IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

AMMON BUNDY, JON RITZHEIMER,

JOSEPH O’SHAUGHNESSY, RYAN

PAYNE, RYAN BUNDY, BRIAN

CAVALIER, SHAWNA COX, PETER

SANTILLI, JASON PATRICK,

DUANE LEO EHMER, DYLAN 

ANDERSON, SEAN ANDERSON,

DAVID LEE FRY, JEFF WAYNE

BANTA, SANDRA LYNN ANDERSON,

KENNETH MEDENBACH, BLAINE

COOPER, WESLEY KJAR, COREY

LEQUIEU, NEIL WAMPLER, JASON

CHARLES BLOMGREN, DARRYL

WILLIAM THORN, GEOFFREY

STANEK, TRAVIS COX, ERIC LEE

FLORES, and JAKE RYAN,

Defendants.

3:16-cr-00051-BR

 

ORDER REGARDING

DEFENDANTS’ MOTIONS TO

DISMISS COUNT ONE FOR

VAGUENESS AND

OVERBREADTH

BROWN, Judge.

This matter comes before the Court on all Defendants’ Motion

(#471) to Dismiss Count One for Vagueness, Defendant Peter

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Santilli’s Motion (#477) to Dismiss Count One for Vagueness, and

all Defendants’ Motion (#474) to Dismiss Count One as Overbroad. 

For the reasons that follow, the Court DENIES Defendants’

Motions.

BACKGROUND

In Count One of the Superseding Indictment (#282) all

Defendants are charged with Conspiracy to Impede Officers of the

United States under 18 U.S.C. § 372. That statute provides:

If two or more persons in any State, Territory,

Possession, or District conspire to prevent, by force,

intimidation, or threat, any person from accepting or

holding any office, trust, or place of confidence under

the United States, or from discharging any duties

thereof, or to induce by like means any officer of the

United States to leave the place, where his duties as

an officer are required to be performed, or to injure

him in his person or property on account of his lawful

discharge of the duties of his office, or while engaged

in the lawful discharge thereof, or to injure his

property so as to molest, interrupt, hinder, or impede

him in the discharge of his official duties, each of

such persons shall be fined under this title or

imprisoned not more than six years, or both.

The Superseding Indictment specifically charges Defendants with

preventing by “force, intimidation, and threats” officers and

employees of the United States Fish and Wildlife Service and the

Bureau of Land Management from discharging the duties of their

office at the Malheur National Wildlife Refuge (MNWR) and other

locations in Harney County, Oregon.

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ALL DEFENDANTS’ MOTION (#477) TO DISMISS COUNT ONE 

FOR VAGUENESS AND DEFENDANT PETER SANTILLI’S MOTION (#477)

TO DISMISS COUNT ONE FOR VAGUENESS

As noted, all Defendants move to dismiss Count One on the

basis that § 372 is unconstitutionally vague on its face.1

Santilli also moves to dismiss Count One on the basis that § 372

is unconstitutionally vague specifically as applied to him.

I. Vagueness Standard

“‘A criminal statute is void for vagueness if it is not

sufficiently clear to provide guidance to citizens concerning how

they can avoid violating it and to provide authorities with

principles governing enforcement.’” United States v. Harris, 705

F.3d 929, 932 (9th Cir. 2012). “In a facial challenge, a statute

is unconstitutionally vague if it ‘fails to provide a person of

ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously

discriminatory enforcement.’” Harris, 705 F.3d at 932 (quoting

United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009)). 

“In an as-applied challenge, a statute is unconstitutionally

vague if it ‘fail[s] to put a defendant on notice that his

conduct was criminal.’” Harris, 705 F.3d at 932 (quoting

Kilbride, 584 F.3d at 1257 ).

1 Defendants’ Motion (#471) to Dismiss Count One as

Unconstitutionally Vague was filed by Defendant Joseph

O’Shaughnessy and is joined by all Defendants.

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“When a statute ‘clearly implicates free speech rights,’ it

will survive a facial challenge so long as ‘it is clear what the

statute proscribes in the vast majority of its intended

applications.’” Humanitarian Law Project v. United States

Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009)(quoting Cal.

Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1149, 1151

(9th Cir. 2001)). “The touchstone of a facial vagueness

challenge in the First Amendment context, however, is not whether

some amount of legitimate speech will be chilled; it is whether a

substantial amount of legitimate speech will be chilled.” Cal.

Teachers Ass'n, 271 F.3d at 1152. “To trigger heightened

vagueness scrutiny, it is sufficient that the challenged statute

regulates and potentially chills speech which, in the absence of

any regulation, receives some First Amendment protection.” Id.

at 1150.

“Outside the First Amendment context, a plaintiff alleging

facial vagueness must show that ‘the enactment is impermissibly

vague in all its applications.’” Humanitarian Law Project, 578

F.3d at 1146. 

II. All Defendants’ Motion (#471) to Dismiss Count One

Defendants contend § 372 is vague on its face because it

implicates protected First and Second Amendment rights and does

not provide meaningful guidance as to the conduct that

encompasses “force, intimidation, or threat.” In particular,

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Defendants rely on Chaffee v. Roger, 311 F. Supp. 2d 962 (D. Nev.

2004), in which the District of Nevada concluded Nevada Revised

Statute § 199.300(1)(b) was most likely unconstitutionally vague. 

That statute prohibited 

directly or indirectly, address[ing] any threat or

intimidation to a public officer, public employee,

juror, referee, arbitrator, appraiser, assessor or any

person authorized by law to hear or determine any

controversy or matter, with the intent to induce him,

contrary to his duty to do, make, omit or delay any

act, decision or determination.

The District of Nevada concluded § 199.300(1)(b) “appears to be

vague” because the lack of a further definition of “threat” made

it “doubtful that the law provides persons of ordinary

intelligence a reasonable opportunity to understand the conduct

proscribed” and the “prohibition of threats and intimidations

meant to induce a public official's noncompliance with his duties

potentially covers a host of constitutionally protected conduct.” 

Chaffee, 311 F. Supp. 2d at 967-68. The Chaffee court opined

such a statute could criminalize threats of legitimate, lawful

action like threatening to oppose the district attorney in an

upcoming election. Id. at 968.

Defendants contend § 372 is indistinguishable from the

Nevada statute at issue in Chaffee because the terms “force,

intimidation, or threat” are similarly undefined and speech

protected by the First Amendment is within the scope of those

terms including speech criticizing the government and threats to

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take legitimate, lawful action. Similarly, Defendants contend

Congress’ failure to define “federal officer” or “official

duties” in § 372 renders the statute unconstitutionally vague. 

Accordingly, Defendants contend § 372 fails to provide sufficient

notice of the conduct prohibited; is susceptible to arbitrary

enforcement; and, therefore, is vague on its face and as applied

to Defendants.

The government, on the other hand, contends § 372 is not

impermissibly vague because the words “force, intimidation, or

threat”; “officer”; and “official duties” are readily understood. 

The government points out that the Ninth Circuit has previously

rejected an as-applied vagueness challenge to § 372. See United

States v. Fulbright, 105 F.3d 443, 452 (9th Cir. 1997), overruled

on other grounds by United States v. Heredia, 483 F.3d 913, 921

(9th Cir. 2007).

At the outset the Court must determine whether § 372

“regulates and potentially chills speech which, in the absence of

any regulation, receives some First Amendment protection.” Cal.

Teachers Ass'n, 271 F.3d at 1150. The action prohibited by § 372

is conspiring to prevent a federal officer from discharging his

or her official duties by force, intimidation, or threat. 

“The right to speak, whether anonymously or otherwise, is

not unlimited . . . and the degree of scrutiny varies depending

on the circumstances and the type of speech at issue.” In re

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Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011). 

Although “threat statutes ‘must be interpreted with the commands

of the First Amendment clearly in mind,’” there is “no doubt that

true threats [can] be criminalized because they are not protected

speech.” United States v. Hanna, 293 F.3d 1080, 1084 (9th Cir.

2002). “A statement is a ‘true threat’ if ‘a reasonable person

would foresee that the statement would be interpreted by those to

whom the maker communicates the statement as a serious expression

of intent to harm or assault.’” United States v. Stewart, 420

F.3d 1007, 1016-17 (9th Cir. 2005). A threat is a “true threat,”

however, only when “‘the speaker subjectively intended the speech

as a threat.’” Id. at 1017 (quoting United States v. Cassel, 408

F.3d 622, 631 (9th Cir. 2005)). Moreover, “[b]lackmail and

extortion – the threat that the speaker will say or do something

unpleasant unless you take, or refrain from taking, certain

actions - are not constitutionally protected.” Planned

Parenthood of Columbia/Willamette v. American Coalition of Life

Activists, 244 F.3d 1007, 1015 n.8 (9th Cir. 2001).

Section 372 does not regulate or chill speech otherwise

protected by the First Amendment. Indeed, § 372 is a conspiracy

statute that, by its nature, requires an intent to prevent a

federal officer from discharging his or her duties by force,

threat, or intimidation. See Ninth Circuit Model Jury

Instructions § 8.20 (2010)(“A conspiracy is a kind of criminal

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partnership — an agreement of two or more persons to commit one

or more crimes. The crime of conspiracy is the agreement to do

something unlawful; it does not matter whether the crime agreed

upon was committed.”).2 Accordingly, in order to run afoul of 

§ 372 an individual must intend to agree with another person to

prevent a federal official from discharging his or her official

duties by force, intimidation, or threat.

The mere fact that § 372 does not, by its terms, limit its

scope to “true threats” does not chill or encompass within its

scope speech or expression protected by the First Amendment

because courts narrowly construe “threat” statutes to be limited

to “true threats.” See, e.g., United States v. Sutcliffe, 505

F.3d 944, 953 (9th Cir. 2007)(“Defendant argues that § 875(c) is

void for vagueness because the statute itself neither requires

specific intent nor defines true threats. However, rather than

making the statute void for vagueness, the narrowing construction

provided by the relevant cases actually alleviates possible

2

 Although § 372 is a standalone crime of conspiracy that

does not have any separate, non-conspiracy underlying offense,

the ordinary principles regarding the intent necessary to be

convicted of a conspiracy offense nonetheless apply to § 372. 

See Fulbright, 105 F.3d at 448 (“The jury could reasonably infer

from the defendants’ concerted action that ‘all the parties

[were] working together understandingly, with a single design for

the accomplishment of a common purpose.’”)(quoting United States

v. Cloud, 872 F.2d 846, 852 (9th Cir. 1989)).

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void-for-vagueness concerns.”).3 Accordingly, the Court

concludes § 372 is not subject to enhanced scrutiny because it

regulates or potentially chills expression protected by the First

Amendment.

In any event, regardless whether § 372 is subject to

enhanced scrutiny, the Court concludes § 372 is not vague. Read

as a whole, the conduct that is proscribed by § 372 (i.e.,

agreeing to prevent a federal official from discharging his or

her official duties by force, intimidation, or threat) is

sufficiently well-defined to be understandable by individuals of

common intelligence and provides a sufficiently clear standard

for enforcement. Moreover, the concern expressed by Defendants

and the Chaffee court that § 372 could apply to legitimate

threats to take lawful action are unavailing in the context of 

§ 372 because the Ninth Circuit made clear in Fulbright that only

the illegitimate nature of a threat brings it within the scope of

§ 372. See Fulbright, 105 F.3d at 452 (“[Defendant] claims that

the ‘mere filing of an official document (UCC forms) or the

filing of a lawsuit can constitute ‘force’ or ‘threat’ or

‘intimidation’ within the meaning of the statute.’ However, it

is the nature of these documents, not the simple act of filing

3 The Court notes Defendants may contend at trial that their

conduct was protected by the First Amendment and that they,

therefore, did not violate § 372.

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them, that brings them within the statutes’ purview. Filing a

false UCC form, or issuing an illegitimate arrest warrant is

prohibited — the statutes are not impermissibly vague as

applied.”)(emphasis in original). Accordingly, on this record

the Court concludes § 372 is not facially void for vagueness.

Defendants’ as-applied challenge is similarly without merit. 

Defendants contend § 372 is unconstitutionally vague as applied

to them because they were not provided notice that their conduct

was illegal when they carried firearms at previous rallies and

protests4 and they are being subjected to arbitrary enforcement

because many similarly-situated individuals are not being

prosecuted. Defendants, however, misunderstand the nature of an

as-applied vagueness challenge. As noted, “[i]n an as-applied

challenge, a statute is unconstitutionally vague if it ‘fail[s]

to put a defendant on notice that his conduct was criminal.’” 

Harris, 705 F.3d at 932 (quoting Kilbride, 584 F.3d at 1257 ). 

The focus of the inquiry, therefore, is on the statute rather

than whether these Defendants had actual notice that their

conduct was allegedly prohibited or whether other individuals who

Defendants believe were similarly situated were ultimately

charged.

On this record the Court concludes § 372 is neither vague on

4

 The Court notes the mere possession of a firearm at a

protest does not violate § 372. 

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its face nor as applied to Defendants, and, therefore, the Court

denies Defendants’ Motion (#471) to Dismiss Count One.

II. Defendant Peter Santilli’s Motion to Dismiss Count One for

Vagueness

Defendant Santilli contends § 372 is unconstitutionally

vague as applied to him because Santilli’s actions in Burns,

Oregon, and at the MNWR were pure speech and Santilli never armed

himself, patrolled the MNWR, or “occupied” the MNWR. Santilli

asserts his conduct in relation to the underlying events was

simply “to report and broadcast the actions of others,” and,

therefore, Santilli contends he was not put on notice that his

conduct could violate § 372. Moreover, Santilli contends other

similarly-situated journalists are not being prosecuted, and,

therefore, his prosecution under § 372 amounts to “viewpoint

discrimination” that is impermissible under the First Amendment.

Santilli’s Motion, however, is dependent on disputed issues

of fact that can only be resolved at trial and does not turn on

whether the statute is unconstitutionally vague. As noted, the

breadth of § 372 is capable of determination, and the statute

does not and cannot criminalize conduct that is protected by the

First Amendment. Thus, whether Santilli’s conduct in relation to

the MNWR falls within the scope of § 372 or is conduct protected

by the First Amendment is an issue to be resolved at trial.

Accordingly, the Court concludes § 372 is not vague as

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applied to Santilli.

DEFENDANTS’ MOTION (#474) TO DISMISS COUNT ONE AS OVERBROAD

Defendants move to dismiss Count One on the basis that § 372

is unconstitutionally overbroad because it criminalizes speech

and assembly protected by the First Amendment.5

I. Overbreadth Standard

“Under the doctrine of First Amendment overbreadth, a

litigant may mount a facial attack on a statute that restricts

protected speech even if the litigant’s own speech is

unprotected.” Turney v. Pugh, 400 F.3d 1197, 1200 (9th Cir.

2005). “The overbreadth must be substantial in order for the

statute to be invalidated on its face; the fact that a court may

conceive of a single impermissible application is insufficient to

justify striking down the law.” Id. See also United States v.

Stevens, 559 U.S. 460, 472 (2010)(“[A] law may be invalidated as

overbroad if ‘a substantial number of its applications are

unconstitutional, judged in relation to the statute's plainly

legitimate sweep.’”)(quoting Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)).

5 Defendants’ Motion (#474) to Dismiss Count One as

Overbroad was filed by Defendant Jake Ryan and is joined by all

Defendants.

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II. Analysis

Defendants contend § 372 is overbroad because § 372 does not

make a distinction between “true threats” and statements that are

otherwise protected by the First Amendment and because

“intimidation” is a broad term that can include the subjective

feeling of being intimidated6 even when there is not any attempt

to intimidate the individual.

As noted, the lack of distinction in the statutory language

between threats and “true threats” does not render § 372

unconstitutional because courts routinely construe criminal

threat statutes to only apply to true threats. See Sutcliffe,

505 F.3d at 953. Moreover, by its terms § 372 cannot apply to

mere criticism of government officials or to circumstances in

which an official feels incidentally intimidated or threatened

because the conspiracy element of § 372 requires that an

individual have the intent to prevent the officer from

discharging his or her duties and to accomplish that objective by

using force, intimidation, or threats. Accordingly, Defendants

have not demonstrated a “substantial number” of § 372

“applications are unconstitutional.” See Stevens, 559 U.S. at

472.

6 At oral argument, for example, defense counsel referenced

the feeling of being intimidated by standing up in a crowded

courtroom.

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On this record, therefore, the Court concludes § 372 is not

unconstitutionally overbroad.

CONCLUSION

For these reasons, the Court DENIES all Defendants’ Motion

(#471) to Dismiss Count One for Vagueness, Defendant Peter

Santilli’s Motion (#477) to Dismiss Count One for Vagueness, and

all Defendants’ Motion (#474) to Dismiss Count One as Overbroad.

IT IS SO ORDERED.

DATED this 3rd day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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