United States v. Pugh

90 F.4th 1318

UNITED STATES of America, Plaintiff-Appellee, v. Tia Deyon PUGH, Defendant-Appellant.

No. 21-13136

United States Court of Appeals, Eleventh Circuit

Filed: January 18, 2024

Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket No. 1:20-cr-00073-TFM-B-1 Christopher John Bodnar, Scott Alan Gray, U.S. Attorney Service - Southern District of Alabama, DOJ-USAO, Southern District of Alabama, Mobile, AL, for Plaintiff-Appellee.

Gordon Gray Armstrong, III, Gordon G. Armstrong, III, PC, Mobile, AL, for Defendant-Appellant.

Before Lagoa and Brasher, Circuit Judges, and Boulee,^* District Judge.

Brasher, Circuit Judge:

This appeal raises questions of first impression about the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce. During a riotous protest in Mobile, Alabama, Tia Pugh shattered the window of a police car that was blocking protestors from walking onto the interstate. After the government charged Pugh with impeding law enforcement during a civil disorder, she moved to dismiss the indictment. She argued that Section 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress's power to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) is vague in violation of the Fifth Amendment's Due Process Clause. The district court rejected these arguments, Pugh's case went to trial, and a jury found her guilty. Pugh argues that the district court erred in rejecting her four challenges to the constitutionality of Section 231(a)(3). We disagree and affirm Pugh's conviction.

I.

In May 2020, protesters planned to march through the streets of downtown Mobile, Alabama, to protest police brutality after the death of George Floyd. Mobile police officers developed an operational plan to protect the protestors and the public. As part of that plan, the police placed traffic units in the area to redirect protesters away from Interstate 10, which was near the protest route.

On the day of the protest, Tia Pugh and a group of protestors deviated from the planned protest route and approached a ramp to Interstate 10. The ramp they approached was near Exit 26B of Interstate 10, an exit used by commercial vehicles carrying hazardous materials across state lines. In response, the police attempted to block access to the ramp by forming a barricade. The police, in coordination with the Alabama Department of Transportation, shut down traffic along the ramp and closed the exit. The Alabama Department of Transportation also rerouted vehicles on the interstate, which slowed traffic and forced commercial vehicles carrying hazardous materials to take a longer route.

The protest eventually devolved into a riot. Police officers used tear gas to disperse people from the highway. Around that time, Pugh smashed a police car window with a baseball bat before running away. Pugh's attack immobilized the vehicle, and police officers had to be "pulled off of the barricade line to guard the vehicle" and the equipment inside.

A grand jury indicted Pugh on one count of impeding law enforcement during a civil disorder in violation of 18 U.S.C. § 231(a)(3). Pugh moved to dismiss the indictment on the ground that Section 231(a)(3) is unconstitutional. As relevant here, Pugh argued that the statute was facially unconstitutional because it: (1) exceeds Congress's authority under the Commerce Clause; (2) too broadly regulates speech and expressive conduct protected by the First Amendment; (3) constitutes a content-based restriction of expressive activities protected by the First Amendment; and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment's Due Process Clause. After a grand jury issued a superseding indictment, Pugh renewed her motion to dismiss and reasserted her arguments.

The district court denied Pugh's motion and rejected each of her arguments. The case went to trial, and the government presented evidence and testimony about the protest, its impact on interstate commerce, and Pugh's conduct. The district court instructed the jury that Pugh could be found guilty of violating Section 231(a)(3) only if the government established beyond a reasonable doubt that: (1) Pugh "knowingly committed an act or attempted to commit an act with the intended purpose of obstructing, impeding, or interfering with one or more law enforcement officers"; (2) at the time of the act or attempted act, the "officer or officers were engaged in the lawful performance of their official duties incident to and during a civil disorder"; and (3) "the civil disorder obstructed, delayed, or adversely affected interstate commerce or the movement of any article or commodity in interstate commerce in any way or to any degree."

The jury found Pugh guilty of violating Section 231(a)(3). The district court sentenced Pugh to time served and imposed monetary penalties and restitution. Pugh timely appealed.

II.

We generally review a district court's order denying a motion to dismiss an indictment for an abuse of discretion. United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017) (citing United States v. Di Pietro, 615 F.3d 1369, 1370 n.1 (11th Cir. 2010)). But "[w]e review a challenge to the constitutionality of a statute de novo." United States v. Knight, 490 F.3d 1268, 1270 (11th Cir. 2007) (emphasis added) (citing United States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005)); accord Focia, 869 F.3d at 1285 (quoting Di Pietro, 615 F.3d at 1370 n.1).

III.

Section 231(a)(3) punishes "[w]hoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer" who is "lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder." 18 U.S.C. § 231(a)(3). The civil disorder must be one "which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function." Id. A related provision defines "civil disorder" and "commerce" for Section 231(a)(3). See id. § 232(1)-(2). A "civil disorder" is "any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual." Id. § 232(1). And "commerce" is defined as "commerce (A) between any State or the District of Columbia and any place outside thereof; (B) between points within any State or the District of Columbia, but through any place outside thereof; or (C) wholly within the District of Columbia." Id. § 232(2).

Pugh argues that Section 231(a)(3) is unconstitutional because it (1) exceeds Congress's authority under the Commerce Clause, (2) is a substantially overbroad regulation that criminalizes activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) is vague in violation of the Fifth Amendment's Due Process Clause.

These four arguments are all facial challenges to the constitutionality of Section 231(a)(3). "A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself." Horton v. City of St. Augustine, 272 F.3d 1318, 1329 (11th Cir. 2001) (quoting United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000)). Generally, "a plaintiff bringing a facial challenge must 'establish that no set of circumstances exists under which the [law] would be valid' or show that the law lacks 'a plainly legitimate sweep.' " Ams. for Prosperity Found. v. Bonta, — U.S. —, 141 S. Ct. 2373, 2387, 210 L.Ed.2d 716 (2021) (alteration in original) (citation omitted) (first quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); and then quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)).

In determining whether a statute meets this standard, we "consider[ ] only applications of the statute in which it actually authorizes or prohibits conduct." City of Los Angeles v. Patel, 576 U.S. 409, 418, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). Although "the underlying facts" of the case "are largely irrelevant" in a facial challenge, Cheshire Bridge Holdings, LLC v. City of Atlanta, 15 F.4th 1362, 1365 (11th Cir. 2021) (citing Patel, 576 U.S. at 415, 135 S.Ct. 2443; Miami Herald Publ'g Co. v. City of Hallandale, 734 F.2d 666, 674 n.4 (11th Cir. 1984)), the facts may establish that circumstances exist under which the statute is valid, see United States v. Paige, 604 F.3d 1268, 1274 (11th Cir. 2010) (rejecting facial challenge under the Commerce Clause because the law "was constitutionally applied to [the defendant's] conduct" (citing Horton, 272 F.3d at 1329)). And for all arguments but First Amendment ones, the "fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid" because federal courts "have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." Salerno, 481 U.S. at 745, 107 S.Ct. 2095 (citing Schall v. Martin, 467 U.S. 253, 269 n.18, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984)).

With these principles in mind, we next consider Pugh's four facial challenges to the constitutionality of Section 231(a)(3).

A.

We will start with Pugh's argument that Section 231(a)(3) is facially unconstitutional because it exceeds Congress's power under the Commerce Clause. Pugh's argument turns on whether the jurisdictional element of the statute—the...