Bouters v. State
| Decision Date | 27 April 1995 |
| Docket Number | No. 83558,83558 |
| Parties | 20 Fla. L. Weekly S186 Scott Paul BOUTERS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender, and S.C. Van Voorhees, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, and Parker D. Thomson and Carol A. Licko, Sp. Asst. Attys. Gen., Miami, for respondent.
Bennett H. Brummer, Public Defender, and Manuel Alvarez, Asst. Public Defender, Eleventh Judicial Circuit, Miami, amicus curiae for The Florida Public Defender Ass'n, Inc.
We have for review Bouters v. State, 634 So.2d 246 (Fla. 5th DCA 1994), wherein the district court expressly declared a state statute valid. We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We approve the district court decision.
The investigating officer entered the following facts in the complaint:
On 9/18/92 contact was made with the victim, Mrs. Akers, who states the following. Mrs. Akers stated her ex-boyfriend, defendant, has been terrorizing her. Mrs. Akers states defendant has been calling her house 5 or 6 times a day causing emotional distress. Mrs. Akers states these phone calls serve no legitimate purpose. Mrs. Akers also states in the past defendant has physically beaten her, and has threatened to kill her. Mrs. Akers states the last time defendant beat her was approximately three weeks ago. Mrs. Akers states she legitimately fears for her safety as well as for her life.
Mrs. Akers has a domestic violence injunction against defendant good until 3/18/93.
Mrs. Akers stated on today's date defendant entered her home without her permission, but left when he realized she was on the phone with [the sheriff's office].
Mrs. Akers stated she believes defendant would have physically hit her again today if she was not on the phone with [the sheriff's office].
Mrs. Akers stated defendant was arrested in January 1992, and again in March 1992, for battery (domestic violence).
Mrs. Akers stated she will testify and wants to prosecute.
Mrs. Akers states she is in fear of defendant and believes when he is released he will become violent with her.
Bouters was charged with aggravated stalking, a third-degree felony, in violation of section 784.048(4), Florida Statutes (Supp.1992). He unsuccessfully moved to dismiss the charge, claiming that the statute is unconstitutionally overbroad and vague, and then pled nolo contendere. The district court, in a brief opinion, ruled the statute constitutional, and Bouters now asks this Court to quash the district court's opinion.
Florida's stalking statute, section 784.048, reads as follows:
784.048 Stalking; definitions; penalties.--
(a) "Harasses" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
(b) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." Such constitutionally protected activity includes picketing or other organized protests.
(c) "Credible threat" means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.
(3) Any person who willfully, maliciously, and repeatedly follows or harasses another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Any person who, after an injunction for protection against repeat violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person's property, knowingly, willfully, maliciously, and repeatedly follows or harasses another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Any law enforcement officer may arrest, without a warrant, any person he or she has probable cause to believe has violated the provisions of this section.
Sec. 784.048, Fla.Stat. (Supp.1992). Bouters claims that this statute is both overbroad and vague.
The procedure for analyzing such a challenge to the facial validity of a statute is set forth by the United States Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982):
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, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.
Id., 455 U.S. at 494-95, 102 S.Ct. at 1191.
We first examine whether the statute infringes on Bouters' First Amendment rights or is overbroad because it inhibits the First Amendment rights of other parties. Bouters insists that the statute is overbroad because an arrest might ensue in almost any emotionally charged activity regardless of its constitutional sanctity if (a) the complainant and the police officer could agree that the activity was serving no legitimate purpose, and (b) the person who called the police exhibited substantial emotional distress. Political protest and investigative reporting, Bouters argues, could fall within the purview of the law. We disagree.
Stalking, whether by word or deed, falls outside the First Amendment's purview. The statute proscribes a particular type of criminal conduct defined at length in the statute. The conduct must be willful, malicious, and repeated, and form "a course of conduct" which would "cause [ ] substantial emotional distress" in a reasonable person in the same position as the victim (as explained below). See Sec. 784.048, Fla.Stat. (Supp.1992). The conduct must "serve [ ] no legitimate purpose." Id. Furthermore, the statute expressly provides that Id. Finally, to constitute aggravated stalking, the perpetrator must make a credible threat "with the intent to place [the victim] in reasonable fear of death or bodily injury." Id.
The conduct described at length in the stalking statute is clearly criminal and is unprotected by the First Amendment. "While the First Amendment confers on each citizen a powerful right to express oneself, it gives the [citizen] no boon to jeopardize the health, safety, and rights of others." Operation Rescue v. Women's Health Center, Inc., 626 So.2d 664, 675 (Fla.1993), cert. denied, --- U.S. ----, 114 S.Ct. 923, 127 L.Ed.2d 216 (1994), aff'd in part sub nom. Madsen v. Women's Health Center, Inc., --- U.S. ----, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), on remand, 644 So.2d 86 (Fla.1994).
The record shows that Bouters harassed the victim, his ex-girlfriend, by repeatedly calling her on the telephone and threatening to harm her. He battered her and threatened to kill her. He then violated a domestic violence injunction by entering her home uninvited and left only when the sheriff's office was called. None of Bouters' acts qualify for First Amendment protection. His conduct was criminal and to the extent speech and other expressive activity was involved, "[w]hen protected speech translates into criminal conduct, even the Free Speech Clause balks." State v. Stalder, 630 So.2d 1072, 1077 (Fla.1994).
Village of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193.
The United States Supreme Court has explained the doctrine of "vagueness":
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon...
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