Petition for Writ of Certiorari — Thomas Charles Felton Jones, Petitioner v. South Carolina

Supreme Court briefAug 6, 2024

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Text

No.

In The

Supreme Court of ttje 3Hmte& States?

THOIP^Ch^IJESFELTONJONESv

if:.

STATEOF;SdUTH CAROLINA.

On Petition for a Writ of Certiorari

to the Supreme Court of South Carolina

APPENDIX

Table of Appendices

Opinion (S.C. Sup. Ct. May 8, 2024)

A-l

Trial Transcript Excerpts................

B-l

Ordinance..........................................

C-l

Petitioner’s Pretrial Motion......... .

D-l

State’s Exhibit #2........ ....................

E-l

Appendix A-l

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

Thomas Charles Felton Jones, Appellant.

Appellate Case No. 2020-000108

Appeal from Greenville County Robin B. Stilwell,

Circuit Court Judge

Opinion No. 28203

Heard June 6, 2023 - Filed May 8, 2024

REVERSED

Assistant Public Defender Andre Ta Nguyen,

Assistant Public Defender Jacob Goldstein, and

Assistant Public Defender John Christopher

Shipman, all of Greenville, for Appellant.

Attorney General Alan McCrory Wilson and

Assistant Deputy Attorney General Mark Reynolds

Farthing, both of Columbia, for Respondent.

Appendix A-2

JUSTICE FEW: A Greenville County Sheriffs

Deputy tased Thomas Jones until he lost

consciousness before handcuffing and arresting him.

The conduct that justified this? Jones asked questions

of two deputies as he observed them carry out a traffic

stop. Jones argues the Greenville County ordinance

under which he was convicted was unconstitutionally

applied to him. The State concedes Jones is correct.

Jones also asks this Court to strike down the entire

ordinance as unconstitutional under the First

Amendment and the Due Process Clause of the United

States Constitution. We reverse Jones's conviction

because the ordinance is unconstitutional as applied

to him. We decline to address his other arguments.

Facts and Procedural History

In July 2018, deputies Jake Lancaster and

Jonathan Cooper of the Greenville County Sheriffs

Office pulled over a woman for failing to use a turn

signal. The woman pulled her car to the side of the

street in front of the home of the man she was driving

to visit—Thomas Jones. From the deputies' body

camera videos, it is apparent Jones walked from near

his house to the side of the street to observe the stop.

Standing at a distance with a flashlight pointing

toward the officers, Jones observed the scene.

Jones briefly interacted with Lancaster and asked

why Lancaster was calling for backup. Lancaster

responded it was for safety in the event anyone else

approached the scene. Jones next asked why his

visitor was being pulled over, and Lancaster answered

by stating it was because she had turned without

using a turn signal and rolled through stop signs.

Seemingly irritated by the questions, Lancaster then

asked Jones, "Do you need anything man?" to which

both Jones and his friend responded that she was

Appendix A-3

visiting Jones for the night. The woman and Jones's

interactions with the deputies were calm and

respectful. Jones then took a few steps backward,

away from both deputies and the woman, still

observing with his flashlight on.

The entire exchange that followed lasted only seven

to eight seconds. While Cooper questioned the friend,

Jones continued to stand and watch. Lancaster then

asked Jones, "Alright man, do you need to be here?"

Jones responded, "Yeah, this is my house." Lancaster

responded—pointing toward the house—"You can go

back over there, or you can be arrested for interfering.

Step back." Jones did not move. Two seconds later,

Lancaster said, "Alright, turn around," and began

approaching Jones. Both deputies rushed toward

Jones, tackled him, tased him, handcuffed him, and

then arrested him. During the altercation, Jones lost

consciousness. Three minutes elapsed between Jones

appearing on camera and the arrest.

Jones was convicted of interfering with a county law

enforcement officer under a Greenville County

ordinance but was found not guilty of resisting arrest

with assault. He was sentenced to thirty days in jail

and a $1,000 fine, suspended upon ten days in jail over

weekends and a $500 fine. Jones appealed to the court

of appeals and the case was transferred to this Court

because Jones raises constitutional challenges to the

validity of the ordinance. See S.C. Code Ann. § 14-8200(b)(3) (2017); Rule 203(d)(l)(A)(ii), SCACR.

II.

Analysis

Subsection (b) of the ordinance under which Jones

was convicted reads:

Appendix A-4

It shall be unlawful for any person

within the unincorporated area of the

county to commit an assault, battery or

by any act, physical or verbal, resist,

hinder, impede or interfere with any law

enforcement officer in the lawful

discharge of his or her duty, or to aid or

abet any such act.

Greenville County Ordinance § 15-10(b).

Jones

asserts

the

ordinance

both

unconstitutionally overbroad and void for vagueness.

He also argues the prohibitions in the ordinance are

preempted by state law. In the alternative, he argues

the ordinance was unconstitutional as applied to his

conduct in this case. In response, the State expressly

conceded to this Court that "under the unique and

specific facts of this case, the ordinance was

improperly applied to [Jones]." The State asks this

Court "to declare the arrest of [Jones] for violation of

the ordinance invalid and reverse his conviction and

sentence" and not reach the broader challenges Jones

presents. The State argues this Court should decide

the case on the narrowest possible grounds—its

concession. We agree.

This Court has a "firm policy to decline to rule on

constitutional issues unless such a ruling is required."

In re McCracken, 346 S.C. 87, 92, 551 S.E.2d 235, 238

(2001) (citing Fairway Ford, Inc. v. Cnty. of

Greenville, 324 S.C. 84, 86, 476 S.E.2d 490, 491

(1996)). Facial challenges like the ones Jones raises

are "disfavored" due to the risk of interpreting a

statute on a "'factually barebones recordO.'" Wash.

State Grange v. Wash. State Republican Party, 552

U.S. 442, 450,128 S. Ct. 1184,1191,170 L. Ed. 2d 151,

Appendix A-5

161 (2008) (quoting Sabri v. United States, 541 U.S.

600, 609, 124 S. Ct. 1941, 1948, 158 L. Ed. 2d 891, 900

(2004)). The Supreme Court has explained,

"Exercising judicial restraint in a facial challenge

'frees the Court not only from unnecessary

pronouncement on constitutional issues, but also from

premature interpretations of statutes in areas where

their constitutional application might be cloudy.'"

Wash. State Grange, 552 U.S. at 450, 128 S. Ct. at

1191, 170 L. Ed. 2d at 160-61 (quoting United States

v. Raines, 362 U.S. 17, 22, 80 S. Ct. 519, 523, 4 L. Ed.

2d 524, 530 (I960)). Our state jurisprudence also

reflects a preference for restraint, largely based on the

same concerns. See, e.g., State ex rel. Rawlinson v.

Ansel, 76 S.C. 395, 397, 57 S.E. 185, 186 (1907) ("It is

the usual practice of this court not to consider

questions which are merely speculative." (citing

Cantwell v. Williams, 35 S.C. 602, 603, 14 S.E. 549,

550 (1892))); Garrison v. Target Corp., 435 S.C. 566,

588 n.3, 869 S.E.2d 797, 809 n.3 (2022) (citing

McCracken, 346 S.C. at 92, 551 S.E.2d at 238)

(choosing to avoid a constitutional issue because it

was "unnecessary" to resolve the case).

The facts in this case are appalling and tempt us to

eschew restraint. This case certainly indicates the

ordinance affords law enforcement officers discretion

which can be grossly abused, as it was here. As Cooper

testified at trial, his idea of "hindering" was anything

that could make him lose focus. While many

circumstances may require law enforcement officers to

secure a scene to carry out their duties or secure their

safety, what happened to Jones has left us deeply

disturbed. However, we decline the temptation to go

further than necessary solely because of the egregious

behavior of the deputies in this case.

Appendix A-6

As is clear from both the body camera footage and

the record before us, Jones was doing nothing more

than observing and asking questions of the officers.

Both of these actions are constitutionally protected

conduct, and as such, cannot support a conviction

under this ordinance.1 See City of Houston, Tex. v.

Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 2509, 96 L.

Ed. 2d 398, 412 (1987) ("[T]he First Amendment

protects a significant amount of verbal criticism and

challenge directed at police officers."). Similarly, there

is no indication Jones did anything beyond engage in

protected speech. See State v. Perkins, 306 S.C. 353,

354, 412 S.E.2d 385, 386 (1991) ("To punish only

spoken words addressed to a police officer, a statute

must be limited in scope to fighting words that 'by

their very utterance inflict injury or tend to incite an

immediate breach of the peace."' (quoting Hill, 482

U.S. at 461-62, 107 S. Ct. at 2509-10, 96 L.Ed.2d at

412)).

Jones stood on his own property merely questioning

the deputies. When ask\ed to step back from the

location on his own property where he had been

1 Subsection (d) of the ordinance reads: "Exceptions. This

section shall not apply to constitutionally protected conduct

such as the peaceful questioning or protesting of government

action." During oral argument, we explored whether this clause

could save the ordinance in a broader challenge under different

facts. The State argued this clause would prevent someone like

Jones from being charged because a solicitor or judge would be

aware that his conduct was clearly constitutionally protected.

We are cognizant of the fact that in spite of this clause, Jones

was nonetheless charged, tried, and convicted. We express no

opinion on the import of this clause in a future facial challenge

when a defendant is merely engaging in constitutionally

protected speech or conduct. However, until that case arises, we

expect solicitors and judges to heed the State's argument that

this clause should prevent cases like Jones's.

Appendix A-7

standing for the whole interaction, he refused.

Seconds later, he was aggressively arrested after

being tased. Under these facts, his conviction cannot

stand. •

Conclusion

III.

For the reasons stated above, we reverse Jones's

conviction. We choose to do so on the narrowest

grounds—his as-applied challenge—and reserve

judgment on the broader challenges to the ordinance

for another case.

REVERSED.

BEATTY, C. J., KITTREDGE, JAMES and HILL,

JJ., concur.

Appendix B-l

Original Transcript Page 4

t •

(WHEREUPON, State's Exhibits Nos. 1 & 2

were

marked for identification only.)

THE COURT: Okay. All right. Let's call to

bar

The State v. Thomas Charles Jones, that's case

No.

2018-GS-23-7031.

Is The State prepared to proceed?

MS. HENDRICKS: We are, Your Honor.

THE COURT: And The defense?

MR. NGUYEN: Yes, Your Honor.

THE COURT: Okay. All right. We have

some

pre-trial motions we need to put on the record?

MR. NGUYEN: Yes, sir, Your Honor.

THE COURT: Okay, Mr. Nguyen, I'll be

happy to

hear from you, sir.

MR. NGUYEN: We would like to put a motion

that

we submitted to, Your Honor - Section 15-10

unconstitutional. I'll very briefly go over the

statement of facts.

THE COURT: Yes, sir.

MR. NGUYEN: The Defendant was arrested

July 21, 2018 by Deputy Cooper for resisting

arrest

and with assault and violation of Section 15-10.

That section reads, It shall be unlawful for the

incorporated - assault and battery or by any

act,

Appendix B-2

physical or verbal, resist or interfere with any

law

Original Transcript Page 5

enforcement officer -THE COURT REPORTER: I'm sorry, you're

going to

3 have to repeat that. And please speak up, I

can

4 barely hear you.

5 MR. NGUYEN: I apologize. And I'll slow

down.

6 THE COURT REPORTER: Please.

7 MR. NGUYEN: Where should I start?

8 THE COURT REPORTER: Just the last

sentence is

9 fine.

10 MR. NGUYEN: The Section 15-10 of the

Greenville

11 County Ordinance reads, It shall be unlawful

for any

12 person with [indiscernible] assault and battery

or by

13 any act, physical or verbal, resist, hinder or

14 interfere with any law enforcement officer in

the law

15 [indiscernible] duty.

16 Now, this was an arrest that was based on an

17 interaction between Deputy Cooper, Deputy

Lancaster

18 and the Defendant. Deputy Lancaster and

Cooper

19 initiated the traffic stop on Shauntana

Williams,

20 outside the residence of the Defendant's. The

Appendix B-3

21 Defendant came out the rear of his house and

22 approached the officers. As the Defendant

23 approached, Officer Lancaster had requested

backup.

24 The Defendant peacefully asked the officers

what was

25 going on. And why Williams was pulled over.

Original Transcript Page 6

Officers reply that she failed to use her turn

signals.

Now, at this point, Officer Lancaster inquired

if the Defendant needed anything. The

Defendant

5 informed that they were friends and that

Shauntana

6 was coming to see him that night. She was

staying at

7 his place. They had a brief conversation about

that.

8 During all this brief conversation, the

Defendant

9 steps back a little bit and then a few minutes

later

10 the backup that the officer called for arrived.

11 At this point, the Defendant made a statement

12 statement that, They know damn well there

was no big

13 group of people out here. Officer Lancaster

demanded

14 the Defendant to go away or he can go to jail

for

15 interfering. The Defendant refused saying he

■)

Appendix B-4

was at

16 his own house. The officer proceeded to arrest

him

17 for interfering and they tackled him. There's

body

18 camera footage of this and the Defendant's cell

phone

19 of this incident.

20 The issue here is whether or not the County

21 ordinance should be declared basically

22 unconstitutional, it's substantial and overbroad

23 vague. We think in this case it meets both.

County

24 ordinance meets both standards. The first test

25 determine is whether the enactment

[indiscernible]

Original Transcript Page 7

constituting the freedom of speech. If it does,

then

the analysis turns on whether or not the

enactment

here is substantially broad or vague. Of

course, you

know, for it to be substantially overbroad, it

can't

be just — it's not enough for that enactment to

work

on just a single permit application.

But the purpose of the underlining overbreadth

doctrine is to prevent vastly sweeping laws

from

people chilling — chilling [verbatim] the

Appendix B-5

expression

10 of freedom of speech. The statute can also be

11 invalidated for vagueness. Under two

conditions.

12 One, is if it fails to provide people of ordinary

13 intelligence a reasonable opportunity to

understand

14 what conduct prohibits. Or two, authorize or

15 encourages arbitrary discriminatory

enforcement.

16 Now, the First Amendment protects a

significant

17 amount of the liberties and challenges and that

has

18 been clear -- the case law has been clear

throughout

19 our country. We have, you know, the freedom

20 challenge statues without abuse and without

risking

21 arrest. That is what distinguishes us from a

free

22 nation — distinguishes a free nation from a free

23 state. All the criticism aimed at police can

only be

24 limited where it's shown to likely to produce a

clear

25 and present danger of serious substantive evil

that

Original Transcript Page 8

rises above, far above [indiscernible].

Now, the Supreme Court struck down a

ordinance

that was very similar to the Greenville County

Appendix B-6

ordinance out of the City of Houston. That

ordinance

5 was assaulting or interfering with police meant

— it

6 made it unlawful for any person in any manner

7 oppose, molest, abuse or interrupt any police in

the

8 commission of his duties. The Supreme Court

move

9 there that that ordinance was broad, was not

narrowly

10 tailored to be only — disorderly conduct or

fighting

11 ordinance.

12 THE COURT: Okay. Let me make sure, Mr.

Nguyen,

13 before you go any further. Right now we're

talking

14 strictly about the county ordinance. That is

15 interfering with county officer, not resisting

arrest

16 with assault?

17 MR. NGUYEN: We are not referring to the

18 resisting arrest with assault.

19 THE COURT: Okay.

20 MR. NGUYEN: This is just in reference to the

21 Section 15-10 of the Greenville County

ordinance.

22 THE COURT: Okay, fair enough.

23 MR. NGUYEN: Now, Greenville County

ordinance

24 specifically states by any act physical or verbal.

25 think that's the key there.. It says any act,

Appendix B-7

Original Transcript Page 9

essentially, physical or verbal. There's no

limitations on what acts the officer can deem,

you

know, as interfering. Essentially, if they deem

it .

so then they can make an arrest. In fact, any

speech

5 construed by the officer can be interfering.

6 The Supreme Court's repeatedly invalidated

laws

7 that does not give police unfettered discretion

8 arrest individual for words or conduct that

annoy or

9 offend them. I think the City of Houston, the

court

10 noted that -- [indiscernible] -- expression

because

11 only those individuals chosen by the police in

their

12 unguided discretion are arrested. The

Greenville

13 County ordinance presents the exact same

problem.

14 Now, if the Greenville County ordinance does

15 have an exception in it that says that is, you

know,

16 this section shall not apply to Constitutional

17 protective conduct such as peaceful questioning

18 protesting government actions, I don't think

that's

19 enough to say that this is basically invalid.

Appendix B-8

20 Essentially, that exception was written there,

21 essentially, to prevent a potential challenge I

22 think. But I don't think it's enough. Because

then,

23 essentially, if that were allowed, we could write

any

24 statute, you know, just say, well it's not, you

know,

25 unconstitutional — but even if the statute

written

Original Transcript Page 10

is unconstitutional.

THE COURT: Do we know if the

constitutionality

3 of this ordinance, of this specific ordinance, or

4 like ordinance has been challenged before?

And that

5 is has the caveat that you just referenced?

6 MR. NGUYEN: I do not think there is a

7 similar — no, I don't think any of the other

cases

8 that I looked into had that specific caveat. But

9 like I said, I don't think that's persuasive

enough

10 to the. .. The legislature, essentially,

Greenville

11 County council, can do without any county

ordinance,

12 you know, try to make it valid on that ground.

But I

13 don't think that's enough in this case.

14 THE COURT: Okay. All right.

15 MR. NGUYEN: Now, as far as the vagueness,

i ^

Appendix B-9

16 Greenville County ordinance legally fails to

provide

17 ordinary intelligence or reasonable opportunity

18 understand what conduct prohibits and even to

19 authorize, not even to issue discriminatory

20 enforcement. Again, the ordinance provides no

21 definition for what conduct, whether physical

verbal, that will constitute interference with

the

police. Without clear guidance, officers

threaten

jail for interfering when it simply is freedom of

speech they deem annoying..

Original Transcript Page 11

That was the case in the town of Honea Path in

South Carolina, the Supreme Court, you know,

the

3 court noted that an arrest did occur upon

nothing

4 more than mere words uttered by a person.

Which were

5 not pleasing to local police officers who,

. obviously,

6 did not like any questioning or challenge -anyone

7 questioning or challenging their authority.

And that

8 ordinance was struck down for vagueness. In

Columbia

9 District Court vs. The City of Columbia, that

10 statute, very similar to this, was policy deemed

Appendix B-10

11 unconstitutionally vague. And out of

Kirbyville —

12 Bucannon in South Carolina, Charleston, also

struck

13 down that their county ordinance was vague.

14 So I think there's enough case law throughout

15 our state and even across the country show

that these

16 county ordinances that have interfering with

police

17 without clear guidance on what officers can or

can't

18 arrest for and vague and gives too much

discretion to

19 the officer to decide what — you know it's hard

20 be on notice of what you can or can't do if

there's

21 no clear definition as to what you can't do,

22 essentially. I mean, think this ordinance is

pretty

23 all in compensated.

24 For those reasons we would ask that, you

know,

25 Section 15-10 of the Greenville County

Ordinance be

Original Transcript Page 12

declared unconstitutional.

THE COURT: Okay. Good, thank you very

much.

All right, Ms. Hendricks, I'll be happy to hear

from you if there's anything you'd like to say in

response.

Appendix B-11

MS. HENDRICKS: Thank you, Your Honor,

may it

7 please the Court. I believe it was already

mentioned

8 that none of the cases that the Defense

references in

9 his brief contain the exception of the Greenville

10 County ordinance contains. Testimony at trial

will

11 show that the Defendant was arrested for his

actions

and interfering with police, not for his words.

And

as far as vagueness, under South Carolina

Department

of Social Services vs. Michelle Gee, the

Defendant

must prove the challenge statute is vague as

applied

to his own conduct, regardless if it's potentially

vague application of others. I don't think that

has

been done in this case.

And then also under the United States

Supreme

Court case Michigan v. DeFillippo, an arrest

made in

good faith reliance on an ordinance, which at

the

time had not been declared unconstitutional,

it's

valid regardless of the subsequent

determination of

its unconstitutionality. So I think regardless

Appendix B-12

the ruling on the ordinance we will still be able

Original Transcript Page 66 (JONATHAN

COOPER-DIRECT BY MS. HENDRICKS)

Okay. Is that an unincorporated part of

the

2 county?

3 A

Yes, it is.

4 Q

If I were to show you a hlown-up map of

that

5 area, would you recognize it?

6 A

Yes, ma'am, I would.

Would that assist in your testimony?

7 Q

8 A

It would.

Can you see?

9 Q

Yes, ma'am.

10 A

And can you come down from the stand

11 Q

and point

12 out to the jury where the traffic stop was?

13 A

Yes, ma'am. We were traveling this

way when we

14 activated our emergency equipment. And we

pulled and we

15 stopped in this area right here on B Street.

16 Q

Thank you. Was the Defendant in this

case in

17 the car that you stopped?

No, ma'am. *

18 A

19 Q

Where did he come from?

20 A

So, around number 20 on Lyncrest,

there was a

21 large group of people gathered there. He

walked up from

22 that direction toward the traffic stop.

23 Q

Is the man who approached the traffic

Appendix B-13

stop in

24 the courtroom today?

25 A

Yes, he is.

Original Transcript Page 67

Could you point him out for us?

He's sitting right over there.

Thank you. And you referenced a

party going on

by a house nearby. Would you mind coming

down and

pointing out for the jury where that party

was?

Yes, ma'am. There was approximately

20 to 30

subjects in the front yard of this house right

here. So

just right up from where we were stopped.

Did the Defendant know the female

who was

stopped originally?

Yes, he did.

And were you able -- were you in a

marked car at

this time?

Yes, ma'am, we were.

Were you wearing a uniform?

Yes, ma'am.

And so, did you actually see the

Defendant walk

up?

So when the Defendant walked up I

was in the

vehicle. I had already made may initial

contact with the

Appendix B-14

21 female that we had pulled over. I got back in

the vehicle

22 while my partner was still out of the vehicle.

And I was

23 running her through DMV or whatnot,

making sure the

24 license is good, when I hear my partner

having somewhat of

25 a confrontation, I guess, you could say with

somebody. So

Original Transcript Page 68

I just kind of look over and I do see the

Defendant

standing outside her car.

Okay. And did you get out of the car at

some

point?

Yes, ma'am. Once I completed running

the

initial female that we had stopped, I got back

out of the

car.

And what happened next?

At that point, I was hearing Deputy

Lancaster.

He was telling the Defendant, you know,

what you're doing,

recording is fine but step away, you're too

close, you're

interfering. Because at that point, not only

are we

having to focus on our traffic stop, we're

having to focus

on the subject who was interfering with us.

Appendix B-15

And at that

point it's a risk to us.

So Deputy Lancaster was telling him to step

away. The Defendant wouldn't do it,

wouldn't do it.

Finally, he was told, You're under arrest, put

your hands

behind your back. At this point, we had

already requested

other units for backup. But at this point, we

went hands

on. I was on--when you're looking at the

Defendant from

my point of view, would be the left or the

right side of

his body. At that point, I attempted to grab

the

Defendant's right arm. At which point, he

pulled back,

forced back forward and hit me in the nose.

Original Transcript Page 69

So after the Defendant hit you, was

he — would

you consider that resisting at that point?

Yes, ma'am. With him just pulling

away after

he's being told that he's under arrest, then

him pulling

away, trying to flee from a lawful arrest,

that's

resisting.

And after he hit you in the nose, did

he stop

resisting?

Appendix B-16

No, ma'am, he did not. At that point,

other

deputies were arriving on the scene. And we

were able to

take the Defendant to the ground. However,

he was still

not complying. He wouldn't give us his

hands, his hands

were tucked underneath his person. I didn't

know if the

Defendant had a weapon in his waistband

that he was trying

to go to, you know. There are a variety of

factors there.

He was being told by all the deputies to put

your hands

behind your back, you're under arrest, you're

resisting,

stop resisting. Nothing we were doing was

working.

At that point, I unholstered my issued

taser, gave the command that I was going to

tase the

subject, which I did. And the taser was

effective. And

after that we were able to apprehend the

suspect - or

excuse me, the Defendant.

So after you tased the Defendant he

stopped

resisting, you were able to get him in

handcuffs?

Original Transcript Page 70

Correct.

(

Appendix B-17

Did the Defendant lose consciousness

after being

tased?

So he did. After we got him in

handcuffs, we

went to sit him up. We sat him up against

the patrol car,

he was unconscious at that point. And any

time you tase

somebody, especially in a scenario as that, we

immediately

called for EMS to come on scene to check on

him.

Q- Do defendants typically lose

consciousness when

they're tased?

No, ma'am, that's very uncommon.

Did the Defendant get checked out by

EMS?

A Yes, ma'am. EMS came out and he

came back to.

EMS cleared him. So on and so forth.

Can you tell the jury the normal

procedure for

placing someone under arrest?

A Yes. So, of course, when we have

probable cause

to make an arrest. There's no such thing as

a routine

arrest. But you're average arrest that we

deal with day

in and day out. You broke the law, I've got

probable

cause to say that yes you did that.

Therefore, I'm

(

Appendix B-18

placing you under arrest. And normally, it's

you put your

hands behind your back, you go in handcuffs

and off to

jail you go.

Is that what was attempted to be done

in this

Original Transcript Page 71

case?

Yes, it was.

So is a traffic stop considered a police

investigation?

It is.

When conducting an investigation does

the

Greenville County Sheriffs Office have

policies and

procedures regarding how close somebody

can be to your

investigation?

It's in written — you know, word for

word I

can't say that, but he can be five feet or he

can be 10

feet or so on and so forth. But it's a

reasonable mean.

If somebody steps in to my investigation

where I'm having

to take my attention off what I'm there to do,

it hinders

me from doing my job. That's when we can

say, you know,

you're too close, you need to back up.

Is this of extra concern when the

■

Appendix B-19

bystander, who

may or may not be interfering, knows who's the

subject of

your investigation?

Yes, it absolutely is.

So when people get within a certain

distance of

your investigation, what do you do to protect

yourself and

your investigation?

So at that point, when the Defendant

walked up

and also the individuals that I spoke of

earlier having a

Original Transcript Page 72

house party, they get agitated. So to protect

ourselves,

of course, first thing we have to do is get

more deputies

on scene. You know, 20 to 30 people against

five still

isn't great numbers. But that's where we

have to start

first. You know, get more deputies there.

Retake control

of the situation and try to get the individual

causing the

issue or instigating the issue away, taking

away from the

scene.

Do any of your policies change if your

someone's own property or are you still

allowed to ask

Appendix B-20

them to back up?

We're still allowed to ask them to

back up.

Do these policieschange when

investigations are

being video recorded?

No, ma'am.

Are members of the public allowed to

record

police interactions?

Yes, they are.

Can you tell us about the charge of

interfering

with a law enforcement officer?

Yes. So interfering is when a

defendant,

person, whoever, if they take my attention

away from the

investigation. So therefore, they're hindering

me from

doing my job.. So in this situation, like I said,

I’m

there for a traffic stop. It's a routine thing,

we make

Original Transcript Page 83 (JONATHAN

COOPER-CROSS BY MR. NGUYEN)

necessarily hear but you heard them having a

discussion

about what was going on?

Yeah, I have no idea what they said

but I could

hear them talking.

Okay. Well at that point, you didn't

ask him to

Appendix B-21

step away?

I was not patrolling the outside of the

vehicle.

At that point, there's a concept of a contact

and a cover

officer. And at that point, I'm the contact. I

stopped

the car, I'm doing all the information,

checking all the

DMV records or whatnot for what I'm there

for. As to

where Deputy Lancaster was my cover

officer, trying to

patrol everything else outside that vehicle

where I could

conduct my primary investigation.

Okay. So for you, you weren't really

interfered

with in your investigation, you specifically?

I'm not

saying Lancaster but you specifically?

No, I was. Because him walking up

and then

talking and hearing that, I'm now having to

take my

attention off just her and now trying to run

everything on

my computer so on and so forth. Well now, I

have some

random person just walking up that I don't

know from Adam.

So therefore, my attention is divided away

from what I

need to be doing.

Okay. I want to briefly go over, I

guess, the

Appendix B-22

Original Transcript Page 86 (JAKE

LANCASTER-DIRECT BY MS. HENDRICKS)

witness.

MS. HENDRICKS: Thank you, Your Honor.

The

State calls Jake Lancaster to the stand.

JAKE LANCASTER. {,}after being duly

Sworn{,}testified as follows:{F}

THE CLERK: Please take a seat and state

your

name.

THE WITNESS: Jake Lancaster.

DIRECT EXAMINATION

BY MS. HENDRICKS:

Mr. Lancaster where do you work?

I'm currently employed by

Spartanburg water.

And where did you work prior to your

position

with Spartanburg water?

The Greenville County Sheriffs

Office.

What was your position at the

Greenville County

Sheriffs Office?

I was uniform patrol deputy assigned

to Delta

platoon, area nine.

How long were you with the sheriffs

office?

Two years and seven months.

Were you working for the sheriffs

office on

July 21, 2018?

Appendix B-23

Yes, I was.

And what were you — what were you

doing that

Original Transcript Page 87

night?

We were involved in a street level

crime unit.

Which is why me and Deputy Cooper were in

the same

vehicle. Usually, we're not. We weren't

assigned to a

certain beat area that night. It was just kind

of a side

of town that we were working. Not

necessarily responding

to calls for service unless they were

emergencies.

Okay. And did you attempt a traffic

stop that

night?

I did. I was the passenger in the

vehicle but

yes, we did attempt a traffic stop.

Where was that?

Lynhurst [verbatim] Drive in area

seven of

Judson Mills.

Is that in Greenville County?

Yes, it is.

Is that in a unincorporated portion of

the

county?

Yes, it is.

Appendix B-24

All right. If I were to show you a

blown-up map

of that area, would you be able to recognize

it?

Yes.

Would that help in your testimony?

Yes.

The map is actually already up here.

Does it

Original Transcript Page 88

actually depict the area of the traffic stop?

Yes, it does.

Would you mindQ

Yes, it does.

Would you mind stepping down and

pointing out

where y'all were stopped?

If I'm looking at this correctly, we had

the

vehicle stopped somewhere right here in the

front yard.

I'm not exactly sure where but it was in the

front of this

house.

On B Street?

On B Street, yes.

All right, thank you. Was the

Defendant in the

car that you stopped?

No.

And do you remember what reason

that car was

stopped?

Appendix B-25

I believe it was a turn signal. And they

were

driving very erratically. We observed them

traveling at a

high rate of speed through the mill village.

And so, did the Defendant walk up to

the scene?

Yes, he did.

Were you able to see where he was

coming from?

Yes, I did.

Is the person who walked up to the

scene in the

Original Transcript Page 89

courtroom today?

Yes, he is.

Could you point him our for the jury?

Yes, he's right there.

Were there other people outside beside

the

Defendant?

In front of the house where we stopped

the

vehicle, no. But there was a large crowd at

the house,

not directly to the right, but the one behind

it.

Would you step out and point the jury

to where

the crowd was?

So we had the vehicle stopped here in

front of

his house. The large group of people were

right here in

Appendix B-26

his front yard. In front of this house here, or

to the

side.

How many people would you say were

outside?

It was very dark, it was nighttime.

But due to

the loud volume, I would say five to ten,

maybe more.

And were members of the public able

to tell you

were a law enforcement officer that night?

Yes, we were in a marked uniform

patrol vehicle.

We were both wearing matching uniforms.

So you weren't in a suit like you are

today -A

No.

You had a uniform on?

Original Transcript Page 90

Correct. Uniform like they got on

today.

Were you able to see the Defendant

walk up?

Yes.

Could you tell where he came from?

Yes. So I observed - so initially, when

stopped the vehicle, because I was the

passenger and not

the contact officer, where Deputy Cooper was

focused on

the vehicle, when we stopped it I noticed that

the front

Appendix B-27

vehicle kept going and I saw the break lights

somewhere

around that other house. So I assumed that - assuming

that the Defendant came from that house or

that vehicle

because he walked up the road. I could see

the flashlight

coming up the road.

So did the Defendant have a

flashlight?

I believe it was his phone. Looking

back on it,

it was probably his phone. But that night it

just looked

like light to me, I thought it was a flashlight.

And what happened once he walked up

to the

scene?

So he walked up the road and got in

our

investigation and began questioning what we

were doing,

why we were there and why we had stop that

vehicle.

And so what did you do next?

Because I was the cover officer and not

no the

contact officer, Deputy Cooper was the

contact officer

Original Transcript Page 91

because he was the driver. He was talking to

the suspect

Appendix B-28

that we had initially stopped. And I was

there for his

scene, for safety. I'm just watching, making

sure nothing

happens while he talks and does he thing.

Can you repeat

the question? I'm sorry.

It was a broad question, I apologize. It

was

just what happened after the Defendant

walked up and you

described him as interfering with your

investigation.

What did you direct the Defendant to do next?

Oh, yes. He began questioning what

we're doing,

why we were there. And I, honestly, can't

remember if I

told him at first why we stopped her or not.

But I

remember giving multiple verbal warnings of

look, you can

go over there, you don't need to be questioning

what we're

doing here, this is, essentially, a crime scene,

we're

investigating a crime that occurred, you need

go back over

to where you came from. You don't need to be

asking us

any questions at this time.

And did the Defendant follow your

command to

back up?

No, that's why we had to give multiple,

multiple

Appendix B-29

22 commands that he needed to back away from

our scene.

23 Q

And were any of those commands

because he was

24 filming?

25 A

No, filming was irrelevant. Like I said

before,

Original Transcript Page 92

I didn't even realize that that was a phone. I

mean, I

thought it was a flashlight because it was

dark out there.

So what happened next after you

commanded him to

4 back up and he refused?

5 A

I eventually told him why I was telling

him to

6 back up. I said he was interfering. I made it

known to

him, look, you're interfering with our

investigation, you

need to go back over there or you're going to

go to jail

for interfering. So I instructed him, look

we're going to

10 take you to jail if you continue to interrupt our

11 investigation.

12 Q

And did he back up?

13 A

No, he did not. So at that point I

informed

14 him, okay, you're not going to back up, you're

under

15 arrest for interfering with an investigation.

16' Q Were you able to get him in handcuffs at

Appendix B-30

that

point and place him under arrest?

No. Luckily, initially, when I saw -when I

observed him coming up and I heard the

crowd. Just

because of the time of night with people

walking up, I

knew that we had some other vehicles in the

area because

we were working on that, you know, like,

street crimes.

So I knew they were in the area so I went

ahead and

requested them to come over there. Luckily,

they had

pulled up as soon as we attempted to effect

the arrest.

Original Transcript Page 99 (JAKE

LANCASTER-CROSS BY MR. NGUYEN)

was resisting arrest?

Other than put his arms up. Not - not

put his

arms up, other than shoving his hands out

towards my face

and then just being, I guess, it's passive

resisting where

he's pulling away from me. He's just

constantly trying to

get away from me, wouldn't let me effect the

arrest. But

he didn't strike me in any way.

Did he successful shove you?

No, he missed me.

Appendix B-31

No, he missed me.

All right, I have no further questions.

Please answer any that The Defense may

have.

CROSS-EXAMINATION

BY MR. NGUYEN:

Q You stated earlier in - earlier in your

testimony that you told him, as he came up,

you answered

his question and you told him to go away;

correct?

A Correct.

Q That he needed to go away. As soon as

he walked

up?

A Correct.

Q That's what you testified, correct?

A I believe I did.

MR. NGUYEN: I want to play this again.

1:45

mark.

Original Transcript Page 100

(WHEREUPON, State's Exhibit No. 2 was

published.)

BY MR. NGUYEN:

Did you ask him to go away at this

point?

Not immediately, no.

All right.

(WHEREUPON, State's Exhibit No. 2 was

continued

to be published.)

BY MR. NGUYEN:

Appendix B-32

10 Q

We're a minute later, a little over a

minute

11 later, you asked him to go away yet?

12 A

No, I was just questioning while he was

there

13 but I hadn't instructed him to leave yet.

14 Q

Sorry, say that again.

No, I was just questioning why he was

15 A

there, I

16 hadn't instructed him to leave yet.

17 Q

But earlier you said you instructed him

to go

18 away right away, right?

19 A

Well, I mean, it's all — I did instruct him

20 leave.

21 Q

Okay.

22 (WHEREUPON, State's Exhibit No. 2 was

continued

23 to be published.)

24 A

Can you pause it right quick? I want to

point

25 something out. If you didn't see how close he

was

Original Transcript Page 101

standing to me. I had move over to the other

side. Just

to go off your question earlier about how close

he was,

that was less than 15 feet. Where he was

standing.

That's why I had to move over to that other

side of the

vehicle.

Appendix B-33

But again, you didn't ask him to go

away yet?

7 A

No, I haven't.

(WHEREUPON, State's Exhibit No. 2 was

continued

to be published.)

10 BY MR. NGUYEN:

During all this time, you don't ask him

11 Q

to go

12 away.

13 (WHEREUPON, State's Exhibit No. 2 was

continued

14 to be published.)

15 BY MR. NGUYEN:

16 Q

At this point, I understand you stated

earlier

17 you were worried about distance or whatnot,

right?

18 A

Correct.

19 Q

But you never asked him, hey, I need

20 distance at this point? That hasn't come up

yet, right?

21 A

Correct. I just did it on my own. As

officer's

22 safety, I just went ahead and separated

myself far enough

23 to where I thought I was okay.

24 (WHEREUPON, State's Exhibit No. 2 was

continued

25 to be published.)

Original Transcript Page 115

THE COURT: Okay. All right. Good

enough. So

Appendix B-34

you're going to call one witness?

MR. NGUYEN: Just the one, yes, sir.

THE COURT: Okay. All right, good enough.

All right, ladies and gentlemen, you heard

that.

So what I want you to do is be back at 2:30.

And the

reason that's a little bit longer is we got to

conduct some business while y'all are gone

and I want

to make sure that the court staff personnel

gets a

full hour for their lunch. So please don't

discuss

the case, I'll see y'all back at 2:30, all right.

(WHEREUPON, the jury left open court at

approximately 1:12 a.m.)

THE COURT: Okay. All right. Motions?

MS. HENDRICKS: None from The State,

Your Honor.

THE COURT: From The Defense?

MR. NGUYEN: Yes, Your Honor. We would

move to

renew our motion that the Greenville County

ordinance

is basically unconstitutional as well as it

applies

to the Defendant. I think there was ample

evidence

from the officers statements that, essentially,

placed physical presence with interfering. I

don't

see how, you know, as applied to him that, you

know,

his physical presence was enough to say he

was

Appendix B-35

25 interfering with their investigation. In

addition -Original Transcript Page 116

. 1

in addition, there was the, I believe, it was

officer - deputy — former Deputy Lancaster —

sorry, Your Honor, one minute.

THE COURT: That's all right.

MR. NGUYEN: So I think throughout the

testimony

from the various deputies, that they don't

have an

understanding themselves of what the

interfering with

police ordinance is. I guess, they equate it to

physical presence. To me, it would appear

that, you

know, egregious speech as well as applied to

him.

Lancaster really didn't have a problem with

his

presence until the speech. To me, they're

going

to -- The State is going to say is that, you

know,

it's only because he's refusing to go away.

There's

no obligation for him on his own property. I

don't

this he necessarily has to go away. But it's

applied

to him and I think it's unconstitutional.

THE COURT: Okay, all right. Good enough.

Any response from The State?

MS. HENDRICKS: Yes, Your Honor. I think

Appendix B-36

there

21 was ample testimony that their concern was

not

22 anything that he said verbally, I think the

concerns

23 were for officers safety, public safety and

dividing

24 the attention of officers. You can tell from the

25 video it's very dark. They all — well, the first

Original Transcript Page 119

enforcement officer. And I think that is '

quintessential^ a question of fact for the jury

determine.

So what I intend to do is if I find that the -and I'm going to read that. But if I find that

the -- that the code is constitutional, I will

read

them not only prohibition as relaid under this

code

but also the exception as well. We'll talk a

little

bit more about charge as well before we take

off for

lunch, okay. Not in court but we'll have a

charge

conference, okay.

All right, so on that basis I'm taking under

advisement the constitutionality and I

respectfully

deny the motion for directed verdict based on

whether, in fact, it was impeded or interfering

with

a law enforcement officer.

Appendix B-37

MR. NGUYEN: Okay. I move for a directed

verdict on everything.

THE COURT: Sure, I gotch you. I gotch you.

And I respectfully deny the motion for directed

verdict under the applicable standard. I

think that

The State has presented sufficient evidence

upon

which a motion for directed verdict could be

overcome, has been overcome.

MR. NGUYEN: All right. Thank you, Your

Honor.

Original Transcript Page 150

THE FOREPERSON: Both of them?

THE COURT: Yes, sir. Thank you.

Okay, you may publish the verdict.

THE CLERK: In the case of The State of

South

Carolina vs. Thomas Charles Jones, we, the

jury, by

unanimous agreement, find the Defendant not

guilty of

resisting arrest with assault. Guilty of

interfering

with a county law enforcement officer.

THE COURT: Okay. All right, anything

further

from this jury from The State?

MS. HENDRICKS: Nothing from The State,

Your

Honor.

THE COURT: From The Defense?

MR. NGUYEN: No, Your Honor.

Appendix B-38

15 THE COURT: Okay. All right. So, ladies

and

16 gentlemen, I appreciate your service on this

jury.

17 If you return to your jury room I'll come back

and

18 I'll dismiss you informally, give you the

opportunity

19 to ask me any questions that you may have or

give me

20 any constructive criticism that you may have

as well.

21 I won't keep you very long, I promise you. I

know

22 that y'all are ready to get outside and play in

this

23 nice weather we're having today. But I will

give you

24 the opportunity to ask me any questions that

you

25 might have. So, if you'd return to your jury

room,

Original Transcript Page 154

MR. JONES: It would still allow me to keep

job. Due to the fact that I travel.

MR. NGUYEN: I think it would be hard for

him to

keep up. Because he does -- as I discussed, I

cab

for appointments to talk with him, he could be

on his

way back from Charleston. I just think it

would be

Appendix B-39

hard for him.

THE COURT: All right, well, let me ask you

this, you can pay a fine? Because I can do --1

can

do - you don't know who Monty Hall is but

I'm not

here to make a deal with you or anything. I'm

just

trying to find something that's fair to you,

okay.

MR. JONES: Yes, sir.

THE COURT: You can pay a fine?

MR. JONES: If I can work out some payment

plans

so I don't go to jail.

THE COURT: Yeah, to avoid going to jail for

days, y'all can get together, okay?

UNIDENTIFIED FEMALE: Yes, sir. Yes,

sir.

THE COURT: All right, here's what I'm

going to

do. I'm going to sentence you to 30 days.

And a

fine of $1,000, provided upon the service of ten

days, weekend time; and a fine of $500, the

balance

is suspend. Okay. So, all you have to do is

ten

days weekend time and pay a fine of $500. If

you

Appendix C-l

§ 15-10 INTERFERING WITH A COUNTY LAW

ENFORCEMENT OFFICER.

(a) Purpose. The purpose of the section is to make it

unlawful and to provide a penalty for interfering with

any county law enforcement officer in the lawful

discharge of his or her duty.

(b) Prohibition. It shall be unlawful for any person

within the unincorporated area of county to commit an

assault, battery or by any act, physical or verbal,

resist, hinder, impede or interfere with any law

enforcement officer in the lawful discharge of his or

her duty, or to aid or abet any such act.

(1) A violation of this section shall constitute a

misdemeanor and shall be punished within the

jurisdictional limits of magistrate's court.

(2) Each day or portion thereof during which any

violation of the provisions of this section is committed

or continued shall constitute a separate offense.

(d) Exceptions. This section shall not apply to

constitutionally protected conduct such as the

peaceful questioning or protesting of government

action.

(e) Severability. If any section, subsection, or clause

of this section shall be deemed to be unconstitutional

or otherwise invalid, the validity of the remaining

sections, subsections and clauses shall not be affected

thereby.

(f) Effective date. This section shall take effect upon

the date of its adoption.

(Ord. 4053, passed 10-17-2006)

Appendix D-l

STATE OF

CAROLINA

SOUTH)

)

COUNTY OF

GREENVILLE

THE STATE

IN THE COURT OF

GENERAL SESSIONS

THE THIRTEENTH

JUDICIAL CIRCUIT

)

) Warrant Number(s):

) 2018A2330206756;

2018A2330206758

)

THOMAS CHARLES

FELTON JONES

) Indictment Number(s):

) 2018-GS-23-07031

)

) DEFENDANT’S MOTION

TO DECLARE

) GREENVILLE COUNTY

ORDINANCE

) §15-10

UNCONSTITUTIONAL

COMES NOW, Defendant, by and through his

Attorney, respectfully submits his Motion to Declare

Greenville

County

Ordinance

15-10

Unconstitutional. Defendant respectfully requests

that § 15-10 of the Greenville County, South Carolina

Code of Ordinances be

declared “facially”

unconstitutional under the Constitution of the United

States and the Constitution of the State of South

Carolina.

Statement of Facts

Defendant was arrested on July 25, 2018 by Officer

Jonathan Cooper for resisting arrest with assault and

violation of § 15-10 of the Greenville County

Ordinance. That ordinance states as follows:

Appendix D-2

It shall be unlawful for any person

within the unincorporated area of county

to commit an assault, battery or by any

act, physical or verbal, resist, hinder,

impede or interfere with any law

enforcement officer in the lawful

discharge of his or her duty, or to aid or

abet any such act.

The Defendant’s arrest was based on an interaction

between Defendant and Officer Charles Lancaster.

Officers Jonathan Cooper and Lancaster initiated a

traffic stop on Shontona Enicha Williams outside the

residence of Defendant. Defendant came out at the

rear of his house and approached the officers. As

Defendant approached, Officer Lancaster requested

back up. Defendant peacefully asked officers what was

going on and why Williams was pulled over. Officer

Lancaster responded that Williams failed to use her

turn signals while making turns. At this point, Officer

Lancaster inquired if Defendant needed anything.

Defendant informed Officer Lancaster that he and

Williams are friends, and that Williams was staying

at his place for the night. Further conversations

ensued regarding the traffic stop between Officer

Cooper and Williams. During this time, Defendant

stepped back a little. A few minutes later, more

officers arrived from the earlier call for back up.

Defendant made a verbal statement. Defendant

stated, “they know damn well there was no big group

of people out here.” Officer Lancaster appeared to

become agitated and demanded that Defendant go

away or he can go to jail for interfering. Defendant

refused stating no this was his house. Officers

proceeded to . arrest him for “interfering.”

Subsequently, officers gang tackle and tase him.

Appendix D-3

There is body worn camera footage and Defendant’s

cell phone footage of this incident.

Issue

Should § 15-10 of the Greenville County Ordinance

be declared facially unconstitutional because it is

substantially overbroad and vague?

Law

The “first task is to determine whether the

enactment reaches a substantial amount of

constitutionally protected conduct.” Hoffman Estates

v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.

Ct. 1186, 1191 (1982). If it does, the analysis turns to

whether the enactment is substantially overbroad

and/or vague.

“Only a statute that is substantially overbroad may

be invalidated on its face.” City of Houston v. Hill, 482

U.S. 451, 458,107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987).

It is not enough that an enactment evokes only a

"single impermissible application" to show facial

overbreadth. Id. at 457. The purpose underlying the

overbreadth doctrine is to prevent vastly sweeping

laws from repeatedly chilling the exercise of free

expression. New York v. Ferber, 458 U.S. 747, 772, 102

S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). As the Court has

explained,

“the

requirement

of substantial

overbreadth stems from the underlying justification

for the overbreadth exception itself—the interest in

preventing an invalid statute from inhibiting the

speech of third parties who are not before the Court.”

City Council of Los Angeles u. Vincent, 466 U.S. 789,

802, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984).

A statute or ordinance can also be invalidated for

vagueness if the law (1) “fails to provide people of

ordinary intelligence a reasonable opportunity to

understand what conduct it prohibits” or (2)

Appendix D-4

“authorizes or even encourages arbitrary and

discriminatory enforcement.” City of Houston, 482

U.S. at 461.

Vague laws offend several important

values. First, because we assume that

man is free to steer between lawful and

unlawful conduct, we insist that laws

give the person of ordinary intelligence a

reasonable opportunity to know what is

prohibited, so that he may act

accordingly. Vague laws may trap the

innocent by not providing fair warning.

Second, if arbitrary and discriminatory

enforcement is to be prevented, laws

must provide explicit standards for those

who apply them. A vague law

impermissibly delegates basic policy

matters to policemen, judges, and juries

for resolution on an ad hoc and subjective

basis, with the attendant dangers of

arbitrary

and

discriminatory

application. . .

Groyned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.

Ct. 2294, 33 L. Ed. 2d 222 (1972). “A statute is 'void for

vagueness' when its 'terms are so vague that men of

common intelligence must necessarily guess at its

meaning and differ as to its application.” Fitts v. Kolb, 779

F. Supp. 1502, 1516 (D.S.C. 1991) (citing Connolly v. Gen.

Constr. Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322

(1925)).

Analysis

1. Constitutionally Protected Conduct/Substantially

Overbroad

Appendix D-5

“The First Amendment protects a significant

amount of verbal criticism and challenge directed at

police officers.” City of Houston, 482 U.S. at 461.

“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.” Id. at

462-63. Verbal criticism aimed at police can only be

limited where it is “shown likely to produce a clear and

present danger of a serious substantive evil that rises

far above public inconvenience, annoyance, or unrest.”

Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S. Ct.

894, 93 L. Ed. 1131 (1949).

In City of Houston v. Hill, the Supreme Court Struck

down an ordinance like the Greenville County

Ordinance at issue. The City of Houston's ordinance,

“Assaulting or interfering with policemen,” made it

“unlawful for any person to ... in any manner oppose,

molest, abuse or interrupt any policeman in the

execution of his duty.” City of Houston, 482 U.S. at

461. The Supreme Court noted that the ordinance’s

scope was broad and not “narrowly tailored to prohibit

only disorderly conduct or fighting words.” Id. at 46263, 465. The Supreme Court also held that the

language “in any manner . . . oppose, molest, abuse or

interrupt” dealt with speech. Id. at 460-61. Though

the City of Houston did not specifically mention

speech, the Supreme Court interpreted “in any

manner” to prohibit both physical and verbal acts.

The Greenville County Ordinance is similar in

nature to the City of Houston ordinance and is overly

broad. Unlike the ordinance in the City of Houston,

the Greenville County Ordinance specifically states,

“by any act, physical or verbal.” Therefore, the scope

of the ordinance covers speech. Much like City of

Appendix D-6

Houston, however, the ordinance is not narrowly

tailored to prohibit specific speech such as fighting

words. Practically any speech could be construed by

police to be interfering.

The Supreme Court has also “repeatedly invalidated

laws that provide the police with unfettered discretion

to arrest individuals for words or conduct that annoy

or offend them.” City of Houston, 482 U.S. at 465. The

City of Houston ordinance was “susceptible of regular

application to protected expression” because only

those individuals "chosen by the police in their

unguided discretion" are arrested. Id. at 466-67. The

Greenville County Ordinance presents the very same

problem. The ordnance gives the police free reign on

what speech constitutes interference with their

duties. Unique to the Greenville County Ordinance,

however, is a provision that states, “Exceptions. This

section shall not apply to constitutionally protected

conduct such as the peaceful questioning or protesting

of government action.” Though this is better than the

City of Houston ordinance, the problem remains.

Police ultimately have unfettered discretion as to

what is constitutionally protected conduct.

Since the Greenville County Ordinance governs

speech, is not restricted to obscene language or

fighting words, and gives officers "unfettered

discretion" to make arrests for constitutionally

protected speech, it should be concluded that it is

unconstitutionally overbroad on its face.

2. Vagueness

The Greenville County Ordinance both (1) “fails to

provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits”

and (2) “authorizes or even encourages arbitrary and

discriminatory enforcement.” City of Houston, 482

Appendix D-7

U.S. at 461. Under the first test, the ordinance

provides no definition for what conduct, whether

physical or verbal, would constitute an interference

with police. Under the ordinance, practically any

speech could interfere with police if deemed so by the

police. This leads us to the second test, the

authorization of any arbitrary enforcement of the law.

Without clear guidance from the Greenville County

Ordinance, officers can threaten jail for interfering

when they simply disapprove of speech, they deem

annoying. Much like the analysis above for

overbreadth, the ordinance gives unfettered discretion

to the police allowing arbitrary enforcement. In a

similar ordinance in Town ofHonea Path v. Flynn, 255

S.C. 32, 176 SE.2d 564 (S.C. 1970), the ordinance had

no guidance for the police in determining what

conduct constituted interference. An arrest could

occur “upon nothing more than mere words uttered by

[a person] which were not pleasing to the local police

officers who obviously did not like anyone questioning

or challenging their authority.” Town of Honea Path,

176 S.E.2d at 567-68. That ordinance was struck down

for vagueness by the South Carolina Supreme Court.

In addition to the above cases, there are two other

cases in South Carolina of local ordinances being

declared unconstitutional because they were vague. In

McCoy v. City of Columbia, 929 F. Supp. 2d 541

(D.S.C. 2013), the District of South Carolina found the

city’s

interfering

with

police

ordinance

unconstitutionally vague. Its ordinance read “it shall

be unlawful for any person to interfere with or molest

a police officer in the lawful discharge of his duties.”

In Baker v. Cannon, 2016 U.S. Dist. LEXIS 132987,

the District of South Carolina also struck down a

similarly vague statute. The statute read “it shall be

Appendix D-8

unlawful for any person or persons willfully to

approach nearer than twenty (20) feet to any town

employee for the purpose of interfering or stopping

that employee from carrying out his/her duties.”

Since the Greenville County Ordinance is similar to

numerous other local ordinances that have been

declared unconstitutionally vague, is not clear on

what conduct is prohibited, and arbitrarily allows

police to decide what violates the law, it should be

concluded that it is unconstitutionally vague.

Prayer for Relief

Defendant respectfully requests that the Court

declare § 15-10 of the Greenville County, South

Carolina

Code

of Ordinances be

declared

unconstitutional.

IT IS SO MOVED.

Respectfully Submitted,

S/Andre Ta Nguyen

Andre Ta Nguyen

Attorney for Defendant

305 East North Street, Suite 123

Greenville, South Carolina 29601

(864) 467-8522

January 13, 2020

Greenville, South Carolina

Appendix E-l

State’s Exhibit # 2

Body Worn Camera Footage of Deputy Lancaster

Digital File Provided by Greenville County Clerk of

Court

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.