I got a tale here of some judicial activism. No, it isn’t the flashy kind of judicial activism that they talk about in the public-oriented blogopshere. It isn’t even the kind that I hate (where the judges frustrate the intentions of the parties). Instead, it is a more annoying kind where judges use other judicial constructions to get around constitutional problems with the statute. It is nerdy! nerdy! nerdy!
Here is my point:
The First Circuit improperly imported a doctrine regarding collateral review of state court decisions concerning vagueness to avoid addressing a facial challenge to a statute, substituting intead, a reference to its own decisions regarding as-applied challenges to a similar (yet different) statute!
Keep reading, and if you disagree, pipe up. Even if you are the kind of person that thinks that our prison population is too small, you might agree that there is a doctrinal problem in this decision.
There is something rotten about Nieves-Castaño (earlier coverage here). I am beginning to think it was the product of a chambers compromise. Sure, the defendant “got off” because the government couldn’t prove that he had knowledge that a gun was a machine gun. But, whoever wrote that opinion had to bend on the issue of whether the defendant knew he was within 1000 feet of a school.
First, the evidence that the First relies on for proximity to the school is that there were children walking to it.
Here, three minor children lived with the defendant, and it would be easy for a jury to conclude that she knew there were two schools nearby, within or just outside her housing project and less than 1000 feet away, and that she regularly passed by those schools. One school was, in fact, located next to the south entrance of the housing project.
The court then describes the “objective” distances to the school. But, I ask all of you that live in suburban or urban areas if you can name every building with 1000 feet of your bedroom. But, this isn’t the kicker.
The kicker is the vagueness issue.
The defendant essentially mounted a facial challenge to the statute. The defendant essentially said, “Look, there really isn’t any way that people know what this statute means.” Or, in the words of the first, “Nieves-Castaño's argument is that the statute is unconstitutional on its face because it provides no objective criteria for the measurement of the 1000 foot distance specified in [18 U.S.C. ] § 921(a)(25)(B).”
So, let’s look at the statute:
(25) The term “school zone” means—
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.
It says “grounds.” The court could have simply said that the defendant and all “reasonable people” knows what “grounds” means and deliberately chose to possess a gun within a thousand feet of some grounds. (The statute apparently encouraged schools to post warnings that there were schools nearby, but the government presented no evidence of them.) But, such determination would have to be made within the context of the defendant’s challenge to this statute. Not by borrowing from other statutes that criminalize other – more mobile – and, more child-centered behavior (i.e. selling drugs near a school).
So, let’s look at the Supreme Court’s definition of vagueness.
We have recognized in such cases that "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," ibid., and that "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.
Bouie v. City of Columbia, 378 U.S. 347 (1964). The First fairly lays out unconstitutional vagueness here:
'[A] statute is unconstitutionally vague only if it 'prohibits . . . an act in terms so uncertain that persons of average intelligence would have no choice but to guess at its meaning and modes of application.'
United States v. Councilman, 418 F.3d 67, 84 (1st Cir. 2005) (en banc) [(our coverage here, here, and here)]. So far so good. (Digression: Holding people to a standard of “average” intelligence is a bit of a tall order. Sure, professionals are held to a certain standard of care, but do we really want to start putting people in jail with low SAT scores, who just don’t understand some words? Do we really want to think that everyone reads Selya's opinions with words that he has his clerks pick out just because they are novel?)
Then, the First says something strange.
Further, the evaluation of the constitutionality of the statute is also made in light of judicial constructions of the statute. See Wainwright v. Stone, 414 U.S. 21, 22-23 (1973). There is ample relevant judicial construction, here and elsewhere, that removes any vagueness concerns.
Here is what Wainwright v. Stone, 414 U.S. 21, 22-23 (1973) says:
For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation "we must take the statute as though it read precisely as the highest court of the State has interpreted it."
This make sense. Let's look at the posture of Wainwright v. Stone.
In separate trials, appellees were convicted of violating Fla. Stat. 800.01 (1965), which proscribed "the abominable and detestable crime against nature, either with mankind or with beast . . . ." Having exhausted state remedies,  appellees sought federal habeas corpus, asserting, among other things, that the Florida statute was impermissibly vague...Appellees rely on Franklin v. State, 257 So.2d 21 (Fla. Sup. Ct. 1971), to avoid the efficacy of prior constructions of 800.01. In that case, decided after appellees' convictions had become final, the Florida Supreme Court reconsidered Delaney and held that if 800.01 was intended to reach oral and anal sexual activity, that intention should appear on the face of the statute; otherwise it was void for vagueness and uncertainty in its language.
(An altert reader tells me that he "like totally knew" that someone is going to cite a sodomy case when mounting a facial challenge. )
Got it? The respondent in Wainwright v. Stone was the beneficiary of a judicial gloss on their particular statute. The Supreme Court said that although the Florida Supreme Court had prospectively held the statute to be vague, people convicted before that ruling couldn’t argue that the detention was illegal when, at the time of their conviction, it was established that such conduct (sodomy between straight people in Florida) was illegal.
But the First takes it one step further. It looks at convictions for selling drugs within 1000 feet of a school. (I think this is a hell of a lot different than possession of a gun, since selling drugs near a school, in theory, is probably intended to prevent drug dealers from taking advantage schools’ tendencies to attract kids. In reality, it is just another excuse to put the urban poor in jail, where most people think they would belong, anyway.)
In Wainright v. Stone, the petitioners actually had the opportunity (in state court) to challenge the statute on facial vagueness grounds. They lost, but a later defendant won, and the Supreme Court says that they can’t import the later state court’s determination to collaterally attack their conviction. Again, this makes sense. If binding authority resolves an issue of vagueness, someone can't relitigate the issue in federal court. But, this case, we are not taking collateral attack, and there is no binding authority.
So, the First says that because the First and other courts have interpreted similar statutes, they simply can't mount a facial challenge, and the First ends up not addressing whether the statute is facially vague at all. Or rather:
There is ample relevant judicial construction, here and elsewhere, that removes any vagueness concerns. One example suffices. In United States v. Soler, 275 F.3d 146 (1st Cir. 2002), this court provided such a construction. We held that "the government must prove beyond a reasonable doubt that the distance from a school to the actual site of the [prohibited] transaction, not merely to the curtilage or exterior wall of the structure in which the transaction takes place, is 1,000 feet or less." Id. at 154. Soler also endorsed a straight-line method of measurement, rather than pedestrian-route measurements. Id. at 155 n.6; accord United States v. Henderson, 320 F.3d 92, 103 (1st Cir. 2003).
There is a problem. Soler involved a drug transaction. It also wasn't a vagueness challenge. Unlike the Florida court's determination of Florida law, the First Circuit's interpretation of a statute is no conclusive. Sure, it has preclusive effect, but it there is nothing stopping the First Circuit from, in this case, reinterpreting federal law, whereas, the Supreme Court simply lacks the power to definitively interpret Florida law.
It gets worse.
The Soler holding was under 21 U.S.C. § 860(a), which deals with drug offenses that occur "within one thousand feet of  the real property comprising" a school. Nonetheless, it provides notice pertinent to the construction of the statute at issue here, which defines a school zone very similarly. See 18 U.S.C. § 921(a)(25) (defining a school zone as comprising the area "within a distance of 1,000 feet from [school] grounds").
So, here is the rub. It is permissible for a federal court to use state court decisions to make the call on vagueness issues. The Federal Court can simply say, “There is no danger of the statute being enforced in an unconstitutional way, because the state courts have explained the only ways that the statute can be enforced, and those ways are constitutional.” Lower Federal Court’s can’t really second-guess whether a state statute is facially constitutional, and lower federal courts, dealing with habeas proceedings (which are, by their nature, as-applied challenges) still would look to the way the state courts interpret their own statutes. But, it is not permissible for a federal courts to use their own decisions on other statutes to make the call on facial vagueness challenges, no matter how similar they are. The defendant is entitled to mount a facial challenge to the statute, and have the court says, "Yes, reasonable people know what conduct is prohibited," or "No, reasonable people are closeless." They can't say, "There is no danger of reasonable people being surprised, because we probably will rule one way in the future based on prudential principles and decisions of other panels."
The court should have addressed the defendant's challenge head-on. It might have reached the same conclusion: that the statute isn't ambiguous, or that the rule of lenity applies (and the defendant still loses). Instead, they seem to have declared that because another panel declared, on an as-applied challenge of another statute with similar words, that the conviction statute was not vague, that a facial challenge to this statute fails.