Petition for Writ of Certiorari — Hoffman v. City of Troy

88-1212 °

P Bie cout, vs.

ILED

JAN 20 1989

ZOSEPH F. SPANIOL, JR.

CLERK

No.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1988

MARK ROBERT HOFFMAN

Petitioner,

-VS-

PEOPLE OF THE CITY OF TROY, MICHIGAN

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE MICHIGAN SUPREME COURT

MARK T. NELSON

Counsel of Record

MICHAEL J. LAVOIE

KENNETH H. ADAMCZYK

BUTZEL LONG GUST KLEIN & VAN ZILE

1650 First National Building

Detroit, Michigan 48226

Telephone: (313) 963-8142

Counsel of Petitioner

BOWNE OF DETROIT

615 SECOND AVENUE - DETROIT, MICHIGAN 48226 - (313) 964-1330

i

STATEMENT OF QUESTION PRESENTED

I.

May A Newspaper Photographer, Taking Photographs At

The Scene Of An Arrest, Be Convicted Of And Sentenced To A

Period Of Incarceration For Violating A Municipal Ordinance

Which Is Repugnant To The Constitution Because It Prohibits

The Obstruction Or Hinderance Of A Police Officer Without

Regard To Intent Or Knowledge, Gives The Municipality’s Police

Department Unfettered Enforcement Discretion And Which Is

Similar To The Police Obstruction Ordinance Struck Down By

This Court In City Of Houston, Texas v. Hill, 482 U.S. 451

(1987)?

ii

LIST OF PARTIES

Petitioner

Mark Robert Hoffman

Respondent

People of the City of Troy, Michigan

eee

TABLE OF CONTENTS

STATEMENT OF QUESTION PRESENTED ....... i

UE Sd be oc Gass bance ceccdcctesuvees li

CONSTITUTIONAL AND STATUTORY PROVI-

ae a Pe kia chav hia es skews en's 2

THE CONVICTION OF A NEWSPAPER PHO-

TOGRAPHER, FOR TAKING PICTURES AT

AN ARREST SCENE, ON THE BASIS OF AN

UNCONSTITUTIONALLY OVERBROAD

AND VAGUE LOCAL’ ORDINANCE,

PRESENTS AN ISSUE OF IMPERATIVE

PUBLIC IMPORTANCE AND CONFLICTS

WITH A PRIOR DECISION OF THE UNITED

DeAsee Gur meme COURT ................ 5

A. The Ordinance Is Unconstitutionally Broad Be-

cause It Places Unfettered Enforcement Discre-

tion In The Hands Of The Police And Sweeps

Within Its Scope A Substantial Amount Of

Constitutionally Protected Conduct And Speech 6

iV

TABLE OF CONTENTS — (Continued)

Page

B. The Ordinance is Unconstitutionally Vague Be-

cause It Does Not Sufficiently Inform Citizens

As To What Conduct is Proscribed And Pro-

vides The Police With Unrestrained Delegations

3 SME POPES ee ETE Sy ee Pee SET E Ee 10

SIE og Hi css one dae cada aw ae eeeee bres 14

EI ad oda v acxmned sheen Uses ends Ce easean ped la

Vv

TABLE OF AUTHORITIES

CASE Page

Broadrick v. Oklahoma,

413 US. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) .. 7

Chaplinsky v. New Hampshire,

315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ... 8

City of Houston, Texas v. Hill,

482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398

Cds h Ok Wate Shipman beth we ead wee ek ote i, 3, 6, 8

Colautti, v. Franklin,

439 US. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1978) .. 1]

Connally v. General Construction Co.,

269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926) .... 10

Gregory v. City of Chicago,

394 U.S. 111, 89 S.Ct. 946 22 L.Ed.2d 134 (1969)... 13

Hill v. City of Houston, Texas,

789 F.2d 1103 (Sth Cir. 1986) aff'd City of Houston,

Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96

> FS. RP er er ene 7, 8, 9, 12

Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)

a a ee I a ob 6 a 9 a REL RCE oe ees 1]

Kolender v. Lawson,

461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903

gtk kw aad wa Oo Pe RS 10, 12, 13

Morissette v. U.S.,

342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) .... 11

NAACP v. Button,

371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ... 13

New York v. Feber,

458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113

CR oe nna MaGhiwas sty de calls haben eie eee 7

Papachristou v. City of Jacksonville,

405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) .. 10

vi

TABLE OF AUTHORITIES — (Continued)

Rose v. Locke,

423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975) ... 13

Screws v. United States,

325 US. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) ... 11

Smith v. Goguen,

415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) 12, 13

United States v. Reese,

92 U.S. (2 OTTO) 214 CIGTS) . .... ce seccsccsccces 8

Winters v. New York,

333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948) ..... 7, 10

STATUTES

Troy City Ordinance, Chapter 92, §9.72 (29)......... 5, lla

Michigan Compiled Laws §750.479 ...............-. 11, 12

a AR NC

l

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1988

No.

MARK ROBERT HOFFMAN,

Petitioner,

Ve

PEOPLE OF THE CITY OF TROY, MICHIGAN,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

Petitioner Mark Robert Hoffman respectfully prays that a

writ of certiorari issue to review the judgment of the Michigan

Supreme Court entered in this case on November 22, 1988.

OPINIONS AND ORDERS BELOW

On December 12, 1986, Petitioner, Mark Robert Hoffman,

was convicted in 52-4 District Court in the State of Michigan of

reckless driving and obstructing and resisting police officers. On

the same day, Hoffman was sentenced to five days in jail and a

total of $400.00 in costs and fines on both counts. Petitioner’s

Motion to Dismiss was denied by the Court on September 11,

1986, App. at la-4a. .

On October 2, 1987, the Oakland County Circuit Court

issued an Order affirming the conviction for reasons stated on the

record of September 18, 1987. App. at Sa.

On October 27, 1987, the Circuit Court issued an Order

Denying Defendant's Motion for Reconsideration. App. at 7a.

On May 20, 1988, the Michigan Court of Appeals entered an

Order Denying Defendant’s Application for Leave to Appeal in

which one member of the three judge panel dissented. App. at 9a.

2

On November 22, 1988, the Michigan Supreme Court en-

tered an Order Denying Hoffman’s Application for Leave to

Appeal with two justices dissenting. App. at 10a.

JURISDICTION

The judgment of the Circuit Court for the County of Oak-

land was entered on October 2, 1987, affirming Hoffman’s convic-

tion dated December 12, 1986. The Circuit Court denied a timely

Motion for Reconsideration on October 27, 1987. On May 20,

1988 the Michigan Court of Appeals denied Hoffman’s timely

Application for Leave to Appeal. Thereafter, on November 22,

1988, the Michigan Supreme Court, the court of last resort in the

State of Michigan, denied Hoffman’s timely Application for

Leave to Appeal. This Petition For Writ of Certiorari was filed

within 60 days of the date of that Order. Hoffman invokes this

Court’s jurisdiction under 28 U.S.C. 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions involved in this case are: the

Fourteenth Amendment, Section 1, to the United States Consti-

tution, which states:

“No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law...”

and the First Amendment to the United States Constitution,

which states in relevant part:

“Congress shall make no law ... abridging the freedom of

speech, or the press...”

3

STATEMENT OF THE CASE

Petitioner, Mark Hoffman, a newspaper photographer, was

convicted under a municipal criminal ordinance (App. at 11a)

that makes it illegal to “hinder” or “obstruct” a police officer in

the course of his duties without regard to knowledge or intent.

Hoffman’s arrest and conviction arose out of an incident in which

Hoffman had taken pictures of the scene of an arrest after

following police as they pursued a fleeing suspect. The importance

of this case lays in the fact that the “hinderance” statute at issue

has been used to chill protected First Amendment rights and

deprive Hoffman of his liberty based on the personal predilections

of the police. Equally as important is the fact that, if this

ordinance is allowed to remain in effect as is, the liberty of other

citizens will undoubtedly also be compromised. Moreover, the

ordinance in issue is clearly repugnant to the Constitution and is

directly contrary to this Court’s recent decision striking down a

similarly-worded police “obstruction” ordinance in City of Hous-

ton, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398

(1987).

In April 1986, Hoffman began working in Detroit, Michigan

as a summer intern photographer for the Detroit News, one of the

country’s largest daily newspapers. As a newspaper photographer,

Hoffman was dispatched throughout the metropolitan Detroit

area to photograph various news stories.

On May 6, 1986, at approximately 4 p.m., Hoffman was

driving home on Interstate Highway 75. Having heard on his

radio that a police car in the vicinity had been rammed by and

was in the pursuit of another vehicle, Hoffman pulled on to the

shoulder of the road. He waited on the shou'der until he observed

a State police car following another vehicle. He then proceeded to

follow the police officer for approximately 11 miles until the

traffic had been stopped by police. This roadblock forced the

suspect’s vehicle, as well as the state police officer’s vehicle, to

eventually come to a halt.

Hoffman also brought his vehicle to a stop and stepped out.

As the photographs themselves hear out, Hoffman was at least ten

eT

4

feet from the pursued vehicle as he photographed the officers

removing the suspect from the pursued vehicle and placing him

under arrest face down on the pavement. See App. p. 12a-14a.

Seconds later, as the individual from the pursued car was

being placed under arrest, one of the police officers directed

Hoffman to return to his vehicle and Hoffman immediately

complied. One of the officers at the scene, however, contended

that Hoffman was in his line of fire and initially ignored his order

to return to his vehicle.

After returning to his vehicle, Hoffman was placed under

arrest, ticketed for reckless driving and for obstructing and re-

sisting a police officer, and taken to the Troy Police Department.

A complaint was later filed which charged Hoffman in Count

I with operating a motor vehicle in a reckless manner, and in

Count II with obstructing and resisting police officers in violation

of city ordinances. Count II was based on a city of Troy ordinance

which provides that “no person shall obstruct, resist, hinder, or

oppose any member of the police force or any peace officer in the

discharge of his duties as such.” During his trial, Hoffman argued

that the ordinance was invalid because it was overbroad and

‘vague. A motion to dismiss on these grounds was rejected by the

trial court prior to the trial. See App. p. la-4a.

Following a jury trial, Hoffman was convicted on both

counts. Hoffman was sentenced to five days in jail and a total of

$400 in costs and fines on both counts.

Consequently, Hoffman remains convicted of an ordinance

which fails to provide fair notice of the conduct or speech

prohibited, gives the police nearly unbridled discretion to decide

what is or is not unlawful conduct without any showing of scienter

and which inhibits conduct protected by the First Amendment.

Allowing such an ordinance to stand has far-reaching negative

implications not only for members of the media, but for all

citizens who come into contact with local law enforcement

officers in municipalities, like Troy, which have this type of

“catch all” criminal provision.

5

REASONS FOR GRANTING THE WRIT

THE CONVICTION OF A NEWSPAPER PHO-

TOGRAPHER, FOR TAKING PICTURES AT AN

ARREST SCENE, ON THE BASIS OF AN UN-

CONSTITUTIONALLY OVERBROAD AND

VAGUE LOCAL ORDINANCE, PRESENTS AN

ISSUE OF IMPERATIVE PUBLIC IMPORTANCE

AND CONFLICTS WITH A PRIOR DECISION OF

THE UNITED STATES SUPREME COURT

This case presents an issue of major importance to the

general public because it focuses upon an ordinance which has

been — and will continue to be — used to cripple and impugn two

fundamental rights: the right to not be deprived of one’s liberty

absent due process of law, and those rights guaranteed by the

First Amendment. Hoffman was convicted of hindering and

obstructing a police officer in violation of a local ordinance, which

provides in full that “no person shall obstruct, resist, hinder, or

oppose any member of the public force or any peace officer in the

discharge of his duties as such.” App. p. lla. As shall be

illustrated below, this ordinance is repugnant to the Constitution

because it is both substantially overbroad and vague, and thus

should be invalidated as unconstitutional. Hoffman’s conviction

under this ordinance, unless reversed, will result in an unjust and

illegal deprivation of his freedom without due process of law — a

blatant violation of the rights secured to the citizens of this

country by the Constitution.

The importance of a determination of the validity of his

ordinance extends far beyond this particular case, however.

Should Hoffman’s conviction stand and the ordinance be vali-

dated, not only will Hoffman be deprived of his liberty, but the

general public will face the constant risk of losing their liberty on

the whim of local police officers patrolling cities and municipali-

ties, like Troy, which have similar ordinances. The Constitution

was designed specifically to prevent police officers from abusing

the authority vested in them by the general population. Undoubt-

edly concerned about the far-reaching negative effects of such

a ae

6

ordinances, this Court has, as it has consistently done in the past,

recently struck down a similar local ordinance which gave the

police free rein in deciding who and what type of activity

“opposed” and “interrupted” them enough to warrant an arrest.

City of Houston, Texas, Texas v. Hill, supra. Yet despite the

clear teachings of Hil// and similar cases, municipalities like Troy

continue to use statutes and ordinances like the one at issue to

suppress fundamental rights. Because the ordinance in this case

similarly gives the police free rein to decide when they have been

unlawfully “opposed” or “hindered,” because fundamental rights

of Hoffman and the general public are at stake, and because the

Michigan courts have essentially ignored the prior applicable

decision of this Court, the petition should be granted so that the

ordinance at issue can be invalidated and Hoffman’s improper

conviction under it reversed.!

\ A. The Ordinance Is Unconstitutionally Broad Because It

Places Unfettered Enforcement Discretion In The

Hands Of The Police And Sweeps Within Its Scope A

Substantial Amount Of Constitutionally Protected Con-

duct And Speech.

Because the Troy local ordinance on its face punishes as

criminal any conduct of an individual which “hinders” or “‘ob-

structs” a Troy police officer in the course of his duties, without

regard to intent or knowledge, an individual can arbitrarily be

arrested, charged and convicted for completely innocent conduct.

In fact, construing the ordinance literally, the Troy police could

arrest anyone for any conduct which they subjectively perceive to

be interfering with their duties in any way. Thus, for example, a

driver of an automobile involved in a traffic jam which somehow

hinders or obstructs a police officer or anyone who merely verbally

criticizes an officer could potentially be found to have violated the

1Petitioner reserves the right to argue the erroneousness of the lower courts’

decisions on other issues, including a Miranda violation, if the petition is

granted, but does not include these discrete issues as among the reasons for the

granting of certiorari.

7

ordinance. In essence, the ordinance is so broadly written that,

under it, police may selectively decide when to invoke it and

against whom to enforce it. The ordinance clearly and impermis-

sibly places unfettered enforcement discretion in the hands of the

Troy police and hence presents a substantial likelihood that the

ordinance wili deter constitutionally protected conduct. The ordi-

nance is thus substantially and unconstitutionally overbroad.

The unconstitutionality of the Troy ordinance is positively

confirmed by the Court’s recent decision in Hi//. In that case, this

Court held that a Houston ordinance, which was substantially

similar to the Troy ordinance, was unconstitutionally overbroad.

Hill, 107 S.Ct. at 2512. The Houston ordinance made it a

misdemeanor, without reference to intent, “for any person to

assault, strike, or in any manner oppose, molest, abuse, or inter-

rupt any policeman in the execution of his duty.” Jd. at 2506,

quoting Houston Municipal Code §34-11(a) (1984). Hill was

convicted under this ordinance after shouting “‘why don’t you pick

on somebody your own size” to police officers who were speaking

to another individual.?

Justice Brennan stated that the test to be applied in an

overbreadth challenge to the facial validity of a law is “whether

the enactment reaches a substantial amount of constitutionally

protected conduct.” Jd. at 2058, citing New York v. Feber, 458

U.S. 747 (1982) and Broadrick v. Oklahoma, 413 U.S. 601

(1973). The Court stated further that statutes which do have the

potential for making unlawful a substantial amount of constitu-

tionally protected conduct will be held facially invalid even if they

also have legitimate applications. /d. Finally, Justice Brennan

noted that criminal statutes must be scrutinized with particular

care. Id., citing Winters v. New York, 333 U.S. 507 (1948).

2According to the factual statement in the //i/l decision, the Petitioner did

nothing more than make the “pick on somebody your own size” comment twice

to the police and admit in response to a question from those officers that he was

interrupting them. It should also be noted that the individual to whom the police

were Originally speaking was not arrested.

8

In applying these tests and finding the Houston ordinance to

be substantially and unconstitutionally overbroad, the Court

agreed with the lower court’s finding that there was “a realistic

danger of, and a substantial potential for, the unconstitutional

application of the ordinance,” Hill v. City of Houston, Texas, 789

F.2d 1103, 1110 (Sth Cir. 1986), and held that the law impermis-

sibly provided the police “with unfettered discretion to arrest

individuals for words or conduct that [simply] annoy or offend

them.” City of Houston, Texas v. Hill, 107 S.Ct. at 2511. In the

majority opinion, Justice Brennan reasoned:

The ordinance’s plain language is admittedly violated scores

of times daily, yet only some individuals those chosen by the

police in their unguided discretion — are arrested. Far from

providing the ‘breathing space’ that ‘First Amendment free-

doms need...to survive,’ the ordinance is susceptible of

regular application to protected expression.

Id. at 2512 (citations omitted). Thus, the Court concluded that

the “unguided discretion” afforded to police to enforce the ordi-

nance had a real and substantial chilling effect on First Amend-

ment freedoms and as such the ordinance was found invalid. /d.

Applying the analysis presented in Hill to the instant case, it

is clear that the Troy ordinance should similarly be found to be

substantially overbroad and should be invalidated. The language

and applications of the two statutes are virtually indistinguishable.

Like the invalid Houston ordinance, the Troy ordinance “sets a

net large enough to catch all possible offenders.” United States v.

Reese, 92 U.S. (2 OTTO) 214 (1876), and thus leaves to the

unfettered discretion of the police the authority to arbitrarily

arrest anyone subjectively perceived as disturbing, abusive or

annoying, regardless of intent or the giving of a warning. Like the

invalid Houston ordinance, the Troy ordinance is not limited to

“fighting words,” see, e.g., Chaplinsky v. New Hampshire, 315

U.S. 568 (1942), or other conduct and speech which threatens

immediate danger to the police or to legitimate law enforcement

endeavors, but, rather, sweeps within its scope a substantial

amount of constitutionally protected conduct and speech and thus

9

presents a real likelihood of chilling First Amendment activity.

Rather than following Hill, the analysis adopted by the Michigan

courts below erroneously disregards the teachings of this Supreme

Court decision.

Hoffman’s conduct and his arrest illustrate exactly the kind

of overbroad application of the ordinance as feared by the Hill

Court. Hoffman, a newspaper photographer, attempted to photo-

graph the scene of an arrest for publication in his newspaper.

Unquestionably, his intent was to photograph, not prevent, the

arrest. The police subjectively decided that his activities were

annoying and thus invoked the Troy ordinance to place him under

arrest and to confiscate his film.3 This scenario vividly demon-

strates the real potential provided by the overbroad Trey ordi-

nance for unconstitutional suppression of conduct protected by

the First Amendment of our Constitution. The value of a free

press, to serve as the eyes and ears of the public, is beyond

dispute; this country recognizes and fiercely protects that impor-

tant value. Yet it is not difficult to foresee this ordinance and

others like it being used against other members of the media in

the future to prevent them from carrying out their right to gather

the news. Such a scenario should not be permitted to occur in our

country which is based on protecting the fundamental precepts of

freedom of the press and freedom of expression. Hence, in order

to preserve the precious liberties which are central to our system

of government, overbroad ordinances such as the Troy ordinance

at issue which provide the police with unlimited enforcement

powers and thus substantially restrict important First Amendment

freedoms, should be invalidated.

By their summary denials of leave to appeal, the Michigan

courts have turned their respective backs on this fundamental

constitutional principle. Petitioner now requests that this Court

3Interestingly, his photograph of the arresting officers which appeared on

the front page of the newspaper revealed that one of the officers covering the

arrest had erred by leaving his weapon (au shotgun) unloaded. This caused

embarrassment to the police and conceivably may have motivated the

prosecution.

10

grant certiorari in order to right a wrong so repugnant to prior

holdings of this Court.

B. The Ordinance Is Unconstitutionally Vague Because It

Does Not Sufficiently Inform Citizens As To What

Conduct Is Proscribed And Provides The Police With

Unrestrained Delegations Of Power. |

It is beyond question that, as a matter of due process, a law is

void on its face if it is so vague that persons “of common

intelligence must necessarily guess at its meaning and differ as to

its application.” Connally v. General Construction Co., 269 U.S.

385, 391 (1926). More specifically, in the criminal context, the

void-for-vagueness doctrine requires that a penal statute define

the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and it must

define the offense in a manner that does not encourage arbitrary

and discriminatory enforcement. Kolender v. Lawson, 461 U.S.

352, 357 (1983). The degree of specificity required in criminal

statutes is greater than that necessary for civil statutes because

the consequences of vagueness are more severe. Winters v. New

York, 333 U.S. 507, 515 (1948).

Because of the important freedoms at stake in a criminal

action, this Court has consistently accepted cases involving vague

statutes and overturned convictions based on them. For example,

in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the

Court invalidated a Florida vagrancy statute which employed

“archaic language” in its definition of vagrancy and failed to

provide a scienter requirement. The Court held that a legislature

must not state its proscriptions in terms so indefinite that the line |

between innocent and condemned conduct becomes a matter of

guesswork.

99 #66

Not only are the terms “obstruct,” “resist,” “hinder” and

“oppose” not given any specific narrowing definition or construc-

tion by either the legislature or the courts; but, perhaps more

importantly, the ordinance fails to provide any requirement of

mental intent or “mens rea” on the part of the individual to

AR

11

impose liability upon him. This Court has repeatedly recognized

that “a scienter requirement may mitigate a law’s vagueness,

especially with respect to the adequacy of notice to the complain-

ant that his conduct is proscribed . . .” Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). See

e.g., Screws v. United States, 325 U.S. 91, 101-102 (1945) (A

scienter requirement relieves the statute “of the objection that it

punishes without warning an offense of which the accused was

unaware.) Without such a requirement, individuals — like

Hoffman — must necessarily guess at what conduct is to be

considered blameworthy and what conduct is innocent. The

ordinance under no conceivable reading gave Hoffman fair notice

that his conduct of approaching the scene of an arrest and taking

pictures of that arrest was prohibited. As stated in Colautti v.

Franklin, 439 U.S. 379 (1978): “The Court has long recognized

that the constitutionality of a vague statutory standard is closely

related to whether that standard incorporates a requirement of

mens rea.” And, in a well-known passage from Morissette v. U.S.,

342 U.S. 246 at 250, 251 (1952), Mr. Justice Jackson writing for

the court observed:

The contention that an injury can amount to a crime only

when inflicted by intention is no provincial or transient

notion. It is as universal and persistent in mature systems of

law as belief in freedom of the human will and a consequent

ability and duty of the normal individual to choose between

good and evil. A relation between some mental element and

punishment for a harmful act is almost as instinctive as the

child’s familiar exculpatory ‘But I didn’t mean to,’ and has

afforded the rational basis for a tardy and unfinished substi-

tution of deterrence and reformation in place of retaliation

and vengeance as the motivation for public prosecution.

(Citations omitted).

The conviction of Hoffman under this ordinance is even

more outrageous — and is in fact extremely puzzling — in light of

the Michigan statute, M.C.L. 750.479, which provides in perti-

nent part:

12

. . any person who shall knowingly and willfully obstruct,

resist, or oppose any sheriff... shall be guilty of a misde-

meanor... (emphasis supplied)

Whereas the state law on its face requires knowledge and willful-

ness, the Troy ordinance clearly does not. MCL 750.479 makes

clear that it is the policy of the State of Michigan to require a

scienter element in this area of criminal behavior. Not only, then,

does this ordinance fly in the face of this Court’s holding in Hill,

but it also blatantly ignores the guiding principles laid out by the

legislature of the State of Michigan. Compounding this problem

is the fact that the Michigan courts below simply ignored the

obvious “discrepancy” between the ordinance and established

constitutional law. Thus, the ordinance prohibits what the statute

permits (namely, violation without scienter), and, in so doing,

both renders itself unconstitutionally vague and contravenes the

expressed policy of the state.

As noted above, an ordinance must also satisfy the second

element of the vagueness analysis: the adequacy of the enforce-

ment standards. Due process requires that legislation state reason-

ably clear guidelines for law enforcement officials, juries and

courts to follow in discharging their responsibility of identifying

and evaluating allegedly illegal conduct. Ko/ender v. Lawson, 481

U.S. at 357-358; Smith v. Goguen, 415 U.S. 566, 574-575 (1974).

As it is currently drafted, the ordinance authorizes law enforce-

ment officers to arrest anyone whenever the officer arbitrarily

perceives that individual to be an impediment to his duties,

without regard to whether the individual has intent to so impede

the officer. Further, the vague and imprecise terms of the ordi-

nance invite law enforcement officials to themselves define what

conduct will be considered unlawful and what, if any, intent will

be required. Thus, in effect, the lack of an intent requirement

together with the imprecise terms of the ordinance provide law

enforcement officials with unrestricted delegations of power. As

this Court has stated:

An ordinance is void for vagueness if it is in an unrestricted

delegation of power, which in practice leaves the definition of

13

its terms to law enforcement officers, and thereby invites

arbitrary, discriminatory, and overzealous enforcement.

Gregory v City of Chicago, 394 U.S. 111 at 117 (1969) (Black, J.,

concurring). Under this ordinance, law enforcement officers are

entirely free to decide what type of conduct and what type of

language violates the ordinance. As this Court noted in Kolender,

criminal statutes that fail to provide minimal guidelines may

permit “a standardless sweep [that] allows policemen, prosecu-

tors and juries to pursue their personal predilections.” 461 U.S. at

358, quoting Smith v. Goguen, supra.

Finally, it must be noted that vague statutes which impinge

upon First Amendment Rights or have the potential of “chilling”

First Amendment activities must be particularly closely scruti-

nized. See, Rose v. Locke, 423 U.S. 48 (1975); NAACP v. Button,

371 U.S. 415 (1963); Smith v. Goguen, supra.

In the present case, the Troy ordinance implicitly impinged

upon First Amendment activity. Indeed, First Amendment con-

cerns are unquestionably invoked where Hoffman, a newspaper

photographer, took photographs of the scene of an arrest and was

himself arrested for such protected activity. In the interests of

justice and of fundamental constitutional principles, this court

must closely scrutinize the Troy ordinance for its vagueness.

14

CONCLUSION

The overriding importance of personal liberty and First

Amendment rights represented in these facts demonstrates that

this case is worthy of Supreme Court review to invalidate a

criminal ordinance which does not sufficiently inform the general

public as to what conduct is prescribed, which has no scienter

requirement and which conflicts with prior Supreme Court au- j

thority. For these reasons, Hoffman requests that a writ of

certiorari be issued.

Respectfully submitted,

BUTZEL LONG GUST KLEIN & VAN ZILE

By: /s/ Mark T. Nelson

Counsel of Record

Michael J. Lavoie

Kenneth H. Adamezyk

1650 First National Building

Detroit, Michigan 48226

(313) 963-8142

Attorneys for Petitioner

Dated: January 20, 1989

APPENDIX

ia

TABLE OF CONTENTS OF APPENDIX

PAGE

RULING OF THE COURT

State of Michigan 52-4 Judicial District Court,

a ek hack cia saeh bes eG vk sos 06 la

ORDER

State of Michigan in the Circuit Court for the

County of Oakland, 10/02/87 ................ Sa

ORDER

State of Michigan in the Circuit Court for the

County of Oakland, 10/22/87 ................ Ta

ORDER

Michigan Court of Appeals, 5/20/88 ............ 9a

ORDER

Michigan Supreme Court, 11/22/88 ............. 10a

TROY CITY ORDINANCE

UD sg vv cbc asc encunncsavsess lla

TRIAL EXHIBIT

8 PETS TT eee Terror ere 12a

TRIAL EXHIBIT

Ce sc as be bw bad haus s l4a

la

Ruling of the Court

STATE OF MICHIGAN

52-4 JUDICIAL DISTRICT COURT

(OAKLAND COUNTY)

PEOPLE OF THE CITY OF TROY,

Plaintiff Case No. 86-001956 CT 1

-VS-

MARK ROBERT HOFFMAN,

Defendant

RULING OF THE COURT

BEFORE THE HON. BRISTOL E. HUNTER,

DISTRICT JUDGE

Troy, Michigan — Thursday, September 11, 1986

APPEARANCES:

For the People: LesLik S. GEppIs P-35307

Assistant City Attorney

City of Troy Legal Department

500 West Big Beaver Road

Troy, MI 48084 313-524-3320

For the Defendant: None present at this hearing

RECORDED BY: Marilyn C. Wojczan CER 0801

Certified Electronic Recorder

WITNESSES:

None.

EXHIBITS:

None.

2a

Ruling of the Court

TABLE OF CONTENTS

3a

Ruling of the Court

(3)

Thursday, September 11, 1986, at about 10:31 a.m.

Troy, Michigan

THE COURT: Ready?

MS. GEDDIS: Yes, Your Honor.

THE COURT: On the matter of the People versus Mark

Robert Hoffman, the Court heard argument this morning from

counsel for the Defendant, Mr. Lavoie, and counsel for the

People, Miss Geddis, and I’ve had a... a chance to look at the

two statutes which are involved.

It’s the argument of Mr. Lavoie, on behalf of Defendant, that

the ordinance under which Mr. Hoffman is charged is overly

broad, and does not ... is fatally defective because it specifically

does not require the proving of an intent to hinder and obstruct. It

is under the disorderly ordinance, and it’s a simple common law

language of hindering and obstructing a police officer in the

performance of his duty.

The Court is persuaded that this does not require specific

showing of ... or, rather, a ... a showing of specific intent, and

that the general intent can be inferred from the actions of the

person.

The statute cited by Mr. Lavoie, the State statute, is differ-

ent in nature, in that it requires that intent to commit an act of

hindering and obstructing is performed by the Defendant, and it

carries a penalty greater than the city ordinance. It’s a two-year,

one ... a two-year, thousand dollar, | believe, misdemeanor.

And I don’t think that there’s anything under the law that

requires the ordinance to conform to that statute, and they

materially differ.

The Court’s gonna deny the motion to dismiss on the ground

that it’s overly broad. I don’t think that it is overly broad. I think

4a

Ruling of the Court

it states specifically what the People may charge and prove under

the ordinance. Accordingly, the motion to dismiss is denied.

MS. GEDDIS: Thank you, Your Honor.

THE COURT: You probably want to include that in your

transcript that he’s ordered.

COURT RECORDER: He hasn't ordered it yet.

THE COURT: Oh. Okay. The matter, then, will be set down

on the jury trial docket.

(At about 10:35 a.m., proceeding concluded)

CERTIFICATION BY COURT RECORDER

STATE OF MICHIGAN | |

COUNTY OF OAKLAND f *™

I certify that this transcript, consisting of four (4) pages, is a

complete, true, and correct transcript of an excerpt of the pro-

ceedings taken in this case on September 11, 1986, (5) to-wit:

Ruling of the Court, only.

DATED: October 21, 1986.

(s) MARILYN C. WOJCZAN CER 0801

Certified Electronic Recorder

52-4 District Court

500 West Big Beaver Road

Troy, MI 48084

5a

Order

STATE OF MICHIGAN

IN THE CIRCUIT COURT

FOR THE COUNTY OF OAKLAND

PEOPLE OF THE CITY OF TROY,

Plaintiff-Appellee, Case No. 86-DA3734 AR

Vv

MARK ROBERT HOFFMAN,

Defendant-Appellant.

LESLIE S. GEDpIS (P35307)

Attorney for Plaintiff-A ppellee

500 W. Big Beaver Road

Troy, Michigan 48084

(313) 524-3320

MICHAEL J. LAVOIE (P32584)

Attorney for Defendant-A ppellant

Butzel, Long, Gust, Klein & Van Zile

1881 First National Building

Detroit, Michigan 48226

(313) 963-8142

ORDER

At a session of Court held in the Courthouse in the

City of Pontiac, Oakland County, Michigan, on: Oct. 2,

1987

PRESENT: HONORABLE FRED M. MESTER,

CIRCUIT JUDGE

This matter having come before the Court on an appeal of

the Defendant from a jury conviction in 52/4 District Court and

the Court having received briefs, heard oral argument of the

6a

Order

parties and the Court being otherwise fully advised in the

premises;

IT IS HEREBY ORDERED that the Defendant’s convic-

tion in the 52/4 District Court on the charges of reckless driving

and hindering, resisting or obstructing a police officer while in the

performance of his duties are affirmed for the reasons stated on

the record on September 18, 1987 and this matter is remanded to

52/4 District Court for execution of sentence.

(s) FRED M. MESTER

Circuit Judge

By (s) MARGARET BROOK

Deputy

Ta

Order

STATE OF MICHIGAN

IN THE CIRCUIT COURT

FOR THE COUNTY OF OAKLAND

PEOPLE OF THE CITY OF TROY,

Plaintiff-A ppellee, Case No. 86-DA3734 AR

Vv

MARK ROBERT HOFFMAN,

Defendant-Appellant.

LESLIE S. GEpDpIs (P35307)

Attorney for Plaintiff-A ppellee

500 W. Big Beaver Road

Troy, Michigan 48084

(313) 524-3320

MICHAEL J. LAVOIE (P32584)

Attorney for Defendant-A ppellant

Butzel, Long, Gust, Klein & Van Zile

1881 First National Building

Detroit, Michigan 48226

(313) 963-8142

ORDER

At a session of Court held in the Courthouse in the

City of Pontiac, Oakland County, Michigan, on: Oct.

27, 1987.

PRESENT: HONORABLE FRED M. MESTER,

CIRCUIT JUDGE

This matter having come before the Court on Appellant’s

Motion for Reconsideration and the Court having reviewed the

Motion and Defendant’s Brief, and the Court being otherwise

fully advised in the premises;

8a

Order

IT IS HEREBY ORDERED that Defendant’s Motion for

Reconsideration is denied and that this matter is remanded to

52/4 District Court for immediate sentencing.

(s) FRED M. MESTER

Circuit Court

By (s) SUSAN W

Deputy

9a

Order

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE/CITY OF TROY Davip H. SAWYER

Presiding Judge

v ; Gary R. McDonald

MARK ROBERT HOFFMAN William B. Murphy*

Judges

Docket No. 104547

L.C. No. 86 DA7374 AR

ORDER

The Court orders that the application for leave to appeal is

DENIED for lack of merit in the grounds presented.

*Judge Murphy dissents.

[SEAL] A true copy entered and certified by Ronald

L. Dzierbicki, Chief Clerk, on May 20, 1988.

(s) RONALD L. DZIERBICKI

Chief Clerk

10a

Order

STATE OF MICHIGAN

IN THE SUPREME COURT

Entered: November 22, 1988

PEOPLE OF THE STATE OF MICHIGAN, SC: 83483

Plaintiff-Appellee, COA: 104547

i-Appe CC: 86-DA3734-AR

v DC: 86-001956-CT

MARK ROBERT HOFFMAN,

Defendant-Appellant.

ORDER

On order of the Court, the application for leave to appeal is

considered, and it is DENIED, because we are not persuaded that

the questions presented should be reviewed by this Court.

Levin and Archer, JJ., would remand the case to the Court

of Appeals for consideration as on leave granted.

[SEAL] I, CORBIN R. DAVIS, Clerk of the Michigan

Supreme Court, certify that the foregoing is a

true and complete copy of the order entered at

the direction of Court.

November 22, 1988

(s) CORBIN R. DAVIS

Clerk

lla

Troy City Ordinance, CH. 92 §9.72(29)

TROY CITY ORDINANCE, CH. 92 §9.72(29)

No person shall obstruct, resist, hinder, or oppose any mem-

ber of the police force or any peace officer in the discharge of

his duties as such.

12a

Defendant’s Exhibit C

13a

xhibit C

Defendant's

=

l4a

Defendant’s Exhibit A