Opinion
Case No. 2:01CV447DAK
September 19, 2003
MEMORANDUM DECISION AND ORDER
This matter is before the court on Plaintiff's Motion for Judgment on the Pleadings Re: Affirmative Defenses and Plaintiff's Motion for Summary Judgment. The parties renewed these motions after the Tenth Circuit reversed This Court's prior ruling regarding standing. Plaintiff's motions were heard on Monday, December 17, 2001, and taken under advisement. Because the court originally ruled that it did not have standing, its ruling did not address Plaintiff's motions on the merits of the case. The parties did not request additional oral argument on remand. Therefore, based on the original briefing and arguments made on these motions as well as the law and facts relevant to Plaintiff's motions, the court renders the following Memorandum Decision and Order.
BACKGROUND
Plaintiff is an animal rights activist who regularly engages in public demonstrations and protests in the Salt Lake area. On November 14, 1999, plaintiff engaged in a public demonstration in Magna, Utah to protest the mistreatment of animals and the fur trade. As a result of his participation in that demonstration, on December 4, 2000, Plaintiff was charged with disorderly conduct under Utah Code Annotated Section 76-9-102, and that charge was elevated from a misdemeanor to a felony hate crime pursuant to Utah Code Annotated Section 76-3-203.3. The elevated criminal charge was based upon a claim that the demonstration was intimidating and that Plaintiff intended to discourage the subjects of the demonstration from continuing in their constitutionally protected right to pursue a livelihood.
The enhancement against Plaintiff was dismissed December 27, 2000, and the disorderly conduct charge was also subsequently dismissed. Plaintiff states that he plans to continue to engage in lawful First Amendment protected activities but claims that he is fearful that he will again be subject to a felony enhancement under Utah Code Annotated Section 76-3-203.3.
The two portions of the statute that are the basis for This action are subsections (2) and (3) of Utah Code Annotated Section 76-3-203.3. Subsection (2) increases the category of certain crimes to a third degree felony if the crime is committed "with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person." Utah Code Arm. § 76-3-203.3(2). Subsection (3) then defines "intimidate or terrorize" to mean "an act which causes the person to fear for his physical safety or damages the property of that person or another. The act must be accompanied with the intent to cause a person to fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States." Id. § 76-3-203.3(3).
Plaintiff's civil rights action seeks (1) declaratory relief as to the constitutionality of Utah Code Annotated Section 76-3-203.3; and (2) prospective injunctive relief preventing defendants and law enforcement officers from enforcing that statute. Plaintiff claims that Utah Code Annotated Section 76-3-203.3 prohibits free expression in violation of the First Amendment and the Utah Constitution, Article I, Section 15, and violates the due process protections guaranteed by the Fourteenth Amendment and the Utah Constitution, Article I, Section 7. Plaintiff also seeks attorneys fees and court costs pursuant to 42 U.S.C. § 1983, 1988.
DISCUSSION Plaintiff's Motion for Summary Judgment
Plaintiff argues that Utah Code Annotated Section 76-3-203.3 is unconstitutional on its face and as applied because it is overbroad and vague such that it chills free expression and violates due process. Plaintiff also argues that the statute is not a valid content-neutral time, place, and manner restriction on speech. A. Overbreadth
Plaintiff argues that the statute is overbroad because it allows for enforcement in situations outside the appropriate bounds because it refers to any act that was motivated by an intent to "intimidate or terrorize" a person from exercising or enjoying any right secured by the Constitution or laws of the state or United States. Plaintiff claims that while the intent of the legislature in passing This statute was to protect citizens civil rights, the statute was used in Plaintiff's underlying criminal case to punish him for engaging in free expression. Because of this alleged overbreadth, Plaintiff asserts that the statute would cause any person who demonstrates to hesitate or cease to exercise their right to demonstrate because any of the enumerated misdemeanor offenses were committed the person would be in danger of being charged with a felony.
In Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973), the Supreme Court determined that "particularly where conduct and not merely speech is involved, . . . 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. The Broadrick court explained the reason for requiring a "substantial" overbreadth as follows:
[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, without 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.Id.
Plaintiff attacks Utah Code Annotated Section 76-3-203.3 because, unlike other hate crime statutes, Utah's statute does not define the crimes motivated by hatred or discrimination and it does not include any classifications such as race, religion, or sexual orientation but refers generically to any and all legal rights. The State concedes that the statute is not discrimination based and targets the intent of the perpetrator rather than the status of the victim. However, the State argues that This focus does not lead to a problem with overbreadth. First, the statute is a penalty enhancement statute. Therefore, one must first commit an assault, destroy property, trespass, theft, etc. before an enhancement would be added and such conduct would not be protected activity. As such, while it may be conceivable that the statute could apply to some extraneous First Amendment situation, the statute is primarily directed at unprotected conduct.
The court agrees with the State that the statute is directed at unprotected conduct. The enumerated misdemeanor offenses that must occur before Section 76-3-203.3 can be applied are "otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful constitutionally unprotected conduct." Plaintiff argues that it is difficult to imagine a protest or demonstration that would not raise the specter of violation of the statute. However, that argument assumes that all protests and demonstrations must be conducted in such a way as to violate regular criminal laws for trespass, disorderly conduct, etc. This assumption is clearly erroneous. There is no substantial overbreadth given the penalty enhancement nature of the statue. Under the statute, not only must the person commit an underlying offense during the protest or demonstration, but he must commit that offense and commit an act which causes the victim to fear for his physical safety or which damages the property of that person or another. If the act that causes a person to fear for his physical safety is speech, that speech must be unprotected. Someone merely engaged in political speech denouncing the fur industry would not cause another to fear for their physical safety. Even if that speech was loud enough to cause a disorderly conduct violation, it must meet the additional requirements under Section 76-3-203.3 for that section to be applied. If and when speech causes someone to fear for their physical safety, as is required under Section 76-3-203.3, the speech has crossed the line into unprotected speech. Therefore, the court concludes that Section 76-3-203.3 is not unconstitutionally overbroad. Plaintiff's motion for summary judgment is denied on This ground.
B. Vagueness
Plaintiff argues that Section 76-3-203.3 is unconstitutionally vague because it fails to give notice as to what conduct is prohibited and against whom the statute may be used and because it allows law enforcement officers to arbitrarily enforce the law since it lacks enumerated classes and guidance as to how the law should be applied.
"The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Gaudreau, 860 F.2d 357, 360-61 (10th Cir. 1988) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). "The same facets of a statute usually raise concerns of both fair notice and adequate enforcement standards. Hence the analysis of these two concerns tends to overlap." Id. 1.) Fair Notice
As to the fair notice element, while a law does not have to be drafted with absolute precision, people of "common intelligence" should not have to guess at its meaning. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). "The degree of specificity which the Constitution demands depends on the nature of the statute. Criminal statutes must be more precise than civil statutes because the consequences of vagueness are more severe." Gaudreau, 860 F.2d at 361. "Further, a scienter requirement may mitigate a criminal law's vagueness by ensuring that it punishes only those who are aware their conduct is unlawful." Id.
Plaintiff attacks the statute because unlike other hate crimes statutes, Utah's statute does not enumerate any classes of victims. The State argues that rather than focus on the status of the victim, Section 76-3-203.3 focuses on the intent of the perpetrator. As such, the statute is like a longstanding federal criminal civil rights statute, 18 U.S.C. § 241-248 and a Massachusetts constitutional rights violation statute, M.G.L.A. 265, § 37, both of which have withstood challenges for being vague and overbroad. Defendants argue that just because the statute is not like most other hate crimes statutes does not make it unconstitutional.
In State v. J.W., 30 P.3d 1232 (Utah Ct.App. 2001), the Utah Court of Appeals recognized that the Section 76-3-203.3 should not be referred to as a hate crime statute but should be called the "Exercise of Rights Statute." The court stated:
The title of This statute indicates that the statute is meant to address hate crimes. However, we note that application of Utah's statute does not require that the perpetrator commit a primary offense against another by reason of that person's race, color, alienage, gender, religion, or other specifically enumerated factor. Consequently, the penalty for a primary offense may be enhanced under section 76-3-2.3.3 regardless of whether the defendant was motivated by hatred. Accordingly, we refer to section 76-3-203.3 as the Exercise of Rights Statute because it allws enhancement whenever one commits a primary offense with the "intent to cause a person to fear to freely exercise or enjoy any rights secured by the Constitution or laws of the state or by the Constitution or laws of the United States."Id. at 1232 n. 1 (citations omitted).
Massachusetts "violation of constitutional rights" statute provides:
No person . . . shall by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the commonwealth or by the constitution or laws of the United States.
M.G.L.A. 265, § 37. This statute withstood a vagueness challenge because it required the perpetrator to act willfully and thus contained a scienter element. Commonwealth v. Stephens, 515 N.E.2d 606 (Mass.App. 1987) (concluding Massachusetts' violation of constitutional rights statute was not unconstitutionally vague because it created specific intent crime).
Plaintiff argues that although a scienter requirement may mitigate a law's vagueness, such an element is not present in the challenged statute. Defendants argue that as with the similar federal and Massachusetts laws, Section 76-3-203.3 has no problem with vagueness because it creates a specific intent crime. See Screws v. United States, 325 U.S. 91 (1945) (concluding that federal civil rights statute was not unconstitutionally vague because statute's use of the term "willfully" created a specific intent crime); Stephens, 515 N.E.2d 606 (concluding Massachusetts' violation of constitutional rights statute was not unconstitutionally vague because use of the word "willfully" created specific intent crime).
Section 76-3-203.3 does not include the specific word "willfully" as is used in the federal statute and the Massachusetts statute. However, it states that the prohibited conduct must be done with the "intent to intimidate or terrorize another person." Utah Code Ann. § 76-3-203.3(2). The statute then defines "intimidate or terrorize" to mean "an act which causes the person to fear for his physical safety or damages the property of that person or another." Id. § 76-3-203.3(3). "The act must be accompanied with the intent to cause a person to fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States." Id.
The court concludes that This language is similar enough to the use of the term willfully to create a specific intent crime. The statute gives fair warning to someone of common intelligence what type of specific conduct is within the statute's prohibition. "One who does act with such specific intent is aware that what he does is precisely that which the statute forbids. He is under no necessity of guessing whether the statute applies to him." Screws, 325 U.S. at 104. A person of common intelligence is capable of understanding that one who commits one of the enumerated crimes — assault, destruction of property, criminal trespass or any other similarly enumerated crimes — and does it with the intent to intimidate or terrorize the victim into not exercising or enjoying legal rights is guilty of an enhanced crime. Therefore, the statute provides fair notice.
2.) Enforcement
As to the enforcement element, "[d]ue process requires that legislation state reasonably clear guidelines for law enforcement officials, juries, and courts to follow in discharging their responsibility of identifying and evaluating allegedly illegal conduct." Gaudreau, 860 F.2d at 364. "Criminal statutes that fail to provide minimal guidelines may permit `a standardless sweep [that] allows policemen, prosecutors and juries to pursue their personal predilections.'" Id. (quoting Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974))).
In Coates v. Cincinnati, 402 U.S. 611 (1971), the Supreme Court found a statute criminalizing "annoying" conduct to be impermissibly vague because whether a person's behavior is "annoying" depends entirely on the subjective judgment of another. Id. at 614. The Court said, "[t]he ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Id. Similarly, in Smith, the Court found a statute criminalizing contemptuous treatment of the flag to be impermissibly vague because the standard "depended on nothing more than the preference of the police, the court, and the jury for treatment of the flag." See Gaudreau, 860 F.2d at 364 (discussing Smith, 415 U.S. at 578).
In This case. Plaintiff argues that there is no guidance in the statute as to how it should be enforced and what constitutes illegal intimidation or terrorism aside from the arbitrary assessment made by the police or prosecutor. The statute defines "intimidate or terrorize" as "an act which causes the person to fear for his physical safety or damages the property of that person or another." Id. § 76-3-203.3(3). "The act must be accompanied with the intent to cause a person to fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States." Id. An act causing a person to fear in general may be subjective but an act causing another to fear for his physical safety or causing damages to property are both objectively verifiable elements that do not create a potential for abuse. In addition, the Screws court found that an intent to deprive a person of a right which has been made specific either by Constitutions, laws, or decisions interpreting them had sufficient definiteness to survive a vagueness challenge claiming that law enforcement officials and trial judges could not adequately know the range of rights that are constitutional. 325 U.S. at 104. Therefore, the statute is not unconstitutionally vague on enforcement grounds.
C. Time, Place, and Manner Restriction
Finally, Plaintiff argues that the statute is not a valid content-neutral time, place, and manner restriction on speech. Plaintiff claims the government has the burden of proving that the restriction: 1) is content neutral; 2) serves a significant governmental interest; 3) is narrowly tailored to serve that interest; and 4) leaves open ample alternative channels of communication. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Plaintiff argues that the application of the statute will always be based on content because it requires the officer or prosecutor to examine whether the actor was attempting to discourage or encourage the exercise of a legal right. Under the second prong, Plaintiff argues that the statute has the illegitimate purpose of trying to protect the exercise of legal rights by some while prohibiting the exercise of constitutional rights by others. Plaintiff asserts that the statute is not narrowly tailored to further the government's goal because it does not enumerate the classes of potential victims. Finally, Plaintiff argues that the statute does not leave open alternative means of communication for protestors who want to protest in front of a business.
However, the statute is not directed at speech. The statute requires an act committed in addition to an underlying offense. Obviously, the statute is not targeting speech when it requires an act causing property damage. Furthermore, to the extent that speech can cause someone to fear for their physical safety, such speech would be unprotected speech. As such, the statute does not apply unless the person is engaged in unprotected activity. The statute is, therefore, narrowly directed at unprotected activity and leaves open ample alternative channels of communication. Therefore, the court concludes that the statute does not impermissibly regulate speech.
CONCLUSION
For the reasons stated above, Plaintiff's Motion for Summary Judgment is DENIED and Motion for Judgment on the Pleadings Re: Affirmative Defenses is MOOT. Having disposed of all of Plaintiff s claims, This case is dismissed, each party to bear his and its own costs.