Chaffee v. Roger
| Decision Date | 25 March 2004 |
| Docket Number | No. CVS030021-ECR(PAL).,CVS030021-ECR(PAL). |
| Citation | 311 F.Supp.2d 962 |
| Parties | Carol L. CHAFFEE, Plaintiff, v. David ROGER, Clark County District Attorney, and Las Vegas Metropolitan Police Department, Defendants. |
| Court | U.S. District Court — District of Nevada |
Carol L. Chaffee, Pro se, Idaho Falls, ID, for Plaintiff or Petitioner.
Stewart L. Bell, Clark County District Attorney, Las Vegas Metropolitan Police Department and David Roger: Michael L. Foley, Clark County District Attorney's Office, Civil Division, Las Vegas, NV, for Defendants.
Brian Sandoval, Attorney General, State of Nevada, by Gerald J. Gardner, Chief Deputy Attorney General, Las Vegas, NV, for Amicus Curiae.
Pursuant to Nevada Rule of Appellate Procedure 5 the Court respectfully certifies the following question to the Supreme Court of the State of Nevada:
I. Question of Law
What conduct or speech constitutes a "threat" or "intimidation" punishable under Nevada Revised Statute 199.300(1)(b)? In other words, what is the definition of the terms "threat" and "intimidation" as used in Nevada Revised Statute 199.300(1)(b)?
II. Statement of Facts and Nature of Controversy
Plaintiff, Carol Chaffee2 ("Plaintiff"), filed a complaint (# 2) for declaratory and injunctive relief in this Court on January 7, 2003, against the Clark County District Attorney and the Las Vegas Metropolitan Police Department (collectively the "Defendants"). The complaint challenges the facial constitutionality of Nevada Revised Statute ("NRS") 199.300(1)(b) under the doctrines of vagueness and overbreadth. The challenged statute reads as follows:
1. A person who directly or indirectly, addresses any threat or intimidation to a public officer, public employee, juror, referee, arbitrator, appraiser, assessor or any person authorized by law to hear or determine any controversy or matter, with the intent to induce him, contrary to his duty to do, make, omit or delay any act, decision or determination, shall be punished:
. . . . .
(b) If no physical force or immediate threat of physical force is used in the course of the intimidation or in the making of the threat, for a gross misdemeanor.3
Plaintiff alleges that she and her husband have in the past attended the Laughlin River Run motorcycle event in Laughlin, Nevada, where they publicly and privately criticized the behavior of police officers present at the event. This criticism apparently came to a head on April 29, 2000, when Plaintiff's husband was arrested under NRS 199.300(1)(b) for a statement he made during a traffic stop.4 According to Plaintiff, this brought home the possibility of her own arrest for criticizing police officers at future motorcycle events in Clark County, Nevada, resulting in the present action.
On the same day that Plaintiff filed her complaint, she filed a motion for summary judgement (# 6), arguing for an immediate finding that NRS 199.300(1)(b) is facially unconstitutional. The Defendants responded with a counter motion to dismiss (# 10). In our order (# 19) addressing Plaintiff's motion for summary judgment and the Defendants' motion to dismiss, we raised sua sponte a jurisdictional issue, finding that the complaint failed to properly allege facts giving rise to standing. We therefore dismissed Plaintiff's complaint, but also granted leave to amend the same. In light of this dismissal, we denied Plaintiff's motion for summary judgment and did not reach the merits of the Defendants' motion to dismiss. We also transferred the case to the unofficial southern division of the District of Nevada.
After filing an amended complaint (# 24), the Defendants filed another motion to dismiss (# 25). In a written order (# 28), we denied the Defendants' motion on the issue of standing, but left for consideration at a hearing the issues of dismissal for failure to state a claim and abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
At the hearing, we found Younger abstention inapplicable to the case because of the dismissal of the criminal charges brought against Plaintiff's husband. We also denied the motion to dismiss for failure to state a claim, finding that the complaint raised a serious challenge to the constitutionality of NRS 199.300(1)(b). In particular, we noted the fact that, unlike similar statutes in other states, NRS 199.300(1)(b) lacked any definition of the terms "threat" or "intimidation."5
Soon after we issued our order on the Defendants' second motion to dismiss, Plaintiff filed another motion for summary judgment (# 31). In a minute order (# 35) dated May 30, 2003, we denied Plaintiff's motion for summary judgment without prejudice in order to allow us to comply with 28 U.S.C. § 2403(b) by permitting the Nevada Attorney General to intervene on behalf of the State of Nevada on the issue of the constitutionality of NRS 199.300(1)(b). We noted that in ruling on the Defendants' second motion to dismiss (# 25) we were not faced with the prospect of actually finding NRS 199.300(1)(b) to be unconstitutional. However, in the context of Plaintiff's second motion for summary judgment, such a ruling was a possibility. In the same minute order, we also first raised the possibility of certifying a question to the Supreme Court of Nevada regarding a potential narrowing construction of NRS 199.300(1)(b).
In response to our minute order (# 35), the Attorney General filed an amicus brief arguing for the constitutionality of NRS 199.300(1)(b). Plaintiff opposed the brief, and renewed her motion for summary judgment (# 38/39).
"Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)) (quotation marks omitted). Consequently, a plaintiff bears a heavy burden in making a facial challenge to a statute. Id.
Plaintiff insists that NRS 199.300(1)(b) is overbroad in that it sweeps a substantial amount of constitutionally protected speech within its provisions. In addition, Plaintiff claims the statute is vague because it does not give fair notice to persons of ordinary intelligence of the acts it forbids and gives unlimited discretion to police and prosecutors regarding its enforcement.
The overbreadth doctrine allows parties to "challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. at 612, 93 S.Ct. 2908. To mount a successful facial challenge to a statute on overbreadth grounds, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). A law that punishes a substantial amount of constitutionally protected speech both in an absolute sense and in relation to the law's plainly legitimate sweep will be held invalid as overbroad. Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 2196-97, 156 L.Ed.2d 148 (2003). In such a case, all enforcement of the law is invalidated. Id.
We believe a realistic danger exists that NRS 199.300(1)(b) prohibits a substantial amount of constitutionally protected speech. To be sure, the statute's proscription of threats or intimidations made by the use or threat of the use of physical force is proper. Such "true threats" — defined as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" — are not entitled to constitutional protection. Virginia v. Black, 538 U.S. 343, 358-59, 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003). However, by its very structure NRS 199.300 forbids much more than "true threats." See Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) ().
Section (1)(a) of the statue covers true threats, which are punishable for a first offense as a category C felony and for a second offense as a category B felony. NRS 199.300(1)(a). Section (1)(b), on the other hand, applies where "no physical force or immediate threat of physical force is used in the course of the intimidation or in the making of the threat." NRS 199.300(1)(b). Limitless forms of protected speech are potentially covered by this section. For example, a citizen believing he was wrongfully pulled over for a traffic stop because of his race might object to the officer's action by saying, "If you write me a ticket, I will file a complaint with your superior." Or, a person could protest a perceived unlawful arrest by threatening to write a letter to the editor of the local newspaper. Such "threats" would undoubtedly constitute protected speech, yet they appear to fall directly under NRS 199.300(1)(b).
While the statute does contain a scienter element, requiring the threat or intimidation to be made with "the intent to induce [the public officer], contrary to his duty to do, make, omit or delay any act, decision or determination," such a requirement does not prevent the statute's potential application to constitutionally protected conduct. Although not directly on point, the Supreme Court case of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), is instructive. In that case, the appellee, Hill, was arrested...
To continue reading
Request your trial