Selected Articles from our
The C.A.S.H. Courier
ARTICLE from the Winter 2009 Issue
Citizens Impacted by Armed Men Killing Animals
Proceeding And Succeeding
Jan Haagensen Esq. Takes on the Commonwealth of Pennsylvania
By Peter Muller
Challenging a statute on constitutional grounds can take two tracks: the
“as applied” route and the “facial” route.
Let’s see how each approach could play out and what the consequence of
each of them would be for establishing case-law and precedents.
Let’s assume a hunter-harassment statute is in place and prohibits
attempting to engage hunters in a conversation while they are hunting.
Ms. AsApplied approached a hunter on a hill near her farm and said to him
“Please don’t shoot near my farm I’m very concerned about my livestock being
hit by stray bullets.” She is charged with hunter-harassment under the
state’s hunter-harassment statute.
Her attorney pleads in court that this instance of speaking to the hunter
was protected speech under the first amendment and so the statute cannot be
applied in this instance.
The attorney stipulates (concedes) that the statute can be very useful
and can be validly used in prosecuting instances of unprotected speech – but
in Ms. AsApplied’s case, her first amendment rights trump the state law and
it cannot be applied.
If the court agrees with this argument, the case against Ms. AsApplied will
be dismissed and, in future cases of a similar nature in that state,
defendants can cite that case as a precedent against conviction under the
state hunter-harassment statute.
Now let’s look at the case of Mr. Facial. He approached a hunter on a
hill near his farm and said to him “Look here you idiot! If you don’t get
off this hill in 30 seconds I’ll get my gun and blow your stupid head off!”
He is also charged with hunter-harassment.
His attorney pleads in court that although the expression used by Mr.
Facial is not protected speech under the first amendment, the statute is so
broad in its terms that it is patently in conflict with the first amendment.
It outlaws all speech (whether protected or not) aimed at hunters who are
lawfully engaged in hunting and therefore the entire statute is null and
void. Consequently, his client cannot be charged under that statute.
If the court agrees with this argument the entire statute is declared
null and void. No further charges can be brought under that statute and it
sets an important precedent that can be cited for invalidating similar
statutes in other states.
From the point of view of the animal protective movement, a “facial”
argument and court decision against a hunter-harassment statute is of much
greater value than an “as-applied” argument and decision.
Jan Haagensen is now proceeding in her federal suit against the
Pennsylvania State Police, after her successful appeal in the Pennsylvania
Court of Appeals setting aside her nine convictions of hunter-harassment in
the local trial court.
She is challenging the Pennsylvania hunter-harassment statute both “as
applied” in her case as well as “facial”
The best thing to come out of my ongoing federal suit (Haagensen v.
Pennsylvania State Police, et al.) is the decision that has been made in the
Magistrate Judge’s Report to the effect that my facial and as-applied
challenges to the hunter harassment statute (based on vagueness and
over-breadth of the statute) both stay in the case and will not be dismissed
merely because the statute contains a specific intent requirement. The judge
recognized that the as-applied challenge to the statute was certainly not
[“mooted” here means “having no practical importance” “being irrelevant
since it has been previously decided or settled.”]
because the Commonwealth
seems to have learned nothing from the loss of nine prosecutions, argues
vehemently for the constitutionality of the statute, and seems eager to
apply it to protected speech all over again.
This will be a case of first impression, [“a case of first impression” is a legal case in which there is no
existing binding authority on the matter therefore calling upon the current
court to establish a new ruling ] and it will set precedent, because no
court has ever fully addressed a facial challenge to the constitutionality
of the Pennsylvania hunter harassment statute. Winning would provide
concerned citizens with the blueprint for challenging the constitutionality
of hunter harassment law in every other state in the union.
The judge has not yet made a ruling that the statute is overbroad, or
void for vagueness, but has announced that these issues will definitely be
decided by the federal court after the record has been further developed.
The Commonwealth’s determined attempt to stop this from happening, in their
motion to dismiss, has failed.
Therefore: the constitutional challenge to the hunter harassment statute
and §2709 (the criminal harassment statute) against the State Police and the
Game Commission … will be heard.
The judge has not yet ruled as to the merits of Jan’s argument in this
case but has rejected the arguments of the Commonwealth of Pennsylvania
attorneys to dismiss these arguments. Of course, the Commonwealth of
Pennsylvania attorneys see it as their most important mission to prevent a
fair hearing of the facial argument against the constitutionality of the
Pennsylvania. They lost round #1 against Jan and the issue will be heard and
decided on the merits of the arguments. This is not yet the ultimate and
major victory we are anticipating as the outcome of this case but it is a
major step in that direction.
We can’t speculate whether that decision indicates a basic sympathy of
the judge to grant the facial case or is “merely” an attempt to be fair.
Nevertheless, it is a major step forward.
Jan is not only seeking to overturn the hunter-harassment statute but
also seeking monetary indemnity from the gratuitous actions of the state
police in citing her with nine charges of hunter-harassment. On that matter
the judge has indicated less sympathy to Jan’s case:
The not-so-good news is that the judge has attempted to dismiss my damages
claims for malicious prosecution against the Commonwealth Defendants, on
grounds that a necessary element of this claim is a “deprivation of liberty”
or “seizure” as a consequence of a legal procedure. The Magistrate argues
that I was not “arrested” when I was handed citations, and therefore cannot
state a necessary element of the claim.
Jan now needs our support more than ever to allow her to proceed in this
matter of major significance to the animal protection movement. Please be
generous in sending contributions to C.A.S.H. earmarked for the “Legal
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