cases

On December 1, 2011, a jury convicted the defendants of criminal harassment and convicted William of making a false report of child abuse. On the harassment charge, William was sentenced to two and one-half years in the house of correction, eighteen months to be served with the balance suspended until December 1, 2014, with probation conditions; on the charge of making a false report of child abuse, he was fined $1,000. Gail was sentenced to two years in the house of correction, six months to be served with the balance suspended until December 1, 2014, with probation conditions, and fined $1,000. We transferred the defendants' appeal to this court on our own motion.

This case concerns the constitutionality of the criminal harassment statute, G.L. c. 265, § 43A(a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime.

The victims, James "Jim" J. Lyons, Jr., and his wife, Bernadette, have lived on the same street as the defendants in Andover since around 2000. In 2003, the defendants acquired a tract of land abutting the Lyonses' property and intended to subdivide and develop it. The Lyonses, along with other neighbors, objected to the proposed development, and years of litigation ensued between the parties. By 2008, the relationship between the families had become strained and communication between them was infrequent.

Gerald Colton, a childhood friend of the Johnsons, did not know the Lyons family prior to 2008. Throughout the 1990s and early 2000s, William hired Colton to work as a handyman on an hourly basis and to identify lots for potential real estate development. If William later developed a lot Colton had identified, Colton would collect a finder's fee. Gerald Colton identified lots for William Johnson by placing his initials next to vacant lots on the sheets of the town of Andover's board of assessors. At trial, Colton admitted that his initials appeared to be next to the lot that later became the focus of litigation between the Johnsons and the Lyonses, but suggested that the initials had been forged.

In either late February or early March, 2008, William telephoned Colton and enlisted him to play a series of "pranks" on Jim. The ideas for these "pranks" were generated in several ways: (1) William would directly instruct Colton or convey ideas through Gail; (2) the Johnsons would provide information about the Lyons family to Colton so that he could use this information to harass them; or ( 3) the Johnsons would prompt Colton to think of ideas.

Over the course of thirty-five days in late March and early April, 2008, the defendants, directly and through Colton, engaged in a series of acts directed at the Lyons family. The Commonwealth alleged four separate acts of harassment in addition to the false report of child abuse, and Colton was called as its key witness at the trial.

The first alleged act occurred on March 18, 2008, when Colton posted from his computer an advertisement that appeared on the Internet site "Craigslist." The advertisement provided the Lyonses' home telephone number and address and stated that there were free golf carts available at this location on a "first come, first serve" basis. The Lyonses did not own any golf carts and had never used Craigslist. When Bernadette arrived home at 2:30 P.M. that same day, there were strangers in both her driveway and on the street near her home. These individuals informed her about the advertisement and explained that they were looking for golf carts. In total, about thirty to forty people arrived at the Lyonses' house that afternoon, causing Bernadette to be "scared" and "fearful."

When Jim arrived home later that evening, he telephoned the police, as Bernadette was in a state of "uneasiness" and Jim felt the incident was "really unusual" and "bizarre." Andover police Sergeant Chad Cooper responded and advised Jim to contact Craigslist to remove the advertisement and get the Internet Protocol address for the computer that posted it. In Sergeant Cooper's presence, Jim received numerous telephone calls from people inquiring about the golf carts. When William learned that the Craigslist advertisement had been removed, he asked Colton to "put it back up" and Colton complied. After reposting, Colton testified that he and William "laughed" about it and Colton said that he would post another advertisement.

The second alleged act occurred on March 19, when Colton posted a different Craigslist advertisement, selling "my late son's" motorcycle and directing interested parties to call Jim on his cellular telephone after 10 P.M. Colton then told William about the posting. That night, Jim received "non-stop" telephone calls regarding the advertisement, approximately twenty every ten minutes. Sergeant Cooper responded again. These late night calls continued for months after the posting.

The third alleged act occurred one week later on March 26, when Colton sent an electronic mail message (e-mail) to the Lyonses from a fictitious account. The subject of the e-mail read, "It's just a game for me," and the text stated, "Let The Games Begin!" The e-mail contained Jim and Bernadette's personal identifying information, including names, home telephone number and address, social security numbers, e-mail address, bank name and location, and Jim's date of birth and cellular telephone number. At the bottom, the e-mail stated: "Remember, if you aren't miserable, I aint happy! Let's Play." Colton testified that Gail had sent him an e-mail with the Lyonses' personal information.

The following evening, William arrived at Colton's home and told Colton that he wanted to call and "turn Uim] in." William had a piece of paper with a hotline telephone number written on it and proceeded to use Colton's home telephone to call the Department of Children & Families (DCF) to file a false report alleging child abuse by Jim. William later telephoned Colton to report that a police cruiser and another vehicle were at the Lyonses' home. Investigator Carrie Riley of the DCF testified that an after-hours "child abuse hotline" had received a call from someone using fictitious information and reporting that Jim was physically abusing his son. Riley and another investigator arrived at the Lyonses' home at 10:30 P.M. and said they had to examine their son. Jim testified that he and Bernadette were "panicked" and "frightened," but that, acting on the advice of their attorney, he awakened their son and permitted Riley to inspect him. Riley examined his body for marks and bruises. The DCF case was closed as the son denied any abuse and the investigators found no signs of it.

The fourth alleged act occurred on April 3, 2008, when Colton sent another anonymous e-mail to the Lyonses from another fictitious e-mail account. The subject line was "Brian," and the text read, "What have you done James? ... or. .. Why James? You stole the innocence of a young man." Shortly thereafter, Jim received a letter by postal mail purportedly sent from an individual named "Brian." Brian claimed to have worked for Jim when he was fifteen years of age, accused Jim of sexually molesting him as a teenager, and threatened to press charges against him. Colton testified that William told Colton that he had sent the letter. (On cross-examination, Colton acknowledged that, in a 2008 statement, he told police that William showed him a copy of this letter in person while meeting with him somewhere near the Andover office of the Internal Revenue Service, and that, in a 2010 statement, he stated that William had called him and read aloud a "sick letter" that he had already sent to Jim.) Even though the allegations were false, reading the letter was "very tough" and "absolutely alarmed Uim]."

Throughout this entire time period, Colton consistently kept in contact with both defendants, letting them know what he was doing or had done to the Lyons family. William and Gail acquiesced to Colton's conduct and encouraged him to do more.

OPINION A criminal conviction under § 43A(a) requires proof that "(l) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, 'willfully and maliciously' " (citations omitted).

Although this court has previously construed the criminal harassment statute, it has not yet considered its application to the type of conduct at issue here. An analysis of whether the defendants' actions amounted to criminal harassment necessarily includes the consideration whether their conduct satisfied the statutory requirements and whether they engaged in constitutionally protected speech.

l. Facial challenge. William argues that § 43A(a) is both unconstitutionally overbroad and vague. He contends that the statute is dangerously susceptible of application to constitutionally protected speech and is so vague that it leaves the public uncertain as to the conduct it prohibits. His challenge fails on two accounts.

First, the claim is raised for the first time on appeal, and consequently is waived.

Second, the challenge fails because the statute is neither overbroad nor vague. William bears the burden of showing '"from the text of [the law] and from actual fact' ... that substantial over breadth exists" (citation omitted). As an initial matter, § 43A(a) is a statute directed at a course of conduct, rather than speech, "and the conduct it proscribes is 'not necessarily associated with speech."' In particular,§ 43A(a) specifically criminalizes "a knowing pattern of conduct or series of acts ... directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress" (emphases added) because§ 43A(a) "proscribes harassing and intimidating conduct, the statute is not facially invalid under the First Amendment."

Further, as the statute requires both malicious intent on behalf of the perpetrator and substantial harm to the victim, "it is difficult to imagine what constitutionally-protected speech would fall under these statutory prohibitions." Contrary to William's claim, the statutory elements such as "seriously alarms" "are not esoteric or complicated terms devoid of common understanding."

Together the component parts of the statute provide adequate notice and safeguards to prevent its application to protected speech. Contrary to William's claim that the statute leaves it to the hearer of the speech to determine what conduct is criminal, the Commonwealth must prove that a defendant knew he or she was engaged in a pattern of conduct that intentionally targeted a victim for the purpose of harassment with acts of such a nature that they would cause a reasonable person to suffer substantial emotional distress. This scienter requirement undermines William's claim that he could be liable under § 43A(a) if his actions were accidental and that putative harassers are at the mercy of a hearer's sensitivities. Moreover, William has offered no meaningful evidence to show that the statute has a real and substantial deterrent on protected speech or that it actually denies fair notice of what conduct is proscribed. The required elements are clearly delineated such that § 43A(a) leaves no putative harassers wondering what is prohibited. Accordingly, William's facial challenge to § 43A(a) fails.

2. As-applied challenge. The defendants as applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime. Accordingly, § 43A(a), as applied to the defendants, does not implicate constitutionally protected speech rights.

The defendants do not claim that creating fictitious Internet postings and sending a letter falsely accusing someone of a crime constitute legal conduct. Their conduct served solely to harass the Lyonses by luring numerous strangers and prompting incessant late-night telephone calls to their home by way of false representations, by overtly and aggressively threatening to misuse their personal identifying information, and by falsely accusing Jim of a serious crime. Where the sole purpose of the defendants' speech was to further their endeavor to intentionally harass the Lyonses, such speech is not protected by the First Amendment. "The [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose." The speech here was "integral to criminal conduct," serving only to implement the defendants' purpose to harass and cause substantial emotional distress to the Lyonses in violation of§ 43A(a).

The defendants point to no lawful purpose of their "communications" ... To the extent that any of the harassing contacts were composed of words, they were used "so close in time and purpose to a substantive evil as to become part of the ultimate crime itself." While the content of the speech in question certainly affected the Lyonses, much of the alarming impact was the product of the frightening number, frequency, and type of harassing contacts with which the defendants bombarded the Lyonses. In these circumstances, the application of§ 43A(a) to the defendants fully withstands constitutional scrutiny.

Nonetheless, the defendants attempt to argue that they are entitled to a required finding of not guilty on the criminal harassment charge because none of their speech constituted "fighting words" which they contend was the only form of speech punishable at the time of the offense under our interpretation of the statute ... . [We have held that] ... "any attempt to punish an individual for speech not encompassed within the 'fighting words' doctrine (or within any other constitutionally unprotected category of speech) would of course offend our Federal and State Constitutions" (emphasis added).

These well-defined and limited categories of speech "are not protected because they are 'no essential part of any exposition of ideas, and are of such slight social value as a step to truth' that whatever meager benefit that may be derived from them is 'clearly outweighed' by the dangers they pose." Speech integral to criminal conduct is one such longstanding category that is constitutionally unprotected, directly applicable to the defendants' conduct here, and permissibly proscribed by§ 43A(a). Accordingly, the denial of the defendants' motion for a required finding of not guilty on the basis that they engaged in protected First Amendment activity was not error.

3. Sufficiency of evidence. The defendants contend that there was insufficient evidence of their joint venture to criminally harass the victims, arguing that both the "directed at" and "seriously alarms" prongs of the statute were not met. In reviewing the sufficiency of the evidence, we consider the facts in the light most favorable to the Commonwealth, and determine whether any rational trier of fact could have found beyond a reasonable doubt all of the statutory elements.

a. "Directed at" prong. Section 43A(a) requires that the Commonwealth prove three or more predicate acts of harassment that were "directed at a specific person." The defendants argue that the Craigslist postings (two of the four acts supporting the harassment charge) were not directed at the victims, but were merely directed at the general public. This argument is without merit. As a factual matter, the jury clearly could have concluded that the "directed at" prong was met. While the defendants' methods were indirect, the false information in the Craigslist postings was intended solely to ensure that the victims were harassed as a consequence by unwitting third parties contacting them at all hours of the night by telephone and showing up at their home. Essentially, the "sole immediate object" of the false advertisements was to create a marketplace for the guaranteed harassment of the victims.

The defendants ... [ contend] that statements made to a third party are not speech directed at a specific person. The Craigslist postings were the equivalent of the defendants recruiting others to harass the victims and the victims alone. The causation link is satisfied. The defendants cannot launder their harassment of the Lyons family through the Internet to escape liability.

b. "Seriously alarms " prong. Section 43A(a) also requires the Commonwealth to prove that the acts of alleged harassment "seriously alarmed" the victims. The serious alarm required under § 43A(a) is a "demanding, subjective element of harm" that must be satisfied by a victim's testimony rather than conjecture. Defendants argue that (1) the Commonwealth offered insufficient proof that the victims were seriously alarmed, and (2) the victims did not experience serious alarm separately for each act, as required, rather than cumulatively as the result of the pattern of harassing acts. We disagree with both contentions.

First, the Lyonses' subjective feelings of fear and anxiety were actual (not hypothetical), significant, and well documented at trial. As a general matter, Jim and Bernadette testified that they felt "bombarded," "attacked," and "very frightened" throughout the ordeal. Jim described the thirty-five-day "odyssey" in which the defendants would "torture [them]," stating that he was concerned about the safety of his family and himself: "They attacked my business. They attacked my family. And they tried to take my kids away from me." Bernadette described the situation as "very traumatic," stating that her family was in a "siege mentality where every day something was happening so [they] got afraid."

The Lyonses were sufficiently alarmed to call the police "right away" after the very first harassing act. Jim testified that the second act "stepped it up a notch" and made him feel "terrible," and that the correspondence that he received alleging sexual molestation was "very tough" and "absolutely alarmed" him. The police took notice of and corroborated Jim's testimony that the defendants' conduct took a substantial emotional toll on him.

The Lyonses' testimony of feeling frightened, tortured, and attacked more than meets the "seriously alarms" standard. The victims testified to an abundance of distressing and alarming conduct that amounted to a serious invasion of their emotional tranquility.

The evidence at trial was sufficient to support the verdict rendered by the jury. Judgments affirmed.

Questions

1. List the facts relevant to whether Gail and/or William Johnson's were protected by the First Amendment.

2. Summarize the Commonwealth's arguments that the Johnsons' and their friend's conduct was cyberharassment.

3. Summarize the Johnsons' arguments that their conduct was protected speech.

4. In your opinion should it be cyberharassment or an exercise of First Amendment right?

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Raymond Woollard, a handgun owner, and a Second Amendment advocacy group brought an action against state officials, alleging Maryland's requirement that an applicant demonstrate "good and substantial reason" for the issuance of a handgun permit violated the Second Amendment. The U.S. District Court for the District of Maryland granted the plaintiffs' motion and denied defendants' motion for summary judgment. The Defendants appealed. The U.S Fourth Circuit Court of Appeals reversed.

Judge KING wrote the opinion, in which Judge DAVIS and Judge DIAZ joined.

On Christmas Eve, 2002, Woollard was at home with his wife, children, and grandchildren when an intruder shattered a window and broke into the house. The intruder was Kris Lee Abbott, Woollard's son-in-law. Abbott, who was high on drugs and intent on driving into Baltimore city to buy more, was looking for his wife's car keys. Woollard grabbed a shotgun and trained it on Abbott, but Abbott wrested the shotgun away. Woollard's son restored order by pointing a second gun at Abbott. Woollard's wife called the police, who took two and-a-half hours to arrive.

Abbott, the son-in-law, received a sentence of probation for the Christmas Eve 2002 incident, but was subsequently incarcerated for probation violations. Woollard's 2006 permit renewal came shortly after Abbott was released from prison. In 2009, however, the Secretary (via the Handgun Permit Unit) and the Handgun Permit Review Board refused Woollard a second renewal because he failed to satisfy the good-and-substantial-reason requirement.

The Handgun Permit Review Board's decision of November 12, 2009, reflected that Woollard proffered solely the Christmas Eve 2002 incident in support of his request for a second renewal-i.e., as evidence that such a renewal was necessary as a reasonable precaution against apprehended danger-though he acknowledged that he had "not had any contact with his son-in-law in the seven years since the 2002 incident."

The decision also observed that, despite being advised that such proof was required in the circumstances of his renewal application, Woollard did not "submit documented threats or incidents that had occurred in the last three years," nor did he provide "documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun." Accordingly, the Permit Review Board concluded that Woollard had "not demonstrated a good and substantial reason to wear, carry, or transport a handgun as a reasonable precaution against apprehended danger," and upheld the Permit Unit's denial of a second permit renewal. Instead of employing the state court appeal process provided by Maryland law, Woollard elected to join with Appellee Second Amendment Foundation in this federal action, challenging the constitutionality of the good-and-substantial-reason requirement and asserting jurisdiction under 28 U.S.C. § § 1331 and 1343.

Under its permitting scheme, Maryland obliges "a person to have a permit issued before the person carries, wears, or transports a handgun." (Md. Code Ann., Pub. Safety § 5-303). Such permits are not needed, however, by persons in numerous specified situations, including those who are wearing, carrying, and transporting handguns in their own homes and businesses or on other real estate that they own or lease.

Where a permit is mandated, a permitless person risks criminal penalties by "wear[ing], carry[ing], or transport(ing] a handgun, whether concealed or open, on or about the person" or "in a vehicle." Those penalties begin with imprisonment for a term of thirty days to three years, or a fine of $250 to $2500, or both.

In the present case, although the district court acknowledged "that one should venture into the unmapped reaches of Second Amendment jurisprudence 'only upon necessity and only then by small degree,"' the district court concluded that the individual right to possess and carry weapons for selfdefense is not limited to the home.

We now know, in the wake of the Supreme Court's decision in District of Columbia v. Heller, that the Second Amendment guarantees the right of individuals to keep and bear arms for the purpose of self-defense. Heller, however, was principally concerned with the "core protection" of the Second Amendment: "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." The Heller Court concluded that the District of Columbia's outright ban on the possession of an operable handgun in the home-proscribing "the most preferred firearm in the nation to keep and use for protection of one's home and family"-would fail to pass muster "under any of the standards of scrutiny that we have applied to enumerated constitutional rights." Otherwise, the Court recognized that "the right secured by the Second Amendment is not unlimited" and listed examples of "presumptively lawful regulatory measures," but declined to "clarify the entire field" of Second Amendment jurisprudence.

Two years after issuing its Heller decision, in McDonald v. City of Chicago, the Supreme Court recognized that "the Second Amendment right is fully applicable to the States," and reiterated Heller's holding "that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense." Accordingly, a considerable degree of uncertainty remains as to the scope of the Heller right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation. What we know from Heller and McDonald is that Second Amendment guarantees are at their zenith within the home. What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government."

Like several of our sister circuits, we have found that a two-part approach to Second Amendment claims seems appropriate under Heller. Pursuant to our two-part Chester inquiry, [t]he first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.

Although the Supreme Court's cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court's analysis suggests that the Amendment must have some application in the very different context of the public possession of firearms. Our analysis proceeds on this assumption." A handful of courts-most prominently the Seventh Circuit have declared outright that the Heller right extends beyond the home. Other courts have ruled to the contrary, concluding that the Heller right is confined to the home. Notably, Maryland's highest court falls within the latter category.

We hew to a judicious course today, refraining from any assessment of whether Maryland's goodand-substantial-reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and substantial-reason requirement passes constitutional muster under what we have deemed to be the applicable standard-intermediate scrutiny.

. . .Intermediate scrutiny applies to laws that burden any right to keep and bear arms outside of the home. We assume that any law that would burden the fundamental, core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense. Because our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public, we conclude that intermediate scrutiny is appropriate in this case.

The State has satisfied the intermediate scrutiny standard, in that it has demonstrated that the good and-substantial-reason requirement for obtaining a Maryland handgun permit, as applied to Woollard, "is reasonably adapted to a substantial governmental interest."

We begin with the issue of whether the governmental interest asserted by the State constitutes a "substantial" one. The State explains that, by enacting the handgun permitting scheme, including the good-and-substantial-reason requirement, the General Assembly endeavored to serve Maryland's concomitant interests in protecting public safety and preventing crime-particularly violent crime committed with handguns. Such purpose is reflected in codified legislative findings that 1. the number of violent crimes committed in the State has increased alarmingly in recent years; 2. a high percentage of violent crimes committed in the State involves the use of handguns; 3. the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals; 4. current law has not been effective in curbing the more frequent use of handguns in committing crime; and 5. additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.

In these circumstances, we can easily appreciate Maryland's impetus to enact measures aimed at protecting public safety and preventing crime, and we readily conclude that such objectives are substantial governmental interests.

We thus turn to the question of whether the good-and-substantial-reason requirement, as applied to Appellee Woollard, is "reasonably adapted" to Maryland's significant interests. That is, we must decide if the State has demonstrated that there is a "reasonable fit" between the good-and-substantial reason requirement and the governmental objectives of protecting public safety and preventing crime. Importantly, the State must show a fit that is "reasonable, not perfect." That test is satisfied if Maryland's interests are "substantially served by enforcement of the" good-and-substantial-reason requirement. There is no necessity either that the good-and-substantial reason requirement "be the least intrusive means of achieving the relevant government objectives, or that there be no burden whatsoever on" Woollard's Second Amendment right.

The State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carrying of handguns protects citizens and inhibits crime by, inter alia: • Decreasing the availability of handguns to criminals via theft (criminals often target victims "precisely because they possess handguns." "Criminals in Maryland are constantly looking for ways to arm themselves with handguns, including by stealing them from others. It is not uncommon for criminals to obtain these guns during street altercations." • Lessening "the likelihood that basic confrontations between individuals would turn deadly." Incidents such as bar fights and road rage that now often end with people upset, but not lethally wounded, take on deadly implications when handguns are involved; • Averting the confusion, along with the "potentially tragic consequences" that can result from the presence of a third person with a handgun during a confrontation between a police officer and a criminal suspect. Civilians without sufficient training to use and maintain control of their weapons, particularly under tense circumstances, pose a danger to officers and other civilians; • Curtailing the presence of handguns during routine police-citizen encounters ( "If the number of legal handguns on the streets increased significantly, [police] officers would have no choice but to take extra precautions before engaging citizens, effectively treating encounters between police and the community that now are routine, friendly, and trusting, as high-risk stops, which demand a much more rigid protocol and a strategic approach."); • Reducing the number of "handgun sightings" that must be investigated, id. ("Increasing the number of people legally carrying handguns in the streets will also force [police] officers to spend more resources responding to reports about handgun sightings and engaging handgun carriers to ensure they are doing so lawfully."); and • Facilitating the identification of those persons carrying handguns who pose a menace, id. at 113 ( "Police officers would also have a harder time identifying potential security risks if more people without good and substantial reason to carry a handgun were able to do so, making it more difficult to respond when necessary.").

At the same time that it reduces the number of handguns carried in public, however, the good-and substantial-reason requirement ensures that those persons in palpable need of self-protection can arm themselves in public places where Maryland's various permit exceptions do not apply. Consequently, according to the State, the good-and-substantial-reason requirement "strikes a proper balance between ensuring access to handgun permits for those who need them while preventing a greater-than-necessary proliferation of handguns in public places that ... increases risks to public safety."

We are convinced by the State's evidence that there is a reasonable fit between the good-and substantial-reason requirement and Maryland's objectives of protecting public safety and preventing crime.

The good-and-substantial-reason requirement was inappropriately condemned by the district court for being a "rationing system," that "does no more to combat [threats to public safety] than would a law indiscriminately limiting the issuance of a permit to every tenth applicant." The court pointed out, inter alia, that the good-and-substantial reason requirement "will not prevent those who meet it from having their guns taken from them." But we cannot substitute those views for the considered judgment of the General Assembly that the good-and-substantial-reason requirement strikes an appropriate balance between granting handgun permits to those persons known to be in need of self protection and precluding a dangerous proliferation of handguns on the streets of Maryland. The duty of the courts is to ensure that the legislature's policy choice substantially serves a significant governmental interest. That is, the courts must be satisfied that there is a reasonable fit between the legislative policy choice and the governmental objective. Intermediate scrutiny does not require a perfect fit; rather only a reasonable one.

In summary, although we assume that Appellee Woollard's Second Amendment right is burdened by the good-and-substantial-reason requirement, we further conclude that such burden is constitutionally permissible. That is, under the applicable intermediate scrutiny standard, the State has demonstrated that the good-and-substantial-reason requirement is reasonably adapted to Maryland's significant interests in protecting public safety and preventing crime.

Questions

1. Summarize the facts relevant to deciding whether Maryland's "good-and-substantial-reason requirement" violates the Second Amendment.

2. Summarize Raymond Woollard's arguments that the requirement violated his Second Amendment rights.

3. Summarize the Court's arguments upholding the requirement against Woollard's challenge.

4. In your opinion, is the good-and-substantial reason requirement "reasonably adapted to a substantial governmental interest"? Defend your answer.

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Patrick Kennedy was convicted of the aggravated rape of his eight-year-old stepdaughter under a Louisiana statute that authorized capital punishment for the rape of a child under 12 years of age and was sentenced to death. On his appeal, the Supreme Court of Louisiana affirmed. Kennedy petitioned for certiorari, which was granted. The U.S. Supreme Court reversed and remanded.

At 9:18 A.M. on March 2, 1998, Patrick Kennedy called 911 to report that his stepdaughter, L. H., had been raped. When police arrived at Kennedy's home between 9:20 and 9:30 A.M. , they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Kennedy told police he had carried her from the yard to the bathtub and then to the bed. Once in the bedroom, Kennedy had used a basin of water and a cloth to wipe blood from the victim.

L. H. was transported to the Children's Hospital. An expert in pediatric forensic medicine testified that L. H.'s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery. At the scene of the crime, at the hospital, and in the first weeks that followed, both L. H . and Kennedy maintained in their accounts to investigators that L. H. had been raped by two neighborhood boys. L. H . was interviewed several days after the rape by a psychologist. She told the psychologist that she had been playing in the garage when a boy came over and asked her about Girl Scout cookies she was selling; then that the boy "pulled her by the legs to the backyard," where he placed his hand over her mouth, "pulled down her shorts," and raped her.

Eight days after the crime, and despite L. H.'s insistence that Kennedy was not the offender, Kennedy was arrested for the rape. The state's investigation had drawn the accuracy of Kennedy and L. H.'s story into question. Police found that Kennedy made two telephone calls on the morning of the rape. Sometime before 6:15 A.M., Kennedy called his employer and left a message that he was unavailable to work that day. Kennedy called back between 6:30 and 7:30 A.M. to ask a colleague how to get blood out of a white carpet because his daughter had "just become a young lady." At 7:37 A.M., Kennedy called B & B Carpet Cleaning and requested urgent assistance in removing bloodstains from a carpet. Kennedy did not call 911 until about an hour and a half later.

About a month after Kennedy's arrest, L. H. was removed from the custody of her mother, who had maintained until that point that Kennedy was not involved in the rape. On June 22, 1998, L. H . was returned home and told her mother for the first time that Kennedy had raped her. And on December 16, 1999, about 21 months after the rape, L. H . recorded her accusation in a videotaped interview with the Child Advocacy Center.

The state charged Kennedy with aggravated rape of a child under La. Stat. Ann. § 14:42 (West 1997 and Supp. 1998) and sought the death penalty. According to the statute, "aggravated" applies to anal or vaginal rape without the consent of the victim when it's committed under any of 10 aggravating circumstances, one of which is when the victim was under 12 years of age at the time of the rape. The penalty for aggravated rape is life in prison at hard labor without parole, probation, or suspension of sentence. But, if the victim is under 12, the prosecutor asks for the death penalty: "The offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury."

The trial began in August 2003. L. H. was then 13 years old. She testified that she "woke up one morning and Patrick was on top of her." She remembered Kennedy bringing her "a cup of orange juice and pills chopped up in it" after the rape and overhearing him on the telephone saying she had become a "young lady." L. H. acknowledged that she had accused two neighborhood boys but testified Kennedy told her to say this and that it was untrue. After the jury found Kennedy guilty of aggravated rape, the penalty phase ensued. The jury unanimously determined that Kennedy should be sentenced to death. The Louisiana Supreme Court affirmed. We granted certiorari.

The Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail. The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society.

Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution. In these cases the Court has been guided by objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose.

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions-36 States plus the Federal Government-have the death penalty. Only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, Kennedy could not be executed for child rape of any kind.

There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society. These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape.

Louisiana is the only State since 1964 that has sentenced an individual to death for the crime of child rape; and Kennedy and Richard Davis, who was convicted and sentenced to death for the aggravated rape of a 5-year-old child by a Louisiana jury in December 2007, are the only two individuals now on death row in the United States for a nonhomicide offense. After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.

Objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. It is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty. We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures.

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. Rape has a permanent psychological, emotional, and sometimes physical impact on the child. We cannot dismiss the years of long anguish that must be endured by the victim of child rape.

It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish be exercised within the limits of civilized standards. Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime.

It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment. We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim. Short of homicide, it is the ultimate violation of self. But the murderer kills; the rapist, if no more than that, does not. We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability.

The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. This case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified "a national consensus" that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its "independent judgment," that imposing the death penalty for child rape is inconsistent with "the evolving standards of decency that mark the progress of a maturing society." Because neither of these justifications is sound, I respectfully dissent.

I turn first to the Court's claim that there is "a national consensus" that it is never acceptable to impose the death penalty for the rape of a child. I believe that the "objective indicia" of our society's "evolving standards of decency" can be fairly summarized as follows. Neither Congress nor juries have done anything that can plausibly be interpreted as evidencing the "national consensus" that the Court perceives. State legislatures, for more than 30 years, have operated under the ominous shadow of the Coker dicta [cruel and unusual punishment to execute a man for raping an adult woman] and thus have not been free to express their own understanding of our society's standards of decency. And in the months following our grant of certiorari in this case, state legislatures have had an additional reason to pause. Yet despite the inhibiting legal atmosphere that has prevailed since 1977, six States have recently enacted new, targeted child-rape laws.

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court's "own judgment" regarding "the acceptability of the death penalty." The Court's final-and, it appears, principal-justification for its holding is that murder, the only crime for which defendants have been executed since this Court's 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public.

Is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists- predators who seek out and inflict serious physical and emotional injury on defenseless young children- are the epitome of moral depravity.

With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. The rape of any victim inflicts great injury, and some victims are so grievously injured physically or psychologically that life is beyond repair. The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped. Long-term studies show that sexual abuse is grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.

The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to "decency," "moderation," "restraint," "full progress," and "moral judgment" are not enough.

The party attacking the constitutionality of a state statute bears the "heavy burden" of establishing that the law is unconstitutional. That burden has not been discharged here, and I would therefore affirm the decision of the Louisiana Supreme Court.

Questions

1. According to the Court, why is death a disproportionate penalty for child rape? Do you agree? Explain your reasons.

2. Who should make the decision as to what is the appropriate penalty for crimes? Courts? Legislatures? Juries? Defend your answer.

3. In deciding whether the death penalty for child rape is cruel and unusual, is it relevant that Louisiana is the only state that punishes child rape with death?

4. According to the Court, some crimes are worse than death. Do you agree? Is child rape one of them? Why or why not?

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Omer Ninham (Defendant) was convicted of firstdegree intentional homicide and was sentenced to life in prison without possibility of parole. Ninham filed a motion for relief from his life sentence, seeking to allow for the possibility of parole. The Circuit Court denied the motion. Ninham appealed. The Supreme Court affirmed.

On September 24, 1998, around dusk, 13-year-old Vang was bicycling home along Webster Avenue in Green Bay, Wisconsin. Vang's older brother had sent Vang to the grocery store for tomatoes. Vang was returning home on his bicycle, carrying a plastic grocery bag filled with tomatoes, when he was approached by five juveniles: 14-year-old Ninham, 13-year-old Richard Crapeau (Crapeau), 13-yearold Jeffrey P., 14-year-old Amanda G., and 14-yearold Christin J.

Ninham and the other four juveniles did not know or recognize Vang. Moreover, by all accounts, Vang never said or did anything to provoke the five juveniles. Rather, at the time, Crapeau was upset with his mother and "wanted to fight or see a fight." Consequently, Crapeau said to Ninham, "Let's mess with this kid," and Ninham responded, '"I got your back,' meaning he would back [Crapeau] up in a fight." Ninham and Crapeau began by verbally taunting Vang, while the other three juveniles "egg[ed]" them on. Ninham and Crapeau's assaults escalated into physical attacks. Crapeau bumped into Vang's shoulder and yanked his bicycle away from him. Crapeau also grabbed Vang's grocery bag out of his hands and threw it in the direction of St. Vincent's Hospital, located along the same street. When Vang asked for his bicycle back, Ninham punched Vang, knocking him down.

Vang got up and started running towards the nearby St. Vincent's Hospital parking ramp. All five juveniles chased after Vang, eventually catching up to him on the top, or fifth floor, of the parking ramp. When they caught up to him, Crapeau punched Vang in the face. Vang repeatedly asked why they were trying to hurt him and pleaded with them to leave him alone. Instead, Ninham and Crapeau began pushing Vang back and forth between them, in a game Jeffrey P. referred to as "chicken." Ninham punched Vang in the chest as he pushed him back and forth. Ninham then pinned Vang by his wrists against the parking ramp's concrete wall. While Vang squirmed to get out of Ninham's grasp, Crapeau again punched Vang in the face. According to Crapeau, Vang was crying and screaming, "Let me go."

With Ninham still holding Vang by his wrists, Crapeau grabbed Vang's ankles. Ninham and Crapeau then began swinging Vang back and forth out over the parking ramp's concrete wall-a drop that measured nearly 45 feet to the ground. Vang was crying and screaming, begging Ninham and Crapeau not to drop him. While swinging Vang out over the wall, Crapeau let go of Vang's feet and told Ninham to "drop him." Ninham let go of Vang's wrists, and in Crapeau's words, Vang "just sailed out over the wall."

Vang landed on his back on the parking ramp's paved exit lane, 12 feet from the base of the ramp. Rescue personnel, dispatched at 8:03 P.M., detected a faint pulse from Vang. Vang was transported to St. Vincent's Hospital where physicians were unable to revive him. An autopsy revealed that Vang suffered a blunt impact to his head and trunk and died from craniocerebral trauma due to a fall from height.

Ninham and the other four juveniles never checked on Vang's condition and instead ran from the scene. Still, the Green Bay Police Department was able to focus its investigation on the five juveniles after some of them, in particular, Jeffrey P. and Amanda G., indicated to relatives and police that they knew who was responsible for Vang's death. In his statement to police, Jeffrey P. described how Ninham stood for several seconds looking over the edge of the wall at Vang below. Ninham then looked at Jeffrey P. and said, "Don't say nothing. Better not say shit."

The pre-sentence investigation (PSI) revealed that "Ninham emanates from an extremely dysfunctional family structure," in which both of his parents and several of his siblings engage in severe substance abuse and domestic violence. The PSI described Ninham as a "serious substance abuser" who snorted cocaine on a weekly basis and, since grade school, drank alcohol every day, often alone, and usually to the point of unconsciousness. The PSI also revealed that Ninham, a member of the Menominee Indian Tribe, claimed to have a newfound interest in Native American spirituality.

In addition, the PSI described the Vang family as devastated by the loss of their son and brother. Vang's parents indicated that they fled Laos and Thailand because they believed that the United States would be a safer and more prosperous country to raise their children; however, according to the Yangs, they fled evil only to discover it in a different place. Vang's parents further expressed that they had lost faith in the basic goodness of people and that their remaining children are fearful of leaving the safety of their home.

Relevant to this case, at the sentencing hearing, Vang's brother, Seng Say Vang (Seng Say), gave a statement on behalf of Vang's family and friends. Seng Say asked the circuit court to impose on Ninham the maximum sentence of life imprisonment without parole .... Seng Say then articulated to the circuit court a belief held by his family's Hmong culture: In our Hmong culture we believe that the spirit of a murdered person cannot be set free to go in peace until the perpetrators be brought to justice. Therefore, we ask the Court, who is the only one to have the power to set free the spirit of our beloved son, brother, and friend, Zong, to go in peace by bringing Omer Ninham and his accomplices to justice.

Ninham also spoke at sentencing. He told the circuit court that he was sorry about Vang's death, but "there wasn't nothing I could do. I wasn't there. I'm going to keep saying that until the day I die. I was not there, and that's the honest truth."

In imposing Ninham's sentence, the circuit court considered three primary factors: the gravity of the offense, the character of the offender, and the need to protect the public. First, the circuit court regarded the gravity of the offense as "beyond description" and indisputably "horrific." The circuit court noted that the offense has had an indescribable impact on Vang's family and friends and on the Green Bay community. Second, concerning the character of the offender, the circuit court "conceded for the sake of discussion that Omer Ninham is a child" but nevertheless described Ninham as "a frightening young man." The circuit court acknowledged that Ninham derives from a dysfunctional family but refused to let that excuse Ninham's conduct, explaining that Ninham is "a child of the street who knew what he was doing .... " Third, the circuit court reasoned that the community needs to be protected from Ninham: "Society needs to know, and especially this community needs to know, that you can send your child to the grocery store and expect to see him again."

First, we hold that sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional. We arrive at our holding by applying the two-step approach employed by the United States Supreme Court, most recently in Graham, 130 S. Ct. 2011. First, we conclude that Ninham has failed to demonstrate that there is a national consensus against sentencing a 14-year-old to life imprisonment without parole when the crime is intentional homicide. Second, we conclude in the exercise of our own independent judgment that the punishment is not categorically unconstitutional.

In regard to Ninham's second argument, we conclude that his sentence of life imprisonment without the possibility of parole is not unduly harsh and excessive. Under the circumstances of this case, Ninham's punishment is severe, but it is not disproportionately so.

Third, we conclude that Ninham has not demonstrated by clear and convincing evidence that the scientific research on adolescent brain development to which he refers constitutes a "new factor." While the studies themselves may not have been in existence at the time of Ninham's sentencing, the conclusions they reached were widely reported.

Fourth, we conclude that Ninham has not demonstrated by clear and convincing evidence that the circuit court actually relied upon the religious beliefs of Vang's family when imposing Ninham's sentence. The decision of the court of appeals is affirmed.

The Eighth Amendment cruel and unusual punishment issue before this court is easy to state and difficult to decide. The question before the court is the constitutionality of imposing a death-in-prison sentence on a 14-year-old juvenile boy who committed an intentional, brutal, senseless, grotesque, reprehensible murder of a 13-year-old innocent stranger.

In Wisconsin, both the adult offender and the juvenile offender (10 years old or older) who have committed first-degree intentional homicide are treated the same: the maximum penalty is a death-in-prison sentence, that is, life in prison without the possibility of parole. The circuit court need not impose this maximum sentence. It did in the present case.

A death-in-prison sentence is the most severe penalty authorized in Wisconsin. This penalty means that "whatever the future might hold in store for the mind and spirit of the young juvenile, he will remain in prison for the rest of his days. A death-in-prison sentence is an especially severe punishment, made harsher for a young juvenile 14 years old or younger because of the increased time and proportion of life that the juvenile will serve in prison.

I conclude, as has the United States Supreme Court (Roper v. Simmons, 543 U.S. 551 [2005]), that the differences between juveniles and adults mean that juvenile offenders "cannot with reliability be classified among the worst offenders." The three general differences are: (1) juveniles have a lack of maturity and an underdeveloped sense of responsibility resulting in impetuous and ill-considered actions and decisions; (2) juveniles are more susceptible to negative influences and outside pressures; and (3) the character of a juvenile is not as well formed as that of an adult.

Retribution is a legitimate penological goal, but retribution "must be directly related to the personal culpability of the criminal offender." The case for retribution is not as strong with a minor as with an adult." Accordingly, I conclude, that a juvenile cannot be sentenced to life without parole for a homicide committed when 14 years old or younger.

Questions

1. Summarize the majority's four reasons for deciding that Omer Ninham's sentence to life in prison without possibility of parole is not cruel and unusual punishment.

2. Summarize the dissent's reason for arguing that "death in prison" for a juvenile is cruel and unusual punishment.

3. The U.S. Supreme Court has agreed to hear the case in 2012. In your opinion, how should SCOTUS rule? Defend your answer.

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