## Facts

- Law-enforcement agencies conducted a sting operation on federal land near the Blue Ridge Parkway in North Carolina aimed at identifying and arresting men engaging in male-male sexual solicitation and activity.
- An undercover National Park Service ranger (Joseph Darling) approached Joe L. Lanning, initiated a sexually suggestive conversation, and expressly agreed to have sex.
- After the ranger’s express agreement, Lanning backed up to the ranger and very briefly touched the ranger’s fully clothed crotch.
- The government charged Lanning with disorderly conduct under 36 C.F.R. § 2.34(a)(2), alleging the touch was “obscene,” or alternatively “physically threatening or menacing,” or “likely to inflict injury or incite an immediate breach of the peace.”
- A magistrate judge convicted Lanning; the district court affirmed the conviction (and later remanded only for resentencing); Lanning appealed to the Fourth Circuit.

## Issues

1. Whether 36 C.F.R. § 2.34(a)(2)’s use of the term “obscene” is unconstitutionally vague as applied to Lanning’s brief crotch-touching in the circumstances of the undercover encounter.
2. Whether the evidence was sufficient to prove beyond a reasonable doubt that Lanning’s conduct was “physically threatening or menacing” or “likely to inflict injury or incite an immediate breach of the peace” under 36 C.F.R. § 2.34(a)(2).

## Decision

- The Fourth Circuit reversed the conviction and remanded with instructions to enter a judgment of acquittal.
- The court held that “obscene,” as used in § 2.34(a)(2), was unconstitutionally vague as applied to Lanning’s conduct in context.
- The court further held that no rational trier of fact could find beyond a reasonable doubt that Lanning’s conduct was “physically threatening or menacing.”
- The court also held that no rational trier of fact could find beyond a reasonable doubt that the conduct was likely to inflict injury or incite an immediate breach of the peace.

## Legal Principles

- A criminal prohibition is void for vagueness as applied if it fails to provide fair notice to a person of ordinary intelligence of what conduct is prohibited, or if it is so standardless that it invites seriously discriminatory enforcement.
- When the government relies on “obscene” conduct outside the constitutional obscenity framework, application must still provide clear, narrow notice and enforceable limits; otherwise the term may be vague as applied.
- Evidence is insufficient if, viewing the record in the light most favorable to the prosecution, no rational factfinder could find the regulatory elements proved beyond a reasonable doubt.
- Brief, non-forceful sexual touching during an encounter initiated and encouraged by an undercover officer does not, without more, satisfy regulatory elements requiring threat/menace, likely injury, or an immediate breach of the peace.

## Conclusion

The Fourth Circuit set aside Lanning’s disorderly-conduct conviction because the regulation’s “obscene” prong did not give constitutionally adequate notice as applied to the brief touch in the officer-induced context, and because the record could not support conviction under the regulation’s alternative threat/menace or breach-of-the-peace theories.


United States v. Lanning, 723 F.3d 476 (4th Cir. 2013)