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Full-text: August 20 2003
Protest zones: “No War for Oil” (October 24 2002)

United States District Court for the District of South Carolina Columbia Division

Filed, AUG 20 2003, Larry W. Propes, Clerk, Columbia S.C.


Criminal No. 3:03-0309

United States of America)
Brett Bursey)

Defendant’s Memorandum in Support of Dismissal Because of Vagueness

The Defendant, Brett Bursey, moves this Court to dismiss the Information against him on the ground that the statute as written and as applied is unconstitutionally vague and overbroad. The government’s Response to Defendant’s Memorandum of Authorities Concerning the Elements of the Offense states on page 1: “Based on the clear and unambiguous language of this statute, the elements of this offense are, as previously stated by the government....” The government further states on page 4: “Bursey has conceded that the meaning of the statute is plain because his previous reading of the statute renders it absurd....” The discussion among the court and counsel during the conference on Chambers on June 24, 2003 and asking anyone to read the statute as {p.2} written quickly reveal the disingenuous nature of these assertions. ¶

It took the government 16 pages of briefing with attached lengthy legislative history to “explain” what the statute really meant. The statute as written is vague and fails to provide constitutionally adequate notice of what precisely constitutes the elements of criminal conduct. Even assuming the legislative history can convert the statute’s colon into a semi-colon and assuming somehow adequate “notice” of such conversion has been provided, the statute is unconstitutionally overbroad. Based upon the law and reasons stated below, the Defendant moves this Court to dismiss the Information.

The Principle of Legality: Nulla Poena Sine Lege

The most fundamental tenet of criminal law is the principal of legality. 1  The principle of legality forbids the retroactive definition of criminal offenses. Legality posits that “conduct may not be treated as criminal unless it has been so defined by an authority having the institutional competence to do so before it has taken place.” 2 

The Fifth Amendment’s Due Process clause (and the 14th Amendment’s Due Process clause, in regard to state statutes) insists upon legality. The Supreme Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. 3 

Legality is “kept in good repair” by two doctrines: the Void-for-Vagueness Doctrine; and the Strict Construction Doctrine, also called the Rule of Lenity.

A. Void-for-Vagueness {p.3}

The Void-for-Vagueness Doctrine has been called “the operational arm of legality.” 4  It requires that a legislative crime definition be meaningfully precise. 5  This precision requirement can be measured in two distinct realms. 6  First, does the statute fairly give notice to those it seeks to bind of its strictures? Secondly, is the statute precise enough that it does not invite arbitrary and discriminatory enforcement by law enforcement authorities? If the answer to both of these questions is in the affirmative, then the statute will be upheld against a void-for-vagueness challenge. 7  However, if the answer to either is in the negative, the statute is void for vagueness. Both notice and arbitrary and discriminatory enforcement are outlined below. 8 

1. Notice

“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” ¶

United States v. Harriss, 347 U.S. 612, 617 (1954).

The law does not view the notice element of the doctrine from the perspective of actual notice to the accused. Notice must be “fair”, which equates to constructive notice, or that the defendant could have found out whether his conduct was prohibited. Still, {p.4} courts have repeatedly said that the fair warning required should be readily understood by one of normal intelligence, which implies a reading of the statute’s plain language. Justice Oliver Wendell Holmes said, ¶

“Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” 9  ¶

In the seminal case of Connally v. General Construction Company, the Supreme Court said, ¶

“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” 10 

Courts employ no mechanical test to apply in determining whether statutes give fair notice. The degree of vagueness that may be tolerated depends on the nature of the enactment. 11  First, the Court has suggested that the need for notice is greater when the statute imposes penalties on individual behavior than when it regulates economic behavior of businesses. 12  Second, greater latitude is given when the enactment is civil rather than criminal because “the consequences of imprecision are qualitatively less severe” given their differing penalty structures. 13  Third, and most important for our purposes, in cases where the statute may affect constitutionally protected conduct, particularly that protected by the First Amendment, the court is less likely to find that {p.5} constructive notice exists than in cases where the statute could not possibly infringe upon such constitutional freedoms (discussed infra). 14 

2. Prevention of Arbitrary and Discriminatory Enforcement

“The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. It is not any less effective or, if the restraint is not permissible, less pernicious than the restraint on freedom of discussion imputed by the threat of censorship”. ¶

Thornhill v. Alabama, 310 U.S. 88, 98 (1940).

While courts tend to focus their discussions on the notice element of vagueness analysis, the Supreme Court has recognized that the prevention of arbitrary and discriminatory law enforcement is the more important function of the void-for-vagueness doctrine. “The absence of a determinate standard” in a criminal statute “gives police officers, prosecutors, and the triers of fact unfettered discretion to apply the law and, thus there is a danger of arbitrary and discriminatory enforcement.” 15  The textbook example of this kind of statute is that criminal statute which punishes “status” crimes, like vagrancy or loitering. The statute in the case at bar, in paragraph two, might serve as an example as well. It punishes those who “engage in disorderly or disruptive conduct.” What constitutes disorder and disruption is left entirely to the interpretation of law enforcement. (See the comments and letter from North Carolina Senator Sam Irvin in the {p.6} legislative history attached to the government’s Memorandum of Authorities Concerning the Elements of the Offense.)

B. The Rule of Lenity

“When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read wilh the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark an crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.” ¶

Bell v. United States, 349 U.S. 81, 84 (1955).

The Rule of Lenity, simply stated, is that when a criminal statute is ambiguous, the defendant is entitled to the benefit of the doubt. Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. 16  “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before [the court] choose[s] the harsher alternative, to require that Congress should have spoken in language that is clear arid definite.” 17  {p.7}

One of the purposes of the rule of lenity is to ensure due process by providing adequate notice to defendants. 18  The Supreme Court has endorsed the Rule of Lenity in its interpretation of federal law. 19  The Court first applied the Rule in 1820, in the case of United States v. Wiltberger. 20  In Wiltberger, the Court grappled with whether a federal statute that proscribed manslaughter “on the high seas” encompassed a homicide aboard a merchant marine vessel on a river in the interior of a foreign country. While one section of the statute simply referred to manslaughter on the high seas, another section addressed murder and other felonies committed on water, be it the high seas, or a river, haven, basin or bay, outside the jurisdiction of the United States. The prosecutor argued that if the act as a whole were given consideration one would logically conclude that the “obvious intent of the legislature” was to define manslaughter on the high seas as including riverine homicide. The Court refused to do so, responding, “The rule that penal laws are to be construed strictly ... is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” The Court added, “The intention of the legislature is to be collected from the words they employ and where there is no ambiguity in the words, there is no room for construction.”

Vagueness and the First Amendment

“For standards of permissible statutory vagueness are strict in the area of free expression ... The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment {p.8} freedoms, the existence of a penal statute susceptible of sweeping and improper application. ... These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. ... Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” ¶

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

As stated supra, 21  the Court is most likely to rule a statute unconstitutionally vague when the First Amendment is implicated. The Supreme Court views First Amendment protection as so fundamentally important that, unlike other constitutional adjudications, it does not insist on the traditional requirements of standing. 22  The Supreme Court has gone so far as to alter the rules of standing in First Amendment cases where the statute is vague and overbroad because the Court hopes to prevent the law from chilling the First Amendment rights of people not before the Court. 23  First Amendment vagueness issues typically arise in relation to content regulations, but the same principles apply to time, manner, and place restrictions.

“Where a statute’s literal scope, unaided by a narrowing ... interpretation, is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts.” 24  “Where First Amendment interests are affected, a precise statute ‘evincing a legislative judgment that {p.9} certain specific conduct be ... proscribed’ assures [the Court] that the legislature has focused on the First Amendment interests and determined that other governmental policies compel regulation.” 25  ¶

“[W]here a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.” 26 


The statute at issue certainly abuts upon sensitive areas of First Amendment freedom. Mr. Bursey was exercising his First Amendment rights. Yet, the statute, as written and without the government’s 16 page brief explaining it via it’s legislative history, and which the facts will show was applied in a content-based manner to Mr. Bursey, is unconstitutionally vague and ambiguous. This is so not only because of the punctuation problems, but also because there are no physical limitations and no standards for officials to apply. The statute pretends to exclude Mr. Bursey from exercising his First Amendment rights in any posted, cordoned off, or otherwise restricted area of a building or grounds. Just who would be doing the restricting or how is left to the imagination of any Secret Service agent or police officer acting through the Secret Service.

A regulation cannot give officials broad discretion over speech issues. There must be defined standards for applying the law. Otherwise officials may use their discretionary power to prohibit dissemination of ideas with which they do not agree. {p.10} Although the lack of defined standards usually arises in licensing schemes established to regulate the time, place and manner of speech, the lack of defined standards in this criminal matter is even more constitutionally impermissible.

Therefore, Brett Bursey urges the court to dismiss the Information.

Respectfully submitted this 20th day of August, 2003.

Signature: Lewis Pitts


Lewis Pitts
1030 Carolina Avenue
Durham, NC 27705
(919) 416-1762
Federal Court # 3068

Rauch Wise
305 Main Street
Greenwood, S.C 29646
(864) 229-5010



Certificate of Service

{Case caption, omitted}

By Mail

The undersigned hereby certifies that a copy of the Defendant’s Memorandum in Support of Dismissal Because of Vagueness dated August 20, 2003 in the above captioned action was served upon the Assistant U.S. Attorney John Barton by mailing a copy of same to him in the United States mail on this the 20th day of August, 2003 to Wachovia Bldg. Suite 500, 1441 Main Street, Columbia, SC 29201.

Signature: Robert L. Hallman


Robert L. Hallman
Columbia, South Carolina,
August 20, 2003


Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  Article: Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, by John F. Decker, 80 Denv. U. L. Rev. 241, 244, citing Herbert L. Packer, The Limits of the Criminal Sanction 79-80 (1968) (hereafter, Packer).

 2  Packer, 79-80.

 3  Lanzetta v. New Jersey, 306 U.S. 451 (1939); United States v. Cohen Grocery Co., 255 U.S. 81 (1921).

 4  Jeffries, Jr., John Calvin, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 196 (1985) (hereafter, Jeffries).

 5  Id.

 6  Decker, John F., Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denv. U. L. Rev. 241 (2002) (hereafter, Decker}.

 7  See, e.g., United States v. Powell, 423 U.S. 87, 92-93 (1975) upholding a statute prohibiting the mailing {of} concealable firearms because it established a “reasonably ascertainable standard of conduct” and because it provided notice to the citizens as to what actions are proscribed by the statute).

 8  See, e.g., Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927) (finding the Colorado Antitrust Act void because it failed to provide an ascertainable standard of guilt); see also People v. Monroe, 515 N.E.2d 42, 45 (Ill. 1987) (finding an Illinois drug paraphernalia prohibition void because it failed to afford fair notice of the prohibited conduct and it lent itself to arbitrary enforcement).

 9  McBoyle v. United States, 283 U.S. 25, 27 (1931).

 10  269 U.S. 385, 391 (1926) (opinion by Justice Sutherland), citing Int’l Harvester Co. v. Kentucky, 234 U.S. 216, 221, and Collins v. Kentucky, 234 U.S. 634, 638.

 11  Decker, at 249.

 12  Id.

 13  Id.

 14  Id.

 15  Id., citations omitted.

 16  Rewis v. United States, 401 U.S. 808, 812 (1971).

 17  United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952).

 18  United Status v. Bass, 404 U.S. 336, 347-48 (1971).

 19  Decker, at 262.

 20  18 U.S. 76 (1820).

 21  Page 4.

 22  Decker, at 266.

 23  Id.

 24  Smith v. Cioguen, 415 U.S. 566, 573 (1973).

 25  Crayned v. City of Rockford, 408 U.S. 104. n.5 (1972) (internal citations omitted).

 26  Id. at 109 (internal citations and quotations omitted).


Source: Photocopy of a duplicate original (the court’s public file copy), scanned to pdf.

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This case: United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {175kb.html}, criminal information filed March 7 2003, jury trial denied June 4 2003, bench trial Nov. 12-13 2003, bench trial Nov. 12-13 2003, verdict Jan. 6 2004: guilty, $500 fine (Bristow Marchant, U.S. Magistrate Judge), district appeal docketed Jan. 13 2004, affirmed Sept. 14 2004 (Cameron McGowan Currie, U.S. District Judge), circuit appeal docketed Oct. 7 2004, affirmed July 25 2005 {64kb.pdf, 64kb.pdf}, rehearing denied Sept. 8 2005 (4th Cir., No. 04-4832), petition for certiorari docketed Dec. 14 2005, certiorari denied Jan. 17 2006 (U.S., No. 05-767).

Previous: U.S. Response to Defendant’s Memorandum of Authorities Concerning the Elements of the Offense (Aug. 15 2003).

Opposition: U.S. Response to Defendant’s Memorandum in Support of Dismissal Because of Vagueness (Sept. 12 2003).

Next: Defendant’s Motion to Require Government to Designate Restricted Area (Aug. 25 2003).

See alsoOther Secret Service protest zone cases” on the docket-sheet page. Brett Bursey

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.


Posted Dec. 13 2003. Updated June 2 2008.


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