Law & Legal & Attorney Criminal Law & procedure


Scott Huminski v. City of Surprise, Arizona (not yet docketed in SCOTUS)
Bonita Springs, Florida & Washington D.C.

In a filing received by the U.S. Supreme Court, government is portrayed fervently defending a state criminal harassment statute that makes any speech contrary to the government's goals a crime under. AZ Rev. Stat. § 13-2921 (criminal harassment)

Speech that tends to "alarm, annoy or harass" anyone, including government officials and police, is a crime in Arizona. Silencing dissent is the hallmark of a police state.

Petition for Writ of Certiorari is at the end of this article.

No surprise that this statute exists in Arizona. Under the patently unconstitutionally vague and overbroad harassment statute, this Supreme Court litigation is a crime as is this article when read by a resident of Arizona, say âEUR¦ Sheriff Joe Arpaio. No doubt that the litigation and this article tends to "annoy" the Sheriff and like-minded residents of Arizona.

Legal Stuff,,,,

State harassment laws (or similar stalking laws) have been found to be unconstitutional especially when the exemption for constitutionally protected conduct is omitted from the statutory language. Thirty States, the District of Columbia and Guam have drafted laws that include an exemption for constitutionally protected conduct. Arizona and Connecticut stand out in sharp contrast to the collection of jurisdictions that have properly narrowly-tailored their laws.
The Supreme Court of Kansas found that state's stalking statute unconstitutionally vague because it used the terms "alarms," "annoys," and "harasses" without defining them or using an objective standard to measure the prohibited conduct. "In the absence of an objective standard, the terms... subject the defendant to the particular sensibilities of the individual... [C]onduct that annoys or alarms one person may not annoy or alarm another... [A] victim may be of such a state of mind that conduct that would never annoy, alarm, or harass a reasonable person would seriously annoy, alarm, or harass this victim." State v. Bryan, 259 Kan. 143, 910 P.2d 212 (1996). Kansas has since amended its statute, and the amended statute has been ruled constitutional. The court specifically found that the revised law included an objective standard, that is, the standard of a "reasonable person," and defined the key terms "course of conduct," "harassment," and "credible threat." State v. Rucker, 1999 Kan. LEXIS 410 (1999).
Similarly, the Texas Court of Criminal Appeals found that state's original antistalking law unconstitutionally vague. Although there were several factors in this ruling, the expansive nature of the prohibited conduct was a key point in the decision. That conduct included actions that would "annoy" or "alarm" the victim. The court observed that "the First Amendment does not permit the outlawing of conduct merely because the speaker intends to annoy the listener and a reasonable person would in fact be annoyed." Long v. State, 931 S.W.2d 285, 290 n. 4 (Tex. Crim. App. 1996). The Texas Legislature subsequently revised the law to correct the problem.
Massachusetts's stalking law was also declared unconstitutionally vague because it provided that a person could be guilty of stalking if that person repeatedly harassed the victim. "Harass" was defined as a pattern of conduct or series of acts. Thus, the court found that the statutory requirement of repeated harassment meant that a person "must engage repeatedly (certainly at least twice) in a pattern of conduct or series of acts over a period of time... One pattern or one series would not be enough." The court noted that the legislature presumably intended a single pattern of conduct or a single series of acts to constitute the crime but did not state this with sufficient clarity to meet the constitutional challenges. Commonwealth v. Kwiatkowski, 418 Mass. 543, 637 N.E.2d 854 (1994). The Commonwealth has since revised its stalking law to address the issue.
A statute may be overbroad in its reach if it prohibits constitutionally protected conduct. Grayned v. City of Rockford, 408 U.S. 104 (1972).
In general, a person to whom a statute may constitutionally be applied cannot challenge that statute on the basis that it may be applied unconstitutionally to others not before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). An exception has been made in the area of the First Amendment. Id. at 611. Litigants are permitted 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.
An overbroad statute implicates the First Amendment where it implicates constitutionally protected speech. In Reno v. ACLU, the United States Supreme Court struck down a federal statute which prohibited indecent and patently offensive communications on the internet, because those restrictions were content based and had a potential chilling effect on free speech. 521 U.S. 844, 871-872 (1997). The content of Huminski's legal filings is indeed quite annoying to law enforcement.
A criminal statute must be scrutinized with even more care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. State v. Carpenter, 736 S.W.2d 406 (Mo. banc 1987). "The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas and images." Reno, 521 U.S. at 872. See also, Cohen v. California, 403 U.S. 15 (1971) (California peace disturbance statute held overbroad; challenged by defendant who wore a jacket displaying "Fuck the Draft" in a courthouse corridor); and Coates v. City of Cincinnati, 402 U.S. 611 (1971) (ordinance prohibiting three or more people meeting on the sidewalks and conducting themselves in a manner annoying to people passing by was unconstitutionally overbroad).
While vagueness is a due process violation, it implicates First Amendment considerations as well. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The instant case is a "facial challenge" and "as-applied" challenge to the Arizona and Connecticut harassment statutes and the Vermont common law. "Although ordinarily a person who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others," that requirement is relaxed in the First Amendment context. United States v. Williams, 553 U.S. 285 (2008).
A statute which fails to clearly define proscribed conduct violates the Due Process Clause and is void for vagueness. Grayned, 408 U.S. at 108; State v. Allen, 905 S.W.2d 874, 876 (Mo. banc 1995). A statute is unconstitutionally vague if it fails to give "a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Allen, 905 S.W.2d at 877 (quoting United States v. Harriss, 347 U.S. 612, 617 (1954)). Secondly, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Grayned, 408 U.S. at 108. Third, where a vague statute abuts upon the sensitive area of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Id
An example relevant to the case at Bar concerns a statute that held was to be unconstitutional by the United States Supreme Court in Coates v. City of Cincinnati, 402 U.S. 611 (1971). There, the Court struck down a city ordinance making it a criminal offense for three or more persons to assemble on the sidewalks and conduct themselves "in a manner annoying to persons passing by." The ordinance was unconstitutionally vague because it subjected the exercise of the right of assembly to an unascertainable standard and left the standard of "annoyance" to "the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the
sensitivity of a hypothetical reasonable man." 402 U.S. at 613.
In People v. Norman, 703 P.2d 1261 (Colo. banc 1985), the Colorado Supreme Court struck down the state harassment statute because its critical language was impermissibly vague. The statute at issue provided that a person committed the crime of harassment if "with intent to harass, annoy, or alarm another person," that person "engages in conduct or repeatedly commits such acts that alarm or seriously annoy another person and that serve no legitimate purpose." 703 P.2d at 1266. The Court noted that it had held parts of the statute (dealing with repeated communications, see Point II.B. below), overbroad in Bolles v. People, 541 P.2d 80 (Colo. 1975). Norman, 703 P.2d at 1266.
The subsection at issue in Norman, prohibited conduct rather than communication. Id. at 1267. But the Court said:
In terms of due process analysis, however, this distinction is one which
makes no difference. âEUR¦ An actor, a clown, a writer or a speaker all might
be subject to criminal prosecution because their acts are perceived by some
official to annoy or alarm others. Protection from such unfettered
prosecutory discretion is the essence of the due process requirement that
offenses be legislatively defined with particular standards which ordinary
citizens who must conform their conduct thereto can understand.

Id. The Court concluded that the subsection violated due process. Id. See also, State v. Williams, 144 Wash. 2d 197 (2001) (Statute criminalizing threats to mental health was unconstitutionally vague, in violation of due process, in failing to provide meaningful definition of "mental health."); Langford v. City of Omaha, 755 F.Supp. 1460 (D. Neb. 1989) (Subsection of disorderly conduct ordinance prohibiting a person from purposefully or knowingly causing inconvenience, annoyance, or alarm to others by making unreasonable noise was void for vagueness; term "unreasonable" was too vague to give adequate notice of what conduct was prohibited, and to ensure against arbitrary enforcement of the ordinance.)
Most recently, in Scott v. State, 298 S.W.3d 264 (Tex. App. 2009), the Court of Appeals of Texas held two subsections of their harassment statute to be unconstitutionally vague on their face. At issue was the phrase "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another." 298 S.W.3d at 267. The Court held the statute violated due process requirements, because the statute did not indicate the requisite frequency of repeated communications. Id.
Generally, only where the statute's language reaches protected speech can a facial challenge be brought; otherwise the person must show that the statute is unconstitutionally vague as applied to him. Scott, 298 S.W.3d at 268. A person who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. Id. Courts have held that where a statute is void for vagueness and a violation of due process by failing to provide a person of ordinary intelligence of the proscribed conduct, it is
not necessary to reach the First Amendment question. State v. Young, 695 S.W.2d
882, 886 (Mo. banc 1995).
In Young, the Court held Section 57

Link to Supreme Court papers,

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