In United States v. Wasylyshyn, No. 18-1344 (2d Cir. Nov. 3, 2020), the Second Circuit affirms a misdemeanor conviction for creating a “loud or unusual noise or a nuisance” in the courthouse, in violation of 41 C.F.R. § 102-74.390(a) (the “Noise Regulation”).
Defendant Wasylyshyn arrived at the Federal Building and U.S. Courthouse in Binghamton, New York around noon to pick up tax forms from a self-service rack. She arrived while a political demonstration was gathering outside. The court security officers (CSOs) handled her arrival warily.
The CSOs told Wasylyshyn that she could only get into the Internal Revenue Service offices by appointment and offered to retrieve the tax forms for her. According to the CSOs’ testimony, the defendant became “agitated” and starting using a “very loud” voice. She yelled at one CSO that she “pays [his] salary,” that he was “a public servant,” and that he “ha[s] to do what she tells [him] to do.” The CSOs reportedly also began to raise their voices and to gesture at Wasylyshyn.
The altercation accelerated and eventually one CSO named Canfield “advanced several steps toward Wasylyshyn, pointing and appearing to speak aggressively, while Wasylyshyn continued to retreat. Eventually, Wasylyshyn stopped, stepped toward Canfield, and thrust her face toward Canfield’s face. [The court] found based on the video footage that Wasylyshyn ‘stepp[ed] toward the CSO[,] . . . getting extremely close to him, if not touching him.’ … Canfield testified that Wasylyshyn made contact with him in ‘kind of a belly bump.’ … Canfield then placed Wasylyshyn under arrest, taking hold of her arm and directing her back to the security desk.”
At a bench trial, a magistrate judge convicted Wasylyshyn of violating the Noise Regulation and sentenced her to pay a $50 fine (and a $30 processing fee).
The Second Circuit affirms. Wasylyshyn challenged the lack of notice, the absence of criminal intent, and the vagueness of the Noise Regulation. The first argument – that the statutorily-mandated notice of the rule was not posted where she could read it – is held waived because it was not presented in the district court.
The second argument addressed what state of mind (mens rea) the Noise Regulation requires for conviction. The defendant argued that the regulation requires proof that she lacked “knowledge that the action is wrongful” under the regulation. But the Second Circuit holds that the defendant need only have a general, not specific, intent to violate the regulation. “Courthouses are formal spaces where solemn government business takes place; a reasonable person would understand that shouting at security officers in a courthouse is a ‘non-innocent act,’ likely subject to some form of regulation.” The record showed that “Wasylyshyn was shouting at [the CSOs], that her voice could be heard from 40 to 45 feet away, and that she kept shouting after being told to calm down,” which is enough to infer that the defendant “knowingly created a loud noise or a nuisance.”
Finally, the defendant argued that “the Noise Regulation is unconstitutionally vague as applied to her conduct in this case …. Wasylyshyn submits that she ‘could not have reasonably understood that her conduct was prohibited by the regulation’; and second, she asserts that the language of the regulation is ‘sufficiently indefinite to allow the CSOs to engage in arbitrary and discriminatory law enforcement, motivated more by the content of [her] words than the volume of her voice.’”
The Second Circuit discerns no vagueness in the “loud” or “unusual” prohibition, as applied in this case. “In Wasylyshyn’s case, the regulation was applied in the highly secured and regulated space of a federal courthouse. In this particular setting, reasonable people can discern with relative ease whether a noise is ‘loud’ or ‘unusual’ and whether conduct constitutes a nuisance. We have little doubt that, inside a federal courthouse, a reasonable person would discern that ‘yelling’ at a CSO constitutes creating a ‘loud noise.’”
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