United States Court of Appeals

For the First Circuit

No. 10-1209

URI STUDENT SENATE ET AL.,

Plaintiffs, Appellants,

v.

TOWN OF NARRAGANSETT ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge,

Selya and Thompson, Circuit Judges.

H. Jefferson Melish for appellants.

Marc DeSisto, with whom Mark A. McSally, Town Solicitor,

Kelly, Kelleher, Reilly & Simpson, and DeSisto Law were on brief,

for appellees.

January 5, 2011
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SELYA, Circuit Judge. The town of Narragansett (the

Town), a sleepy seaside community in southern Rhode Island, boasts

some of the most beautiful beaches on the eastern seaboard. Each

summer, the Town experiences a substantial influx of seasonal

residents. Each fall, the Town empties out, leaving a large number

of dwellings unoccupied. The Town's proximity to the University of

Rhode Island (URI) makes these dwellings attractive for student

housing.

This thriving rental market among college students has

proven to be both a blessing and a curse. On the one hand, the

clamor for student housing is an economic boon to property owners

willing to rent their dwellings. On the other hand, the sheer mass

of exuberant young people and their predilections have proven to be

a threat to the quality of life in a quiet enclave. 

In an effort to balance these competing concerns, the

Town adopted a novel ordinance authorizing local police officers to

post a bright orange sticker at the front entrance of any residence

found to have hosted an "unruly gathering." The ordinance has had

its detractors, and this case was brought as a multifaceted

challenge to it. The challengers complain that the ordinance is

both preempted by state law and unconstitutional on its face. 

The district court, in a thoughtful and comprehensive

rescript, rejected these plaints. See URI Student Senate v. Town

of Narragansett, 707 F. Supp. 2d 282 (D.R.I. 2010). After careful
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consideration, we find that the Town's unorthodox solution to the

problems caused by unruly gatherings does not, on its face, offend

either state law or the United States Constitution. Accordingly,

we affirm.

I. BACKGROUND

We first recount the circumstances surrounding the

adoption of the ordinance and summarize its terms. We then limn

the travel of the case.

A. The Ordinance.

The Narragansett Town Council initially adopted an

"unruly gatherings" ordinance in 2005. It amended that ordinance

in 2007. The amended version (the Ordinance), codified at chapter

46, article II, of the Town's Code of Ordinances, remains in force.

We refer throughout to that version, which is reprinted in the

appendix. 

Section 46-31 of the Ordinance empowers local police

officers to intervene at and disperse gatherings that are sparking

"a substantial disturbance." The police may only do so, however,

when the disturbance involves "a violation of law." Subsection (a)

provides an illustrative list of instances of unlawful conduct that

might constitute such a violation (e.g., excessive noise,

obstruction of public streets, illegal parking, public drunkenness

or urination, service of alcohol to minors).
 The record does not explain why the color orange was 1

selected. Thus, like Nathaniel Hawthorne reflecting on a similar

conundrum, one wonders if there is "some deep meaning in it, most

worthy of interpretation, and which, as it were, streamed forth

from the mystic symbol, subtly communicating itself to [one's]

sensibilities, but evading the analysis of [one's] mind."

Nathaniel Hawthorne, The Scarlet Letter, intro. (1850). In the

end, however, the choice of hue, though perplexing, is not relevant

to the issues on appeal. 

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Once the police have abated and dispersed an unruly

gathering, subsection 46-32(a) authorizes them to prominently post

a notice on the premises. This notice takes the form of a bright

orange ten-by-fourteen-inch sticker, which is affixed on or near

the front entrance of the building. The sticker contains an 1

explicit message. It admonishes that, should police intervention

be required in response to another violation at the same address

during the same posting period, various parties (e.g., the owners

and residents of the premises, the sponsors of the unruly

gathering, and any guests who cause a nuisance) will be held

jointly and severally liable. Landlords are informed by mail of

both the posting and the violation that led to it. 

The Ordinance makes explicit allowance for certain

defenses to prosecution for a subsequent violation. For example,

under subsection 46-34(a)(5), a showing that only uninvited

participants engaged in the proscribed conduct serves as a defense

for innocent landlords, tenants, or event sponsors. To assert this

defense, a landlord, tenant, or sponsor must show that she took

"all steps reasonably necessary to exclude" the responsible
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individuals. As to landlords, such exclusionary actions include

"actively attempting" to evict boisterous tenants.

The posting periods prescribed by subsection 46-32(a)

correspond with the economic realities of the seasonal housing

cycle. If a building is posted between the beginning of September

and the end of May, the sticker must remain in place until May 31.

If a building is posted between the beginning of June and the end

of August, the sticker must remain in place until August 31. 

Under subsection 46-32(b), landlords and tenants are

jointly responsible for maintaining the notice in place. If a

landlord or tenant removes the sticker, abets its removal, or

tampers with it during the posting period, she is subject to a

fine.

Section 46-35 delineates the penalties associated with

infractions at previously posted dwellings. Under subsection (a),

the first post-posting intervention during a given posting period

incurs a $300 fine; the second, a $400 fine; and any further

intervention, a $500 fine. Under subsection (b), violators may be

required to perform community service or, for repeat offenders,

community service is mandatory. 

The Town routinely compiles statistics relating to its

enforcement of the Ordinance. Its roster of offending dwellings

includes all addresses at which police officers have intervened to

abate and disperse unruly gatherings. It also maintains a list
 Criminal prosecution of those individuals for subsequent 2

violations was underway in municipal court prior to the

commencement of this suit. These proceedings have been held in

abeyance.

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that features data relating to Ordinance violations committed by

URI students. 

B. Travel of the Case.

In May of 2008, the appellants challenged the Ordinance

in a Rhode Island court. The defendants removed the case to the

district court in pursuance of federal question jurisdiction. See

28 U.S.C. §§ 1331, 1441. 

The lead plaintiff-appellant is the URI Student Senate,

which claims to represent the interests of URI students generally.

The remaining plaintiffs, also appellants here, can be sorted into

three categories. The first group comprises individual URI

students who reside in Narragansett and have felt the sting of the

Ordinance. These appellants claim, among other things, that they

have been subjected to university disciplinary procedures as a

result of violating the Ordinance. The second group consists of 2

URI students whose rented abodes have been posted with orange

stickers. These appellants claim that they were evicted from their

homes and referred to the URI Student Life Office as a result. The

last group comprises landlords who have had their rental properties

posted. These appellants claim that they have been unable to rerent their properties and, consequently, have lost rental income.
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The defendants, appellees here, are the Town and a galaxy of

municipal officials. For ease in exposition, we refer to the Town

as if it were the sole defendant. 

The complaint is cast mostly, but not entirely, as a

series of constitutional challenges. The exception is a preemption

claim positing that the Ordinance is preempted by a state statute.

The constitutional claims allege variously that the Ordinance (i)

violates substantive due process, (ii) is unconstitutionally vague,

(iii) is overbroad, (iv) offends the requirements of procedural due

process, and (v) deprives the appellants of equal protection of the

law. 

In due season, the parties cross-moved for summary

judgment on stipulated facts. The district court denied the

appellants' motion and granted the cross-motion. URI Student

Senate, 707 F. Supp. 2d at 304. The court expressed concern about

the absence of any pre-posting opportunity to challenge the orange

stickers, id. at 296, 302, but nonetheless upheld the Ordinance.

This timely appeal ensued.

II. ANALYSIS

We begin our analysis with the preemption claim and then

move to the constitutional claims. Before undertaking this

exegesis, we pause to memorialize the standard of review. 

We review an appeal from the entry of summary judgment de

novo. Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir.
 The L&T Act makes separate provisions for what it calls 3

"seasonal" tenants. See R.I. Gen. Laws § 34-18-36(f). The case at

hand does not turn on any such distinction and, thus, we refer to

tenants generally. 

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2005). In so doing, we take the facts and all reasonable

inferences therefrom in the light most hospitable to the nonmoving

party. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4

(1st Cir. 2010). "We will affirm only if the record reveals 'no

genuine issue as to any material fact' and 'the movant is entitled

to judgment as a matter of law.'" Vineberg v. Bissonnette, 548

F.3d 50, 55 (1st Cir. 2008) (quoting Fed. R. Civ. P. 56(c)(2)). 

A. Preemption.

The appellants assert that the Ordinance is preempted by

the Rhode Island Residential Landlord and Tenant Act (L&T Act),

R.I. Gen. Laws §§ 34-18-1 to 34-18-57. As its title implies, the

L&T Act speaks to the rights and obligations of landlords and

tenants within Rhode Island. See id. §§ 34-18-2, 34-18-7. In

advocating preemption, the appellants rely on section 34-18-36,

which gives most tenants the right to cure any material breach of

a rental agreement prior to eviction. 

3

Under Rhode Island law, a municipal ordinance may be

preempted by a state statutory scheme either if the ordinance

conflicts with the statutory scheme or if it can be shown that the

General Assembly intended its statutory scheme to occupy the whole

of the regulatory field in connection with a given subject.
 In their opening brief, the appellants make a passing 4

reference to section 34-18-7 as a possible source of field

preemption. This reference is not developed in any way and, thus,

no field preemption argument is properly before us. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

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Amico's Inc. v. Mattos, 789 A.2d 899, 907 (R.I. 2002); Town of

Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1261 (R.I. 1999).

The appellants' preemption argument rests on the first of these

lines of attack: the supposed existence of a conflict between the

Ordinance and the L&T Act.4

The appellants contend that the Ordinance conflicts with

section 34-18-36 of the L&T Act because it "requires" a landlord to

evict an offending tenant without providing the tenant with an

opportunity to cure. Eviction is required, the appellants say, so

that the landlord can avoid liability for subsequent Ordinance

violations at posted properties. 

This argument represents a triumph of hope over reason.

The Ordinance does not require a landlord to initiate eviction

proceedings against an offending tenant. Rather, section 46-

34(a)(5) explains that the owner of a previously posted property

may avoid liability for a subsequent unruly gathering at that

location as long as the owner is "actively attempting to evict a

tenant from the premises." Affording the landlord an "ongoing

eviction" defense is not tantamount, either legally or practically,

to compelling him to institute eviction proceedings. 
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The appellants try to dodge this bullet. They note that,

under the L&T Act, the first step in evicting a tenant is the

issuance of a noncompliance notice. R.I. Gen. Laws § 34-18-36.

The appellants declare that this provision grounds a preemption

claim because sending a notice of noncompliance is antithetic to an

active attempt at eviction. 

This ipse dixit is not accompanied by any explanation as

to why or how the transmittal of a notice of noncompliance

interferes with, let alone negates, the active pursuit of eviction.

Bearing in mind that sending such a notice is the first step in the

eviction pavane, the two acts seem entirely compatible. Certainly,

there is nothing in either the text of the Ordinance or the letter

of the L&T Act that precludes simultaneous compliance with both. 

In all events, conflict preemption requires a direct

conflict or something very close to it. See, e.g., Freightliner

Corp. v. Myrick, 514 U.S. 280, 287 (1995) (explaining that implied

conflict preemption may exist where it is "impossible for a . . .

party to comply with both . . . requirements" or where a provision

"stands as an obstacle to the accomplishment and execution of the

full purposes and objectives" of the legislature (quotations

omitted)). An awkward fit, without more, will not support a claim

of conflict preemption.

In the instant case, we are unable to discern either a

direct conflict or an irreconcilable inconsistency between the
 At oral argument, the appellants stated that they were 5

making both facial and as-applied challenges. The record belies

that statement. Although their brief characterizes the complaint

as contesting the Ordinance "on its face and as applied," the

appellants argued the case in the district court as a facial

challenge and the district court decided it on that basis. See URI

Student Senate, 707 F. Supp. 2d at 288. That approach was

unavoidable as the appellants failed to introduce any evidence

sufficient to underpin an as-applied challenge.

No specific claim is made in this case that persons 6

exonerated from charges brought under the Ordinance have been

unable either to get the orange stickers removed from their

residences or to have their names and addresses expunged from the

rosters of offenders and offending sites. Cf. Los Angeles Cnty. v.

Humphries, 562 U.S. ___, slip op. at 2 (2010) (addressing 42 U.S.C.

§ 1983 claim brought by plaintiffs who were accused of child abuse,

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provisions of the Ordinance and the provisions of the L&T Act. We

therefore hold, without serious question, that the L&T Act does not

preempt the Ordinance.

B. Constitutional Claims.

The appellants advance a compendium of constitutional

challenges to the Ordinance. Because they have not pressed either

their generalized substantive due process or equal protection

claims, we eschew any further discussion of those initiatives.

Without exception, what remains are facial challenges.5

1. Procedural Due Process. We start with the contention

that the Ordinance deprives both landlords and tenants of

procedural due process. The appellants pounce on the fact that the

Ordinance allows the police to plaster an orange sticker on a

dwelling without affording either the landlord or the tenants any

opportunity for a hearing.6
later exonerated, yet were unable to convince relevant officials to

remove their names from a widely available central index). 

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It is familiar lore that the essence of procedural due

process is prior notice and an opportunity to be heard. Bd. of

Regents v. Roth, 408 U.S. 564, 573 (1972). But this principle does

not operate in a vacuum. In order to show a deprivation of

procedural due process, a party must first show that the challenged

action implicates a constitutionally protected liberty or property

interest. Id. at 569-70; Redondo-Borges v. U.S. Dep't of HUD, 421

F.3d 1, 7 (1st Cir. 2005); see also U.S. Const. amend. XIV, § 1. 

In an effort to cross this threshold, the appellants

focus on reputational harm, that is, the allegedly stigmatizing

effects of the Ordinance. They say that when a residence is posted

with an orange sticker, both the landlord and the tenants are

publicly branded as criminals. They add that this stigma is

heightened by the Town's action in keeping a publicly available

register of all posted premises.

Student tenants are alleged to suffer a further

detriment. When an orange sticker is posted on premises occupied

by a university student, the Town informs URI. In the appellants'

view, this additional step exposes student tenants to disciplinary

proceedings and exacerbates the stigmatizing effect of the

postings.
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This argument cannot withstand scrutiny. In

constitutional jurisprudence, stigmatization is a term of art. The

Supreme Court has made clear that a procedural due process claim

cannot rest upon reputational harm alone. Paul v. Davis, 424 U.S.

693, 701 (1976). Thus, when a person alleges that she has suffered

stigmatization at the hands of a government actor, she must show an

adverse effect on some interest "more tangible" than reputational

harm. Id. To use the popular catch phrase, the complaining party

must satisfy a "stigma plus" standard. Pendleton v. City of

Haverhill, 156 F.3d 57, 63 (1st Cir. 1998). 

The "plus" part of this formulation is not an empty

formality. In determining whether there exists a cognizable harm,

the stigma plus standard requires us to address two distinct

components: (i) the nature of the incremental harm to which the

appellants point and (ii) the source of that harm.

A party who claims a violation of her procedural due

process rights based on reputational harm must show that the

challenged governmental action adversely impacted some right or

status previously enjoyed by her under substantive state or federal

law. See Paul, 424 U.S. at 710-12; Silva v. Worden, 130 F.3d 26,

32 (1st Cir. 1997). For this purpose, harm to a right or status

that does not emanate from substantive state or federal law is

insufficient. Such harm thus does not qualify as harm to a more
 In their discussion of procedural due process, the 7

appellants repeatedly mention that a posting under the Ordinance

exposes them to prosecution and fines. But they neither present

this exposure as a "plus" factor nor otherwise tie it to any

specific legal doctrine.

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tangible interest within the purview of the stigma plus standard.

See Pendleton, 156 F.3d at 63.

The nature of the affected interest is not the only

hurdle that a complaining party must overcome in order to satisfy

the stigma plus standard. The standard requires that the change in

rights or status be directly attributable to the challenged

governmental action. Id. Where the stigma and the incremental

harm — the "plus" factor — derive from distinct sources, a party

cannot make out a viable procedural due process claim. See, e.g.,

Hawkins v. R.I. Lottery Comm'n, 238 F.3d 112, 116 (1st Cir. 2001).

That is true even if both sources are government entities. See id.

The appellants acknowledge that a showing beyond purely

reputational harm is required by the stigma plus standard. To meet

that requirement, they describe two injuries that they claim result

from the postings.7

First, the appellants aver that the L&T Act provides them

with rights "to housing, to cure breaches, to notice, [and] to

possession." Second, they tout the "right to rent and live in

Narragansett free of public branding." These rights, they insist,

implicate protected liberty and property interests, and the

infringement of them suffices to trigger the stigma plus standard.
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There is, however, no cognizable harm. The appellants

say that some landlords have been unable to re-rent posted

dwellings. Taking this as true, the resulting loss of rent is not

a viable "plus" factor. Nothing in the L&T Act (or elsewhere in

state law, for that matter) confers on landlords an entitlement to

have rental units fully occupied. Rather, the L&T Act for the most

part leaves the negotiation of leases and rates to the marketplace

— that is, to the landlord and each prospective tenant. See R.I.

Gen. Laws § 34-18-15(a). This framework plainly contemplates that

rental income is contingent on the availability of willing renters.

Viewed against this backdrop, it cannot seriously be suggested that

state law creates an entitlement to a steady stream of rental

income that would qualify as a "more tangible" interest (and, thus,

as a "plus" factor).

Similarly, the vacancies that the appellants lament do

not result from state action but, rather, from the actions of third

parties. After all, it is prospective tenants, acting without

government compulsion, who decide whether or not to rent particular

dwellings. A prospective tenant can base her decision not to rent

on a multitude of factors including cost, location, amenities, and

condition. There is nothing that prevents her, as a private party,

from weighing in this balance the presence of an orange sticker.

These third-party decisions are not attributable to state action in

the requisite sense. See Lugar v. Edmondson Oil Co., 457 U.S. 922,
Of course, under the L&T Act a tenant "charged with 8

violating a municipal ordinance" may be subject to an expedited

eviction. R.I. Gen. Laws § 34-18-36(f). Although this provision

may constitute a basis, beyond the explicit terms of the lease, for

terminating a tenancy more quickly, it does not create a property

interest outside of the lease.

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937-39 (1982) (describing circumstances in which private party's

actions may be considered "fairly attributable" to the state);

Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26 (1st Cir.

2002) (similar). When a specified harm is predicated on voluntary

third-party behavior, it cannot serve as a "plus" factor.

Pendleton, 156 F.3d at 63.

The student tenants' proposed "plus" factor is no more

robust. This claim relies on evictions as a source of harm. It

suggests that a tenant has a right to peaceable enjoyment of a

rented dwelling free from eviction and that, therefore, eviction

represents a cognizable "plus" factor. This is too sanguine a

view.

The student tenants' claim is defeated by the fact that

their residential rights derive primarily from private contracts

(leases) between private parties (landlords and tenants), which

entail private obligations. The L&T Act does not itself create a

right to tenancies of any particular duration. In the last

analysis, it is the lease terms (and the tenant's compliance with

them) that generally determine the tenant's right to remain in a

rented dwelling. That is dispositive because a constitutionally 8
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protected property interest must rest on a right or status

conferred by state law, not merely on the complaining party's

unilateral expectations. See Paul, 424 U.S. at 710-11; Roth, 408

U.S. at 577. 

Of course, we recognize that there are situations in

which the Ordinance might be enforced in such a way as to implicate

the legitimate, constitutionally protectable property rights of

affected landlords and tenants. The record in this case, however,

does not contain any indication that such events have transpired.

Though we conclude that, on the record before us, the appellants

have failed to show that enforcement of the Ordinance has resulted

in harm to a cognizable liberty or property interest, this

conclusion does not preclude the possibility of a meritorious asapplied challenge premised on more fully developed facts. 

The district court also considered whether the fact that

students had been subjected to URI disciplinary procedures could

serve as a "plus" factor. URI Student Senate, 707 F. Supp. 2d at

301-02. It rejected that hypothesis. Id. at 301. The appellants

do not mount a credible challenge to this conclusion: although they

note in their briefs that students were referred to URI for

possible discipline, they do not point specifically to these

referrals as a source of incremental harm. Nor do they offer any

explanation as to how disciplinary referrals might constitute a
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"plus" factor. Any argument to this effect is, therefore, waived.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

The appellants have one last arrow in this quiver. They

complain that the Ordinance prevents them from living in

Narragansett. That is codswallop pure and simple: the Ordinance

does not prevent anyone from living anywhere. Although the

Ordinance creates consequences for those who choose to reside in

the Town but fail to abide by the law, these consequences, whether

viewed singly or collectively, do not constitute harm to any

tangible interest enjoyed by the appellants.

Let us be perfectly clear. We, like the district court,

are uneasy about the absence of a hearing. In addition, we

recognize that there are potential applications of the Ordinance

that might impair constitutionally protected liberty or property

interests (say, if the police were to enforce the Ordinance in an

invidiously discriminatory way). But the appellants have brought

a facial challenge, not an as-applied challenge, and the record is

barren of evidence that unconstitutional applications have

occurred. The mere possibility of misuse is insufficient to

invalidate an ordinance on a facial attack. See Ohio v. Akron Ctr.

for Reprod. Health, 497 U.S. 502, 514 (1990). 

To conclude, the appellants have failed to demonstrate,

as would be required to sustain a facial challenge, that any of the

incremental harms to which they point in the hope of satisfying the
 The appellants also suggest that the "right of landlord and 9

tenant to contract . . . is infringed" by the overbreadth of the

Ordinance. The appellants, however, have offered no authority to

suggest that the right to contract is a recognized First Amendment

interest. Manifestly, it is not.

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requirements of the stigma plus standard inevitably results from

the Ordinance's implementation. We therefore reject the

appellants' procedural due process claim.

2. Overbreadth. The appellants complain that the

Ordinance is overly broad. The focal point of this plaint is their

allegation that the Ordinance penalizes landlords and tenants

merely because of their association with a place or an event and,

thus, trenches upon the First Amendment right of association.9

Landlords and tenants, they say, are free to host social gatherings

and invite such persons as they may wish. 

We need not linger long over this asseveration. "[T]he

overbreadth doctrine permits the facial invalidation of laws that

inhibit the exercise of First Amendment rights if the impermissible

applications of the law are substantial when 'judged in relation to

the statute's plainly legitimate sweep.'" Chicago v. Morales, 527

U.S. 41, 52 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601,

615 (1973)). Thus, "[i]n a facial challenge to the overbreadth

. . . of a law, a court's first task is to determine whether the

enactment reaches a substantial amount of constitutionally

protected conduct. If it does not, then the overbreadth challenge

must fail." Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
-20-

Inc., 455 U.S. 489, 494 (1982); accord Whiting v. Town of Westerly,

942 F.2d 18, 21 (1st Cir. 1991). The Supreme Court has warned that

"[t]he overbreadth doctrine is 'strong medicine' that is used

'sparingly and only as a last resort.'" N.Y. State Club Ass'n v.

City of New York, 487 U.S. 1, 14 (1988) (quoting Broadrick, 413

U.S. at 613); see also McCullen v. Coakley, 571 F.3d 167, 182 (1st

Cir. 2009); New Engl. Accessories Trade Ass'n v. City of Nashua,

679 F.2d 1, 4 (1st Cir. 1982).

The appellants' overbreadth argument misses the mark.

The constitutionally protected right of association cannot be

reinvented to suit a plaintiff's fancy. It has never been expanded

to include purely social gatherings. Rather, it is contingent on

the presence of underlying individual rights of expression

protected by the First Amendment. See Wine & Spirits Retailers,

Inc. v. Rhode Island, 418 F.3d 36, 50 (1st Cir. 2005). As we

explain below, there is no such underlying right at stake here.

The Court has identified two types of "freedom of

association" that merit constitutional protection: (i) "choices to

enter into and maintain certain intimate human relationships" and

(ii) association "for the purpose of engaging in those activities

protected by the First Amendment." Roberts v. U.S. Jaycees, 468

U.S. 609, 617-18 (1984). These categories cannot be stretched to

form a generic right to mix and mingle. City of Dallas v. Stanglin,

490 U.S. 19, 24 (1989) (concluding that ordinance restricting
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attendance at dance halls did not reach the kind of "expressive

association that the First Amendment has been held to protect").

In the teeth of these authorities, the appellants urge us to

sanctify a generalized "right to congregate and socialize." This

free-wheeling right far outstrips the bounds of recognized First

Amendment protections.

In the case at hand, we have construed the Ordinance as

requiring that the prosecution prove that an offending gathering

created not only a substantial disturbance but also one involving

a violation of law. See infra Part II(B)(3). Mere police

intervention is not enough. See id. In light of this construction,

we conclude that the Ordinance does not reach "a substantial amount

of constitutionally protected conduct." Vill. of Hoffman Estates,

455 U.S. at 494.

The concern that the Ordinance, if applied in certain

instances, could infringe upon constitutionally protected rights

(by, say, being invoked to interfere with a political gathering or

to disband a prayer meeting) may be valid in the abstract. But we

do not deal here in abstractions, and the appellants have neither

pressed nor adduced evidence to support an as-applied challenge.

More is needed to sustain a facial overbreadth challenge. Cf.

Morales, 527 U.S. at 52-53 (declining to invalidate ordinance on

facial overbreadth grounds because it prohibited neither speech nor

any form of expressive conduct). 
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3. Vagueness. Finally, the appellants maintain that

section 46-31 of the Ordinance is unconstitutionally vague. They

bemoan the Ordinance's use of undefined terms such as "substantial

disturbance," "public nuisance," and "a significant segment of a

neighborhood." These terms, the appellants theorize, do not

provide landlords, tenants, or other persons fair notice as to what

behavior is proscribed. Furthermore, the phrases fail to provide

objective standards under which those charged with enforcing the

Ordinance can do so even-handedly.

"It is a basic principle of due process that an enactment

is void for vagueness if its prohibitions are not clearly defined."

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A law that

survives an overbreadth challenge because it does not reach a

substantial amount of conduct protected by the First Amendment may

still be vulnerable to a facial vagueness challenge under the Due

Process Clause. Whiting, 942 F.2d at 22. "For such a facial

challenge to succeed, however, the complainant must demonstrate

that the law is impermissibly vague in all of its applications."

Id.; see Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir.

2002) ("To prevail in a facial challenge to an ordinance that does

not regulate constitutionally protected conduct, plaintiffs must

surmount a dauntingly high hurdle.") (citing Vill. of Hoffman

Estates, 455 U.S. at 498-99). 
-23-

To comport with the strictures of due process, a law must

define an offense "'[1] with sufficient definiteness that ordinary

people can understand what conduct is prohibited and [2] in a

manner that does not encourage arbitrary and discriminatory

enforcement.' The void-for-vagueness doctrine embraces these

requirements." Skilling v. United States, 130 S. Ct. 2896, 2927-28

(2010) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)); see

also United States v. Williams, 553 U.S. 285, 304 (2008); Morales,

527 U.S. at 56; McCullen, 571 F.3d at 182-83. Nevertheless, words

are rough-hewn tools, not surgically precise instruments.

Consequently, some degree of inexactitude is acceptable in

statutory language. See Grayned, 408 U.S. at 110 (acknowledging

that one "can never expect mathematical certainty from our

language"). Consistent with this reality, "the fact that a statute

requires some interpretation does not perforce render it

unconstitutionally vague." IMS Health Inc. v. Ayotte, 550 F.3d 42,

61 (1st Cir. 2008); see also Barr v. Galvin, ___ F.3d ___, ___ (1st

Cir. 2010) [No. 09-2426, slip op. at 16]. It follows that

"reasonable breadth" in the terms employed by an ordinance does not

require that it be invalidated on vagueness grounds. Grayned, 408

U.S. at 110.

We are convinced that the Ordinance is sufficiently clear

to survive the appellants' vagueness challenge. Words such as

"substantial" and "significant," if read in a vacuum, might be
-24-

problematic. Cf. Fantasy Book Shop, Inc. v. City of Boston, 652

F.2d 1115, 1119, 1123-24 (1st Cir. 1981) (finding impermissibly

vague provision allowing denial of license where granting it would

"otherwise significantly harm[] the legitimate protectable

interests of the affected citizens of the city" (alteration in

original)). Here, however, the challenged phrases do not appear in

a vacuum. The Ordinance contains additional terms that supply

concrete guidance as to the behavior that it prohibits and the

circumstances in which it can be enforced. 

Perhaps most important, section 46-31 authorizes police

intervention only in the event that "conduct constituting a

violation of law" occurs. The prerequisite "violation of law" must

pertain to some law other than the Ordinance itself. In our view,

the requirement that a violation of law be committed as a condition

precedent to police intervention provides adequate guidance to

ensure that the Ordinance is not arbitrarily enforced. See

Grayned, 408 U.S. at 112 (noting that existence of particularized

enforcement context may undercut claim of vagueness).

Our conclusion that the Ordinance withstands the

appellants' assault is reinforced by other considerations. First,

subsection 46-31(a) furnishes a non-exhaustive list of predicate

offenses that will allow a police officer to enforce the Ordinance.

The existence of clear examples of conduct covered by a law may, in

certain circumstances, help to insulate the law against an
-25-

accusation of vagueness. See, e.g., Parker v. Levy, 417 U.S. 733,

754 (1974). 

Second, we are privy to a straightforward articulation of

the Town's purpose in adopting the Ordinance. This clear statement

helps to dispel any uncertainty. 

The Supreme Court has looked to an ordinance's preamble

to ascertain what activity it was intended to prohibit. See

Grayned, 408 U.S. at 110-11; see also IMS Health, 550 F.3d at 62

(noting that, in adjudicating a facial vagueness challenge, "the

state's articulated purpose narrows the interpretive lens through

which we must view the problem"). The preamble to the original

version of the Ordinance explains that "due to inadequate

supervision, some large gatherings of people . . . frequently

become loud and unruly to the point that they constitute a threat

to the peace, health, safety, or general welfare of the public."

It goes on to explain that the Town is required to respond over and

over to such gatherings "to restore and maintain the peace and

protect public safety" and that such repetitive responses unduly

burden municipal resources. It is thus apparent that the Ordinance

is aimed at "discourag[ing] the occurrence of repeated loud and

unruly gatherings." We think that this plainly articulated purpose

is a significant contextual clue. In this instance, it helps to

inform the meaning of the contested language. 
-26-

In the interest of clarity, we note that we read the

Ordinance to require that, in order to impose liability under

sections 46-34 and 46-35, the prosecution most prove that a

gathering creating a substantial disturbance involving a violation

of law occurred both at the time of the initial posting and when

the subsequent intervention took place. Police intervention at a

residence is not enough, by itself, to establish an Ordinance

violation. Thus, the penalties prescribed by the Ordinance — fines

and community service — cannot flow merely from a police officer's

decision to intervene at a gathering. 

The bottom line is that, viewed in context, it is clear

what conduct the Ordinance as a whole forbids. Taken together, the

requirement that someone at a gathering must have committed a

predicate offense, the list of examples of violations of law that

might serve as such a predicate to police intervention included in

the Ordinance, and the Town's articulated concern about quality-oflife issues provide sufficient enforcement guidance to police and

adequately define the type of behaviors prohibited by the

Ordinance. One can envision many permissible applications of the

Ordinance. No more is exigible to ward off a facial challenge

premised on vagueness grounds. See, e.g., Vill. of Hoffman

Estates, 455 U.S. at 497; Whiting, 942 F.2d at 22.
-27-

III. CONCLUSION

We need go no further. For the reasons articulated

above, we uphold the entry of summary judgment.

Affirmed. 
 We reproduce here the version of the Ordinance that is 10

currently available through the Town's official website. This

version differs in a small number of petty ways from the version of

the Ordinance on record in this case as an attachment to the agreed

statement of facts. Any differences are of absolutely no

significance in the resolution of this appeal.

-28-

Appendix 

10

The current version of the Ordinance provides:

Sec. 46-31. Public nuisance. 

(a) It shall be a public nuisance to

conduct a gathering of five or more persons on

any private property in a manner which

constitutes a substantial disturbance of the

quiet enjoyment of private or public property

in a significant segment of a neighborhood, as

a result of conduct constituting a violation

of law. Illustrative of such unlawful conduct

is excessive noise or traffic, obstruction of

public streets by crowds or vehicles, illegal

parking, public drunkenness, public urination,

the service of alcohol to minors, fights,

disturbances of the peace, and litter.

(b) A gathering constituting a public

nuisance may be abated by all reasonable means

including, but not limited to, an order

requiring the gathering to be disbanded and

citation and/or arrest of any law violators

under any applicable ordinances and state

statutes.

Sec. 46-32. Notice of unruly gathering;

posting, mailing.

(a) When the police department

intervenes at a gathering which constitutes a

nuisance under this article, the premises at

which such nuisance occurred shall be posted

with a notice stating that the intervention of

the police has been necessitated as a result

of a public nuisance under this article caused

by an event at the premises, the date of the

police intervention, and that any subsequent

event within the period set forth below on the

same premises, which necessitates police

intervention, shall result in the joint and
-29-

several liability of any guests causing the

public nuisance, or any persons who own or are

residents of the property at which the public

nuisance occurred, or who sponsored the event

constituting the public nuisance as more fully

set forth below. Any notice posted between

September 1 and May 31 of any year shall

remain posted until May 31. Any notice posted

between June 1 and August 31 of any year shall

remain posted until August 31.

(b) The residents and owner of such

property shall be jointly responsible for

ensuring that such notice is not removed or

defaced and it shall be a Code violation

carrying a penalty of a minimum, mandatory

$100.00 fine in addition to any other

penalties which may be due under this section

if such notice is removed, obscured or

defaced, provided, however, that the residents

of the premises or sponsor of the event, if

present, shall be consulted as to the location

in which such notice is posted in order to

achieve both the security of the notice and

its prominent display.

Sec. 46-33. Mailing of notice to property

owner.

Notice of the intervention shall also

be mailed to any property owner on the Town of

Narragansett property tax assessment records

and shall advise the property owner that any

subsequent such intervention within posting

periods set forth in section 46-32(a) on the

same premises shall result in liability of the

property owner for all penalties associated

with such intervention as more particularly

set forth below.

Sec. 46-34. Persons liable for subsequent

response to gathering constituting a public

nuisance.

(a) If the police department is

required to respond to a gathering

constituting a public nuisance on the premises

more than once in any posting periods set

forth in section 46-32(a), the following

persons shall be jointly and severally liable

for fines as set forth below:
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(1) The person or persons who own the

property where the gathering constituting the

public nuisance took place, provided that

notice has been mailed to the owner of the

property as set forth herein and the gathering

occurs at least two weeks after the mailing of

such notice.

(2) The person or persons residing on

or otherwise in control of the property where

such gathering took place.

(3) The person or persons who

organized or sponsored such gathering.

(4) All persons attending such

gatherings who engage in any activity

resulting in the public nuisance.

(5) Nothing in this section shall be

construed to impose liability on the resident

or owners of the premises or sponsor of the

gathering, for the conduct of persons who are

present without the express or implied consent

of the resident or sponsor, as long as the

resident and sponsor have taken all steps

reasonably necessary to exclude such uninvited

participants from the premises, including

landlords who are actively attempting to evict

a tenant from the premises.

(b) Where an invited guest engages in

conduct which the sponsor or resident could

not reasonably foresee and the conduct is an

isolated instance of a guest at the event

violating the law which the sponsor is unable

to reasonably control without the intervention

of the police, the unlawful conduct of the

individual guest shall not be attributable to

the sponsor or resident for the purposes of

determining whether the event constitutes a

public nuisance under this section.

Sec. 46-35. Penalties for violation.

(a) It shall be a Code violation

punishable as set forth herein when

intervention at the same location to abate a

gathering constituting a public nuisance

occurs within any posting periods set forth in

section 46-32(a) after the property was posted

in accordance with section 46-11:
-31-

(1) For the first intervention in a

posting period the fine shall be a minimum

mandatory $300.00;

(2) For the second such intervention

in a posting period the fine shall be a

minimum mandatory $400.00;

(3) For any further such responses in

a posting day period the fine shall be a

minimum mandatory $500.00.

(b) In addition to the above, the

municipal court shall be authorized to order

the person or persons in violation to perform

community service. For a first intervention

ordering community service shall be

discretionary. For a second or third

intervention, the municipal court shall, in

addition to the monetary penalty set forth

above, order the person or persons in

violation to perform not less than 25 hours of

community service for a second intervention

and not less than 50 hours of community

service for a third intervention.