Petition for Writ of Certiorari — Tia Pugh, Petitioner v. United States

No.

In the Supreme Court of the United States

TIA PUGH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

GORDON G. ARMSTRONG, III

Counsel of Record

208 Adams Street

-Mohile, Alabama 36603

251-434-6428

251-434-6418 (fax)

gga3@arserv.com

June 10, 2024

QUESTIONS PRESENTED

1. Did Pugh's prosecution under the Civil Obedience Act exceed Congress' authority to

legislate interstate and foreign commerce?

2. Did Pugh's prosecution under the Civil Obedience Act violate her First Amendment

Rights?

3. Is the language of the Civil Obedience so vague as to violate her Due Process Rights?

“lie

PARTIES TO THE PROCEEDING

All parties to this case are set out in the caption.

RULE 29.6 STATEMENT

No corporate entities are involved in this case.

STATEMENT OF RELATED CASES

There are no cases directly related to this case.

-lii-

TABLE OF CONTENTS

QUESTION PRESENTED... seccessssssssecssesssssssesssssssscassnssscauenesarasessaassatsarsstssreasenssanseses i

PARTIES TO THE PROCEEDING. .........cccscsccsssscsssessssvscesssenesessessssesscsesspsssssssseesecesseeees ii

RULE 29.6 STATEMENT... .ecsesccsssssssssssssssessssssesssssssssssavesursssssucsecsusseatascavercssersessesceces ii

STATEMENT OF RELATED CASESG.......cccssccssssssssssssssessessesscsusecssesessessessesssseseseesceeees il

TABLE OF AUTHORITIES... .eccccccsscsssssssssssssscsssarsess ssucetsesssaesvarssssvessstatsuresssesesescecs v

INTRODUCTION .\..0. ce scseccssssesesseseesvesseseesecsssscsevsass suessesecusssuvesaveressuscssssessvesssetsseeeesevees 1

OPINIONS BELOW ......csccscscececsesessessssessssesvesesscsessssssusscansucarasacas sassucsassssesusessvssseseueseces 1

JURISDICTION ...0...ccccccceccessseccctsssesssssseessssssessessessasssessucsnesauscvessesassssssusatssvsssersunsevaneececs 2

STATUTORY PROVISIONS INVOLVED. ......ccccscscsssssssssssesesssesessessssessesscssssstsssescevees 2

STATEMENT 0.0... eseseesessescessssscesecesscescssssssesnessscasa eesessansssesussessisssessesessessesesesseseeees 2

REASONS FOR GRANTING THE PETITION........ccsccsccssssssssscsssscseceesesecsesecsessessvessseeees 5

I. The Civil Obedience Act exceeds Congress’ Commerce Clause

powers to prosecute Pugh for a broken window.......cccccccccscscscccecesesensesceseass 5

A. The Civil Obedience Act does not have a sufficiently

specific connection to interstate comMeYCE.........ecescsecseseesee

B. Pugh's conduct itself did not impact interstate commerce

IL. The Civil Obedience Act impermissibly abridges individuals’ free

speech rights, as protected by the First Amendment...........ccccccccscsessesccees

A. The Civil Obedience Act is an improper legislative sweep

B. The Civil Obedience Act impermissibly regulates

content of protected Spee@ch..........cesecssssssessesessssescsscecssvavssssssenteeces 11

Ili. The unconstitutional vagueness of Civil Obedience Act violates

Dute Process... seccscsscsssesesseseesesessessesesscseessssessenscsesstsa seasasasavacseceserareescava 13

A. The vagueness of the slatute dues not adequately provide the ~

public with notice of prohibited conduct and will likely lead

to arbitrary enforcement, as well as have a chilling effect

on Protected Speech.........ccecccsessesssessssssssseessessessss corececseecetstecseacars 13

B. This Court will not re-write the statute to cure its defects........... 14

CONCLUSION... ceccccsescessessessesescssevessnsscatsnssenensssseneneaeassssaceausasseuen sesssecseeseesessesenssearess 15

-lv-

TABLE OF CONTENTS (CONT'D)

APPENDIX

-V-

TABLE OF AUTHORITIES

Cases

City of Houston v. Hill

ABZ U.S. 451 (L987) ..ccccsecsessssesssssssssececcesusecsssssessssssecssssesersessestversesescesecssecess 11,12,11

Cohens v. Virginia

6 Wheat. 264, 426, 5 L.Ed. 257 (1821)...ccecsccesccssecssssscssssesssssssssesessetecceseeseseescceeeccces 8

Colautti v. Franklin

439 U.S. 879 (1979) ..sseccccssecesssssesscovssecsssssssessssses sesssssssssesessssessssssasssssstasnssssstseeceeccc 15

Grayned v. City of Rockford

AO8 U.S. 104 (1972) .cscccssessssesecssessssussssssussssssscsssesesstasssssssssvissstusssssees sttteseeseesccce 15

Johnson v. United States

576 U.S, 591 (2016)... ccecescsesescsesessecsescssesssssssesesssssssssssestsssscavasasscevevseevevececeesees 14

McCoy v. City of Columbia

929 F.Supp.2d 541 (D.S.C. 2018).....cccccccsssssssssssssseesssssecessesessssssescessseee 9-10,11-12

Members of City Council of L.A. v. Taxpayers for Vincent

466 U.S. 789 (1984)... ceceecscssesssessesessesnessssssuessssssavecsvsssesesseasstassesssassssatesevesecsescece 14

Police Dep't of Chicago v. Mosley

408 U.S. 92 (1972). eecccscccssssssesesesesescsescacsescessessssssusy suenestetavauasitssavseseasetevenees 11,14

Reed v. Town of Gilbert, Ariz.

576 U.S. 155 (2015)... ee eecesccscsssecesesesescecsesescsessossssssesousssavsusecanscavauscsnsuseseesnenses 11

Roy v. City of Monroe

950 F.3d 245,252 (Sth Cir. 2020)... cccescsssescscsesessssssescesssssssssuensee susvesecesseasensesees 9

Sessions v. Dimaya .

584.U.S.148 (2018)... cccscsscsescsecessssssseccssssscsssacesevenevscerscesavassauseucase sresvssssgseee 14

United States v. Castleberry

116 F.8d 1384 (L1™ Cir. 1997) ...cccccccsscssssssesescsseecssscscssscseststsecscevenesaseansvescas sasarsansass 9

United States v. Davis

588 U.S.445 (2019)... ceccsecesessesscssssesscessseseessscsssssss sssssssssseeseatscavavacsestacsscesssses 14

TABLE OF AUTHORITIES (CONT'D)

United States v. L. Cohen Grocery Co.

255 U.S. 81 (1921)... ee eeceeeesssssesesesesesscscessseseseccvssssussvssessacseasavace sususecseacsseseesses 13

U.S. v. Lopez

514 U.S. 549 (1995)... ceescsscssescssesssessecsessessssscsscccssccesasssecsecessessacsescessascassutsessee 5-7

U.S. v. Morrison

529 U.S. 598 (2000)... sesesssssesssssescesesecsecsesssescesssesevsesses eseveuacstsucsesscescseecusanece 5-7

United States v. Pugh

90 F.4th 1318 (11™ Cir. 2024)... cccesscscssesscsesccscecsssessscsssessetavsnsesscavavsvees 2,7,9,13

United States v. Ragen

314 US. 513 (1942). eecceccsseseetesesesscsesscesesenecsssussesscssssesessssssaeecare sussesesceaee 13

United States v. Stevens

559 U.S. 460 (2010)... ce cceeccscsecescsscceccsscsscessesstosevecessecseevasesaucssscavenecsavsapecereces 9

Virginia v. Hicks

589 U.S. 113 (2008)... ccessesssssssescescssenecensscsssverscstsnssscssessesesacessavestassssesarsasensace 14

Washington State Grange v.Washington State Republican Party

BBD U.S. 442 (2008)...ccceccccesscsssssccsussssseccssussessescssssssssecssssecsssssssssesessussssssuvecsesees 9

Constitutional Provisions

Statutes

18 U.S.C. 8231. .cccccceeccssesecsssseessssssecssssscsssssssssecessersesssnvccssseseesssuecssevtesearaeesesssneeesesen

18 U.S.C. §2332.... .

1S U.S.C. §828.1L.ccccccsscccssecscssecccsssserssecessseessense

18 U.S.C. §8237..ccccccescssesssssescssessessessessnssersece vs

BS US.C. §1Ibda vcccsseccccscscvsssssesorsevscsseveccsavessssecesssesssusessusestsuversuceesursstsassarssstarssasss srsssesen

PETITION FOR A WRIT OF CERTIORARI

Tia Pugh respectfully petitions for a Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Eleventh Circuit in this case.

INTRODUCTION

Included in the Civil Rights Act of 1968-a landmark law that applied the Bill

of Rights to American Indians and forbade racial housing discrimination—is the

peculiar Civil Obedience Act of 1968. What is now 18 U.S.C. §231 was originally Title

X of the 1968 Civil Rights Act, having been seemingly tacked on to the end of the bill.

It was signed into law one week after Dr. King's assassination. The first individuals

prosecuted under this Act were protestors at the 1968 Democratic National Convention

in Chicago. While it was drafted with Vietnam War protestors and Black Panthers in

mind, today it is used to charge protestors from both the left-wing and right-wing

politically. With the revival of prosecutions under this law, it is time to revisit the

Constitutionality of the language of this broad and vaguely-worded law.

OPINIONS BELOW

The opinion of the court of appeals is reported at 90 F.4th 1318. The orders

denying the petitions for rehearing and rehearing en banc were not reported.

-2.

JURISDICTION

The judgment of the court of appeals was entered on January 18, 2024. The

petition for rehearing en banc was denied March 11, 2024. Pugh invokes the

jurisdiction of this Court under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Your Petitioner was charged with and convicted of violating 18 U.S.C.

§231(a)(8), which states:

Whoever commits or attempts to commit any act to obstruct, impede, or

interfere with any fireman or law enforcement officer lawfully engaged

in the lawful performance of his official duties incident to and during the

commission of a civil disorder which in any way or degree obstructs,

delays, or adversely affects commerce or the movement of any article or

commodity in commerce or the conduct or performance of any federally

protected function—

Shall be fined under this title or imprisoned not more than five years, or

both.

The Civil Obedience Act defines “civil disorder” as “..any public disturbance

involving acts of violence by assemblages of three or more persons, which causes an

immediate danger of or results in damage or injury to the property or person of any

other individual.” 18 U.S.C. §232(1).

STATEMENT

Concerning the United States District Court’s jurisdiction, it has original

jurisdiction, exclusive of State Courts, over all offenses against the laws of the United

States (here, the Civil Obedience Act). 18 U.S.C. §3231. The incident made the basis

of the charges occurred in Mobile, which makes venue proper in the Southern District

of Alabama. 18 U.S.C. §3237.

On May 31, 2020, Tia Pugh was one of thousands of participants in a march and

rally in Mobile, Alabama, concerning the highly publicized deaths of George Floyd and

Breonna Taylor as the result of encounters with law enforcement. This type of protest

occurred many times over in cities much larger and smaller than Mobile. This was an

authorized and fairly-well organized protest. The protest had been pre-approved by the

City of Mobile. The City of Mobile Police Department was present for speeches given

at Mardi Gras Park, near the Mobile Government Plaza, and Cathedral Park, across

from the Cathedral of the Immaculate Conception, and stood along with protestors

during the march.

Pugh, along with close to a thousand fellow citizens, marched down Water

Street. The crowd turned down Government Street, heading in the direction of

Government Plaza. A small portion of the crowd did not turn, and continued straight,

near the U.S. Interstate Highway 10 on-ramp, located between the local maritime and

children's museums. City of Mobile police officers quickly cut the small group off before

reaching the ramp. Soon, a contingent of police officers with body armor and gas masks

formed a wall in front of the protestors. They were flanked by mounted police.

While there had been shouting and chanting, no one in the smaller group tried

to breach the police officer's formed line, or engage in any other type of physical contact

with the officers. Close to a half-hour into this standoff, City of Mobile police fired tear

gas into the crowd. At some point during the ensuing commotion, the front passenger

window of a City of Mobile Police vehicle was broken.

-4.

Despite dozens of police officers, many in riot gear, being present, the broken

window was not discovered until after the crowd disbursed. The City of Mobile Police

Department called on the help of local television stations to find footage of the incident.

After finding video and asking the public for help identifying the person of interest, the

City of Mobile Police Department was arrested on misdemeanor charges. She was

booked and posted bond with the City of Mobile Municipal Court.

This story should have concluded with Pugh pleading to the misdemeanors in

city court and paying restitution to the police department. But the City of Mobile

decided to make a federal case out of a broken window. Pugh was served with a

complaint and arrested for violating the Civil Obedience Act. She then appeared in the

United States District Court for the Southern District of Alabama, case no.

20-cr-00078.

Pugh went from protesting for the rights of others to asserting her own. She

moved to dismiss the indictment as violating the United States Constitution. In

response, the Government attempted to clean up problems in the first indictment and

obtained a superseding indictment. Pugh continued moved to dismiss those charges as

well, so she could go back to municipal court where this case belonged. Her motion was

ultimately denied by the district court.

Pugh was tried and convicted of violating the Civil Obedience Act, and was

sentenced by the district court to time served.

-5-

REASONS FOR GRANTING THE PETITION

The Civil Obedience Act does not have a sufficient connection to interstate or

foreign commerce for it to fall within Congress’ authority under the Commerce Clause.

U.S. Const. Art.I §8. The Civil Obedience Act also employs vague and overly broad

language that violates not only First Amendment protections of speech, but also

Fourteenth Amendment due process guarantees. A revival in the use of this statute in

recent years calls for renewed scrutiny of its language.

I. The Civil Obedience Act exceeds Congress’ Commerce Clause powers

to prosecute Pugh for a broken window.

The portion of the statute relevant to Commerce Clause jurisdiction states:

“..which in any way or degree obstructs, delays, or adversely affects commerce or the

movement of any article or commodity in commerce or the conduct or performance of

any federally protected function.” 18 U.S.C. §231(a)(3). This Court has stated that

while the interpretation of the Commerce Clause has certainly gotten more generous

over the years, it is not “without effective bounds.” U.S. v. Morrison, 529 U.S. 598,608

(2000)(citing U.S. v. Lopez, 514 U.S. 549,557 (1995)).

A. The Civil Obedience Act does not have a sufficiently specific

connection to interstate commerce.

In order to further protect the line between national and local from _

disappearing, This Court has set out three general areas where Congress has power

to regulate commerce:

(1) the use of the “channels” of interstate commerce;

(2) the “instrumentalities” of interstate commerce; and

(8) activities having a substantial relation to interstate commerce.

Lopez at 558-559 (1995)(citations omitted). When determining what has a

“substantially affects” interstate commerce, This Court has set out the following test:

(1) whether the regulated activity is commercial/economic in nature;

(2) whether an express jurisdictional element is provided in the statute

to limit its reach;

(8) whether Congress made express findings about the effects of the

proscribed activity on interstate commerce; and

(4) whether the link between the prohibited activity and the effect on

interstate commerce is attenuated.

U.S. v. Morrison, 529 U.S. 598,610-12 (2000).

Review of federal criminal statutes is to be done in light of the fact that the

Constitution reserved general police power to the States. “The regulation and

punishment of intrastate violence that is not directed at the instrumentalities,

channels, or goods involved in interstate commerce has always been the province of the

States.” Morrison, 529 U.S. at 618 (citing Cohens v. Virginia, 6 Wheat. 264, 426, 428,

5 L.Ed. 257 (1821)). “We always have rejected readings of the Commerce Clause and

the scope of federal power that would permit Congress to exercise a police power.”

Lopez, 514 U.S. at 584-85 (Thomas, J., concurring)(cleaned up); see also Morrison, 529

US. at 618-19 (quoting Lopez).

-7-

The conduct sought to be barred by federal criminal statute must have a direct

affect on interstate commerce. “We accordingly reject the argument that Congress may

regulate noneconomic, violent criminal conduct based solely on that conduct's

aggregate effect on interstate commerce.” Morrison at 529 U.S. 617-18 (citing Lopez

514U.S, at 568). In its decision, the Court of Appeals eschewed This Court’s statement

on this matter, citing United States v. Castleberry, 116 F.3d 1384 (11 Cir. 1997). See

Pugh, 90 F.4th at 1827. However, Castleberry predates Morrison.

As with the statute in question in Lopez, the Anti-Riot Act “...is not an essential

part of a larger regulation of economic activity.” Lopez at 561. It is found within the

Civil Rights Act of 1968, the other portions of which do not directly relate to “civil

disorder.” The Civil Obedience Act states prohibits conduct that occurs “during the

commission of a civil disorder which in any way or degree obstructs, delays, or

adversely affects commerce or the movement of any article or commodity in commerce

or the conduct or performance of any federally protected function.” The statute's plain

language allows for the Federal Government to punish someone for engaging in

completely intrastate activity, so long as it is during a “civil disorder” that affects

interstate commerce. That falls into the “affect in the aggregate” category This Court

has said in Morrison and Lopez does not pass Constitutional muster.

-8-

B. Pugh’s conduct itself did not impact interstate commerce.

If it is determined that the prohibited conduct mus be what affects interstate

commerce, the facts of this case do not show that happened. The Government put on

evidence asserting that the events during which Pugh knocked out a window affected

commerce because traffic had to be diverted away from Downtown Mobile. The

problem with that argument is the City of Mobile had already diverted traffic away

from Downtown Mobile for the protest. These events happened in a bend along the

march route. The City of Mobile planned for and in a sense participated in the march,

as the Chief of Police was at the head of the line for the march.

In either circumstance (Pugh’s conduct must affect commerce, or it merely must

to occur during something else that affects commerce), The Civil Obedience Act does

not fall within Congress’ Commerce Clause powers.

II. The Civil Obedience Act impermissibly abridges individuals’ free

speech rights, as protected by the First Amendment.

As mentioned, the Civil Obedience Act was passed during a turbulent time in

this Country. It was directed at the civil unrest over the Vietnam War and the Civil

Rights movement. With the return of the days of civil unrest that has occurred in

recent years, the Civil Obedience Act has come back into play. This Court’s standards

show that the Civil Obedience Act impermissibly affects he People’s free speech: ~~

rights.

-9-

A. The Civil Obedience Act is an improper legislative sweep.

“In the First Amendment context...a law may be invalidated as overbroad if ‘a

substantial number of its applications are unconstitutional, judged in relation to the

statute's plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460,473

(2010)(quoting Washington State Grange v.Washington State Republican Party, 552

U.S. 442,449, n.6 (2008)). The Civil Obedience Act, like other legislative sweeps, "must

be scrutinized with particular care." City of Houston v. Hill, 482 U.S. 451,459 (1987).

The prohibition of “any act” such as found in §231(a)(3) does not do a sufficient

job of “meaningfully [guiding] the police and thus poses a substantial risk of arbitrary

or discriminatory enforcement.” Roy v. City of Monroe, 950 F.3d 245,252 (5th Cir.

2020).

Similarly, the term “interfere” in §231(a)(8) is overly broad and is subject to

more scrutiny than the Panel affords. “Interfere” in this statute was not defined by

Congress. Cf 18 U.S.C. §232. The Court of Appeals pushed aside Pugh’s argument

argument by absorbing the word “interfere” into the words “obstruct” and “impede” in

order to bolster its defense of the statute. See Pugh, 90 F.4th at 1329-30. However, that

ignores instances where interfere has meant something less than obstruction. “Indeed,

there are numerous examples in which a person's speech could interfere with...a police

officer in the lawful discharge of the officer's duties.” McCoy v. City of Columbia, 929

-10-

F.Supp.2d 541,550 (D.8.C. 2018)(striking down as overly broad a city ordinance that

stated “It shall be unlawful for any person to interfere with or molest a police officer

in the lawful discharge of his duties.”).

Just as with the City of Houston ordinance declared unconstitutional by the

Supreme Court, the language of §231(a)(3) is not narrowly tailored so as to provide

guidance to law enforcement, but instead arms police with “unfettered discretion to

arrest individuals for words or conduct that annoy or offend them.” City of Houston v.

Hill 482 U.S. at 465,

While the Civil Obedience Act defines “civil disorder”, itis also overly broad. The

term covers “any public disturbance involving acts of violence by assemblages of three

or more persons, which causes an immediate danger of or results in damage or injury

to the property or person of any other individual.” 18 U.S.C. §232(1). That could mean

anything from a handful of drunks fighting outside of a bar to the January 6, 2021,

riots. Such is overly broad so as to encroach on the Tenth Amendment reservation of

Furthermore, the prohibited act need only occur "incident to and during" a civil

disorder. There is no requirement that "any act" be an act of violence, or for the

purpose of causing or furthering a civil disorder. A police officer who trips over

someone kneeling in prayer during a riot, petitioning The Lord to bring peace to his

community, can be found to have unlawfully impeded a law enforcement officer

-11-

incident to and during a civil disorder. This overbreadth is unconstitutional.

B. The Civil Obedience Act impermissibly regulates content of

protected speech.

The Civil Obedience Act regulates content in that it only covers speech and

expression directed at police officers and firefighters. The Supreme Court has been

clear that restriction of expresion based on message, ideas, and subject matter violates

the First Amendment, and content-based statutes are subject to strict scrutiny. Police

Dep't of Chicago v. Mosley, 408 U.S. 92 (1972); Reed v. Town of Gilbert, Ariz., 576 U.S.

155 (2015).

The Court of Appeals attempts to distinguish this case from City of Houston v.

Hill by asserting that the Houston ordinance only covered speech, and then assumes

The Civil Obedience Act only covers conduct. Pugh, 90 F.4th at 1331. While the Hill

Court mentioned that “assault” of an officer was found in the Texas Penal Code, but

the ordinance at issue prohibited anything that would “oppose, molest, abuse, or

interrupt” an officer. Hill at 460-61. Not every physical opposition, touching, or

interruption of an officer would equate to an assault of that officer.

The Panel assumes that “any act” in the statute only covers conduct and not

speech. It dismisses any such discussion of “any act” covering speech as “hypothetical”.

That is not the case. Cf. McCoy v. City of Columbia, supra (where the ordinance held

unconstitutional contained the word “interfere”, which was held to be both speech and

-12-

conduct)'.

The Civil Obedience Act does not survive strict scrutiny because it restricts

protected content without a compelling interest and without being narrowly tailored

to achieve that interest. See Reed, 576 U.S. at 171. As set out above terms like “any

act” and “interfere” are incredibly overbroad. The statute deals specifically with police

officers and firefighters. There are laws on the books in each state that prohibit things

such as assaulting an officer, obstructing of justice, obstructing governmental

operations, resisting arrest, and even failing to obey a lawful command. In fact, Pugh

was originally, and appropriately, charged in municipal court for criminal mischief.

The Civil Obedience Act is superfluous and redundant in light of all these state laws,

meaning there is no need to have a federal statute such as this.

‘Furthermore, the basis of the arrest under the unconstitutional ordinance

was the plaintiff “back-pedaling” while an officer tried to arrest him. See McCoy v.

City of Columbia 2013 WL 936607 (D.S.C. Jan. 16, 2013)(the Magistrate’s report,

while not fully adopted by the District Court, sets out more detailed facts about the

incident giving rise to the arrest).

-18-

Il. The unconstitutional vagueness of Civil Obedience Act violates Due

Process.

A. The vagueness of the statute does not adequately provide the

public with notice of prohibited conduct and will likely lead to

arbitrary enforcement, as well as have a chilling effect on

Protected Speech.

The vagueness discussed more in-depth above also violates The Due Process

Clause because it (1) fails to provide sufficient notice that would enable ordinary people

to understand what conduct it prohibits; or (2) encourages arbitrary and discriminatory

enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

Besides the aforementioned vagueness, The Civil Obedience Act also lacks a

mens rea element, which is often a fatal flaw. A statute without an intent/scienter

element “is little more than ‘a trap for those who act in good faith.”) Colautti v.

Franklin, 439 U.S. 379,395 (1979)(quoting United States v. Ragen, 314 U.S. 513,524

(1942)). A statute is also found to be vague when the crime is dependent on the

subjective reaction of others rather than the acts or intentions of the defendant. See,

e.g., United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921) (a prohibition on “unjust

or unreasonable rates or charges” without attempt to define those terms, was

unconstitutionally vague).

The Civil Obedience Act leaves it up to the interpretation of the officer what

constitutes “any act” that “interferes” or “impedes”. Someone who is not participating

-14.

in the civil disorder can nonetheless be considered by prosecutors to be “incident to and

during” the civil disorder.

The fact that The Civil Obedience Act is vague and overly broad, leaving

important elements of the crime up to the interpretation of the prosecutor and law

enforcement, can result in a chilling effect on otherwise protected speech. See Virginia

v. Hicks, 539 U.S. 113,119 (2003); Members of City Council of L.A. v. Taxpayers for

Vincent, 466 U.S. 789,799 (1984).

B. This Court will not re-write the statute to cure its defects.

This Court has directed to treat unconstitutionally vague laws as a nullity. See

United States v. Davis, 588 U.S.445 (2019). It then becomes Congress’ job to get itright

under the Constitution. See id.

The Court of Appeals opines that because conduct can be restricted under

§231(a)(8), it is not unconstitutional, and dismiss other possibilities as “hypothetical”.

Pugh at 1331. However, This Court’s rulings “squarely contradict the theory that a

vague provision is constitutional merely because there is some conduct that clearly

falls within the provision’s grasp.” Johnson v. United States, 576 U.S. 591,602 (2016);

accord Sessions v. Dimaya, 584 U.S.148 (2018) (reaffirming Johnson).

-15-

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

}

GORDON G>ARMSTIRONG, II”

Attorney for Appellant

208 Adams Street

Mobile, Alabama 36603

251-434-6428

251-434-6418 (fax)

gga8@arserv.com

June 10, 2024

APPENDIX

la

APPENDIX A

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

No. 21-13136

UNITED STATES OF AMERICA,

versus Plaintiff-Appellee,

TIA DEYON PUGH,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:20-cr-00073-TFM-B-

2a

Before LAGOA and BRASHER, Circuit Judges, and BOULEE,J District J udge.

BRASHER, Circuit: Judge:

This appeal raises questions of first impression about the constitutionality of 18

US.C. § 231(a)(8), which prohibits impeding law enforcement officers during a civil

disorder affecting interstate commerce. During a riotous protest in Mobile, Alabama, Tia

Pugh shattered the window of a police car that was blocking protestors from walking

onto the interstate. After the government charged Pugh with impeding law

enforcement during a civil disorder, she moved to dismiss the indictment. She argued

that Section 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress's power

to legislate under the Commerce Clause, (2) is a substantially over- broad regulation of

activities protected by the First Amendment,

(3) is a content-based restriction of expressive activities in violation of the

First Amendment, and (4) is vague in violation of the Fifth Amendment’s

Due Process Clause. The district court rejected these arguments, Pugh’s

case went to trial, and a jury found her guilty. Pugh argues that the

district court erred in rejecting her four challenges to the constitutionality

of Section 231(a)(3). We disa- gree and affirm Pugh’s conviction.

0 Honorable J. P. Boulee, United States District Judge for the

Northern District of Georgia, sitting by designation.

3a

I.

In May 2020, protesters planned to march through the streets of downtown

Mobile, Alabama, to protest police brutality after the death of George Floyd. Mobile

police officers developed an operational plan to protect the protestors and the public. As

part of that plan, the police placed traffic units in the area to redirect protesters away

from Interstate 10, which was near the protest route.

On the day of the protest, Tia Pugh and a group of protestors deviated from the

planned protest route and approached a ramp to Interstate 10. The ramp they

approached was near Exit 26B of Interstate 10, an exit used by commercial vehicles

ar- rying hazardous materials across state lines. In response, the police attempted to

block access to the ramp by forming a barricade. The police, in coordination with the

Alabama Department of Transportation, shut down traffic along the ramp and closed

the exit. The Alabama Department of Transportation also rerouted vehicles on the

interstate, which slowed traffic and forced commercial vehicles carrying hazardous

materials to take a longer route.

The protest eventually devolved into a riot. Police officers used tear gas to

disperse people from the highway. Around that time, Pugh smashed a police car

window with a baseball bat before running away. Pugh’s attack immobilized the

vehicle, and police officers had to be “pulled off of the barricade line to guard the vehicle” and the equipment inside.

A grand jury indicted Pugh on one count of impeding law enforcement during

a civil disorder in violation of 18 U.S.C.

§ 231 (a)(3). Pugh moved to dismiss the indictment on the ground that Section 231(a)(8)

is unconstitutional. As relevant here, Pugh argued that the statute was facially

unconstitutional because it:

(1) exceeds Congress’s authority under the Commerce Clause;

(2) too broadly regulates speech and expressive conduct protected by the First

Amendment; (3) constitutes a content-based restriction of expressive activities

protected by the First Amendment: and

(4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement,

in violation of the Fifth Amendment’s Due Process Clause. After a grand jury issued a

superseding indictment, Pugh renewed her motion to dismiss and reasserted her arguments.

The district court denied Pugh’s motion and rejected each of her arguments.

4a

The case went to trial, and the government pre- sented evidence and testimony about

the protest, its impact on in- terstate commerce, and Pugh’s conduct. The district court

in- structed the jury that Pugh could be found guilty of violating Section 231(a)(3) only

if the government established beyond a reason- able doubt that: (1) Pugh “knowingly

committed an act or attempted to commit an act with the intended purpose of

obstructing, impeding, or interfering with one or more law enforcement officers”; (2)

at the time of the act or attempted act, the “officer or officers were engaged in the lawful

performance of their official du- ties incident to and during a civil disorder’; and (3) “the

civil disor- der obstructed, delayed, or adversely affected interstate commerce or the

movement of any article or commodity in interstate com- merce in any way or to any

degree.”

The jury found Pugh guilty of violating Section 231(a)(3). The district court

sentenced Pugh to time served and imposed monetary penalties and restitution. Pugh

timely appealed.

I.

We generally review a district court’s order denying a motion to dismiss an

indictment for an abuse of discretion. United States v. Focia, 869 F.3d 1269, 1285 (11th

Cir. 2017) (citing United States v. Di Pietro, 615 F.3d 1369, 1370n.1 (11th Cir. 2010)). But

“[w]e review a challenge to the constitutionality of a statute de novo.” United States v.

Knight, 490 F.3d 1268, 1270 (11th Cir. 2007) (emphasis added) (citing United States v.

Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005)); accord Focia, 869 F.3d at 1285 (quoting

Di Pietro, 615 F.3d at 1370 n.1).

Til.

Section 231(a)(3) punishes “[w]hoever commits or attempts to commit any act to

obstruct, impede, or interfere with any fire- man or law enforcement officer” who is

“lawfully engaged in the lawful performance of his official duties incident to and during

the commission of a civil disorder.” 18 U.S.C. § 231(a)(3). The civil dis- order must be one

“which in any way or degree obstructs, delays, or adversely affects commerce or the

movement of any article or commodity in commerce or tho conduct or performance of

any federally protected function.” Id. A related provision defines “civil disorder” and

“commerce” for Section 231(a)(8). See id. § 232(1)—

(2). A “civil disorder” is “any public disturbance involving acts of violence by assemblages

of three or more persons, which causes an immediate danger of or results in damage or

injury to the property or person of any other individual.” Jd. § 232(1). And “commerce” is

defined as “commerce (A) between any State or the District of Co- lumbia and any place

Sa

outside thereof; (B) between points within any State or the District of Columbia, but

through any place outside thereof; or (C) wholly within the District of Columbia.” Id.

§ 232(2).

Pugh argues that Section 231(a)(3) is unconstitutional because it (1) exceeds

Congress’s authority under the Commerce Clause, (2) is a substantially overbroad

regulation that criminalizes activities protected by the First Amendment, (3) is a contentbased restriction of expressive activities in violation of the First Amend- ment, and (4)

is vague in violation of the Fifth Amendment’s Due Process Clause.

These four arguments are all facial challenges to the constitutionality of Section

231(a)(3). “A facial challenge, as distinguished from an as-applied challenge, seeks to

invalidate a statute or regu- lation itself.” Horton v. City of St. Augustine, 272 F.3d 1318, 1329

(11th Cir. 2001) (quoting United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000).

Generally, “a plaintiff bringing a facial challenge must ‘establish that no set of

circumstances exists under which the [law] would be valid’ or show that the law lacks ‘a

plainly legitimate sweep.” Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2378, 238 (2021)

(alteration in original) (citation omitted) (first quoting United States v. Salerno, 481 U.S.

739, 745 (1987); and then quoting Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442, 449 (2008)).

In determining whether a statute meets this standard, we “consider[] only

applications of the statute in which it actually authorizes or prohibits conduct.” City of Los

Angeles v. Patel, 576 U.S. 409, 418 (2015). Although “the underlying facts” of the case

“are largely irrelevant’ im a facial challenge, Cheshire Bridge Holdings, LLC v. City of Atlanta,

15 F.4th 1862, 1865 (11th Cir. 202) (citing Patel, 576 U.S. at 415; Miami Herald Publ’g Co. v.

City of Hallandale, 734 F.2d 666, 674 n.4 (11th Cir. 1984)), the facts may establish that

circumstances exist under which the statute is valid, see United States v. Paige, 604 F.3d

1268, 1274 (11th Cir. 2010) (rejecting facial challenge under the Commerce Clause because

the law “was constitutionally applied to [the defendant’s] conduct” (citing Horton, 272

F.3d at 1829)). And for all arguments but First Amendment ones, the “fact that [a

statute] might operate unconstitutionally under some conceivable set of circumstances

is insufficient to render it wholly in- valid” because federal courts “have not recognized

au ‘overbread ly doctrine vulside the limited conteat of the First Amend- ‘neti.’

Salerno, 481 U.S. at 745 (citing Schall v. Martin, 467 U.S. 253, 269 n.18 (1984).

With these principles in mind, we next consider Pugh’s four facial challenges to

the constitutionality of Section 231(a)(3).

6a

A

We will start with Pugh’s argument that Section 231(a)(8) is facially unconstitutional

because it exceeds Congress’s power under the Commerce Clause. Pugh’s argument turns on

whether the jurisdictional element of the statute—the requirement that the civil disorder “in

any way or degree obstruct[], delay[], or adversely af- fect{] commerce”—is enough to limit the

statute’s scope to constitutional applications. 18 U.S.C. § 231(a)(3). We believe that itis.

Under the Commerce Clause, Congress has the power to regulate interstate

commerce. See U.S. Const. art. I, § 8, cl. 3. The Supreme Court has “identified three broad

categories of [interstate] activity that Congress may regulate under its commerce power.”

United States v. Lopez, 514 U.S. 549, 558 (1995) (citing Perez v. United States, 402 U.S. 146, 150 (1971);

Hodel v. Va. Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 276-77 (1981)). The three

categories are: (1) “the use of the channels of interstate commerce,” id. (citing United States v.

Darby, 312 U.S. 100, 114 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964);

(2) “the instrumen- talities of interstate commerce, or persons or things in interstate

commerce,” id. (citing Shreveport Rate Cases, 234 U.S. 342 (1914); S. Ry. Co. vu. United States, 222

US. 20 (1911); Perez, 402 U.S. at 150); and (8) “those activities having a substantial relation to

interstate commerce, ... t.e., those activities that substantially affect interstate commerce,”

id. at 558-59 (citations omitted).

Under our precedents, if a criminal statute contains ajurisdictional element that

limits the statute to constitutional applications, that jurisdictional element “immunizes

[the statute] from... [a] facial constitutional attack.” United States v. Scott, 263 F.3d 1270, 1273

(11th Cir. 2001) (citing United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), see also United

States v. Morrison, 529 U.S. 598, 611-12 (2000). The reason is that “[w]hen a statute ex- pressly

requires that the proscribed conduct have an appropriate nexus with interstate commerce,

courts can ‘ensure, through case- by-case inquiry, that each application of the statute is

constitutional, and thus the statute should not be struck down as being facially

unconstitutional.” Ballinger, 395 F.3d at 1228 n.5 (quoting Lopez, 514 U.S. at 561).

Pugh argues that the jurisdictional element in Sec- tion 231(a)(8) is not enough

to limit its scope te constitutional ap- plications. Under the relevant part of the statute, a

jury must find that a defendant committed an “act to obstruct, impede, or inter- fere with”

a law enforcement officer while that officer was per- forming “his official duties incident to

and during the commission of a civil disorder which in any way or degree obstructs, delays, or

adversely affects commerce or the movement of any article or commodity in commerce.” 18

US.C. § 231(a)(8). The statute’s ju- risdictional element criminalizes acts during civil disorders

that “af- fect{] commerce or the movement of any article or commodity in commerce.” Id.

Ta

(emphases added). “The ‘in commerce’ language de- notes the first two Lopez categories—

regulation of the channels and of the instrumentalities of commerce.” Ballinger, 395 F.3d at

1231. And “[t}he ‘affecting commerce’ language invokes the third Lopez category—regulation

of intrastate activities that substantially affect

[OCR skipped on page(s) 31-78]

[Read from a scan; the first 30 pages.]