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4th Circuit Panel Acquits Gay Man Arrested in North Carolina Sting Operation

Posted on: July 21st, 2013 by Art Leonard No Comments

Reversing decisions by U.S. District Judge Martin K. Reidiner and a U.S. Magistrate Judge, a three-judge panel of the U.S. 4th Circuit Court of Appeals voted 2-1 to acquit a gay man who had been convicted of disorderly conduct for groping an undercover federal ranger who had targeted him in a vice sting operation in November 2009 at the Sleepy Gap Overlook of the Blue Ridge Parkway in Buncombe County, North Carolina, near the city of Asheville.  The decision is U.S. v. Lanning, 2013 U.S. App. LEXIS 14645 (4th Cir., July 19, 2013).

Writing for the court, Circuit Judge James A. Wynn, Jr., found that “no rational trier of fact could find beyond a reasonable doubt” that Joe Lanning’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.’” Wynn also found that Lanning’s conduct was not “obscene” under the circumstances.

The U.S. Park Service and Forest Service, claiming to have received complaints from members of the public that the Sleepy Gap Overlook had become a locus of gay male sex activity, undertook a joint operation “designed to enable officers to identify and arrest men who were using the area for sexual solicitation or activity with other men.” Joe Darling, a 200 pound 33- year-old park ranger, had been assigned to undercover duty as part of this operation, and was out looking to find gay men to arrest.

Darling spotted Joe Lanning, a 62-year-old retiree, on a trail near the Overlook, and set out to arrest him by provoking him into some actionable conduct. As Judge Wynn tells the story in his summary of the trial record, “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. Defendant responded that he ‘wanted to be F’ed.’ Darling replied ‘okay or yes, or some to that affirmative,’ and ‘gave Lanning every reason to believe that Darling was good to go.’ 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 ‘very briefly’ touched Darling’s fully-clothed crotch. Darling described the touch as ‘a fairly firm grasp’ that lasted ‘very briefly,’” until he could get the words out: “Police officer, you’re under arrest.”

Lanning was charged with “disorderly conduct” under a federal regulation adopted by the U.S. Interior Department to regulate conduct on federal park land.  The regulation provides that a person commits the offense of “disorderly conduct” if he “uses 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.”

A magistrate judge sentenced Lanning to 15 days in prison, a $1000 fine, and a two-year ban on visiting any federal forests or parks. Lanning appealed to the district court, which found that the magistrate judge did not have authority to impose the two-year ban and returned the case to the magistrate for resentencing. The second time around, the magistrate sentenced Lanning to 15 days and a $500 fine, which the district court affirmed.

Lanning appealed to the 4th Circuit, claiming that the government failed to meet its burden of proving beyond a reasonable doubt that he had engaged in disorderly conduct.

First, the appeals court found that the word “obscene” as used in this regulation was “unconstitutionally vague as applied” because it “would not have provided him, or anyone of ordinary intelligence, fair warning that the complained-of conduct was obscene.” Consulting dictionaries for a definition of this term, which is not defined in the regulation, the court said that “under these circumstances, we cannot conclude that anyone ‘of ordinary intelligence’ would understand that such conduct is ‘morally repulsive’ or ‘offensively or grossly indecent’ or ‘lewd.’” Judge Wynn went on to observe that this case showed “the real risk that the provision may be ‘arbitrarily and discriminatorily enforced,’” because this sting operation “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 male activity in that area that was targeted.’ Darling testified that every single one of the citizen complaints had been about homosexuals. 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 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’ and ‘grossly indecent,’ 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 complaints 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.”

Wynn said that the court’s holding was not that the regulation was unconstitutionally vague “per se,” but rather was vague as applied to these circumstances, contrasting another case in which a court rejected a vagueness challenge where the defendant was arrested while engaging in masturbation and fellatio in a national park, and stating complete agreement with that case. “The conduct at issue here, however,” he wrote, “is of a qualitatively different, significantly more benign nature. We do not believe that a reasonable defendant would know that by engaging in such 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 [the regulation] is unconstitutionally vague as applied and that the ‘obscene’ prong of the regulation therefore cannot serve as a basis for Defendant’s conviction.”

The court was similarly persuaded as to the other two prongs of the regulation.

As to the requirement that conduct be “physically threatening or menacing,” wrote Wynn, “it defies logic that Darling was shocked by Defendant’s touch when it was, in fact, precisely what Darling had been ‘stringing Defendant along’ to do – to cross a certain line’ so that he could arrest him. “Facts matter,” insisted Wynn. “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 Lanning’s actions. “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 have felt physically threatened or menaced by that conduct.” But that was not this case.

Turning to the requirement that defendant’s conduct was “done in a manner that is likely to inflict injury or incite an immediate breach of the peace,” the court was again unpersuaded, pointing out that “Darling approached Defendant and engaged in flirtatious conversation” and Darling agreed to Lanning’s proposition to have sex. “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.” Given these circumstances, wrote Wynn, Darling has “given Defendant ‘every reason to believe that’ Darling was ‘good to go.’” “ No rational trier of fact could thus conclude that Darling himself likely would react violently to Defendant’s fleeting touch,” wrote Wynn. “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.’” Remarking on the briefness of the encounter, Wynn speculated that even a member of the general public stumbling upon the scene would be unlikely to be provoked into a violent response.

Wynn was joined in his opinion by Circuit Judge Henry Franklin Floyd. Both judges in the majority were appointed to the court by President Obama.

The dissenter, Allyson Kay Duncan, was appointed by George W. Bush. She accused the majority of failing to accord “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 the regulation. However, she did not expand on these remarks to justify her conclusion.