Petition for Writ of Certiorari — Kaiser v. Arizona

A Suppress Oust, Ls.

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03 833 DEC 5 2003

——PO PRICE —OF FE — EL

In The

Supreme Court of the Anited States

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GERALD KAISER,

Petitioner,

V.

STATE OF ARIZONA, CITY OF SCOTTSDALE, -

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals,

State Of Arizona, Division One

,

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PETITION FOR WRIT OF CERTIORARI

+

ERWIN CHEMERINSKY CHRIS PETERSON

Counsel of Record PETERSON & PETERSON

UNIVERSITY OF SOUTHERN 1017 East Belmont Ave.

CALIFORNIA LAW SCHOOL Phoenix, Arizona 85020

699 Exposition Blvd. (602) 870-4841

Los Angeles, CA 90089-0071

(213) 740-2539

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a city ordinance making it a crime to “refuse to

obey a peace officer” is unconstitutionally vague and

overbroad.

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TABLE OF CONTENTS

Page

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INE II ss nccinasciieeca tanistsatsicnen esieciradoligaiceomtaesaton anemia 1

Statement of Jurisdiction ..................cccecccssseceeeeeeeeees 1

Constitutional Provisions Involved......................20008 1

Statutory Provision Involved.................ccecssceeeeessevees 2

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Reasons for Granting the WTit.................cccccssssssseeeee 3

THE SUPREME COURT SHOULD GRANT

REVIEW TO RESOLVE A CONFLICT WITH

PRIOR DECISIONS OF THIS COURT AND TO

DECIDE A QUESTION OF NATIONAL IMPOR-

TANCE AS TO WHETHER LAWS PROHIBITING

DISOBEYING A POLICE OFFICER ARE UN-

CONSTITUTIONALLY VAGUE AND OVER-

ili

TABLE OF AUTHORITIES

Page

CASES

Broadrick v. Oklahoma, 413 U.S. 601 (1978)... cece 11

_ City of Houston v. Hill, 482 U.S. 451 (1987)............ 4,5,6,7

City of Chicago v. Morales, 527 U.S. 41 (1999) ........... 4,8,9

Coates v. City of Cincinnati, 402 U.S. 611 (1971)............. 10

Nolender v. Lawson, 461 U.S. 352 (1988)................ 9,10, 11

Lewis v. City of New Orleans, 415 U.S. 130 (1974)......... 6,7

Papachristou v. City of Jacksonville, 405 U.S. 156

NT eid canis cakehinkecseteinesastnnenvceuinananicss sepeiaiataareneoiie 9

Polk v. State, 2003 WL 22674284, = A.2d_ (Md.

iia Ladntecccipbhsupedbantiinrercuskrbiinwinessseqesiinstuensssie 3

Shuttlesworth v. City of Birmingham, 382 U.S. 87

esas datsanhidicchunnsensnnpiaduniessakaeneysnbensseetbaes 4

State v. Hookstra, 10 Neb.App. 199 (2001)............. eee 3

Virginia v. Hicks, 123 S.Ct. 2191 (20038)... eeeteeees 11

STATUTES

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I CT coinsithscvrenascbninsiveriveteoessssvevces Sivncistamcibaleestia 4

a ga sdavaaposamniioavdaswaiouiin 4

a sieniidacannnennaiuneiiinctag 4

scotisdale City Code $19-13. ...............cccccccsscccsssscccccsssooees 2,3

1

OPINIONS BELOW

The opinion of the Court of Appeals, State of Arizona,

Division One, is published at 204 Ariz. 514, 65 P.3d 463

(2003). A copy of the opinion is included as Appendix A.

The Arizona Supreme Court denied review on September

9, 2003. The denial of review is included as Appendix B.

4

STATEMENT OF JURISDICTION

The Arizona Supreme Court denied review of the final

judgment of the Court of Appeals, State of Arizona, Divi-

sion One, on September 9, 2003. This Court has jurisdic-

tion under 28 U.S.C. §1257. —

¢

CONSTITUTIONAL PROVISIONS INVOLVED

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof; or

“abridging the freedom of speech, or of the press; or the

right of the people to peaceably assemble, and to petition

the Government for redress of grievances.” U.S. Const.,

amend. I.

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protec-

tion of the laws.” U.S. Const., amend XIV.

4

2

STATUTORY PROVISION INVOLVED

Scottsdale City Code §19-13: “No person shall refuse

to obey a peace officer engaged in the discharge of his duty,

or any other person authorized to aid in quelling any riot,

rout, or affray.”

¢

STATEMENT OF THE CASE

Dr. Gerald Kaiser was convicted of violating a city’s

ordinance that makes-it a crime for a person to “refuse to

~ obey” orders from a peace officer. Scottsdale City Code §19-

13. He was convicted of this despite being simultaneously

acquitted of charges of Resisting Arrest, A.R.S. §13-2508,

and of Threatening and Intimidating, A.R.S. §13-1202.

The events which led to Dr. Kaiser’s conviction oc-

curred on April 29, 2000, when two Scottsdale police

officers stopped a car after an officer suspected that the

driver, Kaiser’s wife, was intoxicated. Tr at 26, 51. Dr.

Kaiser was a passenger. When his wife got out of the car to

talk with one officer, Dr. Kaiser yelled at his wife to not

answer any questions or perform any field-sobriety tests.

Tr. at 30, 31, 53, 54, 120-121.

The other officer ordered Dr. Kaiser to remain in the

vehicle. Tr. at 28, 30, 53, 119. Dr. Kaiser refused and

continued speaking to his wife about how she should

handle the situation. Tr. at 31, 54, 97, 141-142. The officer

told Kaiser that he was hindering a police investigation

and that he could be arrested for this. Tr. at 91, 122. The

officers repeatedly told Kaiser to get in the car and, at one

point, attempted to physically place him in the vehicle. Tr.

at 47, 92, 123-124. Kaiser refused and exited the vehicle

for the purpose of speaking with his wife. Tr. at 32, 34, 47,

58, 92, 129. A heated verbal exchange between Kaiser and

the officers ensued. Ty. 129, at 177. At one point, an officer

struck Dr. Kaiser.in his chest. 7r 176-177. After this

occurred, Dr. Kaiser made derogatory comments about the

officer, including using profanities. Tr. 142-145. At no time,

did Kaiser physically touch the officers or do anything

other than refuse their order to remain in the car.

The officers arrested Dr. Kaiser and he was charged

with Resisting Arrest, A.R.S. §13-2508; Threatening and

Intimidating, A.R.S. §13-1202; and Refusing to Obey a

Peace Officer, Scottsdale City Code §19-13.

Dr. Kaiser was acquitted of the first two charges in a

bench trial in Scottsdale City Court, but was convicted of

Refusing to Obey a Peace Officer. He was sentenced on

April 13, 2001 and, pursuant to Arizona law, he appealed

his conviction to the Maricopa County Superior Court. The

Superior Court denied his appeal and Dr. Kaiser then

appealed to the Arizona Court of Appeals, Division One,

which affirmed his conviction and rejected his argument

that Scottsdale City Code §19-13 is unconstitutionally

vague or overbroad. Dr. Kaiser then sought review in the

Arizona Supreme Court, which denied review on Septem-

ber 9, 2003.

4

REASONS FOR GRANTING THE WRIT

Throughout the country, individuals are being con-

victed solely for disobeying orders from a police officer.

See, e.g., Polk v. State, 2003 WL 22674284, — A.2d __

(Md. App. 2003); State v. Hookstra, 10 Neb.App. 199

(2001). Laws making it a crime to refuse to comply with

4

orders from a peace officer exist in cities and states across

the country. See, e.g., Ala. Code, §32-5A-4; Fla.Stat.,

§843.02; Iowa Code, §372.14; Mass. G.L. c. 90, §25. Such

statutes and ordinances are inconsistent with this Court’s

invalidation of similar laws, such as those that make it a

crime to interrupt a police officer in the performance of

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

fail to disperse when ordered to do so by a police officer.

_City of Chicago v. Morales, 527 U.S. 41 (1999). Alaw which

makes it a crime to “refuse to obey” a peace officer is

inherently vague and overbroad because it criminalizes

lawful, constitutionally protected behavior. An individual,

for example, could be convicted under this law for disobey-

ing a police order to be silent when there is a right to

speak or to disperse from a place where the person is

constitutionally entitled to be present.

Thus, this Court should grant review to resolve the

important issue, affecting state and local governments

across the country and countless individuals, as to

whether a law which makes it a crime to “refuse to obey” a

peace officer is unduly vague and overbroad. In Shut-

tlesworth v. City of Birmingham, 382 U.S. 87, 91 (1965),

this Court indicated that a statute which made it unlawful

for any person to “refuse or fail to comply with any lawful

order, signal or direction from a police officer” raised

“constitutional doubts of the utmost gravity.” Dr. Kaiser’s

conviction requires that this Court address the issue that

was not resolved in Shuttlesworth and decide whether

laws that exist throughout the country which make it a

crime to disobey any order from a police officer, at any

time, are impermissibly vague and overbroad.

5

THE SUPREME COURT SHOULD GRANT REVIEW

TO RESOLVE A CONFLICT WITH PRIOR DECISIONS

OF THIS COURT AND TO DECIDE A QUESTION OF

NATIONAL IMPORTANCE AS TO WHETHER LAWS

PROHIBITING DISOBEYING A POLICE OFFICER

ARE UNCONSTITUTIONALLY VAGUE AND OVER-

BROAD

In many cases, this Court has declared unconstitu-

tional state and local laws which accord police officers

unfettered discretion to arrest individuals for constitu-

tionally protected behavior. This Court has stressed that

such laws are impermissibly vague and overbroad in

violation of the First and Fourteenth Amendments.

This Court’s decision in City of Houston v. Hill is

exactly on point. The issue was whether “a municipal

ordinance that makes it. unlawful to interrupt a police

officer in the performance of his or her duties is unconsti-

tutionally overbroad under the First Amendment.” 482

U.S. at 452. Indeed, the facts of Hill are remarkably

similar to this case. Hill observed a friend intentionally

stopping traffic on a busy street, evidently to enable a

vehicle to enter traffic. Two Houston police officers ap-

proached Hill’s friend and began speaking with him.

Shortly thereafter, Hill began shouting at the officers in an

admitted attempt to divert. the officers’ attention. Id. Hill

shouted: “Why don’t you pick on somebody your own size?”

After Officer Kelley responded: “[A]re you interrupting me

in my official capacity as a Houston police officer?” Hill

then shouted: “Yes, why don’t you pick on somebody my

size?” Id. Hill was arrested under Houston Code of Ordi-

nances §34-1l(a), for “wilfully or intentionally inter-

rupt[ing] a city policeman ... by verbal challenge during

an investigation.”

6

This Court found the Houston ordinance unconstitu-

tionally overbroad because it allowed individuals to be

punished solely for speech to police officers that is pro-

tected by the First Amendment. The Court stressed that

the ordinance “is not narrowly tailored to prohibit only

disorderly conduct or fighting words.” Id. at 463. This

Court thus concluded: “Houston’s ordinance criminalizes a

substantial amount of constitutionally protected speech,

and accords the police unconstitutional discretion in

enforcement. ... Far from providing the ‘breathing space’

that ‘First Amendment freedoms need ... to survive,’ the

ordinance is susceptible of regular application to protected

expression. We conclude that the ordinance is substan-

tially overbroad, and that the Court of Appeals did not err

in holding it facially invalid.” Jd. at 465 (citations omitted).

Similarly, in Lewis v. City of New Orleans, 415 U.S.

130, 131 (1974), this Court invalidated as unconstitution-

ally vague and overbroad a city ordinance which made it

“unlawful and a breach of the peace for any person wan-

tonly to curse or revile or to use obscene or opprobrious

language toward or with reference to any member of the

city police while in the actual performance of his duty.”

Lewis, too, had facts very similar to this case. Lewis yelled

obscenities and threats at an officer who had asked her

husband to produce his driver’s license. This Court over-

turned the conviction stressing the broad discretion

accorded police under the law. As Justice Powell explained

in a concurring opinion, “[t]his ordinance, as construed by

the Louisiana Supreme Court, confers on police a virtually

unrestrained power to arrest and charge persons with a

violation. Many arrests are made in ‘one-on-one’ situations

where the only witnesses are the arresting officer and the

person charged.” Jd. at 134 (Powell, J., concurring).

DRS cer ES Rt SA SEE St SEE OSS SO RS ES SI a IND

enor ene

7

There is an obvious conflict between the Arizona

Court of Appeal’s decision in this case and this Court’s

rulings in cases such as City of Houston v. Hill and Lewis

v. City of New Orleans. In Hill and Lewis, the Court

declared unconstitutional- as impermissibly vague and

overbroad laws that made it a crime to interfere with a

police officer or to use profanities in speaking to a police

officer. Yet, that is exactly what the ordinance in this case

does: Dr. Kaiser was arrested solely for interfering with

police officers and for using profanities in talking with

them.

In fact, the ordinance here is even broader than those

invalidated in Hill and Lewis. Unlike the Houston ordi-

nance considered in Hill, Scottsdale’s law dues not require

that an individual interfere with a police officer. Rather,

disobeying any order from a police officer, however unrea-

sonable or unconstitutional and even if it in no way

interferes with the officers’ duties, is a crime. Disobeying

an officer’s order to refrain from constitutionally protected

speech or assembly is made a crime by this law, showing

its obvious overbreadth and its conflict with earlier deci-

sions of this Court.

If ordinances such as Scottsdale’s are constitutional,

then this Court’s rulings in cases like Hill, Lewis, and

countless other cases are rendered meaningless. City

ordinances, such as that invalidated in Hill, making it a

crime to interfere with a police officer would be unneces-

sary; cities could just prohibit disobeying an officer and

any interference could be punished under those laws.

Ordinances, such as in Lewis, which make it a crime to use

obscene or opprobrious language will be replaced by laws

prohibiting disobeying a police officer; a police order to

8

stop swearing would be the basis for an arrest and a

conviction.

Indeed, numerous laws which this Court has found

impermissibly vague and overbroad are narrower than

statutes and ordinances prohibiting “disobeying a police

officer.” For example, in City of Chicago v. Morales, 527

U.S. 41 (1999), the Court invalidated a Gang Congregation

Ordinance, which prohibits “criminal street gang mem-

bers” from “loitering” with one another or with other

persons in any public place. The ordinance made it a crime

for individuals to refuse to comply with a police order to

disperse from an area if a police officer reasonably be-

lieved that at least one of two or more persons present in a

public place was a member of a “criminal street gang” and

that the persons were loitering by remaining in a place

“with no apparent purpose.”

The Chicago ordinance was quite narrow compared to

the Scottsdale ordinance in this case: it applied only when

police suspected a person of being a gang member; only

when people were present with no apparent purpose; and

it authorized arrest and conviction only for failing to obey

a police order to disperse. In contrast, the Scottsdale

ordinance at issue here allows arrest and conviction of

anyone for failing to follow any police order at any time.

Despite the relative narrowness of the Chicago ordinance,

this Court found it impermissibly vague. As The Court

explained: “The broad sweep of the ordinance also violates

the requirement that a legislature establish minimal

guidelines to govern law enforcement.” Jd. at 59. Justice

Breyer elaborated: “I believe the ordinance violates the

Constitution because it delegates too much discretion to a

police officer to decide whom to order to move on, and in

what circumstances. And I see no way to distinguish in the

9

ordinance’s terms between one application of that discre-

tion and another. The ordinance is unconstitutional, not

because a policeman applied this discretion wisely or

poorly in a particular case, but rather because the police-

man enjoys too much discretion in every case. And if every

application of the ordinance represents an exercise of

unlimited discretion, then the ordinance is invalid in all

its applications.” Jd. at 70 (Breyer, J., concurring).

But if the Scottsdale ordinance is constitutional, then

Chicago can simply replace its unconstitutional anti-gang

ordinance with one making it a crime to disobey a police

officer. Police officers could arrest loitering gang members

for not complying with orders to disperse under this ever

broader and more vague ordinance. Surely, if it unconsti-

tutional for a city to make it a crime for loitering suspected

gang members to comply with a police order to disperse,

then it is impermissible for a city to make it a crime to

disobey any police order.

Likewise, ordinances making it a crime to disobey a

police officer conflict with this Court’s decisions invalidat-

ing loitering laws. See, e.g., Papachristou v. City of Jack-

sonville, 405 U.S. 156 (1971) (invalidating a loitering law

on vagueness grounds). For instance, in Kolender v.

Lawson, 461 U.S. 352 (1983), this Court declared unconsti-

tutional a criminal statute that requires persons who

loiter or wander on the streets to provide a “credible and

reliable” identification and to account for their presence.

The Court concluded that the law “is unconstitutionally

vague on its face because it encourages arbitrary enforce-

ment by failing to describe with sufficient particularity

what a suspect must do in order to satisfy the statute.” Id.

at 360. Yet, if ordinances like Scottsdale’s are upheld, then

a state can replace its unconstitutional loitering law with

10

use of a statute prohibiting disobeying a police officer.

Officers could order anyone to disperse, or as in Kolender

to provide identification, and the failure to do so would be

a crime.

Thus, this Court should grant review to resolve the

obvious conflict between the Arizona Court of Appeals

decision upholding a law making it a crime to disobey a

police officer and the many decisions of this Court invali-

dating similar, and even much narrower laws, on vague-

ness and overbreadth grounds. This case presents

important issues concerning both the vagueness and the

overbreadth doctrines.

The Scottsdale ordinance is unduly vague because it

fails to provide any guidance as to when disobeying a

police officer can be the basis for criminal punishment. In

Coates v. City of Cincinnati, 402 U.S. 611 (1971), this

Court found unconstitutionally vague a city law that

prohibited individuals from assembling on a sidewalk and

conducting themselves in a manner annoying to persons

passing by. The Court invalidated this law and explained:

“It is said that the ordinance is broad enough to encom-

pass many types of conduct clearly within the city’s consti-

tutional power to prohibit. And so, indeed, it is. The city is

free to prevent people from blocking sidewalks, obstructing

traffic, littering streets, committing assaults, or engaging

in countless other forms of antisocial conduct. It can do so

through the enactment and enforcement of ordinances

directed with reasonable specificity toward the conduct to

be prohibited. It cannot constitutionally do so through the

enactment and enforcement of an ordinance whose viola-

tion may entirely depend upon whether or not a policeman

is annoyed.” Jd. at 614 (citations omitted). Yet, ordinances

like Scottsdale’s allow a police officer who is “annoyed” to

11

arrest a person for disobeying any police order, no matter

how trivial.

Vague laws, such as Scottsdale’s ordinance, give police

unfettered discretion. As this Court explained: “The more

important aspect of the vagueness doctrine is not actual

notice, but the other principle element of the doctrine —

the requirement that a legislature establish minimal

standards to govern law enforcement. Where the legisla-

ture fails to provide such minimal guidelines, a criminal

statute may permit a standardless sweep that allows

policemen, prosecutors and juries to pursue their personal .

predilections.” Kolender v. Lawson, 461 U.S. at 358 (cita-

tions omitted). Laws, like Scottsdale’s, which make it a

crime to disobey a police officer give police unlimited

discretion to arrest people by deciding when disobedience

to an order, however unreasonable, warrants arrest. In

fact, police wanting to arrest a person, for whatever

reason, can do so by giving an unreasonable order and

then arresting the individual for failure to comply.

Likewise, this case raises an important issue in terms

of the overbreadth doctrine. This Court, of course, has

been clear that “substantial overbreadth” is required to

invalidate a law under the First Amendment. Virginia v.

Hicks, 123 S.Ct. 2191, 2196 (2003); Broadrick v. Okla-

homa, 413 U.S. 601, 615 (1973). A law is unconstitution-

ally overbroad if it punishes a “substantial” amount of

protected free speech “judged in relation to the statute’s

plainly legitimate sweep.” Virginia v. Hicks, 123 S.Ct. at

2196. The Scottsdale ordinance is enormously overbroad. A

police officer could tell any person engaged in constitu-

tionally protected speech to be silent and the refusal to

comply is illegal. Any person engaged in constitutionally

protected assembly could be ordered to disperse and the

12

failure to comply is illegal. This Court should grant review

to clarify this important issue of law that affects people on

a daily basis throughout the country.

¢

CONCLUSION

Gerald Kaiser respectfully requests that this Court

grant his Petition for a Writ of Certiorari.

Respectfully submitted,

ERWIN CHEMERINSKY

Counsel of Record

UNIVERSITY OF SOUTHERN

CALIFORNIA LAW SCHOOL

699 Exposition Blvd.

Los Angeles, CA 90089-0071

(213) 740-2539

CHRIS PETERSON

PETERSON & PETERSON

1017 East Belmont Ave.

Phoenix, Arizona 85020

(602) 870-4841

App. 1

65 P.3d 463

Court of Appeals of Arizona,

Division 1, Department D

STATE of Arizona, Appellee,

v.

Gerald KAISER, Appellant

No. 1 CA-CR-02-0448.

April 1, 2003 .

Review Denied Sept. 9, 2003.

David A. Pennartz, Scottsdale City Attorney by James

Neugebauer, Assistant City Prosecutor, Scottsdale, Attor-

neys for Appellee.

~

Peterson & Peterson by Chris Peterson, Phoenix,

Attorneys for Appellant.

OPINION

EHRLICH, Presiding Judge.

{ 1 Gerald Kaiser appeals his conviction for refusing

to obey a peace officer,’ a class 1 misdemeanor violation of

Scottsdale City Code section (“Code § ”) 19-13. He contends

that the regulation is unconstitutional because it is both

vague and overbroad, thereby denying him due process in

violation of the Fourteenth Amendment to the United

' A “peace officer” is “any person vested by law with a duty to

maintain public order and make arrests.” Ariz.Rev.Stat. § 13-105(25)

(2001).

App. 2

States Constitution.’ For reasons that follow, we hold that

the ordinance is constitutional.

FACTUAL AND PROCEDURAL BACKGROUND

{ 2 Two Scottsdale peace officers stopped a car after

an officer suspected that the driver, Kaiser’s wife, was

intoxicated. Kaiser was a passenger. When his wife got out

of the car to talk with one officer, Kaiser yelled at his wife

to not answer any questions or perform any field-sobriety

tests. Then, despite being told by the other officer to

remain in the car, Kaiser got out and attempted to ap-

proach his wife and the investigating officer. The officers

repeatedly instructed Kaiser not to interfere with the

investigation and to get back in the vehicle, and, when he

failed to comply, they told him to return to the car or he

would be arrested. Kaiser persisted, repeatedly defying

their orders. Eventually, he was arrested for failing to

return to and remain in the car when told to do so and for

interfering with the investigation. Throughout the inci-

dent, Kaiser appeared to the officers to be angry, disrup-

tive, aggressive and profane, making comments that the

officers interpreted as threats.

* The Due Process Clause of the Arizona Constitution is construed

similarly to the same clause in the United States Constitution. Simat

Corp. v. Ariz. Health Care Cost Containment Sys., 203 Ariz. 454, 464

q 47, 56 P.3d 28, 38 (2002) (Berch, J., dissenting); State v. Bible, 175

Ariz. 549, 594, 858 P.2d 1152, 1197 (1993), cert. denied, 511 U.S. 1046,

114 S.Ct. 1578, 128 L.Ed.2d 221 (1994). See S.G. Feldman & D.L.

Abney, The Double Security of Federalism: Protecting Individual Liberty

Under the Arizona Constitution, 20 ARIZ. ST. L.J. 115 (Spring 1988).

App. 3

{ 3 Charged with refusing to obey a peace officer,

Kaiser was convicted in Scottsdale City Court for having

violated Code § 19-13, which provides in pertinent part

that “[nJo person shall refuse to obey a peace officer

engaged in the discharge of his duty.” He appealed his

conviction to the Maricopa County Superior Court,

ARIZ.REV.STAT. (“A.R.S.”) § 22-371 (2002), insisting that

the law is vague and overbroad. The court rejected his

argument and affirmed his conviction, finding that the

ordinance was not vague and that Kaiser had no standing

to complain that the ordinance is overbroad. Kaiser

brought the same challenge to this court. A.R.S. § 22-

375(A) (2002).

DISCUSSION

{ 4 Because this matter originated in municipal court,

our jurisdiction is limited to a review of the facial validity

of the ordinance. State v. Alawy, 198 Ariz. 363, 364 7 3, 9

P.3d 1102, 1103 (App. 2000); State v. Singer, 190 Ariz. 48,

50, 945 P2d 359, 361 (App. 1997). Accordingly, if the

regulation is facially valid, we do not proceed to analyze

how it was applied to the individual defendant. Alawy, 198

Ariz. at 364 { 3, 9 P.3d at 1103.

{ 5 Before we determine whether an ordinance is

facially valid, however, we must first address whether a

defendant has standing to challenge the constitutionality

of the ordinance. Jd. at 364 7 6, 9 P3d at 1103. “Even if an

ordinance or statute is vague in some particulars, a person

‘to whose conduct a statute clearly applies may not success-

fully challenge it for vagueness.’” Id. (quoting State v.

Trachtman, 190 Ariz. 331, 334, 947 P.2d 905, 908 (App. 1997)

(quoting Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41

App. 4

L.Ed.2d 439 (1974))). See State v. McLamb, 188 Ariz. 1, 6,

932 P.2d 266, 271 (App. 1996), cert. denied, 522 U.S. 814, 118

S.Ct. 60, 1389 L.Ed.2d 23 (1997). Even so, “[uJnder some

circumstances, litigants whose own activities are constitu-

tionally unprotected can nonetheless challenge a statute as

overbroad if the law ‘substantially abridges the First Amend-

ment rights of other parties not before the court.’” State v.

Musser, 194 Ariz. 31, 32 | 5, 977 P2d 1381, 182 (1999)

(quoting Village of Schaumburg v. Citizens for a Better Envt,

444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980)).

{6 Peace officers may “take such steps as [are]

reasonably necessary to protect their personal safety and

to maintain the status quo” during an investigatory stop.

United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675,

83 L.Ed.2d 604 (1985). Kaiser does not contest the validity

of the traffic stop or that the officers could properly inves-

tigate whether his wife was driving under the influence of

alcohol. He does not contest that the officers were engaged

in the discharge of their duties. He does not deny that he

got out of his car several times and attempted to approach

his wife and the investigating officer despite being told

repeatedly to return to and remain in his vehicle and not

interfere with the investigation. He complains only that

the ordinance he violated is itself a violation of his consti-

tutional right to due process.

{ 7 Kaiser’s conduct falls within the activity regulated

by Code § 19-13 such that it cannot be said that the

ordinance is facially vague or overbroad regardless of any

theoretical unconstitutional application of the ordinance to

others not before the court. Nevertheless, we may consider

Kaiser to have standing and so we address the constitu-

tionality of the ordinance.

App. 5

{ 8 The constitutionality of a statute is reviewed de

novo. Ariz. Dep’t of Pub. Safety v. Superior Court (Falcone),

190 Ariz. 490, 494, 949 P.2d 983, 987 (App. 1997). When an

ordinance is challenged as being vague or overbroad, there

is a strong presumption that it is constitutional, Singer,

190 Ariz. at 50, 945 P.2d at 361, and we will, if possible,

interpret the regulation in such a way as to render it

constitutional. Alawy, 198 Ariz. at 364 7 5, 9 P.3d at 1103;

McLamb, 188 Ariz. at 5, 932 P.2d at 270. In this regard, we

give the language its plain and ordinary meaning. Alawy,

198 Ariz. at 365 7 8, 9 P3d at 1104. See A.R.S. § 1-213

(“Words and phrases shall be construed according to the

common and approved use of the language.”). It is the

person challenging the enactment who bears the burden of

establishing the contrary proposition. Id. at 364 7 5, 9 P.3d

at 1103; Singer, 190 Ariz. at 50, 945 P.2d at 361; McLamb,

188 Ariz. at 5, 932 P.2d at 270.

79 “A legislative enactment is unconstitutionally

vague if it does not give persons of ordinary intelligence a

reasonable opportunity to learn what it prohibits and does

not provide explicit standards for those who will apply it.”

McLamb, 188 Ariz. at 5, 932 P.2d at 270 (quoting State »v.

Takacs, 169 Ariz. 392, 394, 819 P.2d 978, 980 (App.1991)).

See Singer, 190 Ariz. at 50, 945 P.2d at 361 (citing Kolen-

der v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75

L.Ed.2d 903 (1983)). However, the requirement of a “fair

and definite warning” does not necessitate “perfect notice or

absolute precision” of language. Singer, 190 Ariz. at 50, 945

P.2d at 361 (quoting State v. Phillips, 178 Ariz. 368, 370, 873

P.2d 706, 708 (App.1994)). See Grayned v. City of Rockford,

408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

The Constitution only requires that language con-

vey a sufficiently definite warning as to proscribed

App. 6

conduct when measured by common understand-

ing and practices. That there will be marginal

cases in which it is difficult to determine the side

of the line on which a particular fact situation

falls is no sufficient reason to hold the language

too ambiguous to define a criminal offense.

McLamb, 188 Ariz. at 5, 932 P.2d at 270 (quoting State v.

Cota, 99 Ariz. 233, 236, 408 P.2d 23, 26 (1965)).

q 10 Kaiser argues that Code § 19-13 is vague because

no mens rea is required. He adds that, under the ordi-

nance, “every contact between the police and the public

provides the potential of an arrest for declining to obey

whatever a policeman may decide he wants” resulting in

arrest and conviction at the “whim” of the officer whether

the failure to comply is intentional or not.

{11 First, the ordinance does contain a mens rea

requirement: It requires that a person “refuse” to obey an

order. To refuse an order is an affirmative act of rejection,

not a bare failure to obey but a knowing and deliberate

decision to not obey.’ Absent a refusal to obey, as opposed

to a mere failure to obey, there can be no violation of the

ordinance.

{ 12 Second, as Code § 19-13 provides, the order must

be one of “a peace officer engaged in the discharge of his

duty.” While the Scottsdale City Code does not define

* “Refuse” means “[t]o deny, decline, reject.”. BLACKS LAW

DICTIONARY 1282 (6th ed.1990). The act of refusal is one of will; in

contrast, “fail” may be an act of inevitable necessity. Maestas v. Am.

Metal Co. of N.M., 37 N.M. 203, 20 P.2d 924, 925 (1933) (citing Taylor v.

Mason, 22 U.S. (9 Wheat.) 325, 344, 6 L.Ed. 101 (1824)).

PRON AD inne eee

App. 7

“peace offtcer” or “discharge of duty,” the Arizona legisla-

ture has defined a “peace officer” to be “any person vested

by law with a duty to maintain public order and make

arrests,” A.R.S. § 13-105(25), and this duty can only be

accomplished through the lawful enforcement of state and

local laws. In other words, there is no violation of Code

§ 19-13 if the order that is refused is not one made in

connectien with the discharge of the duties of the peace

officer. A legislative enactment “is not void for vagueness

‘simply because it may be difficult to determine how far

one can go before the statute is violated.’” McLamb, 188

Ariz. at 5, 932 P.2d at 270 (quoting Phillips, 178 Ariz. at

370, 873 P.2d at 708) (quoting Berenter v. Gallinger, 173

Ariz. 75, 81, 839 P.2d 1120, 1126 (App. 1992)).

{13 Kaiser relies heavily on City of Chicago uv.

Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67

(1999), in which the Supreme Court found facially invalid an

ordinance that provided that, if a police officer reasonably

believed that at least one of two or more persons present in a

public place was a member of a “criminal street gang” and

that the persons were loitering by remaining in a place “with

no apparent purpose,” the officer must order all the persons

to disperse “from the area.” However, the analysis is fully

distinguishable from that pertinent to this case.

{ 14 In Morales, the Court first noted that “the free-

dom to loiter for innocent purposes is part of the ‘liberty’

protected by the Due Process Clause of the Fourteenth

Amendment,” id. at 53, 119 S.Ct. 1849, and that “[i]t is

difficult to imagine how any citizen of the city of Chicago

standing in a public place with a group of people would

know if he or she had an ‘apparent purpose.” Jd. at 56-57,

119 S.Ct. 1849. Additionally, the ordinance provided no

advance notice to any “putative loiterer” to protect him

App. 8

from being ordered to disperse, and it provided no guid-

ance as to how long a loiterer must remain away, how far

away he must move or when he could regroup with the

other loiterers before being asked to disperse once more

without being subject to arrest. Jd. at 59, 119 S.Ct. 1849.

In other words, the ordinance failed to give adequate

notice of what was forbidden and what was permitted. Jd.

at 60, 119 S.Ct. 1849.

{ 15 Also, as found by the Court in Morales, there

were no guidelines for enforcement. Id. The police were

given “absolute discretion” to determine what constituted

loitering in violation of the ordinance. Jd. at 61, 119 S.Ct.

1849. “Presumably an officer would have discretion to

treat some purposes — perhaps a purpose to engage in idle

conversation or simply to enjoy a cool breeze on a warm

evening — as too frivolous to be apparent if he suspected a

different ulterior motive.” Jd. at 62, 119 S.Ct. 1849.

{ 16 The ordinance in Morales is in no way compara-

ble to the Scottsdale ordinance. A person of ordinary

intelligence will understand what the Scottsdale ordinance

prohibits and in what context that conduct may be prohib-

ited. Further, Code § 19-13 provides sufficient objective

standards for one charged with its enforcement to know

what conduct is unlawful. Finally, the ordinance does not

encourage arbitrary enforcement. It is not unconstitution-

ally vague.

{ 17 Kaiser also complains that Code § 19-13 is void

for overbreadth. “An overbroad statute is one designed to

burden or punish activities which are not constitutionally

protected, but... includes within its scope activities which

are protected by the First Amendment.” McLamb, 188

Ariz. at 9, 932 P.2d at 274 (quoting State v. Baldwin, 184

App. 9

Ariz. 267, 269, 908 P.2d 483, 485 (1995)) (quoting State v.

Jones, 177 Ariz. 94, 99, 865 P.2d 138, 143 (App.1993))

(internal quotations omitted) (alteration original). But, as

noted by the Court in Broadrick v. Oklahoma, 413 U.S.

601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), “where

conduct and not merely speech is involved ... the over-

breadth of a statute must not only be real, but substantial

as well, judged in relation to the statute’s plainly legiti-

mate sweep.” See McLamb, 188 Ariz. at 9, 9382 P.2d at 274.

“There must be a realistic danger that the statute will

significantly jeopardize recognized first amendment

protections of individuals not before the court.” McLamb,

188 Ariz. at 10, 932 P.2d at 275 (quoting State v. Steiger,

162 Ariz. 138, 144, 781 P.2d 616, 622 (App.1989) (citation

omitted) (emphasis original)).

{ 18 We discern no realistic danger that Code § 19-13

will significantly put at risk the First Amendment rights

of those persons not before the court. The refusal to obey a

legitimate order of a sworn peace officer does not implicate

the constitutional rights of a person. Certainly the mere

possibility that some impermissible application can be

conceived is not sufficient to render a statute overbroad. Id.

q 19 Kaiser also relies on Shuttlesworth v. City of

Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176

(1965), in which the Court needed to address the issue of

the overbreadth of a city regulation in only a passing

manner. The ordinance provided that “[i]t shall be unlaw-

ful for any person to refuse or fail to comply with any

lawful order, signal or direction of a police officer.” The

Court found that “the literal terms of this ordinance are so

broad as to evoke constitutional doubts of the utmost

gravity” but noted that the lower court had confined the

ordinance to a relatively narrow scope. Jd. at 93, 86 S.Ct.

App. 10

211. This was the extent of the court’s discussion of over-

breadth with regard to this ordinance, and, significantly,

the Court did not determine that the ordinance was

unconstitutional. Rather, it disposed of the matter on the

basis that there was no evidence to support the conviction

because the officer was not engaged in the direction of

vehicular traffic, a prerequisite for the enforcement of that

ordinance. Jd. at 95, 86 S.Ct. 211. Unlike the present case,

there was no evidence that the defendant had refused or

failed to comply with a lawful order.

CONCLUSION

q{ 20 “There are areas of human conduct where, by the

nature of the problems presented, legislatures simply

cannot establish standards with great precision.” Smith v.

Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 39 L.Ed.2d 605

(1974). As was true in many of the cases discussed and

cited above, this is such a case. The Scottsdale City Code

Section 19-13 is constitutional as it is neither vague nor

overbroad.

CONCURRING: SHELDON H. WEISBERG, Judge,

and EILEEN S. WILLETT, Judge Pro Tempore.*

* The Honorable Eileen Willett, a judge of the Maricopa County

Superior Court, was authorized to participate as a Judge Pro Tempore

of the Court of Appeals by order of the Chief Justice of the Arizona

Supreme Court pursuant to article 6, sec''on 31 of the Arizona Consti-

tution and Arizona Revised Statutes section 12-145 et seg. (1992 &

Supp.2002). |

App. 11

MINUTES

Arizona Supreme Court

Tuesday September 09, 2003

CR-03-0144-PR STATE OF ARIZONA 1CA-CR02-0448

(17) v GERALD KAISER

Court of Appeals Division

One

ORDERED: Petition for

Review = DENIED