Saturday, November 22, 2014

Case o' The Week: "Question the Wisdom or Necessity" - Agront and Void for Vagueness Due Process Challenges

Lucky Lear.  The King's agitated confrontation with his supportive adult child didn’t take place in a VA parking lot. 
  (He’d have been arrested and convicted for “loud and boisterous conduct.”)
 United States v. Agront, No. 12-10218 (9th Cir. Nov. 21, 2014), decision available here.

Players: Opinion by Judge Fisher, joined by Judges Thomas and Berzon. Hard fought appeal by AFPDs Heather Angove and Cynthia Lie, ND Cal FPD.

Facts: Louis Agront Sr., a vet, was having problems. He had been having knee and foot pain, and agreed when his adult son and daughters asked him to go to the VA hospital in Palo Alto. Slip Op. at 3. Unbeknownst to him, the kids were taking them to the VA because they were concerned about recent changes to his behavior. Id. When he learned of the ruse the first trip, Agront refused treatment and began walking home. His children tried again, and brought him back – (falsely) assuring him he’d see a normal podiatrist if he returned. Id. Agront’s encounter with a VA nurse and social worker did not go well: he paced, had pressured and quick speech, and stormed off away from the hospital. Id. at 4. Agront’s son confronted him the parking lot, about 25 yards away. Id. Their yelling prompted the social worker to call the VA police; the cops arrested Agront (but not his son), and Agront was ultimately charged with disorderly conduct which created a loud, boisterous, or unusual noise (a Class B misdemeanor). Id. at 6. A federal magistrate judge denied the defense Due Process motion to dismiss because the regulation was void for vagueness, and convicted Agront after a bench trial. Id. The district court affirmed.

Issue(s): “[Agront] . . . argues that that, as applied to his conduct, the regulation is manifestly vague even under [his proposed narrowing] interpretation because he was cited for violating the regulation, but no citation was given to his son or to a patient playing loud music from a radio earlier that day.” Id. at 8.

Held:Applying [Agront’s proposed] reasonable construction of the regulation, Agront’s conduct was clearly prohibited.” Id. at 13. “We hold that disorderly conduct creates sufficiently loud, boisterous, and unusual noise to be prohibited under § 1.218(a)(5) and (b)(11) when such conduct would tend to disturb the normal operation of the VA facility. Applying that interpretation of the regulation, we affirm Agront’s conviction.” Id. at 17.

Of Note: How does the Ninth feel, about the vital federal interest in prosecuting an upset vet, struggling with his adult kids who are trying to help him as he wrestles with emotional or mental health issues? Judge Fisher sums it up well: “One may reasonably question the wisdom or necessity of the citation, and of the prosecution that followed, but Agront has not shown it was unconstitutional.” Id. at 14. Notably, the Court then drops a footnote to the VA’s own regulations, that caution that arrest is generally not the appropriate remedy for disruptive patients. Id. at 14 & n. 6.

How to Use: While the defense lost the (hard fought) war, it won an important battle: a new and narrowed standard for disorderly conduct. Judge Fisher explains, “The VA facility context therefore requires adopting the controlling standard of conduct for which Agront advocates: the quantum of ‘[d]isorderly conduct which creates loud, boisterous, and unusual noise’ that is required to violate the regulation is conduct sufficiently ‘loud boisterous and unusual’ that it would tend to disturb the normal operation of the VA facility.” Id. at 12. The Court also adds a requirement that this disruptive conduct must pose an “actual or imminent interference’ with the facility’s operation.” Id. at 12 & n.5. Agront is now the good new test for this otherwise vague reg.  
For Further Reading: This federal prosecution made the press. For a local summary of the big case, take a look at Vet’s conviction upheld for ‘loud and boisterous conduct’ at Palo Alto VA hospital, available here.

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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