United States v. Szabo, No. 12-10520 (9th Cir. 2014)
Annotate this CaseDefendant appealed his conviction under 38 C.F.R. 1.218(a)(5), which prohibits causing "disturbances" at VA facilities. The court concluded that the conduct for which defendant was convicted did not constitute protected speech because it involved a "true threat" of violence; even if defendant's conduct did constitute protected speech, section 1.218(a)(5) would not be unconstitutional as applied to his conduct where it is a viewpoint neutral regulation and the regulation was reasonably applied to defendant; the regulation was not unconstitutionally vague as applied to defendant's conduct where defendant's actions unambiguously fell within section 1.218(a)(5)'s prohibition on "loud" and "abusive" language and on "conduct...which creates loud or unusual noise"; and, therefore, defendant's as-applied challenges to the regulation failed. In regard to defendant's facial challenges, the court rejected defendant's overbreadth challenge where 38 U.S.C. 502 deprives the court of jurisdiction and section 502's jurisdictional bar does not violate defendant's right to due process. Accordingly, the court affirmed the judgment of the district court with regard to defendant's as-applied challenges and dismissed this appeal for lack of jurisdiction with regard to his facial challenge.
Court Description: Criminal Law. The panel affirmed the district court’s judgment with regard to the defendant’s as-applied constitutional challenges to 38 C.F.R. § 1.218(a)(5), and dismissed for lack of jurisdiction his facial challenge to the regulation, in a case in which the defendant was convicted of disorderly conduct in violation of § 1.218(a)(5), which prohibits causing “disturbances” at Veterans Affairs facilities. Rejecting the defendant’s as-applied First Amendment challenge, the panel held that the conduct for which the defendant was convicted does not constitute protected speech because it involved a “true threat” of violence. The panel held that even if the defendant’s conduct did constitute protected speech, § 1.218(a)(5) would not be unconstitutional as applied to his conduct because it is a viewpoint neutral regulation, and prohibiting a visitor from yelling obscenities and threatening physical violence is eminently reasonable in view of the government’s legitimate interest in caring for veteran patients and not triggering adverse psychological reactions from such patients. Rejecting the defendant’s contention that § 1.218(a)(5) is vague in violation of the Due Process Clause of the Fifth Amendment, as applied to him, the panel held that the defendant’s actions unambiguously fall within the regulation’s prohibition on “loud” and “abusive” language and on “conduct . . . which creates loud or unusual noise.” The panel dismissed for lack of jurisdiction the defendant’s facial overbreadth challenge to the regulation because 38 U.S.C. § 502 states that facial challenges to the validity of VA regulations may be brought on in the Federal Circuit. The panel held that § 502’s jurisdictional bar does not violate the defendant’s right to due process. Concurring in part and dissenting in part, Judge Nelson disagreed with the majority’s holding that this court lacks jurisdiction to hear the defendant’s overbreadth challenge.
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