DORMAN v. SATTI
862 F.2d 432 (2d Cir. 1988)
Before OAKES, MINER and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:
In 1985, the Connecticut legislature enacted, as part of the state's penal code, the Hunter Harassment Act which provides as follows:
No person shall: (1) Interfere with the lawful taking of wildlife by another person, or acts in preparation for such taking, with intent to prevent such taking; or (2) harass another person who is engaged in the lawful taking of wildlife or acts in preparation for such taking. Conn.Gen.Stat. section 53a-183a (emphasis added).
The Act, a class C misdemeanor, subjects the offender to a fine and/or imprisonment for up to three months. Id. ss 53a-28; 53a-36(3).
On this appeal from the United States District Court for the District of Connecticut (Nevas, J.), we are asked to decide 1) as a preliminary matter, whether we should certify the statutory terms "interfere," "harass," and "acts in preparation" to the Connecticut Supreme Court for definitive interpretation under state law, and 2) assuming instead that we reach the merits, whether the district court properly determined that the Act, on its face, is unconstitutionally vague and overbroad under the freedom of speech clause of the first amendment. For the reasons that follow, we deny defendants-appellants' motion to certify questions of state law to the Connecticut Supreme Court and affirm the judgment of the district court granting plaintiff-appellee's motion for summary judgment declaring the Act unconstitutional on its face.
On January 30, 1986, plaintiff-appellee Francelle Dorman, a resident of Niantic, Connecticut, was arrested during the goosehunting season for speaking to several hunters on state forest property located near her home. The adjoining state lands contain marshland inhabited by a variety of waterfowl. Plaintiff is morally opposed to the hunting and killing of animals, and consequently on the day of her arrest, she approached several hunters in the marsh and attempted to dissuade them from their plans to hunt the waterfowl. By her own admission, Dorman "walked with the hunters ..., [and] spoke to them about the violence and cruelty of hunting, of the beauty of the waterfowl and [of] their right to live peacefully and without harm." The hunters regarded her behavior as "antics," advised plaintiff that her actions were unlawful, and when she refused to leave, summoned a state law enforcement officer who arrested her for violating the Hunter Harassment Act, Conn.Gen.Stat. section 53a- 183a (the "Act").
Following her arrest, the state prosecutor requested that the court dismiss the criminal charges, apparently conceding that the arrest of Dorman had been premature since she had only been "talking about what she was going to do to interfere with hunting geese." On April 22, 1986, the court granted the state's request and dismissed the criminal charges.
Four months later, Dorman filed the instant action in the district court under 42 U.S.C. section 1983 against defendants-appellants C. Robert Satti, chief prosecutor, and Lester J. Forst, the Commissioner of Public Safety. Plaintiff alleged, inter alia, that the actual arrest and the threat of future enforcement of the Act violated her rights under the first and fourteenth amendments, and she sought a judgment declaring the Act facially invalid and injunctive relief prohibiting the Act's enforcement. On cross-motions for summary judgment, the district court granted plaintiff's motion, holding as a matter of law that the Act, as written, is unconstitutionally vague and overbroad. Dorman v. Satti, 678 F.Supp. 375 (D.Conn.1988). In May 1988, defendants filed a timely notice of appeal on the merits as well as a motion in this court under Second Circuit rule section 0.27 seeking certification to the Connecticut Supreme Court of the statutory terms "interfere," "harass," and "acts in preparation."
[court discusses whether the issue should be certified to the Connecticut Supreme Court; the court deny defendants' motion to certify questions of state law to the Connecticut Supreme Court.]
II. The Merits.
When considering a facial challenge to the overbreadth and vagueness of a statute as measured against the first amendment, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). An act's overbreadth "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918. The purported vagueness must be such that the statute is incapable of "giv[ing] the person of ordinary intelligence a reasonable opportunity to know what is prohibited" by failing to provide "explicit standards" ensuring that it is not arbitrarily enforced. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Defendants argue that the statutory terms the district court found overbroad and vague "can and should be read in a manner consistent with the First Amendment." Appellants' Brief at 4. Plaintiff contends that because the Hunter Harassment Act does not define what constitutes interference or harassment and because the "acts in preparation" clause is not limited to any time, place or circumstance, the Act on its face impermissibly regulates protected free speech.
Plaintiff's facial attack on the constitutionality of the Act must be considered in light of the scope of the challenged government regulation. The Supreme Court has determined that statutory language prohibiting acts such as interference or harassment encompasses verbal as well as physical conduct. Houston v. Hill, 107 S.Ct. at 2511-12. Like the city ordinance struck down in Hill, the statute at issue here "deals not with core criminal conduct, but with speech." Id. at 2508. Consequently, the right of the government to prohibit such communicative expression is circumscribed by the first amendment. See Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). "For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. (citations omitted).
Although the Act would appear by its terms to be content-neutral, cf. Boos v. Barry, 108 S.Ct. at 1162-64 (District of Columbia statute that prohibits display of picket signs critical of foreign government within 500 feet of that country's embassy is a content-based restriction), it clearly is designed to protect hunters from conduct--whether verbal or otherwise--by those opposed to hunting. See 678 F.Supp. at 377 & n. 2; cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 68-48, 106 S.Ct. 925, 928-929, 89 L.Ed.2d 29 (1986) (content-neutral statute is one not aimed principally at suppression of speech on the basis of its content). Of course, to the extent that the Hunter Harassment Act can be considered content-based, it cannot withstand strict scrutiny. There is no showing that protecting hunters from harassment constitutes a compelling state interest. Cf. Boos, 108 S.Ct. at 1164 (first amendment protects "insulting, and even outrageous, speech in order to provide 'adequate "breathing space" ' " for exercise of right of free expression) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963)). Nor is the statute narrowly drawn to serve any putative compelling state interest. Indeed, the Act "criminalizes a substantial amount of constitutionally protected speech." Houston v. Hill, 107 S.Ct. at 2512.
Taking the statutory terms "interfere," "harass," and "acts in preparation" at face value, even as content-neutral restrictions they cannot be justified as reasonable time, place or manner regulations of speech. See Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2500-01, 101 L.Ed.2d 420 (1988); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); Cox v. New Hampshire, 312 U.S. 569, 575-76, 61 S.Ct. 762, 765-66, 85 L.Ed. 1049 (1941). An "act[ ] in preparation" is nowhere defined in the statute, and thus the Act reaches a wide range of activities confined to no particular time, place or manner. Cf. State v. Williams, 534 A.2d at 238 (upholding state statute proscribing interference with police officer in the performance of his duties ). As the district court recognized, the "acts in preparation" clause can be reasonably read to encompass buying supplies long before the actual hunt takes place ...; consulting a road map ...; making plans during a workplace coffee break; or even getting a good night's sleep before embarking on a hunting trip. 678 F.Supp. at 383. Accordingly, the Hunter Harassment Act is not the type of properly tailored statute, Houston v. Hill, 107 S.Ct. at 2511, that can be interpreted narrowly to avoid constitutional infirmity. Cf. Frisby, 108 S.Ct. at 2501.
Because we agree with Judge Nevas that Connecticut's Hunter Harassment Act is not subject to curative construction and as written is substantially overbroad and vague, defendants' motion to certify questions of state law to the Connecticut Supreme Court is denied, and the judgment of the district court declaring the Act unconstitutional on its face is affirmed.
MINER, Circuit Judge, dissenting:
Because I believe that we should, if possible, have the benefit of the Connecticut Supreme Court's construction of the statute at issue before we pass on the merits of plaintiff's claim that the legislation does not measure up to federal constitutional requirements, I respectfully dissent.
The Hunter Harassment Act, duly enacted by the legislature and approved by the Governor of the State of Connecticut, prohibits interference with and harassment of those engaged in lawfully taking, or preparing to take, wildlife. The majority concludes that the words "interfere," "harass," and "acts in preparation" contained in the Act are not readily susceptible to the limiting construction necessary to preserve the constitutionality of the statute. I think that this determination is unwarranted.
The word "interfere" in a statute imposing a criminal penalty for interfering with a police officer easily yielded to an interpretation by the Connecticut Supreme Court that preserved the constitutionality of the statute. State v. Williams, 205 Conn. 456, 534 A.2d 230 (1987). The court in Williams confined the prohibited conduct "to meddling in or hampering the activities of the police in the performance of their duties." 534 A.2d at 238. A similar interpretation of the Hunter Harassment Act, substituting hunting activities for police duties, could save the Act from overbreadth and vagueness concerns. I cannot agree with the district court that the Act sweeps as broadly as the ordinance struck down in Houston v. Hill, 107 S.Ct. 2502 (1987). The prohibition on interrupting a police officer in any manner in the Houston ordinance left no room for any construction that would have saved the ordinance without rewriting it.
Similarly, "harassment" has been afforded a restrictive definition under Connecticut law. A statute prohibiting harassment by written and telephonic communications requires evidence of an intention to annoy or alarm another person. Conn.Gen.Stat. section 53a-183 (1987). New York has a similar statute, which is entitled "Aggravated harassment." N.Y.Penal Law section 240.30 (McKinney Supp.1988). Indeed, the offense of harassment is described by reference to specific conduct in various penal codes. See, e.g., N.Y.Penal Law section 240.25(1)-(5) (McKinney 1980); see also id. Practice Commentary following (referring to American Law Institute's Model Penal Code). There is therefore no reason why the Connecticut Supreme Court could not define harassment in the context of the Hunter Harassment Act without impinging on first amendment rights. As to the term "acts in preparation," a narrowing construction might restrict the preparatory acts to those directly, unequivocally and immediately related to the act of taking wildlife. Here again, a construction considerate of first amendment rights could save the statute. Moreover, the Hunter Harassment Act is subject to pruning by the Connecticut Supreme Court of any parts found to be contrary to law. The Connecticut severability statute allows for the excision of invalid portions of the Act without effect on the valid remainder. Conn.Gen.Stat. section 1-3 (1987); State v. Golino, 201 Conn. 435, 518 A.2d 57 (1986).
In Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976), the United States Supreme Court directed certification to the Supreme Judicial Court of Massachusetts of "questions pertaining to construction of a state statute that was susceptible to multiple interpretations, one of which would avoid or substantially modify a federal constitutional challenge," Virginia v. American Booksellers Ass'n., 484 U.S. 383, 108 S.Ct. 636, 644, 98 L.Ed.2d 782 (1988). Similarly, a constitutional infirmity in the Act challenged here might be avoided by a decision of the Connecticut Supreme Court. If the term "harmful to juveniles," as defined in a Virginia statute prohibiting the display of certain visual or written materials, is considered subject to a narrowing construction by the Virginia Supreme Court after certification, American Booksellers, supra, then the objectionable terms in the Connecticut Hunter Harassment Act certainly should be capable of the sort of limiting construction that would meet constitutional challenges.
I would certify to the Connecticut Supreme Court questions as
to the state law definitions of "interfere," "harass," and "acts in preparation"
as used in the Hunter Harassment Act, before proceeding to a consideration
of the merits of plaintiff's claim. I also would certify a question
as to whether the Connecticut Supreme Court would excise any portion of
the Act on state law grounds.