealth, 67 Va. App. 46,
56, 792 S.E.2d 299, 303 (2016). However, we begin our review by acknowledging that “[w]hen
the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party
making the challenge. All laws are presumed to be constitutional and this presumption is one of
the strongest known to the law.” Webb v. Commonwealth, 32 Va. App. 337, 347, 528 S.E.2d
138, 143 (2000) (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)).
Further, “[w]e are required to resolve any reasonable doubt concerning the constitutionality of a
law in favor of its validity.” Tanner v. City of Va. Beach, 277 Va. 432, 438, 674 S.E.2d 848, 852
(2009). “[T]he Constitution is to be given a liberal construction so as to sustain the enactment in
question, if practicable.” Webb, 32 Va. App. at 347, 528 S.E.2d at 143. And “if a statute or
ordinance can be construed reasonably in a manner that will render its terms definite and
sufficient, such an interpretation is required.” Tanner, 277 Va. at 438-39, 674 S.E.2d at 852.
See also Pedersen v. City of Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979). Such
enactments “will not be stricken down as repugnant to the [C]onstitution unless their invalidity
clearly and conclusively appears.” Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d
405, 410 (1990).
In a facial challenge to the overbreadth and vagueness of a
law, 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. The court
should then examine the facial vagueness challenge and, assuming
the enactment implicates no constitutionally protected conduct,
3
We note that “[a]s a term of municipal law, [ordinance] is equivalent to either ‘law’ or
‘statute’ as a term of state legislative action. . . . Both ordinances and laws are acts of a
deliberative, representative and legislative body. An ordinance, duly enacted, has the force and
effect of law. It is a law.” Southern R. Co. v. Danville, 175 Va. 300, 306, 7 S.E.2d 896, 898
(1940).
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should uphold the challenge only if the enactment is impermissibly
vague in all of its applications.
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982), quoted with
approval in Muhammad v. Commonwealth, 269 Va. 451, 497, 619 S.E.2d 16, 42 (2005).
Accordingly, we first consider whether Virginia Beach City Code § 23-10 is unconstitutionally
overbroad.
A. Overbreadth
“A statute may be overbroad if it ‘is one that is designed to burden or punish activities
which are not constitutionally protected, but the statute includes within its scope activities which
are protected by the First Amendment.’” Parker v. Commonwealth, 24 Va. App. 681, 690, 485
S.E.2d 150, 154 (1997) (quoting Woolfolk v. Commonwealth, 18 Va. App. 840, 851, 447 S.E.2d
530, 536 (1994)). “If a penal statute proscribes both conduct and speech, ‘the overbreadth of the
statute must . . . be substantial . . . in relation to the statute’s plainly legitimate sweep.’” Id.
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). “Moreover, courts are especially
reluctant to invalidate a statute on facial overbreadth grounds when the prohibited conduct ‘falls
within the scope of otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally unprotected conduct.’”
Singson v. Commonwealth, 46 Va. App. 724, 745-46, 621 S.E.2d 682, 692 (2005) (quoting
Broadrick, 413 U.S. at 615). Thus, “there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before the court
for [the statute] to be facially challenged on overbreadth grounds.” Woolfolk, 18 Va. App. at
852, 447 S.E.2d at 536 (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, 801
(1984) (alteration in original)). “Invalidation for overbreadth is ‘strong medicine’ that is not to
be ‘casually employed.’” United States v. Williams, 553 U.S. 285, 293 (2008) (quoting Los
Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)). Such
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invalidation has been used “sparingly and only as a last resort” and “has not been invoked when
a limiting construction has been or could be placed on the challenged statute.” Broadrick, 413
U.S. at 613.
“The first step in overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what the statute
covers.” Williams, 553 U.S. at 293. In making an overbreadth assessment, “we consider the
actual text of the statute as well as any limiting constructions that have been developed.” Boos
v. Barry¸ 485 U.S. 312, 329 (1988).
The ordinance at issue, Virginia Beach City Code § 23-10, provides that “[i]t shall be
unlawful . . . for any person to disturb the peace of others by violent, tumultuous or obstreperous
conduct or by threatening, challenging to fight, assaulting, fighting or striking another.”
Appellant acknowledges legislatures can regulate fighting words, true threats, and
conduct that has a direct tendency to cause violence by others. He also acknowledges cities may
enforce narrowly drawn ordinances prohibiting such activities. However, appellant disagrees
with the characterization of the Virginia Beach ordinance as a fighting words statute. Relying
upon dictionary definitions of “obstreperous” and “tumultuous,” appellant maintains a
substantial amount of constitutionally protected speech may be described by those terms,
including such speech acts as flag-burning or wearing a jacket emblazoned with the words “F--k
the Draft.” See Texas v. Johnson, 491 U.S. 397 (1989); Cohen v. California, 403 U.S. 15 (1971).
Since these famous examples of protected political speech acts could be defined as “tumultuous”
or “obstreperous,” appellant argues, Virginia Beach City Code § 23-10 goes beyond prohibiting
well-defined, narrowly limited classes of speech and regulates “precisely the type of conduct that
the First Amendment shields.” Thus, the ordinance is unconstitutionally overbroad.
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We disagree with appellant’s argument that a substantial amount of constitutionally
protected speech is implicated by the ordinance. Instead, we find that plain language of Virginia
Beach City Code § 23-10 is unambiguous and prohibits only conduct or speech which is violent
or inductive of violence.4 Put simply, the ordinance is a breach of the peace ordinance directed
solely at constitutionally unprotected actions and speech. See, e.g., Taylor v. Commonwealth, 11
Va. App. 649, 653, 400 S.E.2d 794, 796 (1991) (“A breach of the peace is an act of violence or
an act likely to produce violence.”).
“When the language of a statute is unambiguous, we are bound by the plain meaning of
that language. Furthermore, we must give effect to the legislature’s intention as expressed by the
language used unless a literal interpretation of the language would result in a manifest
absurdity.” Commonwealth v. Leone, 286 Va. 147, 150, 747 S.E.2d 809, 811 (2013) (quoting
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)).
In addition, “the plain, obvious, and rational meaning of a statute is always to be preferred to any
curious, narrow, or strained construction.” Sandidge v. Commonwealth, 67 Va. App. 150, 158,
793 S.E.2d 836, 840 (2016) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d
337, 338 (1983)).
Here, by its plain meaning, much of the ordinance’s language clearly prohibits violent,
constitutionally proscribable acts, such as “assaulting, fighting or striking another” and “violent
4
As we find that the plain language of Virginia Beach City Code § 23-10 is unambiguous
and prohibits only conduct or speech which is violent or inductive of violence, we need not
address the City of Virginia Beach’s argument that in Tucker, 2001 Va. App. LEXIS 412, this
Court found that Code § 23-10 is a breach of the peace ordinance, and as such does not fail
overbreadth challenges simply because it may be capable of some unconstitutional applications.
In addition, we note that Tucker is an unpublished decision of this Court and thus not controlling.
See Stokes v. Commonwealth, 61 Va. App. 388, 395 n.3, 736 S.E.2d 330, 334 n.3 (2013); Rule
5A:1(f) (stating that unpublished opinions may be cited as informative, “but shall not be received
as binding authority”). Further, the defendant in Tucker challenged only the sufficiency of the
evidence to sustain his conviction under Virginia Beach City Code § 23-10, and not the
constitutional soundness of the ordinance.
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. . . conduct.” Cf. Code §§ 18.2-57, -57.2 (penalizing assault and battery); Code § 18.2-405
(defining and penalizing riot as the “unlawful use . . . of force or violence which seriously
jeopardizes the public safety, peace or order”). Other language in Virginia Beach City Code
§ 23-10, plainly read, prohibits true threats and fighting words, i.e., “threatening, [or] challenging
to fight, . . . another.” This speech and conduct also falls outside constitutional protections. Cf.
Code § 18.2-60 (penalizing threats to kill or do bodily injury to another); Code § 18.2-416
(penalizing the use, in the presence or hearing of another, of “violent abusive language . . . under
circumstances reasonably calculated to provoke a breach of the peace”).
The terms most vociferously challenged by appellant, “obstreperous” and “tumultuous,”
are likewise references to conduct which is violent or likely to cause violence. We note that
tumultuous conduct is “marked by tumult : full of commotion or uproar : RIOTOUS, STORMY,
BOISTEROUS . . . marked by violent or overwhelming turbulence or upheaval.”5 Webster’s Third
New International Dictionary 2462 (2002). We also note that obstreperous conduct is “marked
by or engaging in aggressive noisiness : LOUD, CLAMOROUS . . . stubbornly defiant : resisting
control or restraint often with a show of noisy disorder : TURBULENT, UNMANAGEABLE.” Id. at
1559. Both terms clearly indicate conduct which transcends the merely irritating or pestering,
and goes beyond hallowed, protected political speech. Rather, they indicate speech and conduct
which is violent, riotous, uncontrolled and disordered, or likely to produce a violent response,
and thus beyond constitutional protection.
This plain language reading of the ordinance avoids an otherwise curious and strained
construction, which would have the ordinance reach two different modes of conduct: that which
is violent or likely to cause violence, and that which is not. See Sandidge, 67 Va. App. at 158,
5
Further, a “tumult” is defined as “disorderly and violent movement, agitation or moving
about, of a crowd . . . a noisy and turbulent popular uprising : DISTURBANCE, RIOT.” Webster’s
Third New International Dictionary 2462 (2002).
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793 S.E.2d at 840. This reading of the ordinance also comports with our duty to resolve any
reasonable doubts about its constitutionality in favor of its validity, and to sustain the ordinance,
if possible, through a reasonable construction that renders it constitutionally definite. See
Tanner, 277 Va. at 438-39, 674 S.E.2d at 852; Pedersen, 219 Va. at 1065, 254 S.E.2d at 98. It
also upholds the presumed constitutionality of Virginia Beach City Code § 23-10 in the face of
an overbreadth challenge that fails to demonstrate clear and conclusive constitutional infirmity.
See Webb, 32 Va. App. at 347, 528 S.E.2d at 143 (noting the presumption and the “heavy burden
of proof . . . thrust upon the party making the [constitutionality] challenge”); Willis, 10 Va. App.
at 441, 393 S.E.2d at 410. Since the activities encompassed by the ordinance are not protected
by the First Amendment, Virginia Beach City Code § 23-10 “falls within the scope of . . . valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.” Singson, 46 Va. App. at 745-46, 621 S.E.2d at
692 (quoting Broadrick, 413 U.S. at 615). Because the ordinance does not reach constitutionally
protected conduct, it is constitutionally sound and not overbroad.
B. Vagueness
“A penal statute is unconstitutionally void-for-vagueness if it does not ‘define the
criminal offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’”
Parker, 24 Va. App. at 687, 485 S.E.2d at 153 (quoting Kolender v. Lawson, 461 U.S. 352, 357
(1983)); see also Williams, 553 U.S. at 304. However, where a statute or ordinance “implicates
no constitutionally protected conduct,” a court “should uphold the challenge only if the
enactment is impermissibly vague in all of its applications. A [defendant] who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.” Hoffman Estates, 455 U.S. at 494-95. Thus, “[a] court should therefore
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examine the complainant’s conduct before analyzing other hypothetical applications of the law.”
Id. at 495.
Here, appellant’s vagueness argument does not focus upon his own conduct. Instead,
appellant poses hypotheticals about the ordinance’s applicability to other persons in other
circumstances. Appellant does not claim that when he beat on the door of B.B.’s home and told
B.B.’s mother, “I’ll kill you and your whole family,” his actions fell outside the ordinance’s
prohibition of violent conduct and threats. Neither does appellant argue that Virginia Beach City
Code § 23-10 failed to give him sufficient notice that his conduct was prohibited. Nor does
appellant allege he was subject to arbitrary and discriminatory enforcement of the ordinance.
Because appellant clearly violated the plain language provisions of Virginia Beach City Code
§ 23-10, it cannot be said that “the [ordinance] is impermissibly vague in all its applications,”
and appellant “cannot complain of the vagueness of the law as applied to . . . others.” Hoffman
Estates, 455 U.S. at 495. Consequently, appellant’s vagueness challenge fails.
III. CONCLUSION
For the foregoing reasons, we conclude Virginia Beach City Code § 23-10 is not
unconstitutionally overbroad or vague. We therefore affirm appellant’s conviction.
Affirmed.
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