State v. AusmusState v. Ausmus
“A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:
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“(e) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse [.]”
At issue in this case is the facial constitutionality of that statute. In each of the several cases consolidated for the purposes of this appeal, the trial court concluded that
We review the trial court’s ruling on a demurrer challenging the constitutionality of the statute under which charges have been brought for errors of law.
We agree with the state. An order to disperse that violates a person’s constitutional rights — for example, the rights to freedom of expression or freedom of assembly guaranteed by Article I, sections 8 and 26, of the Oregon Constitution, respectively — is not a “lawful” order.
We turn to whether the statute nevertheless is unconstitutionally vague. Under Article I, sections 20 and 21, of the Oregon Constitution, a statute may not be so vague “that it allows a judge or jury unbridled discretion to decide what conduct is prohibited in a given case.”
State v. Cornell
/
Pinnell,
Under both state and federal law, in a
facial
challenge on vagueness grounds, the facts of a particular case are irrelevant; the challenge will not succeed unless the person advancing it can demonstrate that the statute is unconstitutionally vague in all of its possible applications. As the Oregon Supreme Court explained in
State v. Sutherland,
“For a statute to be facially unconstitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster. See, e.g., State v. Chakerian,325 Or 370 , 381,938 P2d 756 (1997) (for a statute to be deemed to be impermissibly vague, it must be *327 shown to be ‘vague in all of its possible applications’ (quoting State v. Robertson,293 Or 402 , 411 n 8,649 P2d 569 (1982)); United States v. Salerno,481 US 739 , 745,107 S Ct 2095 , 2100,95 L Ed 2d 697 (1987) (so holding under the United States Constitution in connection with an examination of the constitutionality of the federal Bail Reform Act).”
In this case, the state contends that there are circumstances easy to envision in which the statute may be applied constitutionally. As an example, the state suggests a person who intentionally instigates and participates in a violent riot and then refuses to comply with a police order to disperse. Persons of ordinary intelligence, the state argues, would understand that such conduct violates
Defendants do not take issue with the state’s example. Indeed, defendants do not respond to it in their brief at all. When pressed at oral argument, their only response was that the Oregon Supreme Court was simply wrong in holding that a facial challenge may succeed only when it is shown that the challenged statute is vague in all possible applications.
' It is not our role to take issue with the analysis that the Supreme Court has articulated. Applying that analysis to this case, we conclude that the state is correct that defendants have failed to demonstrate that
We turn to defendants’ final argument, that, apart from overbreadth and vagueness considerations,
The state argues that Pirkey no longer is good law and that, to prevail under either the state or the federal constitution, defendants must demonstrate that the statute has *328 been applied to them unequally, not merely that the statute creates the possibility of unequal treatment.
In
Pirkey,
the Oregon Supreme Court struck down a statute that permitted the same conduct to be charged either as a felony or as a misdemeanor. The court held that the statute violated the Equal Protection Clause because it failed to set out standards to limit the discretion to determine the nature of the charge.
Reversed and remanded.