How should the judge rule? Could you suggest how the state legislature could clarify the law? Consider the perspectives of a female victim and male defendant. Another Kansas case on stalking is State v. Rucker, 987 P.2d 1080 (Kan. 1999).

The Kansas Supreme Court ruled that the stalking statute did not convey a sufficiently definite warning as to the conduct that is prohibited.

The statute prohibited “following” or a “course of conduct” that would “alarm, annoy or harass.” The law failed to specify whether a reasonable person standard was to be employed in determining whether a “following” would “alarm, annoy or harass.” As a result, the Kansas Supreme Court ruled that individuals of “common intelligence” would be forced to “guess” and would “differ” as to the meaning of “alarm, annoy or harass.” A defendant, as a result, will find him or herself subject to the sensibilities of an individual victim. Conduct that annoys or alarms one individual may not annoy or alarm another individual or a reasonable person.

How would you rule?

Jeanine Biocic appeals her conviction for violating a U.S. Fish and Wildlife regulation, 50 C.F.R. Sec. 27.83, by going partially nude in a national wildlife refuge. She contends on various grounds that the regulation is unconstitutional as applied to her. We affirm the conviction. On a summer day in June 1989, Ms. Biocic, an adult female, was walking on the beach on the Chincoteague National Wildlife Refuge in Accomack County, Virginia, with a male companion. “To get some extra sun,” as she put it, she removed the top of her two-piece bathing suit, fully exposing her breasts. She was observed in this state of partial nudity by an officer of the federal Fish and Wildlife Service who issued her a summons charging a violation of 50 C.F.R. Sec. 27.83, which provides that “[a]ny act of indecency or disorderly conduct as defined by State or local laws is prohibited on any national wildlife refuge.”

A magistrate judge convicted Ms. Biocic of violating this regulation after a trial in which the facts above summarized were established without essential dispute. Specifically, the magistrate judge concluded that Ms. Biocic’s conduct constituted an “act of indecency” within the meaning of Sec. 9.3 of the Accomack County Code. In relevant part, that “anti-nudity” ordinance—following a Preamble which recites that the enacting body “deems it necessary to prohibit certain conduct … in order to secure and promote the health, safety and general welfare of the [county’s] inhabitants”—makes it unlawful for any person to knowingly, voluntarily, and intentionally appear in a place open to the public or open to public view, in a state of nudity.

“State of nudity” is then defined in a definitional section as “A state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering on any portion thereof below the top of the nipple.”

“Nudity” as thus defined is expressly excluded from the ordinance’s reach when practiced in dramatic productions and other forms of legitimate artistic expression.

The magistrate judge concluded that Ms. Biocic’s exposure of her breasts in a way which fell within the County Code’s expressed prohibition of this form of nudity constituted an “act of indecency” as defined by local law, hence violated the federal regulation. He fined her $25.00.

This conviction was affirmed on appeal to the U.S. District Court.

Ms. Biocic’s equal protection claim is equally simple: the ordinance (hence, presumably, the federal regulation that assimilates its “definition” of indecency) prohibits the public exposure of female breasts but not male breasts; this constitutes a gender-based distinction that is not substantially related to an important governmental interest, hence fails the appropriate intermediate level of scrutiny in equal protection analysis. We assume, without deciding, as did the district court, that a distinction based upon anatomical differences between male and female is gender-based for equal protection analysis purposes. But we then agree with the district court that the distinction here is one that is substantially related to an important governmental interest, hence does not deny equal protection. The important government interest is the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast.

That does it, for the limited purpose of our legal inquiry. As Justice Stewart put it, “[W]e have recognized that in certain narrow circumstances men and women are not similarly situated; in these circumstances a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional.”

How would you rule?

In applying Section 422, courts must be cautious to ensure that the statutory standard is not expanded beyond that which is constitutionally permissible. The statutory definition of the crime proscribed by section 422 is not subject to a simple checklist approach to determining the sufficiency of the evidence. Rather, it is necessary first to determine the facts and then balance the facts against each other to determine whether, viewed in their totality, the circumstances are sufficient to meet the requirement that the communication “convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.” This presents a mixed question of fact and law. We shall conclude that the evidence fails to establish the minor intended to convey a threat to Officer MacPhail and that, under the circumstances in which it was presented, the painting did not convey a gravity of purpose and immediate prospect of the execution of a crime that would result in death or great bodily injury to MacPhail. Consequently, we need not address the minor’s arguments that the evidence is insufficient to establish other elements of section 422.

A criminal threat must be conveyed “verbally, in writing, or by means of an electronic communication device.” The word “writing” is sufficiently broad to include any physical rendering of a person’s thoughts, ideas, or creations. Indeed, communication through pictorial renderings predates civilization itself. In this case, however, we need not determine whether a painting alone can constitute a “writing” within the meaning of section 422. The minor’s painting included the letters “CPD,” for Chico Police Department, and the badge number “67,” for Officer MacPhail, which were integral to the painting and constituted the specific means used by the minor to identify the subject of the painting as MacPhail. Therefore, even if we were to conclude that the word “writing” in section 422 requires the depiction of letters or numbers, the minor’s painting would satisfy this criterion.

It has been said that a picture is worth a thousand words. But as the expression of an idea, a painting may make “extensive use of symbolism, caricature, exaggeration, extravagance, fancy, and make-believe.” A criminal threat, on the other hand, is a specific and narrow class of communication. It is the expression of an intent to inflict serious evil upon another person. As an expression of intent, a painting—even a graphically violent painting—is necessarily ambiguous. Therefore, standing alone, the minor’s painting did not constitute a criminal threat. Of course, ambiguity may be resolved by surrounding circumstances. However, the circumstances in this case do not support a finding that the minor’s painting meets the requirements of section 422.

After completing the painting, the minor took it to class and turned it in for credit. This would be a rather unconventional and odd means of communicating a threat. Ordinarily, a person wishing to threaten another would not do so by communicating with someone in a position of authority over the person making the threat. This is not invariably so, but usually threats that are made to, or in the presence of, an authority figure are made when the threatener is in a rage, is under the influence of alcohol or drugs, or is attempting to serve an immediate purpose, such as dissuading a witness. The incident that sparked the minor’s anger occurred over a month before he turned in the painting. While it is apparent that he remained angry, nothing suggests he remained in a rage for the entire month.

Even though the juvenile court found that the minor “intended to take [the painting] to school for a grade,” the court noted he “could” have had another purpose. But the mere possibility that the minor had a dual intent in creating the painting and taking it to class is insufficient to sustain the finding that he committed a criminal offense.

It is true the minor conceded it was reasonable to expect that Officer MacPhail eventually would see the minor’s painting. However, this concession was made at the urging of an assistant principal near the end of a 40-minute interview in which the minor stated that he did not think MacPhail would ever see the painting. In light of all the evidence, the concession is insufficient to support the juvenile court’s finding that the minor intended MacPhail to see the painting. After all, he did not display it to MacPhail or put it in a location where he knew she would see it. Nor did he communicate with MacPhail in any manner to advise her that she should see the painting. Even MacPhail acknowledged that the students would not expect her to come into the art classroom. In fact, MacPhail did not learn of the painting until an assistant principal called and then showed it to her.

As we have noted, to establish a criminal threat, it must be shown that, at the time the minor acted, he had the specific intent that Officer MacPhail would be shown the painting. Viewed in a light most favorable to the judgment, the totality of the circumstances establishes that the minor could have, and perhaps even should have, foreseen the possibility that MacPhail would learn of and observe the painting. But the evidence is not sufficient to establish that, at the time he acted, the minor harbored the specific intent that the painting would be displayed to MacPhail.

In any event, under the circumstances as a perceived threat, the painting was not so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an immediate prospect of the execution of a crime against Officer MacPhail that would result in death or great bodily injury. It was not accompanied by any words, on the painting or otherwise, such as “this will be you,” “I do have a gun, you know,” or “watch out.” The minor did not direct any gestures or facial expressions to Officer MacPhail in association with the painting. In fact, the minor had no contact at all with MacPhail for the month that elapsed between the time she gave him the citation and the day he turned the painting in as a high school art class project.

The painting certainly reflects anger on the minor’s part, but without more it does not appear to be anything other than pictorial ranting. That this is so is reflected by the fact that the actions of school authorities and the police show they did not perceive the painting to be an immediate threat. When the minor’s art teacher saw the painting, believed the hooded figure depicted the minor, and found it “disturbing” and “scary,” she did not call security or the police. She simply took it to an assistant principal’s office with a note suggesting that he look at it. Indeed, she waited until the next day to speak with the minor about the painting. The teacher’s failure to take any other action demonstrates that she did not view the painting as an immediate threat to any officer, let alone Officer MacPhail. Likewise, when an assistant principal saw the painting, he did not seek to have the minor arrested. Even MacPhail did not have the minor arrested when she saw the painting and was shocked by its graphic nature. She simply asked another officer to investigate the matter. When that officer saw the painting and was “disturbed” by it, in part because there had been several shootings on high school grounds, he, too, did not immediately arrest the minor or take any other steps to secure MacPhail’s safety.

The failure of school authorities, the victim, and the police to take immediate action against the minor illustrates that the painting did not convey to them such an unequivocal, unconditional, immediate, and specific threat to commit a crime that would result in death or great bodily injury, with a gravity of purpose and immediate prospect of executing such a threat.

We certainly find no fault with the school authorities and the police treating the matter seriously. The painting was a graphic, if mythical, depiction of the brutal murder of Officer MacPhail. Without question, it was intemperate and demonstrated extremely poor judgment. But, the criminal law does not, and cannot, implement a zero-tolerance policy concerning the expressive depiction of violence. In sum, the painting was ambiguous as the threat of an intent to commit murder. And the surrounding circumstances were not sufficient to convey a gravity of purpose and immediate prospect of execution of such a threat, or even to demonstrate that the minor intended to convey any threat to Officer MacPhail. Hence, the evidence did not establish that the painting constituted a criminal threat in violation of section 422.

The plaintiffs allege that the Florida law requiring motorcyclists to wear helmets violates their right to privacy under the U.S. Constitution. Are they correct?

The question presented is whether the federal Constitution prohibits Florida from requiring riders of motorcycles to wear protective headgear. Appellant’s complaint alleged that he uses a motorcycle as his primary means of transportation, that he wishes to ride without a helmet, and that appellees have enforced the statute by arresting and prosecuting violators in Pasco County and will continue to do so.

Facts

Appellant David L. Picou brought this suit against appellee Jim Gillum, Sheriff of Pasco County, Florida, and appellee James T. Russell, Florida State Attorney for Pasco County, seeking a declaratory judgment that Florida’s mandatory motorcycle helmet law, Fla.Stat. Sec. 316.211, is unconstitutional. The Florida statute provides in relevant part:

“(1) No person shall operate or ride upon a motorcycle unless he is properly wearing protective headgear securely fastened on his head which complies with standards established by the department.

(2) No person shall operate a motorcycle unless he is wearing an eye-protective device over his eyes of a type approved by the department.”

Appellant contended that the statute violated federal constitutional rights to Due Process, Equal Protection, and privacy. The district court dismissed the complaint. On appeal, a panel of this Court held remanded the case to the district court for consideration of appellant’s privacy argument. The district court held that the Supreme Court’s privacy opinions did not support appellant’s contentions, and upheld the helmet statute.

Reasoning

This appeal presents us with the latest in a long line of challenges to the constitutionality of mandatory helmet laws. Helmet statutes have been the subject of numerous published opinions from state courts. Although a few courts in the late 1960s and early 1970s held motorcycle helmet laws unconstitutional, each of these cases has been reversed or overruled. Courts in subsequent cases have uniformly upheld the provisions. Indeed, various constitutional challenges to Florida’s statute have been rejected both by Florida courts, and by a three-judge federal district court.

Appellant first relies on Supreme Court cases recognizing a right to privacy. The Due Process Clause of the Fourteenth Amendment embodies important protections against state intrusion on intimate and fundamental personal decisions. As in Roe v. Wade, and Griswold v. Connecticut, the right extends to reproductive decisions that are by their nature highly private. Also protected are decisions concerning the structure of the family unit and parental freedom to control the education of their children. But the rights involved in these cases do not resemble the right claimed here. There is little that could be termed private in the decision whether to wear safety equipment on the open road. Indeed, the Supreme Court has repeatedly declined to recognize a constitutional right that would cover appellant’s case.

Appellant concedes that his case is not covered by existing precedents defining the right to privacy. He contends, however, that those precedents stand for a broader proposition: that the Constitution protects the “right to be let alone.” He further casts his argument in terms of a right to be free from “paternalistic” legislation. In other words, appellant argues that the Constitution forbids enforcement of any statute aimed only at protecting a state’s citizens from the consequences of their own foolish behavior and not at protecting others.

First, there is no broad legal or constitutional “right to be let alone” by government. In the complex society in which we live, the action and non-action of citizens are subject to countless local, state, and federal laws and regulations. Bare invocation of a right to be let alone is an appealing rhetorical device, but it seldom advances legal inquiry, as the “right”—to the extent it exists—has no meaning outside its application to specific activities. The Constitution does protect citizens from government interference in many areas—speech, religion, the security of the home. But the unconstrained right asserted by appellant has no discernible bounds, and bears little resemblance to the important but limited privacy rights recognized by our highest Court. As the Court has stated, “the protection of a person’s general right to privacy—his right to be let alone by other people—is like the protection of his property and his very life, left largely to the law of the individual States.”

Whatever merit may exist in appellant’s further contention that paternalistic legislation is necessarily invalid, this argument is inapplicable to Fla.Stat. Sec. 316.211. The helmet requirement does not implicate appellant alone. Motorcyclists normally ride on public streets and roads that are maintained and policed by public authorities. Traffic is often heavy, and on highways proceeds at high rates of speed. The required helmet and face shield may prevent a rider from becoming disabled by flying objects on the road, which might cause him to lose control and involve other vehicles in a serious accident.

It is true that a primary aim of the helmet law is prevention of unnecessary injury to the cyclist himself. But the costs of this injury may be borne by the public. A motorcyclist without a helmet is more likely to suffer serious head injury than one wearing the prescribed headgear. State and local governments provide police and ambulance services, and the injured cyclist may be hospitalized at public expense. If permanently disabled, the cyclist could require public assistance for many years. As Professor Tribe has expressed it, “[in] a society unwilling to abandon bleeding bodies on the highway, the motorcyclist or driver who endangers himself plainly imposes costs on others.” Leaving aside the deference traditionally accorded to state highway safety regulation, we think Florida’s helmet requirement a rational exercise of its police powers.

There is a strong tradition in this country of respect for individual autonomy and mistrust of paternalistic legislation. Appellant, like many of his predecessors in helmet law cases, cites John Stuart Mill for the proposition that “the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” J. Mill, On Liberty (1859). In fact, Thomas Jefferson presaged Mill by three quarters of century, writing in 1787 that “the legitimate powers of government extend to such acts only as are injurious to others.” Notes on the State of Virginia in Jefferson, Writings 285 (Library of America ed. 1984). But the impressive pedigree of this political ideal does not readily translate into a constitutional right.

Legislatures and not courts have the primary responsibility for balancing conflicting interests in safety and individual autonomy. Indeed, the evidence suggests that arguments asserting the importance of individual autonomy may prevail in the political process. In the mid-1970s, opponents of helmet requirements successfully lobbied for amendment of a federal law that allowed withholding of federal highway funds from States without helmet statutes. More recently, Massachusetts’ mandatory seatbelt law was repealed by referendum after opponents attacked it as an infringement on personal liberties.

Subsequent studies suggest that repeal of these safety measures can have a substantial cost in lives and property. But it is no more our role to impose a helmet requirement on this ground than to invalidate Florida’s helmet law on the grounds urged by appellant. Although a narrow range of privacy rights are shielded from the political process by the Constitution, the desirability of laws such as the Florida helmet requirement is a matter for citizens and their elected representatives to decide.

Holding

We think the district court was correct to conclude that appellant “has shown no reason in history, in policy, or in logic why a constitutional right should extend to his decision to forego a motorcycle helmet.” The judgment of the district court is therefore affirmed.

In this appeal, we consider whether 8 VAC § 35-60-20, a George Mason University regulation governing the possession of weapons on its campus, violates the Constitution of Virginia or the U.S. Constitution. Possession or carrying of any weapon by any person, except a police officer, is prohibited on university property in academic buildings, administrative office buildings, student residence buildings, dining facilities, or while attending sporting, entertainment or educational events. Entry upon the aforementioned university property in violation of this prohibition is expressly forbidden.

DiGiacinto is not a student or employee of GMU, but he visits and utilizes the university’s resources, including its libraries. He desires to exercise his right to carry a firearm not only onto the GMU campus but also into the buildings and at the events. DiGiacinto argued in his complaint that 8 VAC § 35-60-20 violates his constitutional right to carry a firearm, that GMU lacks statutory authority to regulate firearms, and that the regulation conflicts with state law. Describing 8 VAC § 35-60-20 as “effectually a total ban” on the right to bear arms on GMU’s campus, DiGiacinto argues that it violates the historic understanding of the right to bear arms.

Like the U.S. Constitution, the Constitution of Virginia also protects the right to bear arms. The Virginia General Assembly incorporated the specific language of the Second Amendment—“the right of the people to keep and bear arms shall not be infringed”—into the existing framework of Article I, § 13 of the Constitution of Virginia. As a result, the language in Article I, § 13 concerning the right to bear arms is “substantially identical to the rights founded in the Second Amendment.”

We hold that the protection of the right to bear arms expressed in Article I, § 13 of the Constitution of Virginia is co-extensive with the rights provided by the Second Amendment of the U.S. Constitution, concerning all issues in the instant case. Thus, for the purposes of this opinion, we analyze DiGiacinto’s state constitutional rights and his federal constitutional rights concurrently.

The U.S. Supreme Court has held that the Second Amendment protects the right to carry and possess handguns in the home for self-defense. In McDonald, the Court further held that the Second Amendment applies to the states by way of the Fourteenth Amendment.

The Supreme Court clearly stated in Heller, and a plurality of the Court reiterated in McDonald, that the right to carry a firearm is not unlimited. In Heller, the Supreme Court specifically recognized that: “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The Supreme Court further explained its assertion by noting, “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Neither Heller nor McDonald casts doubt on laws or regulations restricting the carrying of firearms in sensitive places, such as schools and government buildings. Indeed, such restrictions are presumptively legal.

GMU has 30,000 students enrolled ranging from age 16 to senior citizens, and over 350 members of the incoming freshman class would be under the age of 18. Also approximately 50,000 elementary and high school students attend summer camps at GMU, and approximately 130 children attend the child study center preschool there. All of these individuals use GMU’s buildings and attend events on campus. The fact that GMU is a school and that its buildings are owned by the government indicates that GMU is a “sensitive place.”
 

Unlike a public street or park, a university traditionally has not been open to the general public, “but instead is an institute of higher learning that is devoted to its mission of public education.” Moreover, parents who send their children to a university have a reasonable expectation that the university will maintain a campus free of foreseeable harm. Recognizing the sensitivity of the university environment, the General Assembly established “a corporate body composed of the board of visitors of George Mason University” for the purpose of entrusting to that board the power to direct GMU’s affairs. Although the real estate and personal property comprising GMU is property of the Commonwealth, the General Assembly has provided that this property “shall be transferred to and be known and taken as standing in the name and under the control of the rector and visitors of George Mason University.”
 

GMU promulgated 8 VAC § 35-60-20 to restrict the possession or carrying of weapons in its facilities or at university events by individuals other than police officers. The regulation does not impose a total ban of weapons on campus. Rather, the regulation is tailored, restricting weapons only in those places where people congregate and are most vulnerable—inside campus buildings and at campus events. Individuals may still carry or possess weapons on the open grounds of GMU, and in other places on campus not enumerated in the regulation. We hold that GMU is a sensitive place and that 8 VAC § 35-60-20 is constitutional and does not violate Article I, § 13 of the Constitution of Virginia or the Second Amendment of the federal Constitution.