Would Tennessee's proposed expansion of the highway-obstruction crime, adding 'driveways' and 'public safety' and 'private property rights' language, be unconstitutionally vague?

Subject

Opinion No. 15-46, H.B. 1286, 109th Gen. Assem. (Tenn. 2015), May 27, 2015 — Crime of Obstructing a Highway or Other Passageway

Plain-English summary

A 2015 proposed amendment, House Bill 1286, would have tweaked Tenn. Code Ann. § 39-17-307, the misdemeanor offense of obstructing a highway, sidewalk, or other passageway and of refusing a lawful order to move. Among other changes, the bill would have added "driveway" to the list of obstructible spaces, broadened the definition of "obstruct" to include restricting passage "with the intent to harass," and let law enforcement (or property owners) order people to move to "[p]rotect the rights of private property" in addition to existing reasons.

Representative Stewart asked whether the changes would make the statute unconstitutionally vague under the due process clauses of the U.S. and Tennessee Constitutions. The AG said no. The new terms, especially "public safety" and "rights of private property," are commonly used and commonly understood. Even where they functioned as "catch-all" phrases, courts have repeatedly upheld catch-alls in criminal and quasi-criminal statutes when they reflect the impracticability of listing every possible covered scenario. The AG's analysis cited federal and Tennessee precedent on void-for-vagueness, including Davis-Kidd Booksellers, Kolender v. Lawson, and Donovan v. City of Haverhill.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does "obstruct a highway or passageway" actually criminalize?

Under the existing statute, it is a misdemeanor to render impassable, or render dangerous, a highway, street, sidewalk, railway, waterway, elevator, aisle, or hallway to which the public has access. The statute also criminalizes disobeying a "reasonable request or order to move" issued by a law enforcement officer, firefighter, or someone with authority over the premises in order to prevent obstruction or maintain public safety.

What changes did House Bill 1286 propose?

Six changes: (1) added "driveway" to the list of protected passageways; (2) replaced the disobeying-orders subsection with a clearer three-part list of permissible reasons (preventing obstruction, maintaining public safety, or protecting the rights of private property) and authorized "owners" to also issue such orders; (3) broadened "obstruct" to include restricting passage "with the intent to harass"; (4) added "public" to modify "highway or street intersection" in a related subsection; (5) deleted a county-specific limitation on the affirmative defense for permitted solicitation, making the defense universally available; and (6) added a clarifying cross-reference.

What is "void for vagueness"?

A constitutional doctrine under due process: a criminal statute is void for vagueness if its prohibitions are not clearly defined, so that ordinary people cannot tell what is prohibited and enforcement officials have unconstrained discretion to apply it. Tennessee analyzes vagueness under both the federal due process clause and the "law of the land" provision of the Tennessee Constitution, with the analysis "the same under both."

Why isn't "public safety" too vague?

Because it is a commonly used, commonly understood term. Black's Law Dictionary defines it as the welfare and protection of the general public, generally a governmental responsibility. The First Circuit in Donovan v. City of Haverhill specifically upheld a city permit ordinance against vagueness challenge that hinged on "public safety." Even if some people might disagree on the edges of the concept, the statute is sufficiently clear to put ordinary people on notice.

What about "rights of private property"?

Same analysis. The Tennessee Code defines "private property" as real property or improvements to real property not owned by federal or state government, and "right" in the property-ownership context means a legal interest in or claim to use the property. Combining the two yields a concept ordinary people understand. The AG also noted the term is referenced elsewhere in Tennessee law (eminent domain at Tenn. Code Ann. § 29-17-103 and criminal trespass at § 39-14-405).

Are catch-all phrases always OK?

Not always, but often. The U.S. Supreme Court upheld "efficiency of the service" as a basis for federal employee discipline in Arnett v. Kennedy, and the First Circuit in Wishart v. McDonald upheld "conduct unbecoming a teacher" against vagueness challenge. Courts allow catch-alls when listing every covered scenario would be impractical and when ordinary readers can grasp the concept.

Background and statutory framework

Tenn. Code Ann. § 39-17-307 makes it a Class C misdemeanor to obstruct, or to refuse a lawful order to move from, certain passageways and gatherings. The statute reflects two purposes: keeping public passageways usable and giving law enforcement a tool to disperse dangerous or disorderly gatherings.

The Fourteenth Amendment to the U.S. Constitution and Article I, § 8 of the Tennessee Constitution both protect against laws so vague that ordinary people cannot tell what they forbid. Tennessee courts treat the "law of the land" language in the state constitution as "synonymous" with federal due process. City of Knoxville v. Entertainment Resources, LLC, 166 S.W.3d 650, 655 (Tenn. 2005).

Vagueness review asks whether the statute (a) defines the offense with sufficient definiteness that ordinary people can understand what is prohibited, and (b) does so in a manner that does not encourage arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 358 (1983). The court should not invalidate a statute when the legislative intent can be gathered from the whole. County of Shelby v. McWherter, 936 S.W.2d 923, 929 (Tenn. Ct. App. 1996). Catch-all language can be upheld where it is impracticable to enumerate every covered situation. Arnett v. Kennedy, 416 U.S. 134, 160-62 (1974); Wishart v. McDonald, 500 F.2d 1110 (1st Cir. 1974).

Citations

• Tenn. Code Ann. § 39-17-307 (obstructing a passageway)
• Tenn. Code Ann. § 12-1-202 (definition of "private property")
• Tenn. Code Ann. § 29-17-103 (eminent domain reference to private property rights)
• Tenn. Code Ann. § 39-14-405 (criminal trespass reference to private property rights)
• U.S. Const. amend. XIV (due process)
• Tenn. Const. art. I, § 8 (law of the land)
• Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993)
• Grayned v. City of Rockford, 408 U.S. 104 (1972)
• Leech v. American Booksellers Assoc., 582 S.W.2d 738 (Tenn. 1979)
• Kolender v. Lawson, 461 U.S. 352 (1983)
• Donovan v. City of Haverhill, 311 F.3d 74 (1st Cir. 2002)
• Arnett v. Kennedy, 416 U.S. 134 (1974)
• City of Knoxville v. Entertainment Resources, LLC, 166 S.W.3d 650 (Tenn. 2005)
• County of Shelby v. McWherter, 936 S.W.2d 923 (Tenn. Ct. App. 1996)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-46.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 27, 2015
Opinion No. 15-46
Crime of Obstructing a Highway or Other Passageway: H.B. 1286, 109th Gen. Assem. (Tenn. 2015)

Question

If the amendments to Tenn. Code Ann. § 39-17-307 proposed in H.B. 1286, 109th Gen. Assem. (Tenn. 2015), are enacted, would Tenn. Code Ann. § 39-17-307 be unconstitutionally vague in violation of article I, section 8 of the Tennessee Constitution and/or the Due Process Clause of the United States Constitution?

Opinion

No.

ANALYSIS

In its current form, Tenn. Code Ann. § 39-17-307 makes it a criminal offense to obstruct "a highway, street, sidewalk, railway, waterway, elevator, aisle, or hallway" to which the public has access. The same statute also makes it a criminal offense to disobey a reasonable request or order to move to prevent the "obstruction of a highway or passageway" or to "maintain public safety by dispersing [people] gathered in dangerous proximity to a fire, riot, or other hazard."

House Bill 1286 proposes several amendments to Tenn. Code Ann. § 39-17-307. The proposed amendments would:

(1) add "driveway" to the list in § 39-17-307(a)(1) of passageways and spaces that people are prohibited from obstructing;

(2) delete § 39-17-307(a)(2) and replace it with the following, which makes it an offense if a person:

(2) Disobeys a reasonable request or order to move issued by a person known to be a law enforcement officer, a firefighter, an owner, or a person with authority to control the use of the premises to:
(A) Prevent obstruction;
(B) Maintain public safety; or
(C) Protect the rights of private property.

(3) broaden the definition of "obstruct" in § 39-17-307(b) to include "restrict[ing] passage with the intent to harass";

(4) add the word "public" to modify "highway or street intersection" in § 39-17-307(d)(1)(A);

(5) delete § 39-17-307(d)(2), a subsection that limits the availability of the affirmative defense of solicitation by permit in certain counties so that the affirmative defense would be universally available; and

(6) add a clarifying cross-reference in § 39-17-307(d)(3).

The Fourteenth Amendment to the United States Constitution prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law." Article I, § 8, of the Tennessee Constitution similarly provides that no one shall be "deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." The "law of the land" proviso of the Tennessee Constitution is "synonymous with the 'due process of law' provisions of the federal constitution." City of Knoxville v. Entertainment Resources, LLC, 166 S.W.3d 650, 655 (Tenn. 2005) (citing State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980)). Thus, the due process analysis is the same under both the Tennessee and the U.S. Constitutions.

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 531-32 (Tenn. 1993) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). This "void-for-vagueness" doctrine ensures fair notice as to what acts are criminal and provides standards for uniform and fair enforcement by officials and by the judicial system. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927 (E.D. Tenn. 1998), aff'd, 182 F.3d 918 (6th Cir. 1998).

A criminal statute that forbids the doing of an act in terms that are so vague that persons of ordinary intelligence have to guess at its meaning and persons charged with enforcing the statute might be encouraged to enforce it arbitrarily or discriminatorily violates the right to due process guaranteed under both the Tennessee and the U.S. Constitutions. Leech v. American Booksellers Assoc., 582 S.W.2d 738 (Tenn. 1979). A statute is unconstitutionally vague if "men of common intelligence must necessarily guess at its meaning." See, e.g., Davis-Kidd Booksellers, Inc., 866 S.W.2d at 531-32; Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973). To pass due process muster, a criminal statute must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 358 (1983); Leech, supra, 582 S.W.2d at 746. If a criminal statute permits "'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections'" it will be deemed void for vagueness. Kolender, supra, 461 U.S. at 358 (citation omitted). On the other hand, a statute should not be invalidated for vagueness if the intention of the legislature can be intelligently gathered from the statute as a whole, however awkwardly that intention may be expressed. County of Shelby v. McWherter, 936 S.W.2d 923, 929 (Tenn. Ct. App. 1996).

Of all the changes that H.B. 1286 would make to Tenn. Code Ann. § 39-17-307, only two could possibly be thought to introduce an element of vagueness. The first is the proposed change to Tenn. Code Ann. § 39-17-307(a)(2)(B) with regard to "public safety." That section currently makes it a misdemeanor to disobey "a reasonable request or order to move issued by a person known to be a law enforcement officer, a firefighter, or a person with authority to control the use of the premises to . . . [m]aintain public safety by dispersing those gathered in dangerous proximity to a fire, riot or other hazard." Id. (emphasis added). The proposed change would omit the underlined language that comes after "public safety." The clause that would be omitted does not define "public safety," but simply offers "fire" and "riot" as examples of the kinds of "hazards" that might jeopardize the public well-being. Deleting that clause does not affect the meaning of the term "public safety," which is clear and specific on its own.

The term "public safety" is not specially defined in § 39-17-307, but it is a commonly used and commonly understood term. Black's Law Dictionary defines "public safety" as "[t]he welfare and protection of the general public, usu. expressed as a governmental responsibility." (9th ed. 2009). In other words, "public safety" is a term that is commonly understood to mean the obligation of a governmental entity to protect citizens from danger and injury. Thus, "public safety" is not a vague term as used here, even if the words "fire, riot or other hazard" are omitted. Rather it is a term that is "'reasonably necessary to embrace all of its legitimately intended objectives without creating an encyclopedic and unwieldy [statute].'" Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir. 2002) (holding that the phrase "public safety" in a city permit ordinance is not unconstitutionally vague) (citation omitted).

Moreover, a "catch-all" phrase is not inherently vague and does not necessarily violate the right to due process. In Arnett v. Kennedy, 416 U.S. 134 (1974), the Supreme Court upheld a statutory provision that authorized removal or suspension without pay of non-probationary federal employees "for such cause as will promote the efficiency of the service." In considering whether the phrase "efficiency of the service" was impermissibly vague, the Court stressed the need and, therefore, the propriety for using "catch-all" phrases when it is impracticable to formulate an exhaustive list of actionable conduct. Id. at 160-162. For that same reason, in Wishart v. McDonald, 500 F.2d 1110 (1st Cir. 1974), the catch-all clause "conduct unbecoming a teacher" invoked by a school board to discharge a teacher was upheld in the face of a constitutional challenge. Id. at 1116-17. Thus, even if the term "public safety" were to be deemed vague, it would likely be upheld nevertheless as the necessary and permissible use of a "catch-all" phrase since it would be impracticable to formulate an exhaustive list of every conceivable threat of damage or injury to the public.

The only other contemplated amendment that might conceivably be viewed as vague is the proposed addition of a new subsection (C) to Tenn. Code Ann. § 39-17-307(a)(2). That change would make it a misdemeanor to disobey a "reasonable request or order to move" issued by "a person known to be a law enforcement officer, a firefighter, an owner or a person with authority to control the use of the premises" to "[p]rotect the rights of private property." Although the term "rights of private property" is not specifically defined in the proposed amendments, it is not impermissibly vague as used here for the same reasons that "public safety" is not impermissibly vague. It is a term that is commonly used and commonly understood. "Private property" is defined in the Tennessee Code as "real property, or improvements to real property, not owned by the federal government or state agency." Tenn. Code Ann. § 12-1-202. "Right," used, as it is here, as a noun in the concrete sense means a power or privilege, and, in the specific context of property ownership, means an interest or title in an object of property, or a legal claim to hold, use, enjoy, or convey the property. Black's Law Dictionary (9th ed. 2009). The term "private property rights" is not a term at whose meaning a person of ordinary intelligence would have to guess. Even if the term were deemed to be vague, it would be a permissible use of a catch-all phrase, since it is impracticable to formulate an exhaustive list of every right that is associated with private property ownership.

Accordingly, it is unlikely that the amendments to Tenn. Code Ann. § 39-17-307 proposed in H.B. 1286 would, in and of themselves, have the effect of rendering the statute void for vagueness.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Mike Stewart
State Representative
17 Legislative Plaza
Nashville, TN 37243

Footnote: The term "private property rights" is referenced in the Code in relation to eminent domain and criminal trespass. See, e.g. Tenn. Code Ann. § 29-17-103 and § 39-14-405.