The court of appeals just upheld North Carolina’s cyberbullying statute over a First Amendment challenge. The result is especially noteworthy because it contrasts with a ruling last year in a similar case in New York. But the opinion does leave at least one important issue open. Continue reading
Tag Archives: vagueness
The Fourth Circuit recently rejected a vagueness challenge to the federal stalking statute. Because of the similarity between the federal statute and North Carolina’s stalking law, I thought the decision was worth mentioning here.
The federal stalking statute makes it a crime to “engage in a course of conduct that causes substantial emotional distress to [the victim] or places [the victim] in reasonable fear of the death of, or serious bodily injury to, [the victim or his or her spouse, intimate partner, or immediate family member]” with the intent to kill, injure, harass, intimidate, or cause fear or emotional distress to the victim. 18 U.S.C. § 2261A(2). (Because it defines a federal offense, the statute also includes the jurisdictional requirement that the defendant used a facility of interstate commerce such as the mail or a computer network to commit the crime.)
The North Carolina stalking statute makes it a crime to harass a victim repeatedly or to engage in a course of conduct with respect to a victim knowing that a reasonable person in the victim’s place would, as a result, fear for the safety of himself or herself, or his or her “immediate family or close personal associates” or would suffer emotional distress due to fear of death, injury, or continued harassment. G.S. 14-277.3A.
You can see that the statutes are pretty similar, and that they’re both pretty elastic. In other words, they can encompass a wide range of conduct. Supporters of such laws argue that such flexibility is necessary because stalking may take many forms. Critics of such laws argue that they are vague and overbroad.
That leads us to the Fourth Circuit’s recent case, United States v. Shrader, __ F.3d __ (4th Cir. April 4, 2012). The facts are awful. The defendant and a woman identified in the opinion as D.S. dated while the latter was in high school. The relationship ended, but the defendant harassed and threatened D.S., eventually killing D.S.’s mother and a friend, and wounding a neighbor, during an armed invasion of D.S.’s home. The defendant was imprisoned for his crimes, but was later released, and resumed his efforts to terrorize D.S. I’ll spare you the details, but his conduct involved threatening to kill D.S., telling her that he hoped one of her children would be killed, and attempting to contact her children. He was charged with, inter alia, stalking D.S. under the federal stalking statute. He was convicted and appealed, arguing in part that the stalking statute was unconstitutionally vague. The Fourth Circuit rejected his argument, stating that “a common sense reading of the statute adequately defines the prohibited conduct,” and noting that the defendant’s conduct went far beyond any possible gray area.
I’m not aware of an appellate decision addressing a vagueness challenge to the current North Carolina stalking statute. The predecessor to the current statute was upheld against a vagueness challenge in State v. Watson, 169 N.C. App. 331 (2005). A few minutes on Westlaw suggests that vagueness challenges to other states’ laws have generally met the same result. See, e.g., State v. Bernhardt, 338 S.W.3d 830 (Mo. Ct. App. E.D. 2011); State v. Stockwell, 770 N.W.2d 533 (Minn. Ct. App.2009); State v. Haines, 213 P.3d 602 (Wash. Ct. App. Div. 1 2009); People v. Stuart, 797 N.E.2d 28 (N.Y. 2003).
Can a municipality adopt an ordinance that criminalizes loitering for the purpose of drug activity? I’ve been asked that question several times, and in fact, a number of North Carolina municipalities have such ordinances. See, e.g., Charlotte Code of Ordinances § 15-23; Hickory Code of Ordinances § 29-22(d). The answer is generally yes, though such ordinances must be drafted very carefully.
Last week, the North Carolina Court of Appeals underscored the need for careful drafting when it decided State v. Mello. Gary Mello was charged with, inter alia, violating Winston-Salem Code of Ordinances § 38-29, which is captioned “[l]oitering for purpose of engaging in drug-related activity.” The court’s opinion doesn’t describe the facts underlying the charge, so I skimmed the parties’ briefs. Generally, it appears that Mello was parked on a street in a high-drug area of Winston-Salem, engaging in what appeared to be hand-to-hand drug transactions with pedestrians.
Mello moved to dismiss the charge, arguing that the ordinance was unconstitutional. The motion was denied by the trial judge, a jury convicted Mello, and he appealed. The court of appeals agreed with Mello, finding the ordinance overbroad and vague.
The ordinance reads as follows:
It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:
(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;
(2) Repeatedly stopping or attempting to stop motor vehicles;
(3) Repeatedly interfering with the free passage of other persons;
(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;
(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;
(6) Such person taking flight upon the approach or appearance of a police officer; or
(7) Such person being at a location frequented by persons who use, possess or sell drugs.
Mello’s indictment referred specifically to subsections (4) and (7) of the ordinance.
The court of appeals began its analysis by considering overbreadth, which is a First Amendment doctrine that invalidates regulations that prohibit a substantial amount of “protected” conduct, even if the regulations have some legitimate application. The court concluded that the Winston-Salem ordinance prohibits protected activity such as conducting a survey (which would violate (1) and/or (3)), handing out leaflets (which would violate (5)), and merely being present in an area where drug arrests have taken place (which would violate (7)).
Nor, according to the court, was the ordinance saved by the inclusion of the language, “under circumstances manifesting the purpose to engage in [a drug offense],” because under the ordinance, the listed circumstances by definition manifest the necessary intent. So here’s the first draftsmanship point: had the intent requirement said “the circumstances that may be considered in determining a person’s intent include the following” instead of “[s]uch circumstances are,” I suspect that the overbreadth analysis would have come out differently. Cf., e.g., State v. Evans, 73 N.C. App. 214 (1985) (upholding a loitering for prostitution ordinance that required the state to demonstrate that the defendant’s purpose was to violate the prostitution laws).
Next, the court considered whether the ordinance was void for vagueness. A law is unconstitutionally vague when citizens are left to guess and to speculate as to whether they are violating the law. The court concluded that subsection (4) of the ordinance is vague, because a citizen can’t be reasonably sure what conduct “raise[s] a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” Here’s the second draftsmanship point: the court was particularly critical of the inclusion of the term “reasonable suspicion” in the ordinance, insofar as it could be read to allow a defendant to be convicted on proof less than beyond a reasonable doubt. Absent that red flag, I’m not sure that the court would have ruled the same way; courts have long recognized that a person’s intent usually must be inferred from the circumstances, and that the relevant circumstances defy easy categorization.
Mello has received some national attention, and is a must read for lawyers and judges who regularly handle cases arising under this type of ordinance. Obviously, it should also catch the eye of municipal attorneys in jurisdictions that have, or may adopt, this type of ordinance. I should note, too, that we at the School of Government are happy to consult with jurisdictions that are considering adopting or revising ordinances like this.