United States v. Lanning, No. 12-4547

Decided:  July 19, 2013

The Fourth Circuit reversed Defendant Joe Lanning’s (“Defendant”) conviction and remanded for a judgment of acquittal as a result of his involvement in a sting operation targeting gay men.  The Defendant was convicted for disorderly conduct under 36 C.F.R. § 2.34, which prohibits conduct considered “obscene,” “physically threatening or menacing,” or “likely to inflict injury or incite an immediate breach of the peace.”  The court held that the term “obscene” was unconstitutionally vague and determined that no rational finder of fact could find beyond a reasonable doubt that Defendant’s conduct was “physically threatening or menacing” or “likely to inflict injury or incite an immediate breach of the peace.”

The National Park Service and the U.S. Forest Service set up a joint operation that was designed to enable officers to identify and arrest men who were involved in sexual solicitation and activity with other men in the Sleep Gap Overlook area of the Blue Ridge Parkway in Buncombe County, North Carolina.  In November 2009, a thirty-three year old, two hundred pound park ranger participated in the operation as an undercover operation.  During the course of his duties, he came upon Defendant, a sixty-two year old retiree, on a nearby trail.  When the undercover officer walked past, Defendant grabbed his groin and continued walking.  A few moments later, after walking around the area, the undercover officer went looking for Defendant and found him standing by himself.  The undercover officer engaged Defendant in conversation for a few minutes then commented, “Asheville was ‘an open community,’ accepting of a homosexual lifestyle.”  Defendant then indicated he wanted to engage in sexual relations with the undercover officer.  The undercover officer indicated that he was wiling to participate.  Defendant then turned around and backed up to the undercover officer and “touched [the officer’s] fully-clothed crotch.”  The undercover officer characterized the touch as ‘a fairly firm grasp’ that lasted until the officer stated:  ‘Police officer, you’re under arrest.’  Defendant was subsequently charged with disorderly conduct in violation of 36 C.F.R. § 2.34(a)(2).  Defendant unsuccessfully moved to dismiss the case and the magistrate judge found him guilty of disorderly conduct, providing no specific reasons for the decision and was sentenced to 15 days’ imprisonment, a $1,000 fine, and a two-year ban on visiting government forests and parks.  Defendant appealed to the district court, which affirmed the conviction concluding that there was enough evidence that indicated Defendant’s “conduct was obscene and physically threatening and/or menacing.”  However, the district court vacated and remanded his sentence because the magistrate judge did not have the authority to ban Defendant from government parks.  The magistrate judge subsequently dropped the ban and reduced the fine to $500 upon which the district court affirmed.  Defendant appealed to the Fourth Circuit.

On appeal, the Fourth Circuit found that the “obscene” standard encapsulated in the regulation was unconstitutionally vague based on a common understanding of the word’s definition.  The court held that the Section 2.349a)(2) did not provide Defendant, nor would it provide any other person of ordinary intelligence, with “notice” that such conduct was obscene.  Moreover, the court held that the facts of the case illustrated “the real risk that the provision may be ‘arbitrarily and discriminatorily enforced.”  The court highlighted the fact that the sting operation “was aimed not generally at sexual activity in the Blue Ridge Parkway; rather, it specifically targeted gay men” and presented a “real threat of anti-gay discrimination.”  The court cautioned that its decision was limited to Defendant’s conduct at issue and did not mean that the statute was impermissibly vague per se.  The court also held that the regulation’s second element, whether Defendant’s conduct was “physically threatening or menacing” was not satisfied.  The court held that “no rational fact finder could conclude that a reasonable person would feel physically threatened or menaced by Defendant’s conduct,” under the facts presented.  Because neither prong could serve as a basis for Defendant’s conviction, the court turned to the final prong of the regulations second element:  “conduct ‘done in a manner that is likely to inflict injury or incite an immediate breach of peace.’”  Again, the court agreed with Defendant that the government had failed to provide enough evidence to support his conviction for disorderly conduct because no rational finder of fact would conclude that the undercover officer likely would have reacted violently to Defendant’s “fleeting touch.”

Full Opinion

– John G. Tamasitis

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