United States v. Lanning

• Decision Date: 19 July 2013
• Docket Number: No. 12–4547.,12–4547.
• Citation: 723 F.3d 476
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

723 F.3d 476

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.

No. 12–4547.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 31, 2013.

Decided: July 19, 2013.

Unconstitutional as Applied

36 C.F.R. § 2.34(a)(2)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.

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.

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 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 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 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,––– U.S. ––––, 132 S.Ct. 564, 181 L.Ed.2d 407 (2011). Further, Defendant and the government disagree as to the meaning of Section 2.34(a)(2); that, we review de 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.

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, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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, 93 S.Ct. 2607 (emphasis added, citations omitted).

Defendant implicitly recognizes that the Supreme Court framed the Miller test with an eye to speech and expressive conduct, as indeed he must, given the Supreme Court's use of words like “work” and “materials.” Id. at 23–24, 93 S.Ct. 2607. 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 elementsto...