Wurtz v. Risley

• Decision Date: 08 November 1983
• Docket Number: No. 82-3352,82-3352
• Citation: 719 F.2d 1438
• Parties: Larry WURTZ, Petitioner and Appellant, v. Henry RISLEY, Respondent and Appellee, The Attorney General of the State of Montana, Michael T. Greeley, Additional Respondent and Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1438

719 F.2d 1438

Larry WURTZ, Petitioner and Appellant, v. Henry RISLEY, Respondent and Appellee The Attorney General of the State of Montana, Michael T Greeley, Additional Respondent and Appellee.

No. 82-3352.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1982.

Decided Nov. 8, 1983.

James C. Bartlett, Kalispell, Mont., for petitioner and appellant.

Chris D. Tweeten, Asst. Atty. Gen., Helena, Mont., for respondents and appellees.

Appeal from the United States District Court for the District of Montana.

Before GOODWIN, PREGERSON and CANBY, Circuit Judges.

CANBY, Circuit Judge:

Wurtz was convicted in Montana state court of the offense of "intimidation." He sought habeas corpus relief in federal district court, alleging that the Montana intimidation statute is unconstitutionally overbroad. The district court denied his petition. We reverse.

FACTS

A woman was walking home from work in Kalispell, Montana. As she crossed an alley entrance, a car stopped in the alley behind her. Through an open window, the driver, defendant-appellant Larry Wurtz, belligerently demanded to know whether the woman would have sexual intercourse with him. The woman proceeded down the block. Wurtz drove into the street to keep pace with her and continued to make vulgar remarks. ¹ As she approached another alley, Wurtz pulled into the alley entrance across her path and said "I want to rape you," or "I am going to rape you." The woman told Wurtz to "get lost," and walked behind his car, noting his license number. Wurtz backed the car towards the woman and she became frightened. She ran down the block and hid between two houses until Wurtz drove away. She then went home and called the police.

Wurtz was charged with the felony of intimidation under Montana Code Annotated Sec. 45-5-203(1)(c) (1981). He was convicted and received the maximum sentence of ten years in prison. At trial and on appeal to the Supreme Court of Montana, Wurtz argued that M.C.A. 45-5-203(1)(c) is unconstitutionally overbroad. The Montana Supreme Court rejected his contention and affirmed his conviction. State v. Wurtz, 636 P.2d 246 (Mont.1981). The district court agreed that M.C.A. Sec. 45-5-203 is not unconstitutionally overbroad and denied Wurtz's petition for habeas corpus. Wurtz appeals.

FACIAL OVERBREADTH

Montana Code Annotated Sec. 45-5-203(1)(c) (1981) provides:

Intimidation: (1) A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:

* * *

(c) commit any criminal offense .... ²

The state's theory was that Wurtz threatened to commit the criminal offense of rape in order to cause the woman to engage in various sexual acts. The jury found that he had done so, and the Supreme Court of Montana held that the evidence supported the verdict, a ruling not under review here.

There is little question that the behavior of which Wurtz was convicted may be proscribed and punished under a narrowly drawn statute. The state admitted at an earlier stage in this litigation that Wurtz could have been prosecuted for misdemeanor assault. Wurtz does not contend otherwise. He argues, however, that section 203(1)(c) applies to such a wide range of communication that it prohibits expression protected by the first amendment. This unconstitutional overbreadth, he contends, renders the statute invalid on its face and incapable of supporting his prosecution.

There are several related requirements that Wurtz must meet in order to succeed in establishing the invalidity of section 203(1)(c) on its face. ³ First, he must show that the statute impinges upon first amendment expression. For the normal rule is that constitutional rights are personal, and a defendant whose conduct may constitutionally be punished is not permitted to defeat his prosecution on the ground that the governing statute might in other applications violate the rights of third persons. See, e.g., United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). The first amendment, however, "needs breathing space," Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973), and litigants "are permited 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." Id. at 612, 93 S.Ct. at 2916; see Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). If such an overbreadth challenge succeeds, the prosecution fails regardless of the nature of the defendant's own conduct. Coates v. Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971).

In Broadrick, however, the Supreme Court pointed out that application of the overbreadth doctrine to preclude all enforcement of a statute is "strong medicine," 413 U.S. at 613, 93 S.Ct. at 2916, and the Court accordingly delineated important limitations upon its use:

[F]acial overbreadth adjudication is an exception to our traditional rules of practice and ... 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.... 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.

Id. at 615, 93 S.Ct. at 2917-18. The central question in the present case is where section 203(1)(c) fits within the Broadrick formulation. At what point in the spectrum from regulation of pure speech to regulation of unprotected conduct does section 203(1)(c) fall? Is it substantially overbroad?

The Supreme Court of Montana, in addressing itself to these questions, concluded that the activities regulated by section 203(1)(c) were "almost exclusively 'conduct.' " State v. Wurtz, 636 P.2d 246, 250 (Mont.1981). With respect, we disagree. While subsection (c) itself refers only to commission of any criminal offense, the gravamen of the offense is the communication of a threat to commit any such offense in order to cause certain conduct. In construing a similar statute, Justice Linde, speaking for the Supreme Court of Oregon, stated:

The offense presupposes a "demand" by the defendant, which means a communication in words or otherwise; and as a practical matter, if not as a logical necessity, the legislature no doubt also assumed that the impelling fear will be instilled by speech or its equivalent. If the victim acts in fearful anticipation without any demand, the definition of coercion is not met. The demand, the fear-instilling communication of a specified consequence of noncompliance, and fear-induced compliance all ... are essential.... The challenge under article I, section 8 [of the Oregon Constitution, guaranteeing free speech] therefore cannot be dismissed by saying simply that the statute forbids an "act" rather than "speech." That distinction could be helpful if a law proscribed threatening gestures or other intimidating acts, or if it became necessary to differentiate between the communicative content and the noncommunicative means of proscribed expression. But speech often would be the offender's only act in committing this crime. Indeed, the statute leaves it immaterial whether an accused or another person had either the intent or the capacity to carry out the threatened consequences; a successful bluff seems to suffice.

State v. Robertson, 293 Or. 402, 416, 649 P.2d 569, 578 (1982).

Section 203(1)(c) is far more clearly directed at expression than the Oregon statute dealt with by Justice Linde. The operative act forbidden by section 203(1)(c) is communication, and the crime is complete as soon as the threat to commit a criminal act is communicated with the requisite intent. There is no link to action required; the threat need not succeed in inducing the victim to act or refrain from acting, as it was required to do under the Oregon statute. Nor must the threatened criminal act be carried out. The communication condemned by the statute is thus "in no way brigaded with action." See Speiser v. Randall, 357 U.S. 513, 536, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (1958) (Douglas, J., concurring). The thrust of the statute is thus toward pure speech and away from the regulation of conduct.

It is true that threats have traditionally been punishable without violation of the first amendment, but implicit in the nature of such punishable threats is a reasonable tendency to produce in the victim a fear that the threat will be carried out. See Landry v. Daley, 280 F.Supp. 938, 962 (N.D.Ill.1968) (three-judge court), rev'd on other grounds sub. nom. Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). Section 203(1)(c) is not so limited. It is possible by judicial construction to read an element of instilling fear into the term "threat," id., but the Supreme Court of Montana has imposed no such narrowing construction upon section 203(1)(c). "[A] statute ... which makes criminal a form of pure speech, must be interpreted with the commands of the ...