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Matthew G. McHenry, OSB 043571 Levine & McHenry LLC 1001 S.W. Fifth Avenue, Suite 1414 Portland, Oregon 97204 503-546-3927 email: matthew@levinemchenry.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Plaintiff, v.

SEAN ANDERSON, et al.

Defendant.

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No. 3:16-cr-00051-BR-12 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COUNT 1 OF THE MISDEMEANOR INFORMATION AS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND AS-APPLIED

The seven remaining defendants in this case are charged by misdemeanor information with Trespassing under 50 C.F.R. § 26.21(a). Docket No. 1628. As set forth below, this regulation is unconstitutionally vague on its face, and also unconstitutionally vague as applied to these defendants, and must be dismissed.

I. Applicable Law A. Unconstitutional Vagueness A criminal statute or regulation is unconstitutionally vague if it fails to “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.” Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citing cases). A statute or regulation is vague on its face where it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it

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authorizes or encourages seriously discriminatory enforcement.” United States v. Harris, 705 F.3d 929, 932 (2012). A statute or regulation is vague as-applied if it “fail[s] to put a defendant on notice that his conduct was criminal.” Id. Statutes and regulations that authorize criminal sanctions are subject to an enhanced requirement for clarity. Id. Further, “heightened vagueness scrutiny” is required where the challenged statute or regulation “regulates and potentially chills speech which, in the absence of any regulation, receives some First Amendment protection.” Cal. Teachers Ass’n v. State Bd. Of Educ., 271 F.3d 1141, 1149–50 (9th Cir. 2001).

50 C.F.R. § 26.21 triggers both the “enhanced clarity” and “heightened vagueness scrutiny” requirements, as it authorizes criminal sanctions and potentially chills First Amendment rights in the form of free speech and free assembly.

B. Freedom of Speech and Freedom of Assembly The First Amendment prohibits Congress from enacting laws “abridging the freedom of speech or of the press . . . or the right of the people peaceably to assemble.”

U.S. Const. amend. I. Certain types of speech are afforded greater protection than others.

Political speech is the heart of the First Amendment. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”); Carey v. Brown, 447 U.S. 455, 467 (1980) (“Public-issue picketing [is] an exercise of . . . basic constitutional rights in their most pristine and classic form [and] has always rested on the highest rung of the hierarchy of First Amendment values”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than selfexpression; it is the essence of self-government.”); Thornhill v. Alabama, 310 U.S. 88, 95

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(1940) (“Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion.”); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1021 (9th Cir.2009) (“Political speech is core First Amendment speech, critical to the functioning of our democratic system.”).

The void-for-vagueness doctrine is particularly significant in the First Amendment context because freedom of speech is “delicate and vulnerable, as well as supremely precious in our society [and] the threat of sanctions may deter [its] exercise almost as potently as the actual application of sanctions.” NAACP v. Button, 371 U.S. 415, 433 (1963); see also Cramp v. Bd. of Pub. Instruction of Orange County, Fla., 368 U.S. 278, 287 (1961) (“The vice of unconstitutional vagueness is further aggravated where, as here, the statute in question operates to inhibit the exercise of individual freedoms affirmatively protected by the Constitution”).

Similar to freedom of speech, freedom of assembly is a cornerstone of the First Amendment: “[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 907 (1982). See also Hague v. Comm. for Indus.

Org., 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”); United

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States v. Baugh, 187 F.3d 1037, 1042 (9th Cir.1999) (the First Amendment applies with particular force to marches and other protest activities). Because the regulation at issue here carries the potential to restrict these First Amendment freedoms, heightened vagueness scrutiny is required.

II. 50 C.F.R. § 26.21(a) Is Unconstitutionally Vague On Its Face A. The regulation is unconstitutionally vague because it incorporates, and requires a working knowledge of, hundreds of other unidentified Federal regulations.

The vagueness test looks at the “very words” of the statute in question to determine whether the statutory language is “sufficiently precise to provide comprehensible notice” of the prohibited conduct. Anderson v. Morrow, 371 F.3d 1027, 1031–32 (9th Cir. 20014). Turning then to the “very words” of the regulation in question here, 50 C.F.R. § 26.21(a) provides: “No person shall trespass, including but not limited to entering, occupying, using, or being upon, any national wildlife refuge, except as specifically authorized in this subchapter C or in other applicable Federal regulations.”

50 C.F.R. § 26.21(a) (emphasis added).

The regulation is found in Title 50, Chapter I, Subchapter C of the Code of Federal Regulations, and Subchapter C, in turn, contains thirteen Parts (25-32 and 34-38).

Each of these Parts has several Subparts, and each Subpart contains one or more Regulations. For example, Part 27 of Subchapter C contains 9 separate Subparts.

Subpart I of Part 27 of Subchapter C contains seven separate regulations.

When all of the various Parts and Subparts in Subchapter C are considered together, 50 C.F.R. § 26.21(a)’s modifying phrase “except as specifically authorized in

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this subchapter C” incorporates no less than 220 separate regulations. Even more alarming from a constitutional standpoint is the regulation’s modifying phrase “or in other applicable Federal regulations,” which encompasses an indefinite number of possible statutes and regulations.

In short, the statute prohibits conduct (a “trespass”), unless the conduct meets a “specifically authorized” exception found somewhere in the 220 regulations under Subchapter C, or somewhere else in “any applicable Federal regulations.” No person of “ordinary intelligence” could possibly read 50 C.F.R. § 26.21(a) and “understand what conduct is prohibited.” Kolender, 461 U.S. at 357; Harris, 705 F.3d at 932. The regulation fails to identify the authorized exceptions—fails to even provide a citation to them. To understand what conduct is prohibited and what conduct is excepted from the prohibition requires a working knowledge of the 220 regulations found in Subchapter C and an indefinite number of other Federal regulations which may apply. This is unconstitutional: Although citizens are generally presumed to know the content of the law, one of the basic tenets of due process jurisprudence is that citizens be afforded fair notice of precisely what conduct is prohibited. If a statute is so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct, notice will not be presumed.

United States v. Blaszak, 349 F.3d 881, 885–86 (6th Cir. 2003). See also Free Speech Coal. v. Reno, 198 F.3d 1083, 1095 (9th Cir. 1999) (“It is impermissible to define a criminal offense so vaguely that an ordinary person is left guessing about what is prohibited and what is not.”).

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B. The regulation is unconstitutionally vague because it uses an open-ended meaning of “trespass,” which is larger in scope and incongruous with the commonly understood meaning of “trespass.”

In addition, the Regulation offers an open-ended meaning of “trespass.” In the Regulation, trespassing “include[es], but [is] not limited to entering, occupying, using, or being upon, any national wildlife refuge.” 50 C.F.R. § 26.21(a) (emphasis added). The word “trespass,” to a person of ordinary intelligence, commonly refers to the act of knowingly entering another person’s property without permission. However, “trespass” as used in this regulation is not what a person of ordinary intelligence would assume.

The regulation here states explicitly that while “trespass” does include “entering,” it could also include an unknown number of other, unspecified acts of conduct. See Ramirez, Leal & Co. v. City Demonstration Agency 549 F.2d 97, 104 (9th Cir. 1976) (noting that the phrase “including but not limited to” is often used to mitigate the rule of statutory construction that general words are to be construed as only applying to a specific list). By its phrasing, the regulation takes the word “trespass” out of its ordinarily understood meaning and instead suggests that an unspecified and indefinite number of acts of conduct could constitute trespass. By failing to limit the scope of what can constitute trespassing, a person of ordinary intelligence cannot read this statute and know, with any level of certainty, what conduct is prohibited.

C. The regulation is unconstitutionally vague because it does not include a mens rea element.

In considering the vagueness doctrine with respect to 50 C.F.R. § 26.21, this Court should also take into account that the regulation contains no mens rea requirement.

This factor weighs heavily in favor of finding the regulation unconstitutionally vague. As stated by the 11th Circuit, “the constitutionality of a vague statutory standard is closely

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related to whether the standard incorporates a requirement of mens rea.” United States v.

Castro, 89 F.3d 1443, 1455 (11th Cir. 1996). The absence of a mental state element in a regulation does not automatically render a regulation unconstitutionally vague. However, though the “statutory requirement that an act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain . . . it does relieve the statute of the objection that it punishes without warning an offense which the accused was unaware.” Id. See also United States v.

Margiotta, 688 F.2d 108, 129 (2d Cir. 1982) (finding mail fraud statute not unconstitutionally vague because it “contains the requirement that the defendant must have acted willfully and with the specific intent to defraud”).

D. The regulation is unconstitutionally vague because it allows for unfettered discretion and arbitrary enforcement.

Finally, the regulation is unconstitutionally vague on its face because it allows for arbitrary enforcement. Though the notice principle set forth above is a focus of the void for vagueness doctrine, the “more important aspect of the vagueness doctrine is not actual notice, but the other principle element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.” Kolender, 461 U.S. at 357 (internal quotations and citations omitted).

Because the regulation itself fails to delineate the prohibited conduct without reference to an indefinite number of other federal regulations, it invites selective and arbitrary enforcement. Certainly not every person who has potentially run afoul of the regulation has been arrested and charged. Rather, the vagueness of the statute permits the government to pick and choose which individuals to charge under the regulation, thus

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allowing “policemen, prosecutors, and juries to pursue their personal predilections.” Id. at 358 (internal quotations and citations omitted).

The danger of arbitrary enforcement under this regulation is not merely theoretical. This case exemplifies the arbitrary enforcement problem with 50 C.F.R. § 26.21(a). As made clear in the first trial, and as the government has acknowledged in proceedings before this Court, hundreds of people traveled to and from the refuge during the protest. Of that group of individuals, only 27 people were arrested, and only 7 of the arrested individuals were charged with trespass under 50 C.F.R. § 26.21(a), despite the fact that the majority of the people who came to the refuge engaged in similar, if not identical, conduct. These facts form an ample basis for the Court to conclude that 50 C.F.R. § 26.21(a) is unconstitutionally vague due to the arbitrary enforcement it permits.

For all of the above reasons, this Court should dismiss the trespass charge against all defendants as facially vague.

III. 50 C.F.R. § 26.21(a) Is Unconstitutionally Vague As-Applied To These Defendants In an as-applied challenge, a criminal statute is unconstitutionally vague if it “fails to put a defendant on notice that his conduct was criminal.” Harris, 705 F.3d at 932. As this Court pointed out in its Order denying Defendants’ Motion to Dismiss Count One (Docket No. 650), the focus of the inquiry “is on the statute.” However, the analysis must be made “in light of the facts of the case at hand.” Harris, 705 F.3d at 932. In Harris, for example, the defendant argued that a statute prohibiting carrying a “dangerous or concealed weapon” on an aircraft was vague as-applied. Id. at 930. In rejecting that argument, the Ninth Circuit made specific reference to the facts of the case, noting that the defendant there “knew that this particular knife” had been ruled impermissible by the

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TSA when TSA officers turned the defendant back at the security checkpoint because of it. Id. at 932. Second, the Court noted, “there were signs in and around the terminal that prohibited all knives.” Id. Unlike Harris, where law enforcement officials (TSA) had specifically informed the defendant that his conduct (possession of that particular knife) was prohibited, in the instant case law enforcement gave no such message. Indeed, during January of 2016, hundreds of individuals came and went from the refuge and engaged in a variety of activities there in relation to the protest. Federal and local law enforcement officers were fully aware of their arrivals and departures from the refuge, and even interacted with several of them on occasion, yet no law enforcement officials informed them that their activities constituted trespass or were otherwise illegal. Unlike Harris, where signage in and around the terminal prohibited all knives, in the instant case there were no signs informing the defendants that their conduct was prohibited.

When the statute is “examined in light of the facts of the case at hand,” it is clear that it failed to put the defendants on notice that their conduct was criminal. The regulation is vague as-applied to these defendants.

IV. Conclusion “The prohibition of vagueness in criminal statutes is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute that flouts it violates the first essential of due process.” Valenzuela Gallardo v. Lynch, 818 F.3d 808, 819 (9th Cir. 2016).

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Whether vague on its face or as-applied to the defendants in this case, the problem is the same: 50 C.F.R. § 26.21(a) is a violation of Due Process as guaranteed by the Fifth Amendment. Count One of the Misdemeanor Information should be dismissed.

Respectfully Submitted this 13th day of January, 2017: /s/ Matthew G. McHenry Matthew G. McHenry Attorney for Sean Anderson

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