Gay Come-On in the Park Wasn’t Obscene

     (CN) – A gay man who touched the pants of an undercover park ranger trying to root out homosexual activity in a national park deserves acquittal, the 4th Circuit ruled.
     The National Park Service and U.S. Forest Service had partnered in 2009 on a sting operation after receiving complaints about male-on-male sexual activity in Blue Ridge Parkway, a national park in North Carolina.
     During the course of the sting, undercover ranger Joseph Darling passed Joe Lanning, a 62-year-old retiree, on a trail. Lanning “grabbed his own groin and kept walking,” according to the ruling.
     Darling, whom the court describes as 32 and 200 pounds, approached Lanning a few minutes later, began a sexually suggestive conversation with him and then expressly agreed to have sex with him.
     Lanning then turned away from facing Darling, took a couple of steps back against the undercover ranger and reached his left hand back to briefly grasp Darling’s fully clothed crotch.
     Darling then arrested Lanning, who was found guilty of disorderly conduct. A federal magistrate sentenced Lanning to 15 days’ imprisonment, a $1,000 fine, and a two-year ban on visiting government forest and parks.
     U.S. District Judge Martin Reidinger vacated Lanning’s sentence, finding that the magistrate lacked authority to issue the park ban. When the magistrate reinstated the 15 days’ imprisonment and ordered Lanning to pay a $500 fine, Reidinger affirmed.
     On Friday, a divided three-judge panel of the 4th Circuit acquitted Lanning.
     Under the federal law concerning disorderly conduct, Section 2.34(a) (2), “a person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person … uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.”
     “We hold that the term ‘obscene’ is unconstitutionally vague as applied to defendant,” Judge James Wynn wrote for the Richmond, Va.-based majority.
     “We further hold that no rational trier of fact could find beyond a reasonable doubt that defendant’s brief touch of the ranger’s crotch, done in response to the ranger’s deliberate attempt to convince defendant that he would have sex with him, was ‘physically threatening or menacing’ or ‘likely to inflict injury or incite an immediate breach of the peace,'” Wynn added.
     Use of the term “obscene” in the statute “is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits,” the court also found.
     Under the circumstances of the case, Lanning did not have fair warning that his conduct was “‘morally repulsive’ … or ‘offensively or grossly indecent, lewd,’ so as to be ‘obscene’ and thus proscribed by Section 2.34(a)(2),” Wynn added.
     The 4th Circuit also expressed concern that law enforcement can exploit the statute’s vague language for arbitrary or discriminatory enforcement. The fact that citizen complaints formed the basis for the sting operation may also have contributed to problematic enforcement, the judges noted.
     “It may be that gay men engage more frequently in sexual activity in the Blue Ridge Parkway and therefore generate more citizen complaints,” Wynn wrote. “Yet it is also entirely plausible that the public in and around the Blue Ridge Parkway subjectively finds homosexual conduct … particularly ‘morally repulsive,’ … and ‘grossly indecent,’ … and therefore complains. If the public is, by contrast, not similarly troubled by a woman propositioning her boyfriend for sex and then briefly touching his clothed crotch, there would exist no citizen complaint and no related sting, even for otherwise identical heterosexual conduct. Simply enforcing the disorderly conduct regulation on the basis of citizen complaints therefore presents a real threat of anti-gay discrimination.”
     Noting that Lanning was 29 years older than Darling, the 4th Circuit majority further held that no “reasonable person objectively would have felt [physically threatened or menaced] under the circumstances of the case.”
     Finally, the majority determined that Lanning’s conduct was not “likely to inflict injury or incite an immediate breach of the peace.”
     “No rational trier of fact could thus conclude that Darling himself likely would react violently to defendant’s fleeting touch,” since Darling had just agreed to have sex with Lanning.
     “Even if other park visitors had witnessed the incident and recognized it for what it was, we fail to see how a rational fact finder could decide that the ‘[v]ery brief’ touching over clothes at issue here would likely cause those visitors to react violently or to riot,” Wynn concluded.
     Despite her shared “distaste for Officer Darling’s conduct,” Judge Allyson Duncan said the court should have afforded the magistrate judge’s findings of fact more deference.
     “I believe that a rational trier of fact could have found a physical touching such as this implying an immediate intent to engage in sexual activity in public both obscene and physically threatening or menacing,” Duncan wrote.

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