United States District Court, D. South Dakota, Western Division
Plaintiff, represented by Megan Poppen, U.S. Attorney's
Office & Benjamin D. Patterson, U.S. Attorney's Office.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
WOLLMANN, Magistrate Judge.
Val DeMars filed a motion to dismiss his criminal chages.
(Doc 23). Mr. DeMars raises four arguments that his tickets
should be dismissed. First, he argues that his conduct did
not violate the statutes charged. Second, Mr. DeMars argues
that his actions were performed in good faith and pursuant to
public authority. Third, Mr. DeMars argues that his civil
rights were violated. Fourth, he argues that he was illegally
cited and targeted by law enforcement who were acting under
an improper Delegation of Authority. (Doc. 23). In support of
the motion, Mr. DeMars submitted a declaration of Val H.
DeMars (Doc. 25) and an amended memorandum in support
thereof. (Doc. 30). The United States opposes the motion.
Whether the conduct charged falls within the language of the
DeMars largely relies upon alleged facts which are set forth
in his memorandum and declaration to assert that his conduct
did not violate 36 C.F.R. Â§ 261.10(a) and Â§ 261.12(d).
"A facially valid [charging document] ordinarily will
survive a motion to dismiss for failure to state an offense
without further inquiry. A court cannot dismiss [a charging
document] based on predictions as to what the trial evidence
will be;' instead it must give the Government the
opportunity to present its evidence." United States
v. Marrowbone, 102 F.Supp. 3d 1101, 1104-05 (D.S.D.
2015)(quoting United States v. Ferro, 252 F.3d 964,
968 (8th Cir.2001); United States v. DeLaurentis,
230 F.3d 659, 661 (3rd Cir.2000)). The United States disputes
Mr. DeMars' recitation of the facts. The case must
proceed to trial in order for the factual disputes to be
resolved by the trier of fact. Accordingly, the motion to
dismiss on the grounds that the violation notices failure to
state an offense is denied.
DeMars asserts a facial challenge to the regulation found in
36 C.F.R. Â§ 261.10(a) arguing that it is "broad and
vague." (Doc. 30). It appears that Mr. DeMars also
argues that regulation runs afoul of the First Amendment.
an individual may not challenge a statute on the ground that
it is unconstitutional as applied to parties and
circumstances not before the court. See Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973). "The First
Amendment doctrine of overbreadth is an exception" to
this general rule. Virginia v. Hicks, 539 U.S. 113,
118 (2003). If a law punishes "a substantial amount of
protected free speech, judged in relation to the
statute's plainly legitimate sweep, " all
enforcement of that law is invalidated "until and unless
a limiting construction or partial invalidation so narrows it
as to remove the seeming threat or deterrence to
constitutionally protected expression." Hicks,
539 U.S. at 118-19 (internal quotations omitted) (citations
omitted). The purpose of this "expansive remedy" is
the Court's concern that "the threat of enforcement
of an overbroad law may deter or chill constitutionally
protected speech-especially when the overbroad statute
imposes criminal sanctions." Hicks, 539 U.S. at
DeMars carries the burden of demonstrating that a statute is
unconstitutionally overbroad. Hicks, 539 U.S. at
122. Mr. DeMars must demonstrate that "the enactment
reaches a substantial amount of constitutionally protected
conduct." Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). The key
question is "whether the ordinance sweeps within its
prohibitions what may not be punished under the First and
Fourteenth Amendments." Grayned v. City of
Rockford, 408 U.S. 104 (1972). Moreover if the law is
not intended to proscribe activities related to or associated
with speech, then it will likely not be invalidated on the
basis of overbreadth. Hicks, 539 U.S. at 124.
statute that does not substantially burden speech will rarely
be invalidated under the overbreadth doctrine.
Hicks, 539 U.S. at 122. The regulations in question,
36 C.F.R. Â§ 261.10(a) and Â§ 261.12(d) neither targets speech
and nor prohibits conduct related to speech. Therefore, Mr.
DeMars DeMars has failed to meet his burden to demonstrate
that the regulations are overbroad.
to statutes on the basis of vagueness implicate the Fifth and
Fourteenth Amendments guarantee of the right to due process.
United States v. Washam, 312 F.3d 926, 929 (8th Cir.
2002) (citing Connally v. Gen. Contr. Co., 269 U.S.
385, 391 (1926)). "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, 108-09 (1972). A
criminal statute may be void for vagueness if (1) it fails to
"define the criminal offense 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." Myers, 857
N.W.2d at 599 (quoting Kolender v. Lawson, 461 U.S.
352, 357 (1983)).
statute will be held unconstitutionally vague if the
"forbidden conduct is so poorly defined that persons of
common intelligence must necessarily guess at its meaning and
differ as to its application." Planned Parenthood
Minnesota, North Dakota, South Dakota v. Daugaard, 799
F.Supp.2d 1048, 1067 (D.S.D. 2011). A court must consider
"whether the statute affords notice to citizens as to
what conduct is prohibited and whether it establishes minimal
guidelines to govern law enforcement so as not to allow
policemen, prosecutors, and juries to pursue their personal
predilections." Kolender v. Lawson, 461 U.S.
352, 358 (1983); Smith v. Goguen, 415 U.S. 566,
574-75 (1974)). Here, the prohibitions are clearly defined so
that ordinary people can understand what conduct is
prohibited. Mr. DeMars argues at length that the regulation
prohibits permanent fixtures; while his conduct is exempt
because his fixture was of a temporary nature. (Doc. 30, pp.
7-8). However, the regulation does not differentiate between
temporary and permanent improvements. The language of the
regulation does not encourage arbitrary and discriminatory
enforcement. Therefore, Mr. DeMars has failed to meet his
burden to demonstrate that the regulations are
DeMars next argues that the citations should be dismissed
because he performed the actions with public authority. While
the defense of public authority is an affirmative defense to
criminal charges, dismissal is not warranted until admissible
evidence has been presented and weighed by ...