United States v. Joe Lanning

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4547

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.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00047-MR-1)

Argued: January 31, 2013 Decided: July 19, 2013

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.

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.

2
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

3
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

4
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

1
Upon the district court’s request for a clarification,
Darling affirmed that “good to go” meant that he “gave
[Defendant] every reason to believe that [Darling] would have
been willing to have undertaken in the conduct that [Defendant]
proposed[,]” i.e., “anal intercourse.” J.A. 85-86.

5
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, 132 S.

Ct. 564 (2011). Further, Defendant and the government disagree

as to the meaning of Section 2.34(a)(2); that, we review de

6
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.

7
 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 (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 (emphasis

added, citations omitted).

Defendant implicitly recognizes that the Supreme Court

framed the Miller test with an eye to speech and expressive

8
conduct, as indeed he must, given the Supreme Court’s use of

words like “work” and “materials.” Id. at 23-24. 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 elements to be
‘sufficiently justified if . . . it furthers an
important or substantial governmental interest; if the
governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest.’
See California v. LaRue, 409 U.S. 109, 117—118, 93 S.
Ct. 390, 396—397, 34 L.Ed.2d 342 (1972).

Id. at 26 n.8 (emphasis added). This distinction makes sense,

given the Court’s focus on the “inherent dangers of undertaking

to regulate any form of expression”—i.e., First Amendment

concerns. Id. at 23 (emphasis added). Yet we can also easily

imagine dangers inherent in prohibiting government regulation of

9
public sexual conduct unless that conduct rises to the Miller

standard of “prurient” and “‘hard core,’” as Defendant suggests.

Id. at 24-27.

Undeterred, Defendant points to United States v. Mather,

902 F. Supp. 560 (E.D. Pa. 1995), to demonstrate that at least

one federal court has applied the Miller obscenity test to

public sexual conduct. Notably, Mather is an out-of-circuit

district court opinion of no precedential value here. Further,

the Mather court looked not simply to the federal disorderly

conduct regulation also in play here, but also to a Pennsylvania

obscenity statute. Id. at 562. And, as the Mather court noted,

the Pennsylvania statute’s language tracked the Miller test

almost verbatim:

Obviously derived from Miller, the Pennsylvania
statute defines “obscene” as:
Any material or performance, if:
(1) the average person applying contemporary community
standards would find that the subject matter taken as
a whole appeals to the prurient interest;
(2) the subject matter depicts or describes in a
patently offensive way, sexual conduct of a type
described in this section; and
(3) the subject matter, taken as a whole, lacks
serious literary, artistic, political, educational or
scientific value.

Id. at 563 n.8 (citation omitted). Yet Mather failed to engage

in any analysis whatsoever as to why the Miller test similarly

applies to Section 2.34(a)(2). Id.

10
 Moving away from Miller and back to the regulation itself,

the provision’s legislative history reveals that the rule’s

promulgator believed “[t]he harms that the regulation seeks to

avoid [to be] commonly understood.” 48 Fed. Reg. 30252, 30270

(June 30, 1983) (emphasis added). Similarly, in United States

v. Coutchavlis, the Ninth Circuit declared that “the regulation

contained only ‘common words,’ easily understandable by ‘people

of ordinary intelligence.’ The words of § 2.34 are not so

obscure that they require any special skill to interpret.” 260

F.3d 1149, 1155 (9th Cir. 2001) (citation omitted). 2

We regularly turn to the dictionary for the “ordinary,

contemporary, common meaning” of words undefined by statute, as

is the case with “obscene” here. United States v. Lehman, 225

F.3d 426, 428 (4th Cir. 2000) (quotation marks omitted). The

American Heritage Dictionary defines “obscene” as “[o]ffensive

to accepted standards of decency” and “[m]orally repulsive[.]”

Id. at 1216 (5th ed. 2011). The Oxford English Dictionary

defines “obscene” as “[o]ffensively or grossly indecent,

lewd[.]” Oxford English Dictionary Online,

2
Coutchavlis did not specifically address Section
2.34(a)(2)’s “obscene” prong. Rather, the Ninth Circuit
analyzed only Section 2.34(a)’s “physically threatening or
menacing” and “public alarm or nuisance” language. 260 F.3d
1149.

11
http://www.oed.com/view/Entry/129823?redirectedFrom=obscene

(last visited April 10, 2013).

The government argues that “the standard dictionary

definition” of obscene “appl[ies] in determining whether a

defendant is guilty of ‘disorderly conduct’” and, when doing so

here, “the evidence amply supports the magistrate judge’s

finding that Defendant’s conduct was obscene.” Appellee’s Br.

at 19. Defendant counters that if a dictionary definition of

obscene applies, then Section 2.34(a)(2) is “unconstitutionally

vague as applied.” Reply Br. at 15. Under the circumstances of

this case, we must agree with Defendant.

It is axiomatic that a law fails to meet the dictates of

the Due Process Clause “if it is so vague and standardless that

it leaves the public uncertain as to the conduct it prohibits .

. . .” City of Chicago v. Morales, 527 U.S. 41, 56 (1999)

(quotation marks omitted). “A statute can be impermissibly

vague for either of two independent reasons. First, if it fails

to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits. Second, if

it authorizes or even encourages arbitrary and discriminatory

enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). As

the Supreme Court has noted, “perhaps the most meaningful aspect

of the vagueness doctrine is not actual notice, but the other

principal element of the doctrine—the requirement that a

12
legislature establish minimal guidelines to govern law

enforcement.” Smith v. Goguen, 415 U.S. 566, 574 (1974).

Turning first to the notice issue, we agree with Defendant

that Section 2.34(a)(2) would not have provided him, or anyone

of ordinary intelligence, fair warning that the complained-of

conduct was obscene. The evidence, even when viewed in the

light most favorable to the government, shows that: Defendant

grabbed his own clothed groin once while walking; after being

engaged in a flirtatious conversation by an undercover ranger

who noted that “Asheville [was] an open community,” J.A. 54,

Defendant told the undercover ranger that “he wanted to be

F’ed[,]” id.; and, after the ranger accepted Defendant’s sexual

proposition, Defendant quickly walked backwards toward the

ranger and grabbed the ranger’s clothed crotch “fairly firm[ly]

. . . [v]ery briefly[,] [u]ntil [the ranger] could get the words

out: ‘Police officer, you’re under arrest.’” J.A. 56. Under

these circumstances, we cannot conclude that anyone “of ordinary

intelligence,” Hill, 530 U.S. at 732, would understand that such

conduct is “[m]orally repulsive,” The American Heritage

Dictionary at 1216, or “[o]ffensively or grossly indecent,

13
lewd[,]” Oxford English Dictionary Online, so as to be “obscene”

and thus proscribed by Section 2.34(a)(2). 3

Further, the facts of this case illustrate the real risk

that the provision may be “arbitrar[ily] and discriminator[ily]

enforce[d].” Hill, 530 U.S. at 732. The sting operation that

resulted in Defendant’s arrest was aimed not generally at sexual

activity in the Blue Ridge Parkway; rather, it specifically

targeted gay men. Perhaps not surprisingly, then, the all-male

undercover rangers arrested only men on the basis of disorderly

homosexual conduct.

The impetus for the sting operation: citizen complaints.

Darling testified that “the public was concerned” about “male on

3
Perhaps recognizing its weak hand, the government suggests
that “the magistrate judge could reasonably infer from
Defendant’s conduct that he, in fact, intended to have sexual
intercourse in the very location in which he backed into Ranger
Darling and grabbed Ranger Darling’s [clothed] genitals.”
Appellee’s Br. at 20 n.1 (emphasis added). Yet Defendant’s
conviction was for disorderly conduct—not disorderly thoughts or
desires. And it is undisputed that Defendant’s actual conduct
never went further than his backing up to Darling and very
briefly grabbing Darling’s clothed crotch. Moreover, even
Darling agreed that, “for all [he] knew, [Defendant] could have
very well intended for [the intercourse] to happen at
[Defendant’s] house.” J.A. 88. And such private sexual conduct
would, of course, have been perfectly legal. As the Supreme
Court pronounced a decade ago, “[l]iberty presumes an autonomy
of self that includes freedom of thought, belief, expression,
and certain intimate conduct” and “allows homosexual persons the
right to” engage in consensual intimate conduct in the privacy
of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).

14
male [sexual] activity in that area that was targeted.” 4 J.A.

46, 92. Darling testified that every single one of the citizen

complaints had been about homosexuals. Id.

It may be that gay men engage more frequently in sexual

activity in the Blue Ridge Parkway and therefore generate more

citizen complaints. Yet it is also entirely plausible that the

public in and around the Blue Ridge Parkway subjectively finds

homosexual conduct, even relatively innocuous conduct such as

that at issue here, particularly “morally repulsive,” The

American Heritage Dictionary 1216, and “grossly indecent,”

Oxford English Dictionary Online, and therefore complains. If

the public is, by contrast, not similarly troubled by a woman

propositioning her boyfriend for sex and then briefly touching

his clothed crotch, there would exist no citizen complaint and

no related sting, even for otherwise identical heterosexual

conduct. Simply enforcing the disorderly conduct regulation on

the basis of citizen complaints therefore presents a real threat

of anti-gay discrimination. See Hill, 530 U.S. at 732; cf.

Smith, 415 U.S. at 578 (“The language at issue is void for

4
One wonders why a sting operation was implemented in the
first place. If instead the rangers had, for example, hidden
themselves, monitored the area, and arrested individuals who
engaged in public sexual conduct, many of the questionable
aspects of this case, from the discriminatory targeting to the
alleged inchoate conduct the government attempts to inject into
this matter, see supra note 3, would almost surely fall away.

15
vagueness as applied to Goguen because it subjected him to

criminal liability under a standard so indefinite that police,

court, and jury were free to react to nothing more than their

own preferences . . . .”).

To be sure, in concluding that Section 2.34(a)(2)’s

“obscene” is unconstitutionally vague as applied to Defendant,

we do not mean to suggest that the statute is impermissibly

vague per se. As the Supreme Court has recognized, “there are

statutes that by their terms or as authoritatively construed

apply without question to certain activities, but whose

application to other behavior is uncertain.” Smith, 415 U.S. at

577-78.

Section 2.34(a)(2) may be just such a law. For example,

while we take issue with the Mather court’s analysis, as

discussed above, we have no doubt that the court correctly held

that the conduct at issue there—i.e., two individuals with their

pants down, masturbating in front of one another and engaging in

fellatio in a national park—was obscene and disorderly under

Section 2.34(a)(2). 902 F. Supp. 560. Unquestionably, it was;

and were that conduct before us, this would surely be a

radically different opinion.

The conduct at issue here, however, is of a qualitatively

different, significantly more benign nature. We do not believe

that a reasonable defendant would know that by engaging in such

16
conduct under the circumstances of this case, he would be

subjecting himself to criminal liability. That, coupled with

our serious concern regarding discriminatory enforcement, leads

us to conclude that Section 2.34(a)(2) is unconstitutionally

vague as applied and that the “obscene” prong of the regulation

therefore cannot serve as a basis for Defendant’s conviction. 5

5
We acknowledge that this Circuit upheld a conviction for
similar conduct in United States v. Glenn, 562 F.2d 324 (4th
Cir. 1977). Notably, however, that case concerned a different,
repealed, regulation—36 C.F.R. § 50.26(f)—which barred “obscene
or indecent act[s.]” Further, the defendant in Glenn had his
conviction upheld specifically on the basis of the term
“indecent,” which the Supreme Court has made plain is a more
innocuous concept than “obscene.” Cf., e.g., Sable Commc’ns of
Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). Glenn therefore
neither controls nor illuminates the meaning or application of
“obscene” here.

We also acknowledge the dissenting opinion’s assertion that
we fail to “accord[] the level of deference to the magistrate
judge’s findings of fact required by our standard of review.”
Post at 27. But that assertion misses the mark as to the
regulation’s obscenity prong, because even where a rational
trier of fact could find facts sufficient to support a
conviction, a statute can still be unconstitutional because it
“authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill, 530 U.S. at 732. Indeed, the sufficiency
of the evidence seems irrelevant to such a constitutional
analysis. See, e.g., Smith, 415 U.S. 566, 575 (striking as
unconstitutional a statute criminalizing contemptuous treatment
of the flag where the defendant was convicted by a jury for
wearing a flag on the seat of his jeans, noting that the statute
“allows policemen, prosecutors, and juries to pursue their
personal predilections[,]” and nowhere factoring into that
analysis whether or not a rational trier of fact could have
found facts sufficient to support a conviction).

17
 B.

Turning to the next prong of the regulation’s second

element, we analyze whether Defendant’s conduct was “physically

threatening or menacing.” 36 C.F.R. § 2.34(a)(2).

Even the government concedes that an objective reasonable

person standard applies to this inquiry. See Coates v. City of

Cincinnati, 402 U.S. 611, 614 (1971); United States v. Shrader,

675 F.3d 300, 311 (4th Cir.), cert. denied, 133 S. Ct. 757

(2012), reh’g denied, 133 S. Ct. 1320 (2013) (noting that

statutes have been “disapproved” where they “merely set out the

subjective effects of conduct and imposed penalties for causing

that injury” and citing Coates). Stated differently, a fact

finder must focus not on whether a particular victim

subjectively felt physically threatened or menaced, but instead

must ask whether a reasonable person objectively would have felt

so under the circumstances of the case.

Under the regulation’s plain language, a defendant engages

in disorderly conduct when he “engages in a display or act that

is . . . physically threatening or menacing . . . .” 36 C.F.R.

§ 2.34(a)(2). Again, the rule’s promulgator believed “[t]he

harms that the regulation seeks to avoid [to be] commonly

understood[.]” 48 Fed. Reg. at 30270. And the Ninth Circuit

agreed that “the regulation contained only ‘common words,’

18
easily understandable by ‘people of ordinary intelligence.’”

Coutchavlis, 260 F.3d at 1155.

The American Heritage Dictionary defines “physical” as

“[o]f or relating to the body.” Id. at 1331. It defines

“threaten” as “express[ing] a threat against or giv[ing]

indications of taking hostile action against[.]” Id. at 1813.

It defines “menacing” as “constitut[ing] a threat to;

endanger[ing.]” Id. at 1098. And the dictionary is an

appropriate aid to understanding the “ordinary, contemporary,

common meaning” of words undefined by statute. Lehman, 225 F.3d

at 428.

Moving on to the facts of this case, Darling, a fit,

thirty-three-year-old, two-hundred-pound ranger, approached

Defendant, a sixty-two-year-old retiree, and initiated

flirtatious conversation. Defendant then told Darling that he

“wanted to be F’ed,” to which Darling expressly consented. J.A.

54. Only after Darling agreed to Defendant’s sexual proposition

and “gave [Defendant] every reason to believe that” Darling was

“good to go,” J.A. 85, did Defendant quickly back up to Darling

and very briefly touch Darling’s clothed crotch, whereupon

Darling arrested him. And although Darling testified that

Defendant’s touch was “firm,” the government presented no

19
evidence that Darling experienced any pain or suffered any

injury as a consequence. 6

Darling testified that he felt “shocked” and “caught . . .

off guard” by Defendant’s touch. J.A. 57. But the disorderly

conduct regulation requires “physically threatening or menacing”

conduct, not merely surprising conduct. 36 C.F.R. § 2.34(a)(2).

And even if surprise were sufficient to trigger the regulation

(it is not), and even if Darling’s subjective reaction were

relevant to our inquiry (it is not), it defies logic that

Darling was shocked by Defendant’s touch when it was, in fact,

precisely what Darling had been “string[ing Defendant] along” to

do—“to cross a certain line.” J.A. 84-85.

Facts matter. Had Defendant and Darling engaged in

flirtatious conversation that did not involve an agreement to

have sex, a reasonable person might well have felt physically

threatened or menaced by Defendant’s “[v]ery briefly” touching

Darling’s clothed crotch. Likewise, had Defendant pinned

Darling down and attempted to remove Darling’s clothing, a

reasonable person, even one who had consented to sex, might well

6
If Defendant had pained or injured Darling, Defendant may
well have been charged with, for example, assault, and not
simply disorderly conduct.

20
have felt physically threatened or menaced by that conduct. 7 But

given the totality of the circumstances actually before us, even

when viewing the evidence in the light most favorable to the

government, no rational fact finder could conclude that a

reasonable person would feel physically threatened or menaced by

Defendant’s conduct. See Penniegraft, 641 F.3d at 571.

C.

Because neither Section 2.34(a)(2)’s “obscene” prong nor

its “physically threatening or menacing” prong can serve as a

basis for Defendant’s conviction, we turn to the third and final

prong of the regulation’s second element: conduct “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). Defendant argues

that the government failed to introduce sufficient evidence to

support his conviction for disorderly conduct “done in a manner

7
Defendant argued that “the person to whom [sexual]
advances are directed would have to do something to convey a
lack of consent” and that “it is implied consent unless they do
something to convey to the other person that they are no longer
consenting.” Oral Argument at 2:40, available at
http://www.ca4.uscourts.gov/OAaudiotop.htm. We find this
position troubling and note that initiation of sexual activity
does not deprive a person of the right to withdraw consent.
See, e.g., In re John Z., 60 P.3d 183, 184 (Cal. 2003) (deeming
intercourse after withdrawal of consent rape). Nevertheless,
this is not a case implicating withdrawal of consent. Rather,
this matter arises out of a sting operation, the whole point of
which was to “get [Defendant] . . . to cross a certain line.”
J.A. 84-85. And “to get [Defendant] where [he] need[ed] to get
him, [Darling] ha[d] to string him along.” J.A. 85.

21
that is likely to inflict injury or incite an immediate breach

of the peace.” We agree.

The promulgating agency, in discussing these “commonly

understood” terms, described the conduct covered by this prong

as “actions that . . . constitute ‘fighting words’—those that

result in a ‘clear and present danger’ of violence or physical

harm.” 48 Fed. Reg. at 30270. In United States v. Poocha, the

Ninth Circuit noted that the regulation’s language “closely

tracks . . . Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62

S. Ct. 766, 86 L.Ed. 1031 (1942), in which the Court described

the type of language that may be legally proscribed by the

government—specifically classes of speech ‘which by their very

utterance inflict injury or tend to incite an immediate breach

of the peace.’” 259 F.3d 1077, 1080 (9th Cir. 2001) (citing

with approval United States v. Chung Lee, 1991 WL 193422, at *2

(E.D. Pa. Sept. 20, 1991), and noting that the Lee court stated:

“The statute is designed to prohibit speech that incites

violence, or ‘presents a clear and present danger’. . . . This

statute covers what are known as ‘fighting words’ and

‘incitement to riot.’”).

Applying the law to the circumstances of this case, even

when viewing the evidence in the light most favorable to the

government, we fail to see how any rational finder of fact could

deem Defendant’s conduct “fighting words,” 48 Fed. Reg. at

22
30270, or anything else “likely,” 36 C.F.R. § 2.34(a)(2)

(emphasis added), to result in a “‘clear and present danger’ of

violence” or “riot.” Poocha, 259 F.3d at 1080. To reiterate,

Darling approached Defendant and initiated flirtatious

conversation. Defendant then told Darling that he “wanted to be

F’ed,” to which Darling expressly consented. J.A. 54. Only

after Darling agreed to Defendant’s proposition did Defendant

back up to Darling and briefly touch Darling’s clothed crotch,

whereupon Darling arrested him.

Indeed, Darling had just agreed to have sex with Defendant

and given Defendant “every reason to believe that” Darling was

“good to go.” J.A. 85. No rational trier of fact could thus

conclude that Darling himself likely would react violently to

Defendant’s fleeting touch. Further, if one were to take

Darling’s real identity, i.e., that of an undercover ranger,

into account, the government’s burden would be even greater,

“‘because a properly trained officer may reasonably be expected

to exercise a higher degree of restraint than the average

citizen, and thus be less likely to respond belligerently to

‘fighting words.’” Poocha, 259 F.3d at 1081. And as to the

broader public, were anyone else to have witnessed the conduct

at issue here—and there is no evidence to that effect—they may

well have had no idea what had transpired, given the fact that

the encounter was, in Darling’s own words, “[v]ery brief[,]” and

23
that Darling himself “wasn’t sure what was happening.” J.A. 56.

Even if other park visitors had witnessed the incident and

recognized it for what it was, we fail to see how a rational

fact finder could decide that the “[v]ery brief” touching over

clothes at issue here would likely cause those visitors to react

violently or to riot.

D.

Before concluding, we point to a recent Sixth Circuit

decision, Alman v. Reed, which we find insightful, even if

distinguishable. 703 F.3d 887 (6th Cir. 2013). In Alman, law

enforcement arrested a gay man during an undercover sting at a

Michigan park. Id. at 891. The Alman sting, too, resulted from

complaints of sexual activity in the park. Id. at 892. There

as here, an undercover officer approached Alman and initiated

conversation. Id. While the two men engaged in apparently

flirtatious conversation, unlike in this case, the undercover

officer never expressly agreed to engage in anal intercourse, or

anything else for that matter. Nevertheless, “Alman leaned

forward and reached out and touched the zipper area on the front

of [the undercover officer’s] crotch.” Id. at 893. The

undercover officer backed away and soon thereafter “pulled out

his badge and told Alman that he was under arrest.” Id. Alman

was charged with being a disorderly person, battery, soliciting

24
and accosting, and criminal sexual conduct in the fourth degree.

Id. at 894. Ultimately, all of the charges were dismissed. 8

Alman (along with his partner and a gay rights

organization) brought a Section 1983 suit alleging that law

enforcement violated his constitutional rights. Id. at 895.

The district court dismissed the case, but the Sixth Circuit

resuscitated it, expressly holding that law enforcement, as a

matter of law, lacked probable cause as to each offense with

which Alman had been charged. Id. at 900. The Sixth Circuit

held that “there is nothing in the record describing

circumstances that would be sufficient to create a reasonable

fear of dangerous consequences.” Id. at 897. The Court

expressly refused to make “assumptions about Alman’s intentions

that the record does not substantiate” and noted that “a

reasonable officer would have needed more evidence of Alman’s

intentions before concluding that he was inviting [the

undercover officer] to do a public lewd act.” Id. at 899

(quotation marks omitted). Under the circumstances, the Sixth

8
Interestingly, the pertinent county prosecutor had an
official policy that “‘[a]n unsolicited sexual act or exposure
to a member of the public or an undercover police officer will
bring a misdemeanor charge of indecent exposure pursuant to MCL
750.335a or disorderly person-obscene conduct pursuant to MCL
750.167(f). Charges will not be pursued by this office if the
officer’s conduct was designed to make the individual believe
the act was invited or consensual.’” Id. at 894.

25
Circuit concluded that “no reasonable officer” would have

thought that Alman committed, or was about to commit, any of the

crimes with which he was charged. Id. at 899-900.

III.

Under the circumstances of this case, no rational fact

finder could have concluded beyond a reasonable doubt that

Defendant engaged in conduct that was physically threatening or

menacing or likely to inflict injury or incite an immediate

breach of the peace. See 36 C.F.R. § 2.34(a)(2). Further,

applying a common definition of “obscene” to this case renders

Section 2.34(a)(2)’s obscenity prong unconstitutionally vague as

applied to Defendant. We therefore reverse Defendant’s

conviction and remand this matter for entry of a judgment of

acquittal. 9

REVERSED AND REMANDED

9
Defendant made additional, alternative arguments as to why
his conviction should be overturned. Because the arguments
addressed already result in reversal, we need not, and therefore
do not, engage those alternative arguments.

26
DUNCAN, Circuit Judge, dissenting:

I respect the thoughtfulness of the majority opinion and

share its distaste for Officer Darling’s conduct. I also

appreciate the narrowness of its focus and its careful tethering

to the specific facts before us. However, the concern that

prompts my brief dissent is that I am unable to agree that the

majority opinion accords the level of deference to the

magistrate judge’s findings of fact required by our standard of

review. I believe that a rational trier of fact could have

found a physical touching such as this implying an immediate

intent to engage in sexual activity in public both obscene and

physically threatening or menacing within the meaning of 36

C.F.R. § 2.34(a)(2).

27