Petition for Writ of Certiorari — Mark Elliott Stuart, Petitioner v. Arizona

Supreme Court briefOct 29, 2022

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In The

Supreme Court of the United States

Mark Stuart,

Petitioner,

State of Arizona , Scottsdale City Prosecutor, et

al.,

Respondents

On Petition For a Writ of Certiorari

To The Arizona Court of Appeals, Div. One

No. 1 CA-CR 20-0620

PETITION FOR A WRIT OF CERTIORARI

Mark Stuart, petitioner pro se

8629 E. Cheryl Drive

Scottsdale, AZ 85258

(602) 316-0999 mstuartl789@gmail.com

RECEIVED

NOV - 1 2022

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" The freedom of individuals verbally to

oppose or challenge police action without thereby

risking arrest is one of the principal

characteristics by which we distinguish a free

nation from a police state." City of Houston u. Hill,

482 U.S. 451, 463 (1987)

“He does not have the right based on his

beliefs about the 1st Amendment to simply

refuse orders from police officers.... There is no

prerequisite that the State show in advance

somehow that a directive to the defendant is

something that is lawful. It has to be an order

in furtherance of the discharge of the officer’s

duty... It is not the lawfulness of the order that

matters.” Scottsdale prosecutor, Feb. 10, 2020

QUESTIONS PRESENTED

(1) Whether Scottsdale Revised Code 19-13 is

overbroad

and

violates

the

First

Amendment?

(2) Whether Scottsdale Revised Code 19-13 is

unconstitutionally vague and violates the

Fourteenth Amendment?

r i‘

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

Petitioner, who was a Defendant- Appellant

below, is Mark Stuart, a citizen of Scottsdale, Arizona.

(“Stuart”) This Court denied Stuart's petition for

certiorari on Oct. 17, 2022 in case number 22-164.

That petition did not raise overbreadth and vagueness

of Scottsdale Revised Code 19-13.

Respondents are the State of Arizona acting

through the Scottsdale city prosecutor’s office, and the

Hon. Sarbanes of Phoenix city court (sitting by special

appointment), the Hon. Douglas Gerlach of the lower

court of appeals of Maricopa County, and the Arizona

Court of Appeals, Div. One.

State v. Stuart , case number M-0751-SC2017003568 ,Scottsdale city court, Judge Sampanes

presiding, entered judgment convicting Stuart of

Refusal to Obey police on Feb. 10, 2020, and denied a

post judgment constitutional challenge for vagueness

and overbreadth on April 22, 2020

State v. Stuart (appeal to Maricopa County

superior court), case number LC2020-00239-001 ,

Judge Gerlach presiding, judgment entered on Nov.

17, 2020, upholding constitutionality of SRC 19-13.

The Arizona Court of Appeals , Division One,

ruled that Scottsdale Revised Code 19-13 was not

overbroad or vague, No. 1 -CA-CR 20-0620, judgment

entered on Nov. 30, 2021.

The Arizona Supreme Court, No. CR-21-0389PR, denied discretionary review on June 3, 2022

Because no Petitioner is a non-governmental

corporation, a corporate disclosure statement is not

required under Supreme Court Rule 29.6.

111

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................... l

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT......................................... li

TABLE OF AUTHORITIES..................................... .v

PETITION FOR WRIT OF CERTIORARI.............. 1

OPINIONS BELOW.................................................. 1

JURISDICTION......................................................... 1

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

...................... :........... 2

INTRODUCTION .................................................... 2

STATEMENT OF THE CASE................................. 4

A. The Scottsdale Prosecutor's Enforcement of

SRC 19-13— Refusal to Obey Police .............. 4

B. Factual Background

C. Stuart's Constitutional Challenge to SRC 19-13

in Scottsdale City Court

.......

D. The Appeal to Superior Court........

E. The Appeal to the Arizona Court of

Appeals Division One ...................

REASONS FOR GRANTING THE WRIT

Free Speech and Due Process Are

Important Issues of National

Importance Needing this Court's

Protection .........................................

A. The Kaiser Opinion is Wrong Because it

Directly Conflicts with City of Houston v.

Hill, 482 U.S. 451(1987), and other

precedent, and Should be Reversed

by this Court................................................ 17

B. SRC 19-13 is Overbroad and Violates

the First Amendment................................... 20

C. SRC 19-13 is Unconstitutionally Vague

and Violates the Fourteenth Amendment.25

1. SRC 19-13 Does Not Give People Fair

Notice of What Conduct it Proscribes.......27

2. There Are No Limitations on

Enforcement of SRC 19-13..........

3. SRC 19-13 Invites Arbitrary and

Discriminatory Enforcement......

CONCLUSION

APPENDIX

la - 112a

1. Arizona Supreme Court Order declining

to review the Court of Appeals

Decision Upholding SRC 19-13 ;

dated June 3, 2022 ......................................

2. Arizona Court of Appeals decision

upholding SRC 19-13 ; 11/30/21................

3. Superior Court decision upholding

SRC 19-13,-11/17/20......................................

4. Trial Court decision upholding SRC 19-13

5. Stuart appellate briefs, Court of Appeals,

seeking to invalidate SRC 19-13 for

overbreadth and vagueness;......................

6. Portions of Appeal Brief, Superior Court.

7. Appeal Exhibit 11

a. Washburn letter to Stuart 01/30/17 ...

14a

15a

43a

52a

b. Stuart SOP Presentation to

City Council 02/07/17 ..........

54a

c. Article II, Section 15, Scottsdale Charter ..58a

8. Trial testimony of Officer Cleary(excerpts) ....60a

9. Trial Testimony of Officer Glenn(excerpts)

70a

10. Scottsdale Prosecutor's Closing Arguments..74a

11. Stuart Trial Testimony (excerpts).......

88a

12. Mayor Lane Testimony (excerpts)........

93a

12. City of Scottsdale public transcript of

Feb. 7,2017 meeting................................

98a

13. Goldwater Institute Report ;

Outrageous Police Conduct Not a

Concern for Scottsdale Judge (1/24/18)

102a

TABLE OF AUTHORITIES

Case

Page(s)

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002)

Bouie u. City of Columbia ,

378 U.S. 347 (1964)

Brown u. Louisiana, 383 U.S. 131 (1966)

Camara v. Municipal Court, 387 U.S. 523 (1967) ..22

City of Chicago v. Morales, 527 U.S. 41 (1999) 23,25

City of Houston v. Hill, 482 U.S. 451(1987)

passim

City of Los Angeles v. Patel, 576 U.S. 409 (2015) .. 21

Cox v. Louisianna, 379 U.S. 536, (1965) ....

Dombrowski v. Pfister, 380 U.S. 479, (1965)

Gooding v. Wilson, 405 U.S. 518, (1972)

Holder v. Humanitarian Law Project,

561 U.S. 1, (2010)

Johnson v. United States, 576 U.S. 591, (2015) .... 27

24, 33

Kolender v. Lawson, 461 U.S. 352, (1983) ....

Lewis v. City of New Orleans,

415 U.S. 130, (1974)

Members of City Council of

City of Los Angeles v. Taxpayers for Vincent

, 466 U.S. 789, (1984)

NAACP v. Button, 371 U.S. 415, 433.(1963)

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ............................

State v. Kaiser, 204 Ariz. 514 (App. 2003)

U.S. v. Johnson, 135 S. Ct. 2251, (2015)

Wright v. Georgia, 373 U.S. 284, (1963) .... 20, 23

U.S. Constitution Provisions

First Amendment..................

Fourteenth Amendment, § 1

passim

PETITION FOR WRIT OF CERTIORARI

Petitioner Mark Stuart respectfully petitions for a

writ of certiorari to review the judgment of the

Arizona Court of Appeals, division one.

OPINIONS BELOW

The Arizona Supreme Court ruling declining to

review these issues is in App. : 1A The Arizona Court

of Appeals ruling upholding SRC 19-13 as not being

overbroad or vague is reproduced in App. : 2A The

Maricopa County Superior Court ruling, declining to

invalidate SRC 19-13 on overbreadth and vagueness

grounds is reproduced in App.: 5A - 13A. The

Scottsdale city court ruling, declining to vacate the

conviction on the basis of overbreadth and vagueness

is reproduced in App.: 14A

JURISDICTION

The Arizona Supreme Court’s order declining

review was issued on June 3, 2022. On August 19,

2022, the Honorable Elena Kagan extended the time

to file a petition for writ of certiorari until and

including October 31, 2022. This Court has statutory

jurisdiction under 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS,

AND CITY ORDINANCES

The First Amendment states:

Congress shall make no law respecting an

establishment of religion or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the government for a

redress of grievances.

The Fourteenth Amendment, § 1, states in

pertinent part:

.... No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Scottsdale Revised Code 19-13 states,

No person shall refuse to obey a peace officer engaged

in the discharge of his duty, or any other person

authorized to aid in quelling any riot, rout or affray.

INTRODUCTION

This case involves a facial First Amendment

challenge to a municipal ordinance, as well as a

vagueness

challenge

under

the

Fourteenth

Amendment.

This case is about free speech, and whether

individuals have a First Amendment right to

challenge and defy police orders without risking

arrest and prosecution for refusing to obey unlawful

orders from police.

This case is about Fourteenth Amendment

limitations on police and prosecutors when they cite

and prosecute someone for refusing to obey a

policeman's order. Can the state cite, prosecute and

convict someone for refusing to obey an unlawful

police order?

Through his own words and explanations to

the trial judge, the prosecutor explained that a

person can be charged with violating SRC 19-13 for

any refusal of any order of a police officer on duty.

App.:76a-77a;79a,83a,85a-86a, 87a There are no

limitations on enforcement. There are no

ascertainable guidelines for enforcement. A citizen is

not given fair notice that refusing to obey any order

of a Scottsdale police officer, even an obviously

unconstitutional or otherwise unlawful order, can

lead to being charged with a violation of SRC 19-13.

According to the prosecutor, Scottsdale courts are

supposed to sort things out, after the fact. App. 86a

This Court should grant certiorari and

invalidate SRC 19-13 for both overbreadth and

vagueness, based on this Court's long established

precedents.

STATEMENT OF THE CASE

Scottsdale activist arrested at council meeting

after free-speech showdown

Mark Stuart, a leader in the movement against

plans for a Desert Discovery Center, was

escorted from City Hall by police.

Parker Leavitt The Republic 1 azcentral.com____

Public Comment

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A Scottsdale activist and vocal opponent of the city's

plan to build a multimillion-dollar desert attraction

in the McDowell Sonoran Preserve was arrested at a

City Council meeting Tuesday after he tried to give

an update on a petition drive against the project.1

The following exchange occurred after Stuart was

called to speak by the Mayor App.lOOa-lOla :

1 This was the headline in the local paper two days after

Stuart's arrest, https://www.azcentral.com/

story/news/local/scottsdale/2017/02/09/97663354/

[Time: 00:22:59]

Mayor Lane: Thank you, Mr. Leeder. Next will be

Mark Stuart.

Mayor Lane: I'm not here to debate Mark Stuart: Free speech is an integral part of the

U.S. and Arizona Constitutions. It's automatically

within the jurisdiction of the city council—

Mayor Lane: You are disrupting the public

meeting. We are not here to debate this topic. If

you want to speak about something —

Mark Stuart: I'm here at public comment and

you're preventing me from speaking freely

and publishing freely

Mayor Lane: No, we're not here to debate this

topic, if you want to speak about something other

than ...

Mark Stuart: Okay, will you start the clock over

and let me do my presentation and then - you can

sue me and get a temporary restraining order or

do whatever you think is appropriate. But you

cannot prevent me from speaking.

Mayor Lane: Yes, I can.

Mark Stuart: Go right ahead.....................

Mayor Lane: No neither, .side. Any citizen on

either side.

Mark Stuart: If you can cite some controlling

legal authority right now, I will stop.

Mayor Lane: I will ask you to simply remove

yourself then from the podium.

Mark Stuart: I'm not willing to do that. I

would like to give my full public comment.

Mayor Lane: I gonna ask that we turn off the

microphone and officers, if you would please

escort Mr. Stuart, from the .... Thank you, officers.

A. The Scottsdale Prosecutor's Enforcement

of SRC 19-13— Refusal to Obey Police

Trial established that Stuart was charged, by

Officer Cleary, with violating SRC 19-13--refusal to

obey police- for five or six separate refusals in a

Scottsdale city council meeting on Feb. 7, 2017,and

outside. App.:74a,77a ,79a The prosecutor described

these acts to the trial judge as follows App.: 74a- 80a

The Court: Please. Mr. Flint, your closing

argument. And your theory of the case regarding

the failure to obey........

Mr. Flint: Judge, my - my theory is this.

The defendant was given commands by Officer

Glenn when he approached. He was told by Officer

Glenn you need to leave the podium; said no, he

wouldn’t do it. Then he was told you need to leave

the podium and exit the building; he said no, I

won’t do it. Then Officer Cleary comes up. And if

you listen to the Jeff Abst video, you can hear

Officer Cleary, just as he testified, trying to

negotiate with the defendant and giving him an

off-ramp. And if you sit down now, you can

address agenda item whatever later on, Agenda

Item 6, and if you don’t, you’re under arrest for

trespass. And you can hear the defendant, if you

listen to it, and I - I would urge the Court, take it

back and listen to it. Listen to the - listen to Jeff

Abst cell phone video. You can hear the defendant

clearly saying I’m not willing to do that. So there’s

yet another, a third refusal by the defendant to sit

down.

He’s given the opportunity to leave the

podium and walk away. He doesn’t. He stands

there and he holds his ground, even as the officers

have been given -- given a clear directive to

remove him from the podium.

Now, the defendant just said a moment ago

something which is his theory of the case, but it’s

not -- it doesn’t comport with the actual language

of — of the statute. He said it was not lawful or -but if you look at 19-13

Well, it doesn’t talk

about lawful, it talks about the officers

engaged in the discharge of their duties.

Recall that they were told by the mayor to remove

the defendant from the podium. They were there

as security. The defendant understood their role.

They were clearly in uniform, they were clearly

acting as security, they were acting in

conformance with the discharge of their duties.

The defendant is trying to get the

Court to say,well, this isn’t a lawful order,

therefore, that he cannot be found guilty of

19-13. The officers, as Officer Glenn reiterated

this morning, he’s not up there doing a bar exam

every time somebody asks him to make a legal

decision. He’s operating on the authority of the

mayor, at that point, asking the defendant be

removed from the podium.

The Court: Well, shouldn’t there have

been two counts of failure to obey the police

officer?

Mr. Flint: There could have been

multiple. And then we would’ve had either a

multiplicity or a duplicity issue. That the -..........

We could have - I could have added on extra

charges. I could have done it for every time

he refused a command, Judge, or I could have

done what I did, which was the defendant said

earlier we were being vindictive. The State didn’t

act vindictively, we simply let the charges stand

as they were. I didn’t add anything. Or when I

recharged it, I could have added on charges, I

suppose, or done something that was in addition,

I didn’t do that, because it’s not necessary. It’s not

necessary. Every time the defendant refused

an order, it’s a violation of 19-13.1 could have

charged him with one for the first time Cleary said

to him leave and he said no. One for the second

time Cleary said leave and leave the building and

he said no. I could have charged him again for the

time that he said no to Officer Cleary, and I could

have said we’re going to add an additional charge

for the two refusals that took place outside after

Officer Cleary asked the defendant take --1 could

have charged five or six different counts, but

I didn’t. I charged the one, and I thought that

was reasonable and fair, because he did

violate multiple orders from the police.

So that’s the State’s theory in the case.

That every single one of these is a violation.

You can pick which one you want. If the Court

wants to say each one of them took place, it can.

But collectively and individually the defendant

defied the orders of the police to leave the

podium and then to sit down outside. And it

doesn’t matter which event the Court feels is

convincing, beyond a reasonable doubt. I would

assert that taken as a continuum of action, there

were multiple refusals and the Court should find

the defendant guilty of the 19-13 for defying the

lawful or — the orders of the police officer that

were in furtherance of the discharge of their

duties.

App: 83a

Again, it is not a lawful

order. This is not an — the defendant is adding

language into the -- into 19-13. 19-13, itself, does

not have in there lawful order. There is no

prerequisite that the State show in advance

somehow that a directive to the defendant is

something that is lawful. It has to be an order

in furtherance of the discharge of the officer’s

duty......It’s not simply that the defendant didn’t

comply. It’s not that he stood there silent. He

affirmatively stated I’m not willing to do

that. He stood his ground and he stated over

and over again I’m not going to do that. Both

the officers testified to the same thing, that the

defendant

was

given

multiple

options,

opportunities to stop refusing and to leave the

podium.

So, going back to what took place inside, his

argument to the Court is this. I have a 1st

Amendment right to say and do what I want, I’ve

researched it. So when I go in, when they tell me

to leave the podium, I don’t have to do it. The fact

that the officers are engaging in the discharge of

their duties when they tell me to leave the podium

at the mayor’s directive, means nothing. They

can’t do it, because he’s incorporated the

lawful order, the lawful order,

And,

again, I would ask the Court to look at Paragraph

19 in Kaiser, a lawful order. App.: 85a -86a He

keeps incorporating that. He says it again and

again in his statement to the Court just a

moment ago, a lawful order. It is not the

lawfulness of the order that matters. What

matters is that it’s in the furtherance of the

discharge of the officer’s duty, and nobody is

disputing that. It is not for the defendant to

quibble with the officers about the order,

itself, and say, well, the 1st Amendment

allows me to continue to do this, so I don’t

have to obey. 19-13 doesn’t apply to me

because I’ve got a 1st Amendment right. And

so that 1st Amendment right overcomes the

authority of the officers to actually control the

situation when they’re placed in charge of

security. This is why we have courts

He’s

saying that if he’s standing on the 1st

Amendment as he describes it and as he

believes it empowers him, he doesn’t have to

obey 19-13, because he’s doing something

lawful.

Those are false concepts, and

they’re false statements.

He has an obligation to obey, just like

anybody else. And a court of law is where we

decide whether somebody has a 1st Amendment

right, and that’s where that decision is made. It is

not made on the street telling the officers I

refuse to do what you say, because I have a

1st Amendment right and you’re getting in

the way. Or I have a right to maintain the

podium, and you’re getting in the way. Those

are decisions that are made someplace else. But

the defendant is not authorized to simply

decide that he’s going to opt himself out of

19-13........

App.: 87a-88a

He does not have the

right based on his beliefs about the 1st

Amendment to simply refuse orders from

police officers. He does not have the right to

rewrite the statute by taking language from

Shuttlesworth, the lawful aspect and

incorporating that into the statute......

Judge, regardless of how the Court finds on

the -- on the trespass, the defendant is guilty on

the issue of failing to obey the lawful -- well, I just

did it myself. It’s not a lawful order. You

know, look at the language itself, discharge

of duties. And so the officer gave multiple —

both of the officers gave multiple commands

to the defendant to do certain things in the

furtherance of their duties, and the

defendant refused. And so on the final

analysis, the defendant’s belief as to his 1st

Amendment rights does not trump, does not

obliterate his need to follow the commands

of police officers acting on security at Kiva

Hall. We’d ask you to find the defendant guilty on

both the offenses based on the evidence that’s

been presented. Thank you.

B. Factual Background

This case is about free speech and whether a

person has a First Amendment right to challenge or

defy a police order, without risking arrest and

prosecution. App.: 17a-18a This case is about due

process. App.: 20a-23a In Scottsdale the police can

give a person an unlawful order and then cite and

prosecute him for refusing to obey that order. The

underlying prosecution for allegedly violating SRC 1913 shows how the police and prosecutors use SRC 1913 to chill and punish those who refuse to cease their

peaceful free speech activities, after being ordered to

stop engaging in free speech by Scottsdale police.

Scottsdale city council meetings have an open call

to the public and citizen petitioning time at every

meeting. (“Open Public Comment”) There are no

content based rules or guidelines on permissible

topics. App.: 93a- 98a Open Public Comment is video

recorded and broadcast bve to the public . Open

Public Comment is also the time reserved for

presenting citizen petitions to the city council. The

Scottsdale city charter, Article II section 15 allows any

citizen of Scottsdale to appear before the city council

with a written petition. App.:58a

About Jan. 26, 2017, the Scottsdale city attorney

Bruce Washburn sent Stuart a letter in response to

his comments at open public comment in the meeting

of Jan. 24, 2017. App.:52a Washburn told Stuart that

speaking about the SOP Initiative at open public

comment

was prohibited. Stuart responded to

Washburn, and indicated that Washburn was

violating his First Amendment rights, and that Stuart

would sue Washburn and the City if they prevented

Stuart from speaking at open public comment, about

the SOP Initiative, or anything else. App.: 53a

On Feb. 7, 2017 Stuart appeared at the city

council meeting with a written petition, signed up to

speak at Open Public Comment, and was called to

speak by the Mayor, (the “Meeting”) App.:54a58a;88a-89a;99a

Prior to the meeting, Scottsdale police told Stuart

that he would have to leave the podium without

speaking if he was ordered not to speak by the Mayor.

App.: 60a-62a Stuart explained to the police that they

were violating his First Amendment rights by

threatening him, and that he would sue them if they

prevented him from speaking. App.: 90a;

Stuart’s petition contained an update to the

public and city council about the progress of the SOP

Initiative, and quotations of this Court’s decisions

about free speech in public forums in the context of a

ballot initiative. App.:55a-58a Stuart intended to

inform the city council about the

City’s

unconstitutional speech practices and ask the Council

to stop these practices. App.: 88a-89a Stuart

intended to ask the Council to send the SOP Initiative

directly to the voters for approval. App.:89a Stuart

was prevented from giving his petition to the council.

App.:99a-101a;63a-64a The Mayor called Stuart to

speak. When Stuart tried to give his petition, the

Mayor told him he was prohibited from speaking

about it at open public comment. Stuart asked to be

allowed to sj)eak for three minutes and to give his

entire petition to the council. The Mayor denied this

request and ordered Stuart to leave the podium

without speaking. Stuart stated that he would leave

after he spoke for three minutes. The Mayor then

ordered police to remove Stuart from the podium. The

police ordered Stuart to leave the podium. Stuart

explained to the police that he would leave after

speaking for three minutes. App.:69a; 90a The police

then arrested Stuart and forced him to leave the

podium and escorted him outside the building. Most

of the sequence of events was recorded on the city of

Scottsdale's video at (https:// scottsdale. granicus.com

/ player/ clip /7853? View id=106 &redirect=true 22:45

to 26:11) A city of Scottsdale transcript is included in

the Appendix at App. 98a-101a.

Stuart was cited for trespassing and refusal to

obey police under Scottsdale Revised Code 19-13

("SRC 19-13") As the prosecutor explained in his

closing arguments, the basis for charging Stuart with

refusal to obey police , was Stuart's refusal to leave

the podium without speaking for three minutes. App.:

84a;87a

Stuart was acquitted of trespassing , but

convicted of refusal to obey police for refusing to sit on

a bench after he was arrested inside the building.

Stuart’s defense was based entirely on the First

Amendment and the Fourteenth Amendment. App.

80a-82a Stuart argued that he had a guaranteed right

to speak at open public comment, because he was

following the rules and that state open meeting law

and the city charter’s citizen petitioning clause

guaranteed his right to speak. Stuart showed that the

police and Mayor's orders to leave the podium without

speaking were unlawful, and could not provide a basis

for a valid conviction under SRC 19-13. App:65a68a;71a-73a;94a-98a

C. Stuart's Constitutional Challenge to SRC

19-13 in Scottsdale City Court.

Stuart filed a post judgment motion to vacate his

conviction for refusal to obey police, based on

overbreadth in violation of the First Amendment

and vagueness in violation of the Fourteenth

Amendment. The Trial Court denied it. App.:14a

C. The Appeal to Superior Court

Stuart asked the Superior Court to invalidate

SRC 19-13 based on overbreadth and vagueness. The

Superior Court denied this motion. App. : 43a49a;8a-9a

D. The Appeal to Arizona Court of Appeals

Division One.

Stuart was represented by an attorney , and

asked the Court of Appeals to invalidate SRC 19-13

for overbreadth under the First Amendment and

vagueness under the Fourteenth Amendment. App.:

16a- 42a Relying on State v. Kaiser, 204 Ariz. 514

(App. 2003), the Court of Appeals declined to overturn

Kaiser, writing that "Stuart provides no compelling

reason for us to depart from our holding in Kaiser.

App.:2a-4a

REASONS FOR GRANTING THE WRIT

I. Free Speech and Due Process Are

Important Legal Issues of National

Importance in Need of This Court's

Protection.

Free speech and due process are inherently

issues of national importance deserving this Court's

protection. In the past one hundred twenty years, this

Court has invalidated about thirty-seven municipal

ordinances

as violative of the

Fourteenth

Amendment. In that time span, this Court has

invalidated about forty-two ordinances as violative of

the First Amendment. This Court has not hesitated

to strike down municipal ordinances which chill and

infringe on the peaceful exercise of First Amendment

rights. This Court has not hesitated to strike down

municipal ordinances that allow municipalities to

seek to punish innocent behavior, or ordinances that

have no ascertainable standards for enforcement, and

allow police and prosecutors unfettered discretion to

pursue prosecutions.

The facts surrounding the enforcement of SRC

19-13 in this case are very similar to the facts of City

of Houston v. Hill, 482 U.S. 451(1987). Just like the

ordinance in Houston, the enforceable portion of SRC

19-13 deals with speech, not core criminal conduct. As

the prosecutor explained in closing arguments, “He

does not have the right based on his beliefs about the

1st Amendment to simply refuse orders from police

officers..." App.:87a As the state explained in closing

arguments , there are no limitations on police

enforcement, or explicit guidelines to limit police and

prosecutor discretion in pursuing prosecutions.

Scottsdale prosecutors believe that they can pursue

convictions under SRC 19-13, even when a police

officer gives an unlawful order to a person, and the

person refuses to obey the officer's commands.

App.:83a; 85a-86a

The prosecutor can pursue

prosecutions under SRC 19-13 based on any theory it

chooses, and has no obligation to show that the police

orders are lawful.

" Mr. Flint: There is no prerequisite that

the State show in advance somehow that a

directive to the defendant is something that is

lawful. It has to be an order in furtherance of the

discharge of the officer’s duty... It is not the

lawfulness of the order that matters.” App.

:83a

This Court can judicially notice that the

Goldwater Institute has reported about cases in

Scottsdale city court, where the city judge has ruled

that a conviction under SRC 19-13 can result when a

defendant does not obey an unlawful order from a

police officer. App.: 112a Goldwater reported that

defense attorneys widely report that Scottsdale police

cite for violations of SRC 19-13 as retaliation for free

speech activities that police do not like. 2

SRC 19-13 shares many of the same defects of

ordinances that have been invalidated on First

Amendment and Due Process grounds, by this Court.

For these same reasons, this Court should invalidate

SRC 19-13.

Scottsdale Revised Code 19-13 states,

No person shall refuse to obey a peace officer

engaged in the discharge of his duty, or any other

person authorized to aid in quelling any riot, rout or

affray.

A. The Kaiser Opinion is Wrong Because it

Directly Conflicts with City of Houston v.

Hill, 482 U.S. 451(1987), and other

precedent, and Should be Reversed by this

Court.

In declining to reverse Kaiser, the Court of

Appeals ignored the undisputed facts of this case and

the manner in which the prosecutor enforces SRC 1913. It was undisputed that Stuart was peacefully and

lawfully engaged in core First Amendment activities,

and that he was charged with violating SRC 19-13

because he refused to cease attempting to engage in

free speech. App.:74a; 77a-80a; 25a-29a It is

2 See City Court: Outrageous Police Conduct Not a Concern for

Scottsdale Judge ; Mark Flatten, Jan. 24, 2018

undisputed that the prosecutor argued that no person

has a First Amendment right to refuse to obey any

order of a Scottsdale police officer on duty.

App.:83a;85a-86a;87a The prosecutor's own words

are the strongest evidence of how he enforces SRC 1913. It is undisputed that there are no limitations or

explicit guidelines limiting prosecutions under SRC

19-13. If a person must obey every order of a police

officer on duty, then that officer automatically has

unlimited discretion to issue citations for alleged

violations of SRC 19-13. No person could have fair

notice that refusing to obey any type of order from an

officer on duty could be illegal. Refusing to obey police

is oftentimes normal, everyday, innocent behavior,

especially when a person is peacefully engaging in free

speech.

In Kaiser, the police were investigating drunk

driving, not arresting someone in a public meeting to

prevent them from speaking. App.:28a;30a The

Kaiser court concluded that SRC 19-13 "provides

sufficient standards for one charged with its

enforcement to know what conduct is unlawful," and

that "the ordinance does not encourage arbitrary

enforcement." Kaiser did not identify any standards

or limitations on enforcement. Kaiser rejected an

overbreadth challenge, because defendant Kaiser

could not show how SRC 19-13 could be applied to

infringe on free speech. Kaiser, 204 Ariz. 519 Stuart

explained clearly to the Court of Appeals how SRC 1913 is used to punish lawful free speech. App.:31a-35a

The appeals court was not persuaded.

In this case, unlike in Kaiser, Stuart was

engaged in core First Amendment activities. It is

undisputed that Stuart was charged with violating

SRC 19-13, solely because he insisted on speaking for

three minutes at open public comment. App.:74a -75a

The officers testified that Stuart refused to leave the

podium after they ordered him to leave without

speaking. App.: 63a-65a;68a-69a;79a-80a

The prosecutor presented no evidence that

Stuart was doing anything unlawful. The prosecutor

argued that he did not need to show that a police order

was lawful, to prosecute under SRC 19-13. Refusing

any order, according to the prosecutor is a violation of

SRC 19-13. App. 83a; 85a-86a;87a

Every time Stuart tried to solicit testimony

from the police officers about the lawfulness of their

orders to Stuart, the prosecutor objected on relevance

, and other grounds. App.: 65a-66a;68a,70a,71a,72a

These objections show that the prosecutor does not

believe that the lawfulness of a policeman's orders is

a proper road of inquiry, and that the officer does not

need to know whether he gave a lawful order , in order

to issue a citation for violating SRC 19-13.

This Court has invalidated laws and ordinances

when a state court's interpretation of the statute is

unworkable, or when the prosecutors and lower courts

simply don't enforce statutory interpretation in a

manner that protects due process and free speech

rights. In Gooding v. Wilson, 405 U.S. 518, 524 (1972),

this Court invalidated Georgia code § 26-6303,

because the Georgia courts interpretation of the code

did not prevent the police from using it on protected

free speech," no meaningful attempt has been made to

limit or properly define these terms." Like the Georgia

statute , no meaningful attempt has been made to

define the limits of police power in issuing citations

for alleged violations of SRC 19-13. The standard

articulated in Kaiser effectively licenses every judge

"to create its own standard in every case."" "[t]he fault

of the statute is that it leaves wide open the standard

of responsibility, so that it is easily susceptible to

improper application." 405 U.S. 528.

In Lewis v. City of New Orleans, 415 U.S. 130,

133 (1974), this Court invalidated a Louisiana law

that had been found constitutional by Louisiana

courts, because "we find nothing in the opinion of the

Louisiana Supreme Court that makes any meaningful

attempt to limit or properly define — as limited by

Chaplinsky and Gooding — "opprobrious," or indeed

any other term in § 49-7." The Kaiser opinion doesn't

provide explicit limitations, or any type of boundaries

or guidance to lower courts and prosecutors.

This Court should reverse the Court of Appeals

and the Kaiser decision and invalidate SRC 19-13 for

vagueness and overbreadth. Kaiser does not provide

any meaningful limiting construction of SRC 19-13.

Prosecutors enforce SRC 19-13 without any

meaningful limitations on its applications, and

routinely apply it to protected free speech.

B. SRC 19-13 is Overbroad and Violates the

First Amendment

".. a law imposing criminal penalties on

protected speech is a stark example of speech

suppression." Scottsdale Revised Code 19-13 ("SRC

19-13") is "unconstitutional on its face if it prohibits a

substantial amount of protected expression." Ashcroft

v. Free Speech Coalition, 535 U.S. 234, 244 (2002)

Scottsdale Revised Code 19-13 is overbroad and

unconstitutional on its face, because it prohibits any

refusal of any order of a Scottsdale police officer on

duty, without any explicit or actual limitations. App.

83a;85a-87a An overbroad statute infringes on a

substantial amount of constitutionally protected

speech when there is "a realistic danger that the

statute itself will significantly compromise recognized

First Amendment protections of parties not before the

Court," Members of City Council of City of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 801, (1984), or

when the statute is "susceptible of regular application

to protected expression," City of Houston u. Hill, 482

U.S. 451, 467, (1987). "Criminal statutes that make

unlawful a substantial amount of constitutionally

protected conduct may be held facially invalid even if

they also have legitimate application."

SRC 19-13 makes unlawful a substantial

amount of constitutionally protected expression and

conduct. Namely, any refusal of any order by a police

officer on duty. The prosecutor explained that all

refusals are subject to prosecution, no exceptions.

"Every time the defendant refused an order, it’s a

violation of 19-13.... I could have charged five or six

different counts.." App.:77a "The First Amendment

protects a significant amount of verbal criticism and

challenge directed at police officers." A refusal to obey

a police officer is a challenge to a police officer's orders.

In many cases, as here, a refusal is a legitimate

exercise of First Amendment rights.

The

Goldwater Institute

reports that

Scottsdale police routinely use SRC 19-13 in

retaliation for protected speech, when the police have

no lawful basis to order a person to do anything. App.:

102a-112a

This case and the cases reported on by the

Goldwater Institute, show how SRC 19-13 is routinely

applied to protected expression. This Court can

realistically

envision

similar

unconstitutional

applications of SRC 19-13, based on similar historical

fact patterns. For example, if Brown u. Louisiana ,

383 U.S. 131, 137 (1966) occurred in Scottsdale, the

peaceful protesters could have been charged with

violating SRC 19-13. " The sheriff asked the Negroes

to leave. They said they would not. The sheriff then

arrested them" The sheriff" testified that he arrested

them "for not leaving a public building when asked to

do so by an officer."

If Wright v. Georgia, 373 U.S. 284, 286 (1963)

occurred in Scottsdale, Wright could have been

charged with violating SRC 19-13 for refusing to obey

the officers orders to leave the park, "the officers

ordered the petitioners to leave the park. One

petitioner asked one of the officers "by what

authority" he asked them to leave; the officer

responded that he "didn't need any orders to come out

there . . . ." Wright refused the police order to leave

the park, so he was arrested.

If Cox v. Louisianna, 379 U.S. 536, (1965),

occurred in Scottdale, Cox could have been charged

with violating SRC 19-13, because he refused to leave

a peaceful protest after having been ordered to

disburse by the sheriff.

If Bouie v. City of Columbia , 378 U.S. 347 (1964),

occurred in Scottsdale, Bouie could have been charged

with violating SRC 19-13. "The Assistant Chief of

Police then asked them to leave. When petitioner

Bouie asked "For what?" the Assistant Chief replied:

"Because it's a breach of the peace . . . ." Petitioners

still refused to leave, and were then arrested."

In Houston v. Hill, 482 U.S. 451 (1987), "Hill

was arrested under Houston Code of Ordinances, § 3411(a), for "wilfully or intentionally interrupting] a

city policeman ... by verbal challenge during an

investigation." If Hill's situation had occurred in

Scottsdale,

Hill could have been charged with

violating SRC 19-13, for refusing to obey the officers

orders not to interrupt him, or for challenging them "

The ordinance has been "employed to make arrests

for, inter alia, "arguing," "[t]alking," "[interfering,"

"[flailing to remain quiet," "[rjefusing to remain

silent," "[v]erbal abuse," "[c]ursing," "[v]erbally

yelling," and "[tjalking loudly, [w]alking through

scene." Houston, 482 U.S. 457 Hill could have been

charged with violating SRC 19-13 for arguing and

talking with the officers, like Stuart did. SRC 19-13

is much more sweeping than the ordinance struck

down in Hill, or Lewis. Refusal to obey any order by

any officer on duty is a violation of SRC 19-13.

" Every time the defendant refused an order,

it’s a violation of 19-13.

So that’s the State’s

theory in the case. That every single one of these

is a violation. " App.:77a-78a He’s saying that if

he’s standing on the 1st Amendment as he

describes it and as he believes it empowers him,

he doesn’t have to obey 19-13, because he’s

doing something lawful,

Those are false

concepts, and they’re false statements. He

has an obligation to obey, just like anybody

else. ... He does not have the right based on

his beliefs about the 1st Amendment to

simply refuse orders from police officers."

App. :86a-87a

If City of Los Angeles v. Patel, 135 S. Ct. 2443,

2452 (2015), occurred in Scottsdale, Patel could have

been charged with violating SRC 19-13, for refusing to

allow the police to inspect his hotel guest books

without a warrant. "A hotel owner who refuses to give

an officer access to his or her registry can be arrested

on the spot.... the operator can only refuse to comply

with an officer's demand to turn over the registry at

his or her own peril."

If Camara v. Municipal Court, 387 U.S. 523 (1967)

occurred in Scottsdale, Camara could have been

arrested and cited for violating SRC 19-13, for

refusing to allow police to inspect his apartment

without a warrant.

These cases are real life examples of everyday

behavior, which would lead to a citation and an arrest

under SRC 19-13. These examples show that the

potential application of SRC 19-13 to constitutionally

protected speech is almost unbounded. This type of

broad reach is the hallmark of a facially

unconstitutional statute.

In Dombrowski v. Pfister, 380 U.S. 479, 487

(1965), this Court recognized that the threat of

enforcement of an overbroad statute against free

speech requires that the statute be invalidated . The

mere fact that one must risk a prosecution and bear

the costs of a prosecution, chills free speech. " The

chilling effect upon the exercise of First Amendment

rights may derive from the fact of the prosecution,

unaffected by the prospects of its success or failure."

"So long as the statute remains available to the

State the threat of prosecutions of protected

expression is a real and substantial one. Even the

prospect of ultimate failure of such prosecutions

by no means dispels their chilling effect on

protected expression." Dombroski, 380 U.S. 494

SRC 19-13 penalizes a person for peacefully

and lawfully exercising free speech rights in at least

two ways. The police can immediately arrest you, if

you refuse their order. This arrest stops free speech

immediately, as happened with Stuart. A person cited

under SRC 19-13 must bear the costs and burdens of

defending the prosecution,

These costs are a

substantial burden on the right of free speech.

"Defense of a criminal prosecution will not generally

assure ample vindication of First Amendment rights."

Dombroski, Id. The costs and burdens of defending a

prosecution will deter most people from peacefully

exercising free speech rights in Scottsdale. For "[t]he

threat of sanctions may deter . . . almost as potently

as the actual application of sanctions. . . ." NAACP v.

Button, 371 U.S. 415, 433.(1963)

First Amendment freedoms need breathing

space to survive and prosper. Because SRC 19-13

makes it unlawful to engage in constitutionally

protected expression, and is used by police and

prosecutors to punish protected expression, this Court

should declare that SRC 19-13 is facially overbroad

and violates the First Amendment. "The Constitution

does not allow such speech to be made a crime. ”

Houston, 482 U.S. 461

C. SRC 19-13 is Unconstitutionally Vague and

Violates the Fourteenth Amendment.

“a generally worded statute which is construed to

punish conduct which cannot constitutionally be

punished is unconstitutionally vague to the extent

that it fails to give adequate warning of the

boundary

between

the

constitutionally

permissible and constitutionally impermissible

applications of the statute." Wright v. Georgia,

373 U.S. 284, 292 (1963).” Chicago v. Morales, 527

U.S. 41, 59 note 30 (1999)

A statute is unconstitutionally vague if it fails to

give fair notice to the public of what conduct is

prohibited, or if it fails to provide explicit standards

for enforcement

thus inviting arbitrary and

discriminatory enforcement. U.S. v. Johnson, 135 S.

Ct. 2251, 2556 (2015) A statute that vests complete

discretion in the hands of the police to determine

whether the suspect has violated the statute is

unconstitutionally vague. Kolender v. Lawson, 461

U.S. 352, 358 (1983) “when a statute “interferes with

the right of free speech or of association, a more

stringent vagueness test should apply.” Holder v.

Humanitarian Law Project, 561 U.S. 1, 19 (2010)

This Court should declare SRC 19-13 void for

vagueness under the Fourteenth Amendment. SRC

19-13 does not provide fair notice to the public of what

conduct it proscribes. SRC 19-13 has no ascertainable

standards and limitations on enforcement, and invites

arbitrary and discriminatory enforcement. SRC 19-13

directly conflicts with well recognized First

Amendment freedoms-- the right to defy or disobey an

unlawful order of a police officer.

We consider whether a statute is vague as

applied to the particular facts at issue. Holder v.

Humanitarian Law Project, 561 U.S. 1, 19 (2010)

The facts are undisputed. The prosecutor asked

the judge to pick between any of Stuart's five to seven

refusals of orders from the police officers, to find a

conviction. App.: 78a;

"I could have charged five or six different

counts, but I didn’t. I charged the one, and I

thought that was reasonable and fair, because he

did violate multiple orders from the police.

So that’s the State’s theory in the case. That

every single one of these is a violation. You can

pick which one you want."

"An enactment may be attacked on its face as

impermissibly vague if, inter alia, it fails to

establish standards for the police and public that

are sufficient to guard against the arbitrary

deprivation of liberty." Morales, 527 U.S. 42

As shown below, there are no standards that

limit the enforcement of SRC 19-13. Even refusing to

obey an unlawful order, can lead to a prosecution and

a conviction.

1. SRC 19-13 Does Not Give People Fair

Notice of What Conduct it Proscribes.

The prosecutor's closing arguments are the best

evidence of how SRC 19-13 is enforced. Refusing to

obey any order of a police officer on duty, even an

unlawful order, will lead to a citation and prosecution.

"Again, it is not a lawful order. This is not an

- the defendant is adding language into the — into

19-13. 19-13, itself, does not have in there lawful

order. There is no prerequisite that the State

show in advance somehow that a directive to

the defendant is something that is lawful."

App.:83a

They can’t do it, because he’s

incorporated the lawful order, the lawful order,....

He keeps incorporating that. He says it again and

again in his statement to the Court just a moment

ago, a lawful order. It is not the lawfulness of

the order that matters." App. :85a

A person of ordinary intelligence could not have

fair notice that refusing to obey any order of a

Scottsdale police officer could be unlawful. After all,

Scottsdale is, not a police state. This Court has stated

more than once, "The freedom of individuals verbally

to oppose or challenge police action without thereby

risking arrest is one of the principal characteristics by

which we distinguish a free nation from a police

Houston, 482 U.S. 463 Because most

state."

Americans understand that they have a right to

refuse unconstitutional orders from police officers,

SRC 19-13 does not provide them with fair notice that

such a refusal is unlawful in Scottsdale.

Because SRC 19-13 does not give persons of

ordinary intelligence fair notice of what is prohibited,

this Court should declare it void for vagueness under

the Fourteenth Amendment.

2. There Are No Limitations on Enforcement

of SRC 19-13

When the state is not required to prove that a

police officer's order is lawful, when the order is

challenged by a defendant as unlawful, there are no

limitations on enforcement. How could there be?

The Goldwater Institute reported that a

Scottsdale judge enforced SRC 19-13 on the basis that

police orders do not need to be lawful to find a

defendant guilty of violating SRC 19-13. App. :112a

"Defense lawyers argued Ricky Miller was not the

subject of any investigation during the incident,

and that police had no authority to order him to

be quiet and remain seated. Therefore, it was not

a lawful order he was required to comply with.

Judge Morgan rejected the argument.... Ricky

Miller was charged under the Scottsdale city

ordinance, which does not require the order to be

a lawful one, and therefore he was guilty, Morgan

ruled."

Any order, lawful or unlawful, which is refused

can lead to a conviction under SRC 19-13. Judge

Morgan reached the same conclusion as the

prosecutor at Stuart's trial.

Failure of persistent efforts to establish a

standard can provide evidence of vagueness. Johnson

v. United States, 576 U.S. 591, 598 (2015) The

prosecutor's only standard is that the officer be on

duty when he gives the order that is refused. This

evidence of refusal to establish a lawful standard of

enforcement, is strong evidence of vagueness.

There are no boundaries between permissible and

impermissible applications of SRC 19-13. Therefore,

SRC 19-13 is unconstitutionally vague under the

standard set forth in Wright v. Georgia, 373 U.S. 284,

292 (1963).

3. SRC 19-13 Invites Arbitrary and

Discriminatory Enforcement

Officer Cleary issued Stuart a citation for

trespassing and refusal to obey police- SRC 19-13.

Both officers Cleary and Glenn were asked

repeatedly, how they determined that theirs orders

to Stuart to leave the podium without speaking were

lawful. Both officers admitted that the lawfulness of

their orders to Stuart to leave the podium without

speaking was not a relevant consideration.

App.:67a-69a; 71a-73a The excerpts from the trial

transcripts show that the officers blindly follow

orders, without regard to the unconstitutionality of

those orders. In other words, the officers believe that

they can enforce SRC 19-13 in any manner that suits

them at the moment.

(Portions of testimony of Officer Cleary) App 59a68a

Q. BY MR. STUART: Did Mr. Stuart ever indicate

to you that he believed he had a lawful right to

make his presentation to the city council?

A. Yes.

Q. Okay. Why do you believe you gave Stuart

a lawful order? App. 64a

A. Based on the circumstances of the mayor, the

parliamentarian of the -- of the city council

meeting, asking you to step away from the

podium, you were disrupting the meeting. Officer

Glenn’s statement for you to step away from the

podium, my orders for you to step away from the

podium would result in a trespass......

Q. BY MR. STUART: Why do you believe the

mayor gave Mr. Stuart a lawful order to

leave the podium?

MR. FLINT: Speculation, Judge, and THE COURT: It’s MR. FLINT: - calls for a legal conclusion.

THE COURT: It’s overruled as to -- Okay. So why

don’t you restate the question, Mr. Stuart.

Q. BY MR. STUART: Why do you believe that

the mayor gave Mr. Stuart a lawful order to

leave the podium? App. 65a

A. The mayor’s the parliamenta THE COURT: I’ll allow that - I’ll allow that

answer.

THE

WITNESS:

The

mayor is

the

parliamentarian of the meeting. He gives

direction on how the meeting is to be

conducted. And he gave you specific directions to

step away from the podium.

Q BY MR. STUART: Why do you believe that

those specific directions were lawful?

MR. FLINT: Judge, objection. That’s asked and

answered.

THE COURT: No, you can answer the question, if

you can.

THE WITNESS: I don’t know how I can

answer it any more clear, Your Honor.

THE COURT: Okay.

Q. BY MR. STUART: Did Mr. Stuart go to the

podium to speak about issues of public importance

on February 7th? App. 66a

MR. FLINT: Judge, again, calls for speculation.

THE COURT: It’s over — overruled. You can

answer the question, if you can, Officer Cleary.

THE WITNESS: My understanding was you

were going to address your — your petition

and your organization.

Page 55

Q. Is it unlawful for Mr. Stuart to go to a city

council meeting and ask the city council to - to — to have a discussion of a ballot

initiative to go to the voters? App. 67a

MR. FLINT: Judge, that calls for a legal

conclusion, also relevance.

THE COURT: ....It’s -- objection’s overruled. You

can answer the question, if you can, Officer, but -THE WITNESS: I don’t know.

Q. BY MR. STUART: Is it unlawful for Mr.

Stuart to speak about Supreme Court decisions at

city council meetings?

A. I don’t know. App. 67a

Q. BY MR. STUART: Is it unlawful for Mr.

Stuart to speak about Arizona Supreme Court

decisions at a city council meeting?

A. I don’t know.

Q. Then how do you know whether the

mayor’s order to — to leave the podium is

lawful?

A. The mayor’s the parliamentarian of the city

council meetings. He runs the mu -* meeting from

start to finish, gavel to gavel. He gave direction to

the police officers on duty to es -- have you

escorted away from the podium.

Q. So you were acting entirely on the mayor’s

orders; is that correct?

A. Yes.

had

independent

And

you

understanding that Mr. Stuart was doing

anything unlawful.

MR. FLINT: Judge, objection on relevance,

argumentative, calls for legal conclusions.

THE COURT: That’s overruled. You can answer

the question, if you can.

THE WITNESS: I know that you were on a course

of illegality by refusing to step away from the

podium. You had been told to leave the podium by

the mayor several times. Officer Glenn told you to

leave the — the podium several times. I, myself,

told you to leave the podium several times. App.

68a

Q. Did -- did Mr. Stuart indicate to you at the

podium that he’d like to stay and give his threeminute public comment?

If you did, I don’t recall you saying it,

and it was irrelevant to the matter at hand........

it wouldn’t make any difference to the — the

outcome. App. 68a

(testimony of Officer Glenn, excerpts, App.: 69a-72a)

Q. BY MR. STUART: So, Officer, Glenn,

before you follow an order from the mayor,

do you have to make sure that it’s a lawful

order? App. 70a

MR. FLINT: Judge THE WITNESS: I MR. FLINT: - objection.

THE COURT: You can answer the question, if

you can, Officer Glenn.

THE WITNESS: I - I understand that, uh, the

city attorney of Scottsdale has that expertise,

and I was following the order of the mayor

of the City of Scottsdale.

Q. BY MR. STUART: But before you follow

an order of the mayor of the City of

Scottsdale, do you have to determine

whether that’s lawful or not?

A. I would have MR. FLINT: Judge, there’s —

THE WITNESS: - no reason not to.

MR. FLINT: I’m sorry. Objection on

relevance, calls for a legal conclusion,

foundation.

THE COURT: I’ll overrule. You can finish your

answer, Officer Glenn.

THE WITNESS: I was just saying I would

have no reason to believe that it would not

be legal, especially coming from the City of

Scottsdale head attorney.

Q. BY MR. STUART: But that’s not the question

that I asked you. Do you have an obligation to

determine whether that order is lawful before

you follow it?

MR. FLINT: Judge, asked and answered.

THE COURT: It’s overruled. You can answer the

question, if you can.

THE WITNESS: Yeah. That was my answer.

MR. STUART: I’m getting — I’m trying to get

him to admit that he gave an unlawful

order.

THE COURT: Okay.

MR. STUART: If he read the statute, he would

know.

THE COURT: Are you going to admit that

on the stand, Officer Glenn?

THE WITNESS: No, sir. App. 72a

These excerpts from the transcripts show that

Scottsdale police officers cite a person for allegedly

violating SRC 19-13, without regard to the lawfulness

of the order that was refused. In other words, police

officers cite persons for violating SRC 19-13 based on

their personal preferences and predilections, not

based on any verifiable set of rules or standards. This

type of enforcement of a city ordinance is the hallmark

of a vague law. Citations for violating SRC 19-13 can

vary widely from officer to officer, depending on their

personal whims. Convictions can vary widely from

judge to judge, based on whether the order that is

refused is lawful or unlawful. Some judges convict for

any refusal of any order. Others convict only when the

order is lawful.

A statute that vests complete discretion in the

hands of the police to determine whether the suspect

has violated the statute is unconstitutionally vague.

Kolender v. Lawson, 461 U.S. 352, 358 (1983) The

testimony above shows that the officers and

prosecutors believe that they have unlimited

discretion to issue citations for alleged violations of

SRC 19-13, without any consideration of the

lawfulness of the underlying order. SRC 19-13

encourages arbitrary and erratic arrests and

convictions, and criminalizes constitutionally

protected free speech.

As this Court has noted many times when it

invalidates laws for vagueness,

"It Would certainly be dangerous if the legislature

could set a net large enough to catch all possible

offenders, and leave it to the courts to step inside

and say who could be rightfully detained, and who

should be set at large." Papachristou v. City of

Jacksonville, 405 U.S. 156, 165 (1972)

This Court struck down the Jacksonville vagrancy

ordinance because it allowed police to charge persons

for engaging in innocent or constitutionally protected

behavior, and because it encouraged arbitrary and

discriminatory

enforcement.

the

void

Jacksonville ordinance, SRC 19-13 "furnishes a

convenient tool for "harsh and discriminatory

enforcement by local prosecuting officials, against

particular groups deemed to merit their displeasure."

This Court should invalidate SRC 19-13 for

vagueness, because its enforcement cannot be

reconciled with our settled notions of due process.

After all, as the prosecutor argued vociferously,

"There is no prerequisite that the State show in

advance somehow that a directive to the defendant is

something that is lawful... It is not the lawfulness

of the order that matters" App. :83a; 85a

The Scottsdale prosecutor's version of due process

when prosecuting SRC 19-13 is frightening,

dangerous,

unamerican

and

unconstitutional.

Accordingly, this Court should invalidate SRC 19-13

as void for vagueness under the Fourteenth

amendment.

CONCLUSION

This Court should grant this petition, as it has

in many similar cases in the past, and invalidate SRC

19-13 to protect the free speech and due process rights

of people who interact with Scottsdale police.

Respectfully submitted,

Mark E. Stuart, pro se

8629 E. Cheryl Dr.

Scottsdale, AZ 85258

(602) 316099

mstuartl789@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.