Ferguson v. Estelle

• Decision Date: 31 October 1983
• Docket Number: Nos. 82-2441,82-2442,s. 82-2441
• Citation: 718 F.2d 730
• Parties: M.R. FERGUSON, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee. Robert Wayne FAULK, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 730

718 F.2d 730

M.R. FERGUSON, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

Robert Wayne FAULK, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

Nos. 82-2441, 82-2442.

United States Court of Appeals, Fifth Circuit.

Oct. 31, 1983.

Goodwin, Goodwin & Buchanan, Paul N. Buchanan, Joe B. Goodwin, Beaumont, Tex., for petitioners-appellants.

Douglas M. Becker, Leslie A. Benitez, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM, BROWN and JOHNSON, Circuit Judges.

PER CURIAM:

Robert Wayne Faulk and M.R. Ferguson were convicted of riot by arson in violation of the Texas Anti-Riot Law, V.T.C.A., Penal Code Sec. 42.02 (1974). They petitioned for federal habeas corpus relief, charging that the statute is invalid on its face for overbreadth and vagueness, and because it imposes vicarious criminal responsibility on a basis too attenuated to satisfy constitutional concepts of personal guilt. The district court sustained the statute in all of its aspects, against all of their challenges. We affirm its denial of the writ of habeas corpus.

I.

Faulk and Ferguson's convictions for riot by arson stem from their participation in the union/antiunion melee at the Cross Construction Company in Port Arthur, Texas, see Scott v. Moore, 680 F.2d 979 (5th Cir.1982) (en banc), rev'd sub nom. Carpenters, Local 610 v. Scott, --- U.S. ----, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). According to the opinion of the Texas Court of Criminal Appeals, ¹ about fifty men armed with 2 X 4's, pipes, bottles, and rocks "invaded" the Cross job site, destroyed company property and attacked Cross employees. About twenty of the rioters turned over a thirty-foot office trailer located on the site, doused it with gasoline, and set it afire. The trailer was completely destroyed. Ferguson and Faulk were identified as members of the group which invaded the job site. Ferguson was seen carrying a club; Faulk was identified by a battered Cross employee as one of his assailants. Faulk v. State, 608 S.W.2d 625, 627-29 (Tex.Cr.App.1980). Neither was identified as a direct participant in the act of arson.

The statute under which Faulk and Ferguson were convicted provides that:

(a) For the purpose of this section, "riot" means the assemblage of seven or more persons resulting in conduct which:

(1) creates an immediate danger of damage to property or injury to persons; ...

(b) A person commits an offense if he knowingly participates in a riot.

(c) It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection (a) of this section, the actor retired from the assembly.

* * *

* * *

(e) Except as provided in Subsection (f) of this section, an offense under this section is a Class B misdemeanor.

(f) An offense under this section is an offense of the same classification as any offense of a higher grade committed by anyone engaged in the riot if the offense was:

(1) in the furtherance of the purpose of the assembly; or

(2) an offense which should have been anticipated as a result of the assembly.

V.T.C.A., Penal Code Sec. 42.02. Subsection (f) was used to hold them responsible for the act of arson, a second-degree felony carrying a penalty of two to twenty years imprisonment with possibility of a fine not to exceed $10,000. ² V.T.C.A., Penal Code Secs. 12.33, 28.02 (1974). Faulk was sentenced to five years in prison, Ferguson to three.

II.

Faulk and Ferguson charge that subsection (a)(1) is unconstitutional on its face ³ for vagueness and overbreadth chilling free exercise of the first amendment right to peaceable assembly. ⁴ Analysis begins with their overbreadth claim. Flipside, 102 S.Ct. at 1190.

A.

A statute is unconstitutionally overbroad, if it, as written and as construed by the authoritative state court, ⁵ reaches a substantial amount of constitutionally protected conduct as well as unprotected conduct. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830; Ferber, 102 S.Ct. at 3361. The Court has counseled caution in the use of overbreadth principles to invalidate state criminal laws aimed at controlling harmful conduct.

[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

Broadrick, 93 S.Ct. at 2917-18. The significance of a state's criminalization of its proscriptions to an examination of the statute's overbreadth was recently elucidated by the Court: "[While] the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial, ... the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth." Ferber, 102 S.Ct. at 3363.

With these principles in mind, we turn to the petitioners' challenge to section 42.02 for overbreadth. Faulk and Ferguson claim that the ambiguities in the operative elements of the definition threaten to ensnare innocents unlucky enough to be on the scene of a precipitous outbreak of violence. ⁶ Focusing on the intent requirement of section 42.02(c), they charge that the statute criminalizes a knowing participation in an initially peaceable assembly that subsequently results in conduct creating an immediate danger of damage to persons or property. ⁷ In addition, they charge that the statute's definition of riot as "conduct ... creat[ing] an immediate danger of damage to property or injury to persons" is too imprecisely drawn to allow a participant to know when demonstrative conduct passes from a lawful, peaceable stage to a riot.

We think that the construction given to section 42.02(a)(1) by the Texas Court of Criminal Appeals should alleviate the first of the petitioners' concerns. In its consideration of their charges on review of their convictions, that Court held that section 42.02(a)(1), read in conjunction with the intent requirement of section 42.02(c), proscribes only an "actor['s] participat[ion] in [an] assemblage knowing that it is resulting in conduct creating an immediate danger of damage to property or injury to persons," Faulk, 608 S.W.2d at 630 (emphasis added). The Court held that the statute requires proof that the defendant "knowingly act[ed] with those so assembled in creating an immediate danger of damage," id. at 632 (emphasis added); it noted that the exculpatory provisions of section 42.02(d) would "provide[ ] a defense to one who participates in a lawful assembly which ultimately becomes unlawful, if he retires from the assembly when one of those assembled manifests an intent to engage in unlawful conduct," id. at 631. Its adjustment of the statute's mens rea requirement denies application of the law to members of an assembly who do not take part in the group's actions creating an imminent threat of violence. Mere presence at the scene of a riot will not, under its interpretation, suffice to support a conviction. So construed, section 42.02(a)(1) is "relieve[d] ... of the objection that it punishes without warning an offense of which the accused was unaware," Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945) (plurality opinion), cited with approval in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 685 n. 13, 58 L.Ed.2d 596 (1979). We conclude that the scienter element of section 42.02, as interpreted by the Texas Court of Criminal Appeals, has been sufficiently narrowed in its sweep to eliminate its potential for substantial impairment of the protected right of peaceable assembly.

The petitioners also find ambiguity in the statute's description of its prohibited acts as those "creat[ing] an immediate danger of damage to property or injury to persons." They contend that the phrase gives participants in an assembly no concrete measure by which they can evaluate the lawfulness of the group's activities, and so, in its uncertainty, chills their exercise of their constitutional rights. There are inherent limitations in the precision with which concepts can be conveyed by the English language. Overbreadth analysis does not demand perfect exactness; it does not demand that a law be striken for marginal prospects of unconstitutional application. That some limited degree of uncertainty inheres in a statute's phrase does not require that the statute be denied all application.

The dictionary defines "immediate" as "acting or being without the intervention of another object, cause or agency: direct, proximate; ... occurring, acting or accomplished without loss of time: made or due at once: instant," Webster's Third New International...