FEDERAL BAR ASSOCIATION
TWENTY-SECOND ANNUAL THURGOOD MARSHALL
MEMORIAL MOOT COURT COMPETITION
2017 OFFICIAL COMPETITION PROBLEM
IN THE
COURT OF APPEALS OF METUM
JOHN FERGUSON,
Appellant,
ON APPEAL FROM
CRIMINAL DIVISION D
vs.
TRIAL COURT
CASE NO. 502010-C-00341
STATE OF METUM,
Respondent.
ORDER ON APPEAL
STATEMENT OF THE CASE
Appellant John Ferguson was convicted by the State of Metum of violations of
the Metum Criminal Code and Metum Administrative Code. He challenges both
convictions upon constitutional grounds. For the reasons stated herein, we
AFFIRM.
ISSUES
Ferguson raises two issues on appeal as follows:
1. Whether the provision of the Metum Administrative Code requiring a
certificate of insurance, surety bond, or cash deposit with the state as a
precondition to a special use permit necessary for a march on public streets
meets the minimum protections of the First Amendment of the United
States Constitution; and
2. Whether the provision of the Metum Criminal Code criminalizing reckless
communication of threats to injure another violates the First Amendment
of the United States Constitution.
FACTS & PROCEDURAL HISTORY
John Ferguson is a lifelong resident of the State of Metum. At the time of his
arrest, he was 22 years old and attending classes in the city of Bellor at Metum
1
State University.1 Undisputed testimony indicates he is generally recognized as
both the face and guiding force of a group known as “Metum Justice.” The group
is not organized in any legal sense—for instance, it is not incorporated or
registered with the state or federal government, has no assets, and pays no taxes.
It appears to be a loose collection of like-minded citizens, not a formal
organization.
A. Violence and Protests in Bellor
The alleged actions of Ferguson and Metum Justice are related to other events in
Metum. Some background information is therefore appropriate.
In the early morning hours of January 24, 2015, Officer Dorothy Davis of the
Bellor Police Department initiated a traffic stop of a car operated by Charles
Houston. According to Officer Davis’ report, Houston showed signs of
impairment both in his driving and personal conduct during the stop. On the
roadside, Houston did not respond to direct questions from Officer Davis and
did not exit the car when ordered to do so. Officer Davis did not call for
assistance. Officer Davis removed Houston from his vehicle and placed him
under arrest in her squad car. When Officer Davis arrived at the local detention
facility where Houston could be tested for impairment and detained, she found
him unresponsive in the back seat. He could not be revived. The cause of
Houston’s death was a closed head wound. Officer Davis concluded Houston
sustained the head trauma before the traffic stop, and the injury could explain his
apparent impairment. Others claimed Officer Davis caused the trauma.
Houston’s death stoked long-simmering anger with the Bellor Police Department
and touched off a wave of protests and counter-protests throughout Metum,
including events Ferguson organized. Some protests devolved into violence and
included clashes with police. In the weeks following Houston’s death, many
disparate protest movements coalesced around Ferguson and became known as
Metum Justice.
On February 1, 2015, Metum State Police Officer Harry Briggs was shot and
killed by a motorist during a traffic stop along the interstate highway just outside
of Bellor. The shooter sped away and was not apprehended. Following the
shooting, a number of public events were held around the state, where people
1
Or, as its graduates frequently proclaim, THE Metum State University.
2
expressed anger at Officer Briggs’ shooting and solidarity with Metum law
enforcement.
Then, on February 15, 2015, the state announced it was charging Officer Davis
with reckless homicide in Houston’s death. The announcement so soon after
Officer Briggs’ death was upsetting to some residents of Metum, who saw the
charge as an unjustified attack upon the already-beleaguered police.
Officer Davis’ trial was conducted in Bellor. After the three-day trial, the jury
deliberated for five days and was ultimately unable to return a unanimous
verdict. The trial court declared a hung jury on May 26, 2015. That afternoon, the
state declared that it did not intend to retry the case. Protests began anew,
demanding “Justice for Charlie” and assailing Metum’s law enforcement as
abusive and biased.
B. The Protest March
Upon learning Officer Davis would not be convicted for Houston’s death,
Ferguson planned a protest march originating in Marshall Park in Bellor and
traveling up Jefferson Street to the state capitol building, approximately three
miles away, where the group would present a petition calling for reforms to state
law enforcement.
Ferguson’s planned march traveled the same path as numerous past marches—
perhaps most notably, marches led by prominent civil rights leaders in an effort
to end the de jure segregation of the Bellor Police Department in the early 1960s.
But the history of protests along Jefferson Street predates the civil rights
movement. The protests of the 1960s trod that path because it has been a part of
civil protest since before the founding of the State of Metum; the path includes a
stretch of the first road in Bellor that runs past the city’s first church. In places, no
modern sidewalk exists, and city landmarks are little more than an arm’s reach
of passing automobiles.
Metum’s administrative code requires a “Special Use Permit” for events that will
occupy roadways. It states in relevant part:
312 MAC 8-2-3. Application Completion Requirements for Special
Use or Event.
“Application for a Special Use Permit” identified as “Form 8-2-3”
shall be completed by the applicant seeking a Special Use Permit. All
3
applications for permits shall be made a minimum of 15 days prior
to the specified activity.
312 MAC 8-2-4. Liability Coverage.
At time of application, the applicant shall obtain and provide proof
of liability insurance effective for the date of the requested Special
Use Permit with a minimum $500,000 coverage per occurrence and
$1,000,000 in aggregate.
In the alternative, the applicant may post a surety bond or cash
deposit of no less than $1,000,000 with the State of Metum no less
than 15 days prior to the specified activity. Said surety bond or cash
deposit shall remain with the State of Metum until the conclusion of
any timely-filed litigation against the applicant for damages arising
out of the specified activity, or at any time sooner upon the
discretion of the State of Mecum.
Late on May 26, 2015, Ferguson submitted Form 8-2-3. The document requested a
permit to lead Metum Justice in a protest march through the streets of downtown
Bellor and to the state capitol building on June 11, 2015. The parties do not
dispute that the form was complete and timely submitted. Notably, in the
portion of the form for “Other Special Circumstances,” Ferguson wrote, “I can’t
get insurance because Metum Justice can’t afford it.” Ferguson did not submit a
Certificate of Insurance, surety bond, or cash deposit, as required by 312 MAC 82-4.
Metum did not issue a Special Use Permit. The state explains the application was
never completed, and was, therefore, never processed.
Nevertheless, at 9:15 a.m. on June 11, 2015, Ferguson and others assembled in
Marshall Park—the center of Bellor. They marched up Jefferson Street toward the
state capitol building, stretching across all lanes of travel. Estimates of the size of
the march varied widely, from 700 to 1,000 participants. Although Bellor police
were aware of the march almost as soon as it began, the police took no
immediate action beyond alerting officers already present near the marchers.
Participants in the march carried a variety of signs conveying anger and
frustration with law enforcement. The signs were professionally printed, and all
bore the words “Metum Justice” at the bottom. Some signs bore the image of
Officer Briggs, with a large red “X” across the image. At the top of the sign was
4
the statement “ACCOUNTABLE.” Others carried signs with an identical format,
but with images of active Bellor police officers. Beneath their images were the full
names and assigned police department for each officer. At the top of each was
the statement “ACCOUNTABLE?” Ferguson was seen carrying a sign bearing
the image and information for Officer Darren Craig of the Bellor Police
Department, who was one of the officers present during the march.
C. Confrontation and Arrests
Less than one hour after the march began, it reached the Metum state capitol
building. On the steps of the capitol building, a group known as “Briggs’ Boys”
was distributing information and collecting donations for the family of Officer
Briggs. Their literature showed the officer’s family, described the circumstances
of his death, and solicited donations for “the family of an officer cut down in his
prime by a savage criminal.” The group’s presence was dominated by a large
sign bearing the phrase “DON’T LET THE ANIMALS WIN!”
When Metum Justice drew close to the state capitol building, verbal conflict
between the two groups began and quickly escalated, with both groups shouting
profane and inflammatory statements at one another.
An unknown participant from Metum Justice left the street and stood on the
sidewalk, nose to nose with a member of Brigg’s Boys. As the two men shouted
and postured, Ferguson was nearby (though still in the street). Several
bystanders heard Ferguson shout, “Keep it up and see what happens! We will do
to you what we do to these cops!” as he gestured to his sign.
Physical altercations between the two groups escalated. Bellor police intervened,
breaking up a number of minor scuffles and dispersing both groups. A total of
sixteen individuals, including Ferguson, were arrested.2
After the crowd was dispersed, police received multiple reports about
Ferguson’s statement from both Brigg’s Boys members as well as bystanders. A
member of Brigg’s Boys stated she was about fifteen feet away from Ferguson,
and clearly heard his “vicious threat to kill the cops and all of us.” She stated that
she feared for her life, and left the area as quickly as possible.
2
Of the sixteen who were arrested, thirteen accepted offers to participate in Metum’s criminal diversion
program, and two were charged and convicted for battery of a police officer—a Class 6 felony.
Ferguson was not offered participation in the state’s criminal diversion program.
5
Ferguson was charged with failure to comply with the state’s permitting
requirements for conducting a march—a Class 6 felony;3 and for violating the
state’s prohibition against menacing speech—a Class 5 felony.4 Following a three
day trial, Ferguson was convicted of both counts. This appeal followed.
II. DISCUSSION
A. Standard of Review
Ferguson claims the charges against him violate the protections of the First
Amendment of the United States Constitution. The First Amendment provides
that “Congress shall make no law . . . abridging the freedom of speech . . . or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.” U.S. Const. Amend. I. The First Amendment applies to
the States under the Due Process Clause of the Fourteenth Amendment. Va. Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976); see also
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996).
We review legal decisions of a lower court on questions of law de novo.
B. State Permitting Requirements
The Metum Administrative Code prohibits use of public roads for “any use of
government-controlled Rights of Way other than normal traffic movement”
without a Special Use Permit. 312 MAC Code 8-2-2 (2016). In order to obtain a
permit, an applicant must complete form 8-2-3, providing specific information
regarding the intended special use. In addition, the applicant must submit proof
of insurance, a surety bond, or a cash deposit to Metum.
The state explains the requirement simply provides assurance that a group
stands ready to bear responsibility for the consequences of its actions while
occupying public roads. Metum’s experience has been that large events of all
kinds can cause damage to Metum’s citizens. When an event is run by an
organization without resources, Metum’s citizens may be left with no recourse
for their damages. Metum claims the state has a legitimate interest in ensuring its
people can be made whole if they can show a group caused compensable harm.
3
4
A Class 6 felony is Metum’s lowest-level felony charge, punishable by between six and thirty months in
prison.
A Class 5 felony is punishable by between one and six years in prison.
6
Ferguson claims the Metum Administrative Code places an unnecessary cost
upon public speech. He argues that the protections of the First Amendment to
the Constitution of the United States cannot be limited only to those who can
clear a financial hurdle, and that no viable alternatives are available. Metum
courts have not previously addressed this argument. A review of the small
number of other courts who have addressed this issue is mixed.5
“Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939). The
three-mile stretch of Jefferson Street between Marshall Park and the state capitol
is widely understood to be a historic place for protesters to display their
dissatisfaction with state government. This stretch of road is most certainly a
traditional public forum.
But Metum is not required to remove all limits upon any use of places that may
qualify as public fora. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 799–800 (1985) (“Nothing in the Constitution requires the Government freely
to grant access to all who wish to exercise their right to free speech on every type
of Government property without regard to the nature of the property or to the
disruption that might be caused by the speaker’s activities.”). Alternative ways
exist to preserve First Amendment rights.
Fees Associated With Public Speech and Assembly
A fee “to defray the expenses of policing the activities in question” may protect
the guarantees of the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105,
113–14 (1943); see Cox v. New Hampshire, 312 U.S. 569, 576–77 (1941) (upholding
imposition of fees for “administration . . . and to the maintenance of public
order”).
In Forsyth County v. Nationalist Movement, the Supreme Court held that an
“ordinance requiring a permit and a fee before authorizing public speaking,
parades, or assemblies” in traditional public fora “is a prior restraint on speech”
and, therefore, subject to a heavy presumption against its validity. 505 U.S. 123,
130 (1992). But on the facts before it, the Court was troubled by the “unbridled
discretion” in setting the fee, not the fee itself. Id. at 133.
5
Analysis by courts of unrelated jurisdictions is not binding upon this court, but may be instructive.
7
Here, Metum is not charging any fee whatsoever. Although the state demands
some assurance that an applicant can be held responsible for any harm, Metum
receives no income from such assurances. This is even less burdensome than the
fees permitted under cases like Cox. While there is almost certainly some
administrative and policing costs for the state, those costs are not borne by the
applicant.
Ferguson argues that the regulation nevertheless imposes a cost upon applicants,
and that it is irrelevant whether that cost redounds to the state or elsewhere.6 But
applicable case law confirms the state may impose reasonable costs upon the use
of public spaces. Where fees have been successfully challenged, as in Forsyth, it
has been because of nearly “unbridled discretion” in fee amounts. No question
exists that the Metum regulation is applied uniformly and without discretion to
all applicants.
Metum 312 MAC Code 8-2-4 requires only that an applicant for Special Use
Permit show financial responsibility before receiving a permit. The type or
amount of financial responsibility is not based upon the content of the speech,
and is related to a legitimate government interest in protecting its citizens from
legal harms with no possibility of redress. For these reasons, the financial
responsibility provisions of the Metum Administrative Code do not impose an
unreasonable restriction upon First Amendment rights.
Alternative Fora
Metum further argues that, even if the First Amendment requires an
accommodation for the indigent, there are alternative places where public
assembly is permitted without meeting any financial responsibility provisions.
Metum argues that the existence of alternative, fee-free fora are sufficient to meet
the requirements of the First Amendment.
Several courts have concluded the First Amendment is satisfied so long as some
public forum is available to those who cannot pay an otherwise reasonable fee.
See, e.g., iMatter Utah v. Njord, 774 F.3d 1258, 1264 (10th Cir. 2014); Sullivan v. City
of Augusta, 511 F. 3d 16, 41–42 (1st Cir. 2007) (“Where, as here, however, there are
ample alternative forums for speech, we see insufficient justification for the
district court’s ruling that the Constitution mandates an indigency exception, in
6
Ferguson has not identified any binding case law supporting his claim that a fully-refundable deposit
of funds with the state is an actual cost.
8
effect forcing general taxpayers to support financially a particular organizer’s
event.”); Stonewall Union v. City of Columbus, 931 F. 2d 1130, 1137 (6th Cir. 1991)
(“Because we believe the availability of the sidewalks and parks provides a
constitutionally acceptable alternative for indigent paraders, we find that the lack
of an indigency exception does not render the ordinance constitutionally
invalid.”).
Metum explains that public assembly in Marshall Park does not require a Special
Use Application, and, therefore, no requirement to provide proof of financial
responsibility is needed. No prohibition exists upon using lawful pedestrian
pathways, including sidewalks, to travel by foot from Marshall Park to the state
capitol building. Finally, the Bellor sidewalks circumscribe the state capitol
building, thus permitting expressive conduct at the capitol building without a
financial responsibility requirement.
Ferguson does not dispute the assembly could have gathered within Marshall
Park. He asserts, however, that the unique history of protest marches make
Jefferson Street a public forum unlike a city park. He asserts a gathering in the
park—because of its insular nature and its distance from lawmakers—is not
legally analogous to a protest march up Jefferson Street. Ferguson further asserts
the narrow sidewalks of Bellor—including those surrounding the state capitol
building—make a group activity all but impossible.
In short, Ferguson argues that where the state maintains a traditional public
forum and holds it open for expressive activity, any cost-free alternative forum
must provide a rough approximation of the for-pay venue. He describes
Metum’s argument as “the introduction of a new kind of separate but equal.”
This inflammatory rhetoric aside, Ferguson offers little legal support for his
argument.
Existing case law supports state imposition of charges that are related to
legitimate governmental purposes. Metum’s proof of financial responsibility
requirement appears to fit this description. Furthermore, we can find no
authority that compels Metum to either provide an exemption from assembly
fees or access to a free alternative forum of a similar character to the for-pay
forum. Metum has shown that those who are unwilling or unable to provide
proof of financial responsibility are not prohibited from assembling or
communicating within Metum. The First Amendment requires no more.
9
C. Criminal Threats
Ferguson was also charged with violation of Metum Code § 35-45-2-1(c), which
provides:
Whosoever transmits any communication containing any threat to
kidnap any person or any threat to injure the person of another, with
conscious disregard of a substantial and unjustifiable risk that the
communication will be understood as such by its recipient(s), shall
be fined under this title or imprisoned not more than five years, or
both.
Specifically, the state argues the Metum Justice signs and Ferguson’s statements,
taken as a whole, constitute a reckless threat of violent action against those
arguing with Metum Justice at the state capitol building and the Bellor Police.
At issue is whether the statute includes a mens rea that sufficiently protects First
Amendment freedoms. No useful Metum case law exists considering the statute
in this way, so we, again, look to our sister courts for guidance.
Ferguson argues Section 35-45-2-1(c) violates his First Amendment rights
because the statute requires mere recklessness to produce a conviction. The key
question for Ferguson’s Motion to Dismiss is whether a “true threat” requires
more than recklessness.
The case of Virginia v. Black addressed the nature of “true threats.” 538 U.S. 343,
343 (2003). Black described a “true threat” as “those statements where the speaker
means to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.” Id. at 359–60
(emphasis added) (brackets, citations, and internal quotation marks omitted).
Following Black, there remained significant dispute about whether a “true threat”
must exhibit a subjective intent to threaten or intimidate, or simply an objective,
“reasonable person” standard. Compare United States v. Elonis, 730 F.3d 321 (3d
Cir. 2013); United States v. Bagdasarian, 652 F.3d 1113, 1116–18 (9th Cir. 2011);
United States v. Cassel, 408 F.3d 622, 630–33 (9th Cir. 2005) (each finding a
requirement of subjective intent to threaten or intimidate); with United States v.
Clemens, 738 F.3d 1, 9–12 (1st Cir. 2013); United States v. Sovie, 122 F.3d 122, 125
(2d Cir. 1997); United States v. White, 670 F.3d 498, 506–12 (4th Cir. 2012); Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir. 2004); United States v. Jeffries,
692 F.3d 473, 477–81 (6th Cir. 2012); United States v. Stewart, 411 F.3d 825, 828 (7th
10
Cir. 2005); United States v. Nicklas, 713 F.3d 435, 438–40 (8th Cir. 2013); United
States v. Martinez, 736 F.3d 981, 986–88 (11th Cir. 2013) (applying an objective
standard of a “true threat”).
The Supreme Court only partially addressed the confusion in Elonis v. United
States. 135 S. Ct. 2001 (2015). In that case, the Court explained that some level of
culpability greater than negligence is necessary. Id. at 2013 (“Our holding makes
clear that negligence is not sufficient to support a conviction”). However, the
majority pointedly refused to consider whether recklessness would suffice. Id. at
2011–13.
Although the Supreme Court’s silence regarding recklessly threatening speech
makes our task difficult, the principles articulated in Black and Elonis seem to
focus upon the speaker’s subjective understanding of the effect the speech is
likely to have. That is, it is not necessary that “true threat” speech be uttered for
the specific purpose of instilling fear in the recipient so long as the speaker
understands that fear or intimidation is the likely result. We therefore conclude the
First Amendment does not prohibit the criminalization of recklessly threatening
speech. The charge against Ferguson, of making a “threat to injure the person of
another, with conscious disregard of a substantial and unjustifiable risk that the
communication will be understood as such by its recipient(s),” may stand.
III. CONCLUSION & ORDER
For the reasons stated herein, the judgement below is AFFIRMED.
11
IN THE
METUM SUPREME COURT
JOHN FERGUSON,
Petitioner,
TRIAL COURT
CASE NO. 502010-C-00341
vs.
STATE OF METUM,
Respondent.
ORDER ON PETITION FOR TRANSFER
The Petition for Transfer is DENIED. The Metum Supreme Court declines to
conduct further review of the matter.
12
SUPREME COURT OF THE UNITED STATES
FERGUSON v. STATE OF METUM
The petition for writ of certiorari is granted as to the following questions:
1) Does the First Amendment require the government offer access to
traditional public fora for groups or individuals who are unable to meet
financial requirements?
2) Does the First Amendment prohibit the criminalization of threatening
expression made with conscious disregard of a substantial and
unjustifiable risk that the communication will be understood as such by its
recipient(s)?
A total of one hour is allotted for oral argument.
13