Petition for Writ - Stephen Halbrook

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properly in Peoples Rights Organization, Inc. v. City of
Columbus, 152 F.3d at 533, which also held “assault weapon”
definitions to be facially vague under the principle, “When criminal
penalties are at stake . . . a relatively strict test is warranted.” “We
also must consider whether the statute contains a scienter
requirement or imposes strict liability. . . . Indeed, ‘[i]n the absence
of a scienter requirement . . . [a] statute is little more than a trap
for those who act in good faith.’” Id. at 534, quoting Colautti, 439
U.S. at 395.
The Ninth Circuit agrees that the strict test for vagueness
applies regardless of whether constitutionally-protected conduct is
implicated. Forbes v. Napolitano, 236 F.3d 1009, 1011-12 (9th
Cir. 2000) (invalidating on its face a prohibition on medical
procedures on certain fetal tissue due to the vagueness of the terms
“experimentation,” “investigation,” and “routine”). The court stated
the rule as follows:
If a statute subjects transgressors to criminal
penalties, as this one does, vagueness review is even more
exacting. . . . In addition to defining a core of proscribed
behavior to give people constructive notice of the law, a
criminal statute must provide standards to prevent arbitrary
enforcement. . . . Without such standards, a statute would
be impermissibly vague even if it did not reach a substantial
amount of constitutionally protected conduct, because it
would subject people to the risk of arbitrary deprivation of
their liberty. . . . Regardless of what type of conduct the
criminal statute targets, the arbitrary deprivation of liberty
is itself offensive to the Constitution’s due process
guarantee.
Id. (citations omitted).
The court of appeals here had “some concerns with” the