Scott v. First Judicial Dist. Court of Nev.

• Decision Date: 31 December 2015
• Docket Number: No. 67331.,67331.
• Parties: William Allen SCOTT, Petitioner, v. The FIRST JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CARSON CITY; and the Honorable James Todd Russell, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
• Court: Nevada Supreme Court

363 P.3d 1159

William Allen SCOTT, Petitioner,

v. The FIRST JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CARSON CITY; and the Honorable James Todd Russell, District Judge, Respondents,andThe State of Nevada, Real Party in Interest.

No. 67331.

Supreme Court of Nevada.

Dec. 31, 2015.

Karin K. Kreizenbeck, State Public Defender, and Sally S. DeSoto, Chief Appellate Deputy Public Defender, Carson City, for Petitioner.

Adam Paul Laxalt, Attorney General, Carson City; Jason D. Woodbury, District Attorney, and Melanie Porter, Deputy District Attorney, Carson City, for Real Party in Interest.

Before the Court En Banc.

OPINION

By the Court, GIBBONS, J.:

In this opinion, we consider whether Carson City Municipal Code (CCMC) 8.04.050(1) is unconstitutionally overbroad and vague. Petitioner William Scott was arrested and convicted for violating CCMC 8.04.050, which makes it "unlawful for any person to hinder, obstruct, resist, delay, molest or threaten to hinder, obstruct, resist, delay or molest any ... member of the sheriff's office ... in the discharge of his official duties." We grant Scott's petition for a writ of certiorari and conclude that CCMC 8.04.050(1) is both unconstitutionally overbroad and vague on its face.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 4:15 a.m., a Carson City sheriff's deputy pulled over a vehicle for running a stop sign. The vehicle had three occupants. When questioning the driver, the deputy smelled alcohol coming from the vehicle. The deputy asked the driver if he would submit to a voluntary field sobriety test. Before the driver could answer, petitioner William Scott, who was a passenger in the vehicle, interrupted the deputy. The deputy continued to question the driver, and according to the deputy, Scott interrupted him a second time and told the driver not to do anything the deputy said. Scott allegedly went on to state "that his dad [was] a lawyer and he knows all about the law." After the second interruption, the deputy threatened Scott with arrest "for obstructing and delaying a peace officer" if he did not remain quiet.

After a third interruption, the deputy ordered Scott out of the vehicle. The deputy arrested Scott and called for backup. Scott cooperated during the arrest, A second deputy transported Scott to jail, and the first deputy resumed his DUI investigation of the driver.

The State charged Scott with obstructing a public officer in violation of CCMC 8.04.050. After a bench trial in Carson City Justice Court, Scott was convicted of obstructing a public officer in violation of CCMC 8.04.050.

Scott appealed his conviction to the district court. On appeal, Scott argued that CCMC 8.04.050(1) is unconstitutionally overbroad and vague because it restricts constitutional speech. The district court, however, affirmed the conviction, concluding that CCMC 8.04.050 is constitutional. Specifically, the district court concluded that the deputy did not arrest Scott for his speech, but rather for his conduct, i.e., the act of speaking in a way that interrupted the deputy's investigation. This petition for a writ of certiorari followed.

DISCUSSION

In this writ petition, Scott argues that CCMC 8.04.050(1) is both unconstitutionally overbroad and vague.¹ We review the constitutionality of a statute or ordinance de novo. Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009). The municipal code at issue, CCMC 8.04.050, states:

1. It is unlawful for any person to hinder, obstruct, resist, delay, molest or threaten to hinder, obstruct, resist, delay or molest any city officer or member of the sheriff's office or fire department of Carson City in the discharge of his official duties.

CCMC 8.04.050(1) is unconstitutionally overbroad

Scott argues that CCMC 8.04.050(1) is unconstitutionally overbroad because it criminalizes speech that is protected by the First Amendment of the United States Constitution. We agree.

"Whether or not a statute is overbroad depends upon the extent to which it lends itself to improper application to protected conduct." N. Nev. Co. v. Menicucci, 96 Nev. 533, 536, 611 P.2d 1068, 1069 (1980). Specifically, "[t]he overbreadth doctrine invalidates laws ... that infringe upon First Amendment rights." Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 297, 129 P.3d 682, 687 (2006). In other words, the overbreadth doctrine applies to statutes that have a seemingly legitimate purpose but are worded so broadly that they also apply to protected speech. See id. We have held that "[e]ven minor intrusions on First Amendment rights will trigger the overbreadth doctrine." Id. at 297–98, 129 P.3d at 688. At the same time, however, we have warned that "the overbreadth doctrine is strong medicine and that a statute should not be void unless it is substantially overbroad in relation to the statute's plainly legitimate sweep." Id. at 298, 129 P.3d at 688 (internal quotations omitted).

The United States Supreme Court considered whether laws similar to CCMC 8.04.050(1) were overbroad in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), and City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), and in doing so reached different results. In Colten, the defendant was arrested for violating Kentucky's disorderly conduct statute, which made it illegal for a person "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [t]o [c]ongregate[ ] with other persons in a public place and refuse[ ] to comply with a lawful order of the police to disperse." Id. at 108, 92 S.Ct. 1953 (emphasis added). Due in part to the statute's specific intent requirement, the Court affirmed the lower court's determination that the statute was not overbroad. Id. at 108–09, 111, 92 S.Ct. 1953.

In Hill, however, the Court determined that an ordinance similar to the statute in Colten was facially invalid. 482 U.S. at 467, 107 S.Ct. 2502. The ordinance made it "unlawful for any person to ... in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty." Id. at 461, 107 S.Ct. 2502 (internal quotation omitted).² Ultimately, the Court concluded that the challenged language was unconstitutionally overbroad for two reasons. First, the Court concluded that the ordinance did not deal "with core criminal conduct, but with speech." Id. at 460, 107 S.Ct. 2502. The Court reasoned that the challenged portion of the ordinance—making it unlawful to "oppose, molest, abuse or interrupt" an officer—dealt with speech because it prohibited "verbal interruptions of police officers." Id. at 461, 107 S.Ct. 2502 (internal quotation omitted).

Second, the Court concluded that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Id. The Court recognized, however, that the First Amendment does not protect "fighting words," or words "that by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 461–62, 107 S.Ct. 2502 (internal quotations omitted). Thus, the Court concluded that the ordinance was facially invalid because its application to speech was not limited to "fighting words." Instead, the ordinance criminalized all speech that interrupts a police officer. Id. at 462, 107 S.Ct. 2502. The Court reasoned that "[t]he Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id. at 462–63, 107 S.Ct. 2502. In sum, the Court found that the ordinance was unconstitutionally overbroad because it was "not narrowly tailored to prohibit only disorderly conduct or fighting words." Id. at 465, 107 S.Ct. 2502.

While the statute in Colten and the ordinance in Hill feature similar language, we conclude that CCMC 8.04.050(1) aligns more closely with the ordinance in Hill. Unlike the statute in Colten, which required specific intent, CCMC 8.04.050(1) does not contain a specific intent requirement.³ Like the ordinance in Hill, CCMC 8.04.050(1) prohibits any conduct that may "hinder, obstruct, resist, delay, [or] molest" a police officer, regardless of intent.⁴ Under CCMC 8.04.050(1), inadvertent, constitutionally protected speech or conduct is sufficient to trigger liability should it hinder or obstruct a police officer in any way. For example, if a sheriffs deputy is conducting an investigation in a public area and a passerby inadvertently obstructs the deputy's view of a suspect, the passerby could be arrested for hindering or delaying the deputy's investigation—despite lacking the intent to do so.

We conclude that CCMC 8.04.050(1) is unconstitutionally overbroad on its face for the same two reasons recognized in Hill. First, CCMC 8.04.050(1) applies to speech. The State argues that Scott was not arrested for his speech, but rather for his conduct, i.e., the act of speaking in a way that interrupted the deputy's investigation. We deem this narrow distinction unpersuasive under the facts. CCMC 8.04.050(1) makes it "unlawful for any person to hinder, obstruct, resist, delay, [or] molest" a police officer. Indeed, like the ordinance in Hill, CCMC 8.04.050(1) clearly affects speech because Scott was convicted under it for his "verbal interruptions" of the sheriffs deputy. Hill, 482 U.S. at 461, 107 S.Ct. 2502. Moreover, CCMC 8.04.050(1) makes it unlawful to even "threaten to hinder, obstruct, resist, delay or molest" a police officer. (Emphasis added.) Criminalizing mere threats further implicates speech as opposed to conduct.

Second, like in Hill, where the ordinance's application to speech was not limited to "fighting words," CCMC 8.04.050(1) prohibits all speech that "hinder [s], obstruct[s], resist[s], delay[s], [or] molest[s]" a police officer, Scott stated that "he knows all about...