United States v. Joe Lanning

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOE L. LANNING,
Defendant - Appellant.
------------------------
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION,
INCORPORATED,
Amici Supporting Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00047-MR-1)
Argued: January 31, 2013 Decided: July 19, 2013
Before DUNCAN, WYNN, and FLOYD, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote
the majority opinion, in which Judge Floyd joined. Judge Duncan
wrote a dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee. Joshua A. Block, Leslie Cooper, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York; Christopher
Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North
Carolina, for Amici Supporting Appellant.
2
WYNN, Circuit Judge:
In the context of a sting operation specifically targeting
gay men, an undercover ranger approached Defendant, initiated a
sexually suggestive conversation with him, and then expressly
agreed to have sex with him. In response, Defendant backed up
to the ranger and “[v]ery briefly” touched the ranger’s fully-
clothed crotch. J.A. 56. That conduct gave rise to Defendant’s
conviction for disorderly conduct under 36 C.F.R. § 2.34, which
prohibits conduct that is “obscene,” “physically threatening or
menacing,” or “likely to inflict injury or incite an immediate
breach of the peace.” 36 C.F.R. § 2.34(a)(2).
Upon review, we hold that the term “obscene” is
unconstitutionally vague as applied to Defendant. We further
hold that no rational trier of fact could find beyond a
reasonable doubt that Defendant’s brief touch of the ranger’s
crotch, done in response to the ranger’s deliberate attempt to
convince Defendant that he would have sex with him, was
“physically threatening or menacing” or “likely to inflict
injury or incite an immediate breach of the peace.”
Accordingly, we reverse and remand for a judgment of acquittal.
I.
After receiving complaints about male-on-male sexual
activity around the Sleepy Gap Overlook of the Blue Ridge
3
Parkway in Buncombe County, North Carolina, the National Park
Service and the United States Forest Service conducted a joint
operation “designed to enable officers to identify and arrest
men who were using the area for sexual solicitation and activity
with other men.” Appellee’s Br. at 3. Joseph Darling, a
thirty-three-year-old, two-hundred-pound park ranger,
participated in the sting operation as an undercover officer.
In November 2009, in the course of the sting operation, Darling
saw Defendant, a sixty-two-year-old male retiree, on a nearby
trail. As Darling walked past Defendant, Defendant grabbed his
own groin and kept walking. Darling said hello and also kept
walking.
Five or ten minutes later, after walking around in the
woods and talking to a few other people, Darling went looking
for Defendant and found him standing by himself on an unofficial
trail. Darling engaged Defendant in a casual conversation about
the weather for several minutes. Darling then commented that
Asheville was “an open community,” accepting of a homosexual
lifestyle. J.A. 54. Defendant responded that he “wanted to be
F’ed.” Id. Darling replied “okay or yes, or something to that
affirmative[,]” J.A. 58, and “gave [Defendant] every reason to
4
believe that [Darling] was good to go[,]” J.A. 85. 1 At that
point, Defendant–who was facing Darling and standing
approximately three to five feet away from him–turned around,
took one or two steps backward towards Darling, and, with his
left hand, reached back and “[v]ery briefly” touched Darling’s
fully-clothed crotch. J.A 56. Darling described the touch as
“a fairly firm grasp” that lasted “[v]ery briefly[,] [u]ntil I
could get the words out: ‘Police officer, you’re under arrest.’”
Id.Defendant was charged with disorderly conduct in violation
of 36 C.F.R. § 2.34(a)(2). Before trial, Defendant
unsuccessfully moved to dismiss the case. At trial, Darling was
the only witness. And at the close of the government’s
evidence, Defendant moved for judgment of acquittal. This, too,
the magistrate judge denied. The magistrate judge then found
Defendant guilty of disorderly conduct, giving no specific
reasons for his decision and noting only that he was “convinced
beyond a reasonable doubt” that Defendant had violated the
statute. J.A. 121. The magistrate judge sentenced Defendant to
1
Upon the district court’s request for a clarification,
Darling affirmed that “good to go” meant that he “gave
[Defendant] every reason to believe that [Darling] would have
been willing to have undertaken in the conduct that [Defendant]
proposed[,]” i.e., “anal intercourse.” J.A. 85-86.
5
15 days’ imprisonment, a $1000 fine, and a two-year ban on
visiting government forests and parks.
Defendant appealed to the district court. The district
court affirmed Defendant’s conviction, concluding that there was
sufficient evidence that his conduct was obscene and physically
threatening and/or menacing. The district court, however,
vacated and remanded Defendant’s sentence because the magistrate
judge lacked the authority to ban Defendant from government
parks. The magistrate judge resentenced Defendant to 15 days’
imprisonment and a $500 fine, and the district court affirmed.
Defendant then appealed to this Court.
II.
On appeal, Defendant first argues that the government’s
evidence was insufficient to support his conviction for
disorderly conduct under Section 2.34(a)(2). We must construe
the evidence and any inferences therefrom in the light most
favorable to the government and affirm if “any rational trier of
fact could have found the essential elements of the crime
charged beyond a reasonable doubt.” United States v.
Penniegraft, 641 F.3d 566, 571 (4th Cir.), cert. denied, 132 S.
Ct. 564 (2011). Further, Defendant and the government disagree
as to the meaning of Section 2.34(a)(2); that, we review de
6
novo. United States v. Abuagla, 336 F.3d 277, 278 (4th Cir.
2003).
Section 2.34 is an enactment of the Secretary of the
Interior, who is authorized to promulgate regulations “necessary
or proper for the use and management” of parks under the
jurisdiction of the National Park Service, including the Blue
Ridge Parkway. 16 U.S.C. § 3. Section 2.34 is just such a
regulation and therefore has “the force and effect of law.”
United States v. Fox, 60 F.3d 181, 184 (4th Cir. 1995).
At Defendant’s bench trial, the magistrate judge found
Defendant guilty of violating Section 2.34(a)(2), which says:
A person commits disorderly conduct when, with intent
to cause public alarm, nuisance, jeopardy or violence,
or knowingly or recklessly creating a risk thereof,
such person . . . [u]ses language, an utterance, or
gesture, or engages in a display or act that is
obscene, physically threatening or menacing, or done
in a manner that is likely to inflict injury or incite
an immediate breach of the peace.
36 C.F.R. § 2.34(a)(2). Accordingly, the essential elements of
disorderly conduct under Section 2.34(a)(2) are: (1) using
language, an utterance, or a gesture, or engaging in a display
or act; (2) that is obscene, physically threatening or menacing,
or done in a manner likely to inflict injury or incite an
immediate breach of the peace; and (3) having the intent to
cause or knowingly or recklessly creating a risk of public
alarm, nuisance, jeopardy, or violence.
7
A.
Defendant argues that the government failed to prove the
second element of disorderly conduct under Section 2.34(a)(2).
We therefore must analyze each prong of that element—that is,
whether the conduct at issue was “obscene,” “physically
threatening or menacing,” or “likely to inflict injury or incite
an immediate breach of the peace”—to determine whether the
government met its burden.
Regarding the “obscene” prong, Defendant contends that the
definition of obscenity that the Supreme Court laid out in
Miller v. California, 413 U.S. 15 (1973), governs here and that,
under Miller, his “conduct was not obscene.” Appellant’s Br. at
15. In Miller, the Supreme Court laid out several factors to
consider when determining whether “materials” and “works” are
obscene: “(a) whether ‘the average person, applying contemporary
community standards’ would find that the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.” Id. at 24 (emphasis
added, citations omitted).
Defendant implicitly recognizes that the Supreme Court
framed the Miller test with an eye to speech and expressive
8
conduct, as indeed he must, given the Supreme Court’s use of
words like “work” and “materials.” Id. at 23-24. Defendant
nevertheless posits that applying the Miller definition of
obscenity to “expressive conduct” while applying a “different
definition[]” to “non-expressive conduct” would be “bizarre.”
Reply Br. at 3-4. Yet a close reading of Miller reveals that
the Supreme Court intended just that.
In Miller, the Supreme Court expressly distinguished
obscene depictions from obscene conduct. Specifically, the
Court stated in a footnote that
[a]lthough we are not presented here with the problem
of regulating lewd public conduct itself, the States
have greater power to regulate nonverbal, physical
conduct than to suppress depictions or descriptions of
the same behavior. In United States v. O’Brien, 391
U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672(1968), a case not dealing with obscenity, the Court
held a State regulation of conduct which itself
embodied both speech and nonspeech elements to be
‘sufficiently justified if . . . it furthers an
important or substantial governmental interest; if the
governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest.’
See California v. LaRue, 409 U.S. 109, 117—118, 93 S.
Ct. 390, 396—397, 34 L.Ed.2d 342 (1972).
Id. at 26 n.8 (emphasis added). This distinction makes sense,
given the Court’s focus on the “inherent dangers of undertaking
to regulate any form of expression”—i.e., First Amendment
concerns. Id. at 23 (emphasis added). Yet we can also easily
imagine dangers inherent in prohibiting government regulation of
9
public sexual conduct unless that conduct rises to the Miller
standard of “prurient” and “‘hard core,’” as Defendant suggests.
Id. at 24-27.
Undeterred, Defendant points to United States v. Mather,
902 F. Supp. 560 (E.D. Pa. 1995), to demonstrate that at least
one federal court has applied the Miller obscenity test to
public sexual conduct. Notably, Mather is an out-of-circuit
district court opinion of no precedential value here. Further,
the Mather court looked not simply to the federal disorderly
conduct regulation also in play here, but also to a Pennsylvania
obscenity statute. Id. at 562. And, as the Mather court noted,
the Pennsylvania statute’s language tracked the Miller test
almost verbatim:
Obviously derived from Miller, the Pennsylvania
statute defines “obscene” as:
Any material or performance, if:
(1) the average person applying contemporary community
standards would find that the subject matter taken as
a whole appeals to the prurient interest;
(2) the subject matter depicts or describes in a
patently offensive way, sexual conduct of a type
described in this section; and
(3) the subject matter, taken as a whole, lacks
serious literary, artistic, political, educational or
scientific value.
Id. at 563 n.8 (citation omitted). Yet Mather failed to engage
in any analysis whatsoever as to why the Miller test similarly
applies to Section 2.34(a)(2). Id.10
Moving away from Miller and back to the regulation itself,
the provision’s legislative history reveals that the rule’s
promulgator believed “[t]he harms that the regulation seeks to
avoid [to be] commonly understood.” 48 Fed. Reg. 30252, 30270
(June 30, 1983) (emphasis added). Similarly, in United States
v. Coutchavlis, the Ninth Circuit declared that “the regulation
contained only ‘common words,’ easily understandable by ‘people
of ordinary intelligence.’ The words of § 2.34 are not so
obscure that they require any special skill to interpret.” 260
F.3d 1149, 1155 (9th Cir. 2001) (citation omitted). 2
We regularly turn to the dictionary for the “ordinary,
contemporary, common meaning” of words undefined by statute, as
is the case with “obscene” here. United States v. Lehman, 225
F.3d 426, 428 (4th Cir. 2000) (quotation marks omitted). The
American Heritage Dictionary defines “obscene” as “[o]ffensive
to accepted standards of decency” and “[m]orally repulsive[.]”
Id. at 1216 (5th ed. 2011). The Oxford English Dictionary
defines “obscene” as “[o]ffensively or grossly indecent,
lewd[.]” Oxford English Dictionary Online,
2
Coutchavlis did not specifically address Section
2.34(a)(2)’s “obscene” prong. Rather, the Ninth Circuit
analyzed only Section 2.34(a)’s “physically threatening or
menacing” and “public alarm or nuisance” language. 260 F.3d
1149.
11
http://www.oed.com/view/Entry/129823?redirectedFrom=obscene
(last visited April 10, 2013).
The government argues that “the standard dictionary
definition” of obscene “appl[ies] in determining whether a
defendant is guilty of ‘disorderly conduct’” and, when doing so
here, “the evidence amply supports the magistrate judge’s
finding that Defendant’s conduct was obscene.” Appellee’s Br.
at 19. Defendant counters that if a dictionary definition of
obscene applies, then Section 2.34(a)(2) is “unconstitutionally
vague as applied.” Reply Br. at 15. Under the circumstances of
this case, we must agree with Defendant.
It is axiomatic that a law fails to meet the dictates of
the Due Process Clause “if it is so vague and standardless that
it leaves the public uncertain as to the conduct it prohibits .
. . .” City of Chicago v. Morales, 527 U.S. 41, 56 (1999)
(quotation marks omitted). “A statute can be impermissibly
vague for either of two independent reasons. First, if it fails
to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second, if
it authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). As
the Supreme Court has noted, “perhaps the most meaningful aspect
of the vagueness doctrine is not actual notice, but the other
principal element of the doctrine—the requirement that a
12
legislature establish minimal guidelines to govern law
enforcement.” Smith v. Goguen, 415 U.S. 566, 574 (1974).
Turning first to the notice issue, we agree with Defendant
that Section 2.34(a)(2) would not have provided him, or anyone
of ordinary intelligence, fair warning that the complained-of
conduct was obscene. The evidence, even when viewed in the
light most favorable to the government, shows that: Defendant
grabbed his own clothed groin once while walking; after being
engaged in a flirtatious conversation by an undercover ranger
who noted that “Asheville [was] an open community,” J.A. 54,
Defendant told the undercover ranger that “he wanted to be
F’ed[,]” id.; and, after the ranger accepted Defendant’s sexual
proposition, Defendant quickly walked backwards toward the
ranger and grabbed the ranger’s clothed crotch “fairly firm[ly]
. . . [v]ery briefly[,] [u]ntil [the ranger] could get the words
out: ‘Police officer, you’re under arrest.’” J.A. 56. Under
these circumstances, we cannot conclude that anyone “of ordinary
intelligence,” Hill, 530 U.S. at 732, would understand that such
conduct is “[m]orally repulsive,” The American Heritage
Dictionary at 1216, or “[o]ffensively or grossly indecent,
13
lewd[,]” Oxford English Dictionary Online, so as to be “obscene”
and thus proscribed by Section 2.34(a)(2). 3
Further, the facts of this case illustrate the real risk
that the provision may be “arbitrar[ily] and discriminator[ily]
enforce[d].” Hill, 530 U.S. at 732. The sting operation that
resulted in Defendant’s arrest was aimed not generally at sexual
activity in the Blue Ridge Parkway; rather, it specifically
targeted gay men. Perhaps not surprisingly, then, the all-male
undercover rangers arrested only men on the basis of disorderly
homosexual conduct.
The impetus for the sting operation: citizen complaints.
Darling testified that “the public was concerned” about “male on
3
Perhaps recognizing its weak hand, the government suggests
that “the magistrate judge could reasonably infer from
Defendant’s conduct that he, in fact, intended to have sexual
intercourse in the very location in which he backed into Ranger
Darling and grabbed Ranger Darling’s [clothed] genitals.”
Appellee’s Br. at 20 n.1 (emphasis added). Yet Defendant’s
conviction was for disorderly conduct—not disorderly thoughts or
desires. And it is undisputed that Defendant’s actual conduct
never went further than his backing up to Darling and very
briefly grabbing Darling’s clothed crotch. Moreover, even
Darling agreed that, “for all [he] knew, [Defendant] could have
very well intended for [the intercourse] to happen at
[Defendant’s] house.” J.A. 88. And such private sexual conduct
would, of course, have been perfectly legal. As the Supreme
Court pronounced a decade ago, “[l]iberty presumes an autonomy
of self that includes freedom of thought, belief, expression,
and certain intimate conduct” and “allows homosexual persons the
right to” engage in consensual intimate conduct in the privacy
of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).
14
male [sexual] activity in that area that was targeted.” 4 J.A.
46, 92. Darling testified that every single one of the citizen
complaints had been about homosexuals. Id.It may be that gay men engage more frequently in sexual
activity in the Blue Ridge Parkway and therefore generate more
citizen complaints. Yet it is also entirely plausible that the
public in and around the Blue Ridge Parkway subjectively finds
homosexual conduct, even relatively innocuous conduct such as
that at issue here, particularly “morally repulsive,” The
American Heritage Dictionary 1216, and “grossly indecent,”
Oxford English Dictionary Online, and therefore complains. If
the public is, by contrast, not similarly troubled by a woman
propositioning her boyfriend for sex and then briefly touching
his clothed crotch, there would exist no citizen complaint and
no related sting, even for otherwise identical heterosexual
conduct. Simply enforcing the disorderly conduct regulation on
the basis of citizen complaints therefore presents a real threat
of anti-gay discrimination. See Hill, 530 U.S. at 732; cf.
Smith, 415 U.S. at 578 (“The language at issue is void for
4
One wonders why a sting operation was implemented in the
first place. If instead the rangers had, for example, hidden
themselves, monitored the area, and arrested individuals who
engaged in public sexual conduct, many of the questionable
aspects of this case, from the discriminatory targeting to the
alleged inchoate conduct the government attempts to inject into
this matter, see supra note 3, would almost surely fall away.
15
vagueness as applied to Goguen because it subjected him to
criminal liability under a standard so indefinite that police,
court, and jury were free to react to nothing more than their
own preferences . . . .”).
To be sure, in concluding that Section 2.34(a)(2)’s
“obscene” is unconstitutionally vague as applied to Defendant,
we do not mean to suggest that the statute is impermissibly
vague per se. As the Supreme Court has recognized, “there are
statutes that by their terms or as authoritatively construed
apply without question to certain activities, but whose
application to other behavior is uncertain.” Smith, 415 U.S. at
577-78.
Section 2.34(a)(2) may be just such a law. For example,
while we take issue with the Mather court’s analysis, as
discussed above, we have no doubt that the court correctly held
that the conduct at issue there—i.e., two individuals with their
pants down, masturbating in front of one another and engaging in
fellatio in a national park—was obscene and disorderly under
Section 2.34(a)(2). 902 F. Supp. 560. Unquestionably, it was;
and were that conduct before us, this would surely be a
radically different opinion.
The conduct at issue here, however, is of a qualitatively
different, significantly more benign nature. We do not believe
that a reasonable defendant would know that by engaging in such
16
conduct under the circumstances of this case, he would be
subjecting himself to criminal liability. That, coupled with
our serious concern regarding discriminatory enforcement, leads
us to conclude that Section 2.34(a)(2) is unconstitutionally
vague as applied and that the “obscene” prong of the regulation
therefore cannot serve as a basis for Defendant’s conviction. 5
5
We acknowledge that this Circuit upheld a conviction for
similar conduct in United States v. Glenn, 562 F.2d 324 (4th
Cir. 1977). Notably, however, that case concerned a different,
repealed, regulation—36 C.F.R. § 50.26(f)—which barred “obscene
or indecent act[s.]” Further, the defendant in Glenn had his
conviction upheld specifically on the basis of the term
“indecent,” which the Supreme Court has made plain is a more
innocuous concept than “obscene.” Cf., e.g., Sable Commc’ns of
Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). Glenn therefore
neither controls nor illuminates the meaning or application of
“obscene” here.
We also acknowledge the dissenting opinion’s assertion that
we fail to “accord[] the level of deference to the magistrate
judge’s findings of fact required by our standard of review.”
Post at 27. But that assertion misses the mark as to the
regulation’s obscenity prong, because even where a rational
trier of fact could find facts sufficient to support a
conviction, a statute can still be unconstitutional because it
“authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill, 530 U.S. at 732. Indeed, the sufficiency
of the evidence seems irrelevant to such a constitutional
analysis. See, e.g., Smith, 415 U.S. 566, 575 (striking as
unconstitutional a statute criminalizing contemptuous treatment
of the flag where the defendant was convicted by a jury for
wearing a flag on the seat of his jeans, noting that the statute
“allows policemen, prosecutors, and juries to pursue their
personal predilections[,]” and nowhere factoring into that
analysis whether or not a rational trier of fact could have
found facts sufficient to support a conviction).
17
B.
Turning to the next prong of the regulation’s second
element, we analyze whether Defendant’s conduct was “physically
threatening or menacing.” 36 C.F.R. § 2.34(a)(2).
Even the government concedes that an objective reasonable
person standard applies to this inquiry. See Coates v. City of
Cincinnati, 402 U.S. 611, 614 (1971); United States v. Shrader,
675 F.3d 300, 311 (4th Cir.), cert. denied, 133 S. Ct. 757(2012), reh’g denied, 133 S. Ct. 1320 (2013) (noting that
statutes have been “disapproved” where they “merely set out the
subjective effects of conduct and imposed penalties for causing
that injury” and citing Coates). Stated differently, a fact
finder must focus not on whether a particular victim
subjectively felt physically threatened or menaced, but instead
must ask whether a reasonable person objectively would have felt
so under the circumstances of the case.
Under the regulation’s plain language, a defendant engages
in disorderly conduct when he “engages in a display or act that
is . . . physically threatening or menacing . . . .” 36 C.F.R.
§ 2.34(a)(2). Again, the rule’s promulgator believed “[t]he
harms that the regulation seeks to avoid [to be] commonly
understood[.]” 48 Fed. Reg. at 30270. And the Ninth Circuit
agreed that “the regulation contained only ‘common words,’
18
easily understandable by ‘people of ordinary intelligence.’”
Coutchavlis, 260 F.3d at 1155.
The American Heritage Dictionary defines “physical” as
“[o]f or relating to the body.” Id. at 1331. It defines
“threaten” as “express[ing] a threat against or giv[ing]
indications of taking hostile action against[.]” Id. at 1813.
It defines “menacing” as “constitut[ing] a threat to;
endanger[ing.]” Id. at 1098. And the dictionary is an
appropriate aid to understanding the “ordinary, contemporary,
common meaning” of words undefined by statute. Lehman, 225 F.3d
at 428.
Moving on to the facts of this case, Darling, a fit,
thirty-three-year-old, two-hundred-pound ranger, approached
Defendant, a sixty-two-year-old retiree, and initiated
flirtatious conversation. Defendant then told Darling that he
“wanted to be F’ed,” to which Darling expressly consented. J.A.
54. Only after Darling agreed to Defendant’s sexual proposition
and “gave [Defendant] every reason to believe that” Darling was
“good to go,” J.A. 85, did Defendant quickly back up to Darling
and very briefly touch Darling’s clothed crotch, whereupon
Darling arrested him. And although Darling testified that
Defendant’s touch was “firm,” the government presented no
19
evidence that Darling experienced any pain or suffered any
injury as a consequence. 6
Darling testified that he felt “shocked” and “caught . . .
off guard” by Defendant’s touch. J.A. 57. But the disorderly
conduct regulation requires “physically threatening or menacing”
conduct, not merely surprising conduct. 36 C.F.R. § 2.34(a)(2).
And even if surprise were sufficient to trigger the regulation
(it is not), and even if Darling’s subjective reaction were
relevant to our inquiry (it is not), it defies logic that
Darling was shocked by Defendant’s touch when it was, in fact,
precisely what Darling had been “string[ing Defendant] along” to
do—“to cross a certain line.” J.A. 84-85.
Facts matter. Had Defendant and Darling engaged in
flirtatious conversation that did not involve an agreement to
have sex, a reasonable person might well have felt physically
threatened or menaced by Defendant’s “[v]ery briefly” touching
Darling’s clothed crotch. Likewise, had Defendant pinned
Darling down and attempted to remove Darling’s clothing, a
reasonable person, even one who had consented to sex, might well
6
If Defendant had pained or injured Darling, Defendant may
well have been charged with, for example, assault, and not
simply disorderly conduct.
20
have felt physically threatened or menaced by that conduct. 7 But
given the totality of the circumstances actually before us, even
when viewing the evidence in the light most favorable to the
government, no rational fact finder could conclude that a
reasonable person would feel physically threatened or menaced by
Defendant’s conduct. See Penniegraft, 641 F.3d at 571.
C.
Because neither Section 2.34(a)(2)’s “obscene” prong nor
its “physically threatening or menacing” prong can serve as a
basis for Defendant’s conviction, we turn to the third and final
prong of the regulation’s second element: conduct “done in a
manner that is likely to inflict injury or incite an immediate
breach of the peace.” 36 C.F.R. § 2.34(a)(2). Defendant argues
that the government failed to introduce sufficient evidence to
support his conviction for disorderly conduct “done in a manner
7
Defendant argued that “the person to whom [sexual]
advances are directed would have to do something to convey a
lack of consent” and that “it is implied consent unless they do
something to convey to the other person that they are no longer
consenting.” Oral Argument at 2:40, available at
http://www.ca4.uscourts.gov/OAaudiotop.htm. We find this
position troubling and note that initiation of sexual activity
does not deprive a person of the right to withdraw consent.
See, e.g., In re John Z., 60 P.3d 183, 184 (Cal. 2003) (deeming
intercourse after withdrawal of consent rape). Nevertheless,
this is not a case implicating withdrawal of consent. Rather,
this matter arises out of a sting operation, the whole point of
which was to “get [Defendant] . . . to cross a certain line.”
J.A. 84-85. And “to get [Defendant] where [he] need[ed] to get
him, [Darling] ha[d] to string him along.” J.A. 85.
21
that is likely to inflict injury or incite an immediate breach
of the peace.” We agree.
The promulgating agency, in discussing these “commonly
understood” terms, described the conduct covered by this prong
as “actions that . . . constitute ‘fighting words’—those that
result in a ‘clear and present danger’ of violence or physical
harm.” 48 Fed. Reg. at 30270. In United States v. Poocha, the
Ninth Circuit noted that the regulation’s language “closely
tracks . . . Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62
S. Ct. 766, 86 L.Ed. 1031 (1942), in which the Court described
the type of language that may be legally proscribed by the
government—specifically classes of speech ‘which by their very
utterance inflict injury or tend to incite an immediate breach
of the peace.’” 259 F.3d 1077, 1080 (9th Cir. 2001) (citing
with approval United States v. Chung Lee, 1991 WL 193422, at *2
(E.D. Pa. Sept. 20, 1991), and noting that the Lee court stated:
“The statute is designed to prohibit speech that incites
violence, or ‘presents a clear and present danger’. . . . This
statute covers what are known as ‘fighting words’ and
‘incitement to riot.’”).
Applying the law to the circumstances of this case, even
when viewing the evidence in the light most favorable to the
government, we fail to see how any rational finder of fact could
deem Defendant’s conduct “fighting words,” 48 Fed. Reg. at
22
30270, or anything else “likely,” 36 C.F.R. § 2.34(a)(2)
(emphasis added), to result in a “‘clear and present danger’ of
violence” or “riot.” Poocha, 259 F.3d at 1080. To reiterate,
Darling approached Defendant and initiated flirtatious
conversation. Defendant then told Darling that he “wanted to be
F’ed,” to which Darling expressly consented. J.A. 54. Only
after Darling agreed to Defendant’s proposition did Defendant
back up to Darling and briefly touch Darling’s clothed crotch,
whereupon Darling arrested him.
Indeed, Darling had just agreed to have sex with Defendant
and given Defendant “every reason to believe that” Darling was
“good to go.” J.A. 85. No rational trier of fact could thus
conclude that Darling himself likely would react violently to
Defendant’s fleeting touch. Further, if one were to take
Darling’s real identity, i.e., that of an undercover ranger,
into account, the government’s burden would be even greater,
“‘because a properly trained officer may reasonably be expected
to exercise a higher degree of restraint than the average
citizen, and thus be less likely to respond belligerently to
‘fighting words.’” Poocha, 259 F.3d at 1081. And as to the
broader public, were anyone else to have witnessed the conduct
at issue here—and there is no evidence to that effect—they may
well have had no idea what had transpired, given the fact that
the encounter was, in Darling’s own words, “[v]ery brief[,]” and
23
that Darling himself “wasn’t sure what was happening.” J.A. 56.
Even if other park visitors had witnessed the incident and
recognized it for what it was, we fail to see how a rational
fact finder could decide that the “[v]ery brief” touching over
clothes at issue here would likely cause those visitors to react
violently or to riot.
D.
Before concluding, we point to a recent Sixth Circuit
decision, Alman v. Reed, which we find insightful, even if
distinguishable. 703 F.3d 887 (6th Cir. 2013). In Alman, law
enforcement arrested a gay man during an undercover sting at a
Michigan park. Id. at 891. The Alman sting, too, resulted from
complaints of sexual activity in the park. Id. at 892. There
as here, an undercover officer approached Alman and initiated
conversation. Id. While the two men engaged in apparently
flirtatious conversation, unlike in this case, the undercover
officer never expressly agreed to engage in anal intercourse, or
anything else for that matter. Nevertheless, “Alman leaned
forward and reached out and touched the zipper area on the front
of [the undercover officer’s] crotch.” Id. at 893. The
undercover officer backed away and soon thereafter “pulled out
his badge and told Alman that he was under arrest.” Id. Alman
was charged with being a disorderly person, battery, soliciting
24
and accosting, and criminal sexual conduct in the fourth degree.
Id. at 894. Ultimately, all of the charges were dismissed. 8
Alman (along with his partner and a gay rights
organization) brought a Section 1983 suit alleging that law
enforcement violated his constitutional rights. Id. at 895.
The district court dismissed the case, but the Sixth Circuit
resuscitated it, expressly holding that law enforcement, as a
matter of law, lacked probable cause as to each offense with
which Alman had been charged. Id. at 900. The Sixth Circuit
held that “there is nothing in the record describing
circumstances that would be sufficient to create a reasonable
fear of dangerous consequences.” Id. at 897. The Court
expressly refused to make “assumptions about Alman’s intentions
that the record does not substantiate” and noted that “a
reasonable officer would have needed more evidence of Alman’s
intentions before concluding that he was inviting [the
undercover officer] to do a public lewd act.” Id. at 899(quotation marks omitted). Under the circumstances, the Sixth
8
Interestingly, the pertinent county prosecutor had an
official policy that “‘[a]n unsolicited sexual act or exposure
to a member of the public or an undercover police officer will
bring a misdemeanor charge of indecent exposure pursuant to MCL
750.335a or disorderly person-obscene conduct pursuant to MCL
750.167(f). Charges will not be pursued by this office if the
officer’s conduct was designed to make the individual believe
the act was invited or consensual.’” Id. at 894.
25
Circuit concluded that “no reasonable officer” would have
thought that Alman committed, or was about to commit, any of the
crimes with which he was charged. Id. at 899-900.
III.
Under the circumstances of this case, no rational fact
finder could have concluded beyond a reasonable doubt that
Defendant engaged in conduct that was physically threatening or
menacing or likely to inflict injury or incite an immediate
breach of the peace. See 36 C.F.R. § 2.34(a)(2). Further,
applying a common definition of “obscene” to this case renders
Section 2.34(a)(2)’s obscenity prong unconstitutionally vague as
applied to Defendant. We therefore reverse Defendant’s
conviction and remand this matter for entry of a judgment of
acquittal. 9
REVERSED AND REMANDED
9
Defendant made additional, alternative arguments as to why
his conviction should be overturned. Because the arguments
addressed already result in reversal, we need not, and therefore
do not, engage those alternative arguments.
26
DUNCAN, Circuit Judge, dissenting:
I respect the thoughtfulness of the majority opinion and
share its distaste for Officer Darling’s conduct. I also
appreciate the narrowness of its focus and its careful tethering
to the specific facts before us. However, the concern that
prompts my brief dissent is that I am unable to agree that the
majority opinion accords the level of deference to the
magistrate judge’s findings of fact required by our standard of
review. I believe that a rational trier of fact could have
found a physical touching such as this implying an immediate
intent to engage in sexual activity in public both obscene and
physically threatening or menacing within the meaning of 36
C.F.R. § 2.34(a)(2).
27