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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”

Jan reports:
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,
[“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:

Jan writes:
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 Defense Fund.”.

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