RECORD NO. 2:06CR30
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Appellee,
v.
DANIEL A. FLOWERS,
Defendant/Appellant.
_________________________________
ON APPEAL FROM THE UNITED STATES MAGISTRATE COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA AT BRYSON CITY
_______________________________
BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION IN SUPPORT OF DEFENDANT/APPELLANT DANIEL A. FLOWERS
MELROSE, SEAGO & LAY, P.A. Mark R. Melrose
s/ Mark R. Melrose
Counsel for Amicus
Melrose, Seago & Lay, P.A.
Attorney for Plaintiff
P.O Box 1011
Sylva, N.C. 28779
(828) 586-3200
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.....................................................................................ii
STATEMENT OF IDENTITY AND INTEREST OF THE AMICUS......................1
ARGUMENT.............................................................................................................2
I. THE JUDGMENT OF THE MAGISTRATE COURT SHOULD BE REVERSED AS TO VIOLATION NUMBER T0000112 BECAUSE NORTH CAROLINA’S PROFANITY STATUTE, N.C. GEN. STAT. § 14-197 IS UNCONSTITUTIONAL ON ITS FACE ON BOTH OVERBREADTH AND VAGUENESS
GROUNDS............................................................................................2
A. N.C. Gen. Stat. § 14-197 Is Unconstitutionally Overbroad..........4
B. N.C. Gen. Stat. § 14-197 is Unconstitutionally Vague.................7
II. NORTH CAROLINA’S PROFANITY STATUTE IS UNCONSTITUTIONAL AS APPLIED TO THE PARTICULAR CIRCUMSTANCES OF APPELLANT’S CASE.................................10
A. Standard of Review......................................................................10
B. Appellant’s Words Were Protected Speech Not Subject to Criminal Sanctions........................................................................10
III. THE JUDGMENT OF THE MAGISTRATE COURT SHOULD BE REVERSED AS TO VIOLATION NUMBER T0000111 TO THE EXTENT THAT THE CITATION WAS ISSUED DUE TO APPELLANT’S FAILURE TO PROVIDE IDENTIFYING INFORMATION.................................................................................13
CONCLUSION.......................................................................................................15
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF FILING AND SERVICE
ii
TABLE OF AUTHORITIES
CASES: Pages
Chaplinsky v. New Hampshire, 315 U.S. 568, 573-74 (1942)................................6, 10
City of Houston v. Hill, 482 U.S. 451, 458 (1987)..................................................4, 11
City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)...................5
Cohen v. California, 403 U.S. 15, 20 (1971)...................................................10, 11, 12
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991).......................................8
Gooding v. Wilson, 405 U.S. 518, 520 (1972)........................................................3, 12
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)...........................................7, 8
Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939)...........7
Hess v. Indiana, 414 U.S. 105 (1973)...........................................................................11
Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 183 (2004)...13, 14
Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).......................................................9
Lewis v. New Orleans, 415 U.S. 130 (1974).......................................................5, 6, 11
Miller v. California, 413 U.S. 15, 23-24 (1973)...........................................................10
N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963)...........................................................4
Reno v. ACLU, 521 U.S. 844, 871-872 (1997).........................................................3, 8
Roberts v. Swain, 487 S.E.2d 760, 768 (N.C. Ct. App. 1997)..........................14, 15
Roth v. United States, 354 U.S. 476, 484 (1957).........................................................10
Stanley v. Georgia, 394 U.S. 557, 568 (1969).............................................................10
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Texas v. Johnson, 491 U.S. 397, 411 (1989)...........................................................6, 10
United States v. Hylton, 349 F.3d 781, 785 (4th Cir. 2003)........................................10
U.S. CONSTITUTIONAL PROVISIONS:
U.S. CONST., Amend. I....................................................................1, 3, 4, 5, 6, 8, 11
U.S. CONST., Amend. IV.....................................................................................1, 13
U.S. CONST., Amend. XIV................................................................................1, 3, 7
NORTH CAROLINA CONSTITUTIONAL PROVISIONS:
N.C. CONST. Art. I, § 14........................................................................................3, 5
NORTH CAROLINA STATUTES:
N.C. Gen. Stat. § 14-3...............................................................................................3
N.C. Gen. Stat. § 14-197.........................................................2, 3, 4, 5, 6, 7, 8, 9, 15
N.C. Gen. Stat. § 14-223...................................................................................13, 15
RULES:
Federal Rule of Appellate Procedure 29....................................................................1
NEWSPAPER ARTICLES:
Representative Herbert Hyde, A Heckuva Good Place to Cuss, ASHEVILLE CITIZEN-TIMES, Apr. 23, 1973...................................................................................2
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BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION IN SUPPORT OF DEFENDANT/APPELLANT DANIEL A. FLOWERS
STATEMENT OF IDENTITY AND INTEREST OF THE AMICUS
This brief is filed pursuant to Federal Rule of Appellate Procedure 29(b) and is accompanied by a motion for leave to file and a motion for leave to file out of time.
The American Civil Liberties Union of North Carolina (“ACLU-NC”) is a statewide, nonprofit, nonpartisan organization with approximately 7000 members. Since its inception, the purpose of the ACLU-NC and its Legal Foundation has been to defend the constitutional rights of all people through educational programs, public statements, opinion letters to public officials, and litigation.
The rights guaranteed to individuals that are found in the First, Fourth and Fourteenth Amendments to the United States Constitution are fundamental rights that protect all Americans from abuse of governmental power. Because these rights are indispensable to a free society, the ACLU-NC and its Legal Foundation have undertaken to defend and protect the rights of all citizens, including suspects and defendants in the criminal justice system. The ACLU-NC is particularly interested in the case at bar because of the impact the Court’s decision will have on the First, Fourth and Fourteenth Amendment rights of all citizens.
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ARGUMENT
I. THE JUDGMENT OF THE MAGISTRATE COURT SHOULD BE REVERSED AS TO VIOLATION NUMBER T0000112 BECAUSE NORTH CAROLINA’S PROFANITY STATUTE, N.C. GEN. STAT. § 14-197 IS UNCONSTITUTIONAL ON ITS FACE ON BOTH OVERBREADTH AND VAGUENESS GROUNDS
North Carolina’s profanity statute, originally enacted in 1913 and most recently amended in 1973,1 provides as follows:
§ 14-197. Using profane or indecent language on public highways; counties exempt.
If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a Class 3 misdemeanor. The following counties shall be exempt from the provisions of this section: Pitt and Swain.
1 In 1973, the North Carolina Legislature engaged in a great debate as to whether this statute should have statewide applicability. A state representative named Herbert Hyde argued against statewide applicability, which would have taken away the exemption set forth in the statute for Pitt County and Swain County, in which, incidentally, this Court sits. Representative Hyde, who was born in Swain County, noted that the law was “obviously unconstitutional” as a result of its “vague” and “indefinite” language. However, Representative Hyde concluded that he would rather not argue “technicalities,” instead focusing on more practical considerations:
But there ought to be a refuge somewhere, where a man could go and when he really is provoked, he can say something with impunity. There’s only two places left, Pitt and Swain. One in the east and one in the west. I think it’s most appropriate.
Representative Herbert Hyde, A Heckuva Good Place to Cuss, ASHEVILLE CITIZEN-TIMES, Apr. 23, 1973. 2
N.C. Gen. Stat. § 14-197. Conviction of this offense is punishable by a fine or 30 days or less imprisonment. N.C. Gen. Stat. § 14-3.
As a threshold matter, regardless of this Court’s view of the illegality of Appellant’s actual statements, Appellant’s conviction must be reversed because the statute is unconstitutional on its face under the state and federal constitutional rights to freedom of speech and due process. U.S. CONST., Amend. I, § 3 & Amend. XIV; N.C. CONST. Art. I, § 14.2
The statute at issue in the present case is uniquely menacing because it carries criminal penalties and implicates First Amendment values – thus falling into the category of statutes that have traditionally been most vulnerable to facial challenges. See e.g., Reno v. ACLU, 521 U.S. 844, 871-872 (1997); Gooding v. Wilson, 405 U.S. 518, 520 (1972). The statute is facially unconstitutional for two fundamental reasons. First, the statute is overbroad because it sweeps within its ambit speech that is constitutionally protected. Second, the statute is impermissibly vague both because it fails to give adequate notice of the specific speech that is proscribed and because it permits arbitrary enforcement by government officials.
2 The First Amendment to the United States Constitution provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. CONST., amend. I, § 3. The North Carolina Constitution provides that “[f]reedom of speech and of the press are two of the great bulwarks of liberty and therefore
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A. N.C. Gen. Stat. § 14-197 Is Unconstitutionally Overbroad
In addressing a facial overbreadth challenge, “a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” City of Houston v. Hill, 482 U.S. 451, 458 (1987) (internal citations and quotations omitted). “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963). Criminal statutes, such as N.C. Gen. Stat. § 14-197, “must be scrutinized with particular care” and “those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” City of Houston, 482 U.S. at 459 (internal citations omitted).
Although Appellant vehemently maintains that his speech was constitutionally protected, see infra Issue II, this Court should strike N.C. Gen. Stat. § 14-197 as facially invalid regardless of the legality of his particular statements because of the statute’s concomitant restriction of a wealth of expression that is indisputably constitutionally protected. N.A.A.C.P. v. Button, 371 U.S. at 432 (holding that “in appraising a statute’s inhibitory effect upon [First Amendment] rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar”). A statute is overbroad if there is “a realistic danger that
shall never be restrained, but every person shall be held responsible for their
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the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court . . . .” City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984).
The language of N.C. Gen. Stat. § 14-197 is so broad that it applies to countless activities that occur in the State of North Carolina every day. For instance, the statute could arguably apply to a driver who curses after being cut off by another car, if two or more passengers are accompanying the driver. Further, it might be argued that the statute applies to disc jockeys who curse on satellite radio if their radio shows are heard by two or more drivers on North Carolina highways. The majority of these activities, despite falling within the statute’s plain terms, would not be viewed as criminal acts by members of society generally. And yet the type of expression that the statute threatens to penalize is seemingly infinite.
In Lewis v. New Orleans, 415 U.S. 130 (1974), the Supreme Court struck as unconstitutionally overbroad an ordinance making it unlawful “for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to” a city police officer performing his duties. Id. at 131-32. The Lewis Court found that the statute’s use of the phrase “opprobrious language” included words that plainly had a broader sweep than the constitutional definition of “fighting words.” Id. at 133.
abuse.” N.C. CONST. Art. I, § 14.
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N.C. Gen. Stat. § 14-197 suffers from the same flaw, and its prohibition of “indecent” and “profane” language in the presence of two or more persons is even broader than the “wanton” use of “opprobrious” language toward a police officer that was at issue in Lewis. On its face, the broad terms of North Carolina’s profanity statute appear to prohibit all speech, even political speech, that might be deemed “indecent” or “profane.” The only qualifications are that the speech be uttered on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner.
Courts have sometimes rejected facial challenges where a statute’s application has been expressly limited to activity that can be penalized without running afoul of First Amendment protections. See e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573-74 (1942) (upholding constitutionality of New Hampshire statute punishing verbal acts where state court decisions limited its scope to fighting words). That has not occurred, however, in the case of N.C. Gen. Stat. § 14-197.
Conversely, the danger that N.C. Gen. Stat. § 14-197 would be applied to restrict constitutionally protected activity — including political speech, which lies “at the core of our First Amendment values,” Texas v. Johnson, 491 U.S. 397, 411 (1989) – is very real. Indeed, public roads and highways have been consistently held to be traditional public forums for purposes of free speech analysis:
[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out
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of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.
Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939). Consequently, any attempt to restrict speech on a public road or highway should be subject to the strictest constitutional scrutiny. For the above reasons, this Court should strike N.C. Gen. Stat. § 14-197 as unconstitutionally overbroad on its face.
B. N.C. Gen. Stat. § 14-197 is Unconstitutionally Vague
In addition to being unconstitutionally overbroad, North Carolina’s criminal prohibition on the use of “indecent or profane language” . . . “on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner” is unconstitutional on the closely-related ground of vagueness.
The Due Process Clause of Fourteenth Amendment to the United States Constitution requires that a statute be struck as unconstitutionally vague if its terms are not defined clearly enough to allow a person of ordinary intelligence to readily identify what behavior is permitted and what is not. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). While all criminal statutes are subject to vagueness challenges, adherence to the vagueness doctrine is particularly critical in the context of laws that restrict speech so that people can readily ascertain the distinction between criminal activity and the exercise of fundamental constitutional rights. Id. at 109.
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Laws can be struck as unconstitutionally vague in two separate ways. First, a statute that provides inadequate notice is invalid because “[v]ague laws may trap the innocent by not providing fair warning.” Grayned, 408 U.S. at 108. Second, vague laws are also invalid due to the danger of arbitrary and discriminatory enforcement that occurs when a statute “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis . . . .” Id. at 108-09; see also Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991).
N.C. Gen. Stat. § 14-197 is invalid in both respects. First, the statute fails to provide a person with adequate notice that his speech is illegal. Indeed, the United States Supreme Court recently commented upon the vagueness of the term “indecent” in the Communications Decency Act, which sought to protect minors from harmful material on the Internet by prohibiting, among other things, knowing transmission to minors of “obscene or indecent” communications. See Reno v. ACLU, 521 U.S. at 870-71. Among the examples of “the many ambiguities concerning the scope of [the Act’s] coverage” that rendered the Act “problematic for purposes of the First Amendment” was the fact that use of the word “indecent,” in the absence of any definition, would “provoke uncertainty among speakers” regarding its meaning. Id. at 870-71. In the present case, the same is true of N.C. Gen. Stat. § 14-197’s use of the term “indecent,” as well as the term “profane.” As even the most conscientious citizen could not determine with any level of precision what conduct 8
falls within the scope of these terms, the statute does not have sufficient clarity to provide the notice required by criminal statutes.
Second, the ambiguity of the statute also invites arbitrary enforcement because it fails to provide law enforcement officers with standards indicating when the statute should be enforced and against whom. Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). Rather than being guided by objective criteria, officers charged with enforcing N.C. Gen. Stat. § 14-197 have unbridled discretion in determining what speech to penalize and can base that decision upon impermissible and highly subjective factors. Id. at 358. The very facts of this case demonstrate how capricious the enforcement of this statute can be. The plain terms of N.C. Gen. Stat. § 14-197 are undoubtedly violated countless times every day in countless situations across the state. Yet despite its broad application, the undersigned could find no reported case law more recent than 1964 that even cites to the statute. It appears that the officer in this case may have issued the citation against Appellant because he was insulted by Appellant’s words.
N.C. Gen. Stat. § 14-197 fails to provide the required notice regarding what conduct it prohibits and also creates an intolerable risk of arbitrary enforcement. Consequently, the statute should be deemed invalid on its face as unconstitutionally vague. 9
II. NORTH CAROLINA’S PROFANITY STATUTE IS UNCONSTITUTIONAL AS APPLIED TO THE PARTICULAR CIRCUMSTANCES OF APPELLANT’S CASE.
In addition to being facially unconstitutional, the statute is unconstitutional as applied to the specific statements made by Appellant in this case.
A. Standard of Review
Appellate courts must review constitutional challenges de novo with no deference to the trial court’s ruling. United States v. Hylton, 349 F.3d 781, 785 (4th Cir. 2003).
Appellant’s Words Were Protected Speech Not Subject to Criminal B. Sanctions
State and federal courts have recognized two general categories in which criminal sanctions for speech will be tolerated. Those categories are obscenity and fighting words. See e.g., Cohen v. California, 403 U.S. 15, 20 (1971); Texas v. Johnson, 491 U.S. at 409; Miller v. California, 413 U.S. 15, 23-24 (1973); Stanley v. Georgia, 394 U.S. 557, 568 (1969), Roth v. United States, 354 U.S. 476, 484 (1957); Chaplinsky v. New Hampshire, 315 U.S. at 572.
Appellant’s statements do not fall within the scope of obscenity. For the state to prohibit obscene expression, such expression must be in some way erotic, meaning that it appeals to the prurient interest or has a tendency to excite lustful thoughts. Roth v. United States, 354 U.S. at 487; Miller v. California, 413 U.S. at 24.
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Additionally, Appellant’s comments cannot be considered to be fighting words. In Cohen v California, the Supreme Court defined fighting words in terms of “personally abusive epithets” that were “inherently likely to provoke violent reaction” when addressed to the “ordinary citizen.” Cohen, 403 U.S. at 20. As noted by Appellant in his brief, a trained officer should not be considered an ordinary citizen. Indeed, the Supreme Court has held that the “First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. at 461 (noting that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state”).
In Lewis v. New Orleans, the Supreme Court held that the statement “god damn m.f. police” was protected, absent a genuinely violent context. Lewis, 415 U.S. at 131 n.1. Similarly, in Hess v. Indiana, 414 U.S. 105 (1973), the Court found that the words, “We’ll take the fucking street again later on,” which were shouted as police sought to restore order during a campus antiwar demonstration, could not be criminally punished either as fighting words or obscene speech. Hess, 414 U.S. at 107. Similarly, the comments “White son of a bitch, I’ll kill you” and “You son of a bitch, I’ll choke you to death” would not support a conviction for using “grossly
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vulgar” or “profane” language. Gooding v. Wilson, 405 U.S. 518, 519 n.1, 520 (1972).
The statements Appellant uttered may have been offensive to some people, including Officer Ricketts. But they were not obscene and they were not fighting words. Rather, they were constitutionally protected expressions that should never have been the target of a criminal prosecution. As the Supreme Court observed in Cohen v California, “[t]he constitutional right of free expression is a powerful medicine in a society as diverse and populous as ours”:
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.
403 U.S. at 24-25 (emphasis added).
Appellant’s conviction and sentence on the profanity statute violation were imposed in patent violation of the state and federal constitutions and should be reversed.
III. THE JUDGMENT OF THE MAGISTRATE COURT SHOULD BE REVERSED AS TO VIOLATION NUMBER T0000111 TO THE EXTENT THAT THE CITATION WAS ISSUED DUE TO APPELLANT’S FAILURE TO PROVIDE IDENTIFYING INFORMATION.
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It is undisputed that Officer Ricketts issued Appellant a citation for “resisting, obstructing or delaying an officer,” pursuant to N.C. Gen. Stat. § 14-223. Section 14-233 provides:
§ 14-223. Resisting officers.
If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.
N.C. Gen. Stat. § 14-223.
To the extent that Officer Ricketts issued this citation on the basis of Appellant’s failure to provide the officer with his name and other identifying information, the citation was improper under both North Carolina Fourth Amendment case law and the United States Supreme Court’s decision in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 183 (2004).
In Hiibel v. Sixth Judicial District Court of Nevada, the United States Supreme Court upheld the conviction of a Nevada citizen who was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office,” in violation of Nev. Rev. Stat. § 199.280, after the citizen refused to provide a police office with a driver’s license or any other form of identification. Id. at 181. However, in upholding the conviction, the Supreme Court relied upon the fact that the Nevada legislature has enacted what is known as a “stop and identify” statute, which defines the legal
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rights and duties of a police office in the context of an investigative stop. Id. (citing to Nev. Rev. Stat. § 171.123). Nevada’s “stop and identify” statute specifically provides that a person detained by an officer “shall identify himself . . . .” Id. (quotations omitted).
While the Nevada Legislature affirmatively decided to impose criminal penalties on a citizen for failing to identify himself to a police officer, the North Carolina Legislature has enacted no such law. Indeed, in Hiibel, the Supreme Court explicitly states that, in jurisdictions without a “stop and identify” statute, “a suspect may decline to identify himself without penalty.” Id. at 183. Consequently, Appellant had a right to decline to identify himself without penalty.
Moreover, in Roberts v. Swain, 487 S.E.2d 760, 768 (N.C. Ct. App. 1997), the North Carolina Court of Appeals held that a defendant’s “mere refusal to provide his social security number [was] insufficient to establish probable cause for the charge of resisting arrest.” The Court explained:
This situation is similar to that in State v. Allen in which we held an arrest for resisting an officer illegal when the defendant merely argued with the officer and protested the confiscation of his liquor. We stated: “‘[M]erely remonstrating with an officer . . . or criticizing an officer while he is performing his duty, does not amount to obstructing, hindering, or interfering with an officer[.]’” Furthermore, we have more recently stated that “[c]ommunications simply intended to assert rights, seek clarification or obtain information in a peaceful way are not chilled by section 14-223.” “Only those communications intended to hinder or prevent an officer from carrying out his duty are discouraged by this section.” Plaintiff’s verbal refusal to provide his social security number did not hinder or prevent Swain and
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McCracken from completing the arrest and citation of plaintiff. We hold there was no probable cause for the resisting an officer charge under G.S. § 14-223.
Roberts v. Swain, 487 S.E.2d at 768 (internal citations omitted). Accordingly, to the extent that Appellant’s conviction under N.C. Gen. Stat. § 14-223 was based on Appellant’s failure to identify himself to Officer Ricketts, that conviction should be reversed.
CONCLUSION
For the foregoing reasons, Appellant’s conviction under N.C. Gen. Stat. § 14-197 should be reversed, and Section 14-197 should be determined to be unconstitutional, both on its face and as applied. Additionally, Appellant’s conviction under N.C. Gen. Stat. § 14-223 should be reversed to the extent that the conviction was based on Appellant’s failure to identify himself.
Respectfully submitted this the 30th day of November, 2006.
MELROSE, SEAGO & LAY, P.A.
_______________________
Counsel for Amicus
Cooperating Attorney
NC ACLU-LF
s/ Mark R. Melrose
Melrose, Seago & Lay, P.A.
Attorney for Plaintiff
P.O Box 1011
Sylva, N.C. 28779
(828) 586-3200
15
CERTIFICATE OF COMPLIANCE
This Brief of Amicus Curiae has been prepared using: Microsoft Word 2000; Times New Roman; 14 Point Type Space.
EXCLUSIVE of the Table of Contents, Table of Authorities, Certificate of Compliance, and the Certificate of filing and Service, this Brief contains 15 pages.
I understand that a material misrepresentation can result in the Court’s striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the Brief and/or a copy of the word or line print-out.
MELROSE, SEAGO & LAY, P.A. Mark R. Melrose____________
s/Mark R. Melrose
Counsel for Amicus
Cooperating Attorney
NC ACLU-LF
Melrose, Seago & Lay, P.A.
Attorney for Plaintiff
P.O Box 1011
Sylva, N.C. 28779
(828) 586-3200
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this the 30th day of November, 2006, I filed with the Clerk’s Office of the United States District Court for the Western District of North Carolina, Bryson City Division, via electronic filing, the required number of copies of this Brief of Amicus Curiae, along with a Motion for Leave to File Brief and Motion for Leave to File Brief Out of Time, and further certify that I have served, via ECF Federal Electronic Filing?, the required number of copies of said Brief and Motions to the following:
Assistant United States Attorney
United States Attorney’s Office
Room 233, United States Courthouse
100 Otis Street
Asheville, North Carolina 28801
Counsel for Plaintiff/Appellee.
MELROSE, SEAGO & LAY, P.A. Mark. R.