                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4547


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

JOE L. LANNING,

                  Defendant - Appellant.

------------------------

AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL
LIBERTIES   UNION OF   NORTH  CAROLINA  LEGAL  FOUNDATION,
INCORPORATED,

                  Amici Supporting Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00047-MR-1)


Argued:   January 31, 2013                      Decided:   July 19, 2013


Before DUNCAN, WYNN, and FLOYD, Circuit Judges.


Reversed and remanded by published opinion.    Judge Wynn wrote
the majority opinion, in which Judge Floyd joined. Judge Duncan
wrote a dissenting opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.  Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.        ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.         Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.    Joshua A. Block, Leslie Cooper, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York; Christopher
Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North
Carolina, for Amici Supporting Appellant.




                               2
WYNN, Circuit Judge:

       In the context of a sting operation specifically targeting

gay men, an undercover ranger approached Defendant, initiated a

sexually suggestive conversation with him, and then expressly

agreed to have sex with him.                 In response, Defendant backed up

to the ranger and “[v]ery briefly” touched the ranger’s fully-

clothed crotch.         J.A. 56.      That conduct gave rise to Defendant’s

conviction for disorderly conduct under 36 C.F.R. § 2.34, which

prohibits conduct that is “obscene,” “physically threatening or

menacing,” or “likely to inflict injury or incite an immediate

breach of the peace.”          36 C.F.R. § 2.34(a)(2).

       Upon     review,       we     hold     that      the    term        “obscene”        is

unconstitutionally vague as applied to Defendant.                                We further

hold    that    no     rational      trier     of    fact     could       find     beyond    a

reasonable doubt that Defendant’s brief touch of the ranger’s

crotch, done in response to the ranger’s deliberate attempt to

convince       Defendant      that    he     would     have    sex        with    him,      was

“physically      threatening         or     menacing”    or     “likely          to   inflict

injury     or     incite       an     immediate        breach        of     the       peace.”

Accordingly, we reverse and remand for a judgment of acquittal.



                                             I.

       After     receiving         complaints        about     male-on-male             sexual

activity      around    the    Sleepy       Gap     Overlook    of    the        Blue    Ridge

                                              3
Parkway in Buncombe County, North Carolina, the National Park

Service and the United States Forest Service conducted a joint

operation “designed to enable officers to identify and arrest

men who were using the area for sexual solicitation and activity

with   other     men.”      Appellee’s    Br.   at   3.   Joseph      Darling,   a

thirty-three-year-old,             two-hundred-pound           park      ranger,

participated in the sting operation as an undercover officer.

In November 2009, in the course of the sting operation, Darling

saw Defendant, a sixty-two-year-old male retiree, on a nearby

trail.     As Darling walked past Defendant, Defendant grabbed his

own groin and kept walking.              Darling said hello and also kept

walking.

       Five   or   ten   minutes   later,    after   walking    around    in   the

woods and talking to a few other people, Darling went looking

for Defendant and found him standing by himself on an unofficial

trail.     Darling engaged Defendant in a casual conversation about

the weather for several minutes.                Darling then commented that

Asheville was “an open community,” accepting of a homosexual

lifestyle.       J.A. 54.    Defendant responded that he “wanted to be

F’ed.”     Id.     Darling replied “okay or yes, or something to that

affirmative[,]” J.A. 58, and “gave [Defendant] every reason to




                                         4
believe that [Darling] was good to go[,]” J.A. 85. 1                             At that

point,         Defendant–who       was       facing     Darling          and     standing

approximately three to five feet away from him–turned around,

took one or two steps backward towards Darling, and, with his

left hand, reached back and “[v]ery briefly” touched Darling’s

fully-clothed crotch.             J.A 56.        Darling described the touch as

“a fairly firm grasp” that lasted “[v]ery briefly[,] [u]ntil I

could get the words out: ‘Police officer, you’re under arrest.’”

Id.

      Defendant was charged with disorderly conduct in violation

of    36       C.F.R.    §      2.34(a)(2).           Before       trial,       Defendant

unsuccessfully moved to dismiss the case.                     At trial, Darling was

the   only      witness.         And   at    the     close    of   the     government’s

evidence, Defendant moved for judgment of acquittal.                           This, too,

the magistrate judge denied.                 The magistrate judge then found

Defendant       guilty     of    disorderly        conduct,    giving      no    specific

reasons for his decision and noting only that he was “convinced

beyond     a    reasonable       doubt”     that    Defendant      had    violated    the

statute.        J.A. 121.       The magistrate judge sentenced Defendant to



      1
       Upon the district court’s request for a clarification,
Darling affirmed that “good to go” meant that he “gave
[Defendant] every reason to believe that [Darling] would have
been willing to have undertaken in the conduct that [Defendant]
proposed[,]” i.e., “anal intercourse.” J.A. 85-86.



                                             5
15    days’    imprisonment,          a   $1000     fine,    and   a    two-year       ban    on

visiting government forests and parks.

       Defendant appealed to the district court.                              The district

court affirmed Defendant’s conviction, concluding that there was

sufficient evidence that his conduct was obscene and physically

threatening       and/or         menacing.         The   district       court,     however,

vacated and remanded Defendant’s sentence because the magistrate

judge    lacked      the       authority     to    ban   Defendant      from     government

parks.      The magistrate judge resentenced Defendant to 15 days’

imprisonment and a $500 fine, and the district court affirmed.

Defendant then appealed to this Court.



                                              II.

       On     appeal,      Defendant      first     argues    that      the    government’s

evidence       was      insufficient         to     support    his       conviction          for

disorderly conduct under Section 2.34(a)(2).                            We must construe

the    evidence      and       any   inferences     therefrom      in    the    light    most

favorable to the government and affirm if “any rational trier of

fact    could     have      found     the    essential       elements     of     the    crime

charged       beyond       a     reasonable        doubt.”         United       States        v.

Penniegraft, 641 F.3d 566, 571 (4th Cir.), cert. denied, 132 S.

Ct. 564 (2011).            Further, Defendant and the government disagree

as to the meaning of Section 2.34(a)(2); that, we review de



                                               6
novo.       United States v. Abuagla, 336 F.3d 277, 278 (4th Cir.

2003).

      Section        2.34      is    an    enactment     of    the    Secretary          of   the

Interior, who is authorized to promulgate regulations “necessary

or   proper        for   the    use       and   management”      of       parks    under      the

jurisdiction of the National Park Service, including the Blue

Ridge Parkway.            16 U.S.C. § 3.               Section 2.34 is just such a

regulation         and   therefore        has   “the    force   and       effect    of    law.”

United States v. Fox, 60 F.3d 181, 184 (4th Cir. 1995).

      At      Defendant’s       bench       trial,     the    magistrate         judge    found

Defendant guilty of violating Section 2.34(a)(2), which says:

      A person commits disorderly conduct when, with intent
      to cause public alarm, nuisance, jeopardy or violence,
      or knowingly or recklessly creating a risk thereof,
      such person . . . [u]ses language, an utterance, or
      gesture, or engages in a display or act that is
      obscene, physically threatening or menacing, or done
      in a manner that is likely to inflict injury or incite
      an immediate breach of the peace.

36 C.F.R. § 2.34(a)(2).                   Accordingly, the essential elements of

disorderly         conduct      under      Section      2.34(a)(2)        are:     (1)    using

language, an utterance, or a gesture, or engaging in a display

or act; (2) that is obscene, physically threatening or menacing,

or   done     in    a    manner      likely     to   inflict    injury       or    incite      an

immediate breach of the peace; and (3) having the intent to

cause    or    knowingly        or    recklessly        creating      a    risk    of    public

alarm, nuisance, jeopardy, or violence.


                                                7
                                                 A.

       Defendant argues that the government failed to prove the

second element of disorderly conduct under Section 2.34(a)(2).

We therefore must analyze each prong of that element—that is,

whether    the       conduct     at        issue       was    “obscene,”       “physically

threatening or menacing,” or “likely to inflict injury or incite

an    immediate      breach     of    the        peace”—to     determine       whether       the

government met its burden.

       Regarding the “obscene” prong, Defendant contends that the

definition      of    obscenity       that       the   Supreme       Court    laid     out    in

Miller v. California, 413 U.S. 15 (1973), governs here and that,

under Miller, his “conduct was not obscene.”                          Appellant’s Br. at

15.    In Miller, the Supreme Court laid out several factors to

consider when determining whether “materials” and “works” are

obscene: “(a) whether ‘the average person, applying contemporary

community standards’ would find that the work, taken as a whole,

appeals to the prurient interest; (b) whether the work depicts

or    describes,       in   a   patently          offensive         way,   sexual      conduct

specifically         defined    by    the        applicable      state       law;    and     (c)

whether   the     work,     taken     as     a    whole,     lacks     serious      literary,

artistic, political, or scientific value.”                           Id. at 24 (emphasis

added, citations omitted).

       Defendant       implicitly      recognizes            that    the     Supreme    Court

framed the Miller test with an eye to speech and expressive

                                                 8
conduct, as indeed he must, given the Supreme Court’s use of

words like “work” and “materials.”                   Id. at 23-24.      Defendant

nevertheless    posits      that     applying    the    Miller    definition    of

obscenity to “expressive conduct” while applying a “different

definition[]”    to   “non-expressive         conduct”    would   be   “bizarre.”

Reply Br. at 3-4.        Yet a close reading of Miller reveals that

the Supreme Court intended just that.

     In     Miller,   the     Supreme        Court    expressly   distinguished

obscene   depictions     from      obscene     conduct.     Specifically,      the

Court stated in a footnote that

     [a]lthough we are not presented here with the problem
     of regulating lewd public conduct itself, the States
     have greater power to regulate nonverbal, physical
     conduct than to suppress depictions or descriptions of
     the same behavior.   In United States v. O’Brien, 391
     U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672
     (1968), a case not dealing with obscenity, the Court
     held a State regulation of conduct which itself
     embodied both speech and nonspeech elements to be
     ‘sufficiently justified if . . . it furthers an
     important or substantial governmental interest; if the
     governmental interest is unrelated to the suppression
     of free expression; and if the incidental restriction
     on alleged First Amendment freedoms is no greater than
     is essential to the furtherance of that interest.’
     See California v. LaRue, 409 U.S. 109, 117—118, 93 S.
     Ct. 390, 396—397, 34 L.Ed.2d 342 (1972).

Id. at 26 n.8 (emphasis added).               This distinction makes sense,

given the Court’s focus on the “inherent dangers of undertaking

to   regulate   any    form     of    expression”—i.e.,       First     Amendment

concerns.     Id. at 23 (emphasis added).              Yet we can also easily

imagine dangers inherent in prohibiting government regulation of

                                         9
public sexual conduct unless that conduct rises to the Miller

standard of “prurient” and “‘hard core,’” as Defendant suggests.

Id. at 24-27.

      Undeterred, Defendant points to United States v. Mather,

902 F. Supp. 560 (E.D. Pa. 1995), to demonstrate that at least

one   federal   court    has   applied      the    Miller     obscenity   test   to

public sexual conduct.          Notably, Mather is an out-of-circuit

district court opinion of no precedential value here.                     Further,

the Mather court looked not simply to the federal disorderly

conduct regulation also in play here, but also to a Pennsylvania

obscenity statute.       Id. at 562.        And, as the Mather court noted,

the   Pennsylvania      statute’s   language        tracked    the   Miller   test

almost verbatim:

      Obviously   derived  from   Miller,  the  Pennsylvania
      statute defines “obscene” as:
      Any material or performance, if:
      (1) the average person applying contemporary community
      standards would find that the subject matter taken as
      a whole appeals to the prurient interest;
      (2) the subject matter depicts or describes in a
      patently offensive way, sexual conduct of a type
      described in this section; and
      (3) the subject matter, taken as a whole, lacks
      serious literary, artistic, political, educational or
      scientific value.

Id. at 563 n.8 (citation omitted).                Yet Mather failed to engage

in any analysis whatsoever as to why the Miller test similarly

applies to Section 2.34(a)(2).         Id.




                                       10
      Moving away from Miller and back to the regulation itself,

the   provision’s    legislative         history      reveals    that     the    rule’s

promulgator believed “[t]he harms that the regulation seeks to

avoid [to be] commonly understood.”                  48 Fed. Reg. 30252, 30270

(June 30, 1983) (emphasis added).                   Similarly, in United States

v. Coutchavlis, the Ninth Circuit declared that “the regulation

contained only ‘common words,’ easily understandable by ‘people

of ordinary intelligence.’               The words of § 2.34 are not so

obscure that they require any special skill to interpret.”                         260

F.3d 1149, 1155 (9th Cir. 2001) (citation omitted). 2

      We   regularly     turn     to   the    dictionary      for   the   “ordinary,

contemporary, common meaning” of words undefined by statute, as

is the case with “obscene” here.                United States v. Lehman, 225

F.3d 426, 428 (4th Cir. 2000) (quotation marks omitted).                           The

American Heritage Dictionary defines “obscene” as “[o]ffensive

to accepted standards of decency” and “[m]orally repulsive[.]”

Id.   at   1216   (5th   ed.    2011).        The    Oxford   English     Dictionary

defines     “obscene”      as     “[o]ffensively        or      grossly    indecent,

lewd[.]”                 Oxford         English          Dictionary             Online,



      2
        Coutchavlis  did  not  specifically  address   Section
2.34(a)(2)’s “obscene” prong.     Rather, the Ninth Circuit
analyzed only Section 2.34(a)’s “physically threatening or
menacing” and “public alarm or nuisance” language.   260 F.3d
1149.



                                         11
http://www.oed.com/view/Entry/129823?redirectedFrom=obscene

(last visited April 10, 2013).

     The     government          argues    that    “the       standard     dictionary

definition”      of     obscene     “appl[ies]     in     determining      whether   a

defendant is guilty of ‘disorderly conduct’” and, when doing so

here,    “the     evidence       amply    supports      the    magistrate     judge’s

finding that Defendant’s conduct was obscene.”                         Appellee’s Br.

at 19.      Defendant counters that if a dictionary definition of

obscene applies, then Section 2.34(a)(2) is “unconstitutionally

vague as applied.”         Reply Br. at 15.          Under the circumstances of

this case, we must agree with Defendant.

     It is axiomatic that a law fails to meet the dictates of

the Due Process Clause “if it is so vague and standardless that

it leaves the public uncertain as to the conduct it prohibits .

. . .”       City of Chicago v. Morales, 527 U.S. 41, 56 (1999)

(quotation      marks     omitted).       “A    statute    can    be    impermissibly

vague for either of two independent reasons.                     First, if it fails

to   provide      people     of     ordinary      intelligence         a   reasonable

opportunity to understand what conduct it prohibits.                       Second, if

it authorizes or even encourages arbitrary and discriminatory

enforcement.”         Hill v. Colorado, 530 U.S. 703, 732 (2000).                    As

the Supreme Court has noted, “perhaps the most meaningful aspect

of the vagueness doctrine is not actual notice, but the other

principal       element     of    the     doctrine—the        requirement    that    a

                                           12
legislature       establish          minimal     guidelines        to    govern        law

enforcement.”         Smith v. Goguen, 415 U.S. 566, 574 (1974).

       Turning first to the notice issue, we agree with Defendant

that Section 2.34(a)(2) would not have provided him, or anyone

of ordinary intelligence, fair warning that the complained-of

conduct was obscene.               The evidence, even when viewed in the

light most favorable to the government, shows that: Defendant

grabbed his own clothed groin once while walking; after being

engaged in a flirtatious conversation by an undercover ranger

who noted that “Asheville [was] an open community,” J.A. 54,

Defendant    told       the    undercover      ranger     that   “he    wanted    to    be

F’ed[,]” id.; and, after the ranger accepted Defendant’s sexual

proposition,          Defendant      quickly     walked     backwards     toward       the

ranger and grabbed the ranger’s clothed crotch “fairly firm[ly]

. . . [v]ery briefly[,] [u]ntil [the ranger] could get the words

out:    ‘Police officer, you’re under arrest.’”                    J.A. 56.        Under

these circumstances, we cannot conclude that anyone “of ordinary

intelligence,” Hill, 530 U.S. at 732, would understand that such

conduct     is        “[m]orally      repulsive,”         The    American    Heritage

Dictionary       at    1216,    or    “[o]ffensively        or   grossly    indecent,




                                            13
lewd[,]” Oxford English Dictionary Online, so as to be “obscene”

and thus proscribed by Section 2.34(a)(2). 3

     Further, the facts of this case illustrate the real risk

that the provision may be “arbitrar[ily] and discriminator[ily]

enforce[d].”     Hill, 530 U.S. at 732.         The sting operation that

resulted in Defendant’s arrest was aimed not generally at sexual

activity   in   the   Blue   Ridge   Parkway;   rather,   it   specifically

targeted gay men.      Perhaps not surprisingly, then, the all-male

undercover rangers arrested only men on the basis of disorderly

homosexual conduct.

     The impetus for the sting operation: citizen complaints.

Darling testified that “the public was concerned” about “male on



     3
       Perhaps recognizing its weak hand, the government suggests
that   “the   magistrate   judge   could  reasonably  infer    from
Defendant’s conduct that he, in fact, intended to have sexual
intercourse in the very location in which he backed into Ranger
Darling and grabbed Ranger Darling’s [clothed] genitals.”
Appellee’s Br. at 20 n.1 (emphasis added).        Yet Defendant’s
conviction was for disorderly conduct—not disorderly thoughts or
desires.    And it is undisputed that Defendant’s actual conduct
never went further than his backing up to Darling and very
briefly grabbing Darling’s clothed crotch.         Moreover, even
Darling agreed that, “for all [he] knew, [Defendant] could have
very   well   intended   for  [the   intercourse]  to   happen   at
[Defendant’s] house.” J.A. 88. And such private sexual conduct
would, of course, have been perfectly legal.       As the Supreme
Court pronounced a decade ago, “[l]iberty presumes an autonomy
of self that includes freedom of thought, belief, expression,
and certain intimate conduct” and “allows homosexual persons the
right to” engage in consensual intimate conduct in the privacy
of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).



                                     14
male [sexual] activity in that area that was targeted.” 4                    J.A.

46, 92.         Darling testified that every single one of the citizen

complaints had been about homosexuals.              Id.

       It may be that gay men engage more frequently in sexual

activity in the Blue Ridge Parkway and therefore generate more

citizen complaints.          Yet it is also entirely plausible that the

public in and around the Blue Ridge Parkway subjectively finds

homosexual conduct, even relatively innocuous conduct such as

that       at   issue   here,      particularly    “morally   repulsive,”     The

American        Heritage    Dictionary     1216,   and    “grossly     indecent,”

Oxford English Dictionary Online, and therefore complains.                    If

the public is, by contrast, not similarly troubled by a woman

propositioning her boyfriend for sex and then briefly touching

his clothed crotch, there would exist no citizen complaint and

no   related       sting,   even    for   otherwise   identical      heterosexual

conduct.        Simply enforcing the disorderly conduct regulation on

the basis of citizen complaints therefore presents a real threat

of anti-gay discrimination.               See Hill, 530 U.S. at 732; cf.

Smith, 415 U.S. at 578 (“The language at issue is void for

       4
       One wonders why a sting operation was implemented in the
first place.   If instead the rangers had, for example, hidden
themselves, monitored the area, and arrested individuals who
engaged in public sexual conduct, many of the questionable
aspects of this case, from the discriminatory targeting to the
alleged inchoate conduct the government attempts to inject into
this matter, see supra note 3, would almost surely fall away.



                                          15
vagueness        as    applied     to    Goguen     because        it   subjected     him   to

criminal liability under a standard so indefinite that police,

court, and jury were free to react to nothing more than their

own preferences . . . .”).

      To        be    sure,   in    concluding            that     Section    2.34(a)(2)’s

“obscene” is unconstitutionally vague as applied to Defendant,

we do not mean to suggest that the statute is impermissibly

vague per se.           As the Supreme Court has recognized, “there are

statutes that by their terms or as authoritatively construed

apply      without       question        to    certain        activities,      but     whose

application to other behavior is uncertain.”                            Smith, 415 U.S. at

577-78.

      Section 2.34(a)(2) may be just such a law.                             For example,

while      we    take    issue     with       the    Mather       court’s    analysis,      as

discussed above, we have no doubt that the court correctly held

that the conduct at issue there—i.e., two individuals with their

pants down, masturbating in front of one another and engaging in

fellatio in a national park—was obscene and disorderly under

Section 2.34(a)(2).              902 F. Supp. 560.               Unquestionably, it was;

and   were       that    conduct        before      us,    this     would    surely    be    a

radically different opinion.

      The conduct at issue here, however, is of a qualitatively

different, significantly more benign nature.                            We do not believe

that a reasonable defendant would know that by engaging in such

                                               16
conduct    under     the   circumstances    of   this    case,   he   would   be

subjecting himself to criminal liability.                That, coupled with

our serious concern regarding discriminatory enforcement, leads

us   to   conclude    that   Section   2.34(a)(2)   is    unconstitutionally

vague as applied and that the “obscene” prong of the regulation

therefore cannot serve as a basis for Defendant’s conviction. 5




      5
       We acknowledge that this Circuit upheld a conviction for
similar conduct in United States v. Glenn, 562 F.2d 324 (4th
Cir. 1977). Notably, however, that case concerned a different,
repealed, regulation—36 C.F.R. § 50.26(f)—which barred “obscene
or indecent act[s.]”   Further, the defendant in Glenn had his
conviction upheld specifically on the basis of the term
“indecent,” which the Supreme Court has made plain is a more
innocuous concept than “obscene.” Cf., e.g., Sable Commc’ns of
Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).    Glenn therefore
neither controls nor illuminates the meaning or application of
“obscene” here.

     We also acknowledge the dissenting opinion’s assertion that
we fail to “accord[] the level of deference to the magistrate
judge’s findings of fact required by our standard of review.”
Post at 27.     But that assertion misses the mark as to the
regulation’s obscenity prong, because even where a rational
trier of fact could find facts sufficient to support a
conviction, a statute can still be unconstitutional because it
“authorizes or even encourages arbitrary and discriminatory
enforcement.”   Hill, 530 U.S. at 732.   Indeed, the sufficiency
of the evidence seems irrelevant to such a constitutional
analysis.   See, e.g., Smith, 415 U.S. 566, 575 (striking as
unconstitutional a statute criminalizing contemptuous treatment
of the flag where the defendant was convicted by a jury for
wearing a flag on the seat of his jeans, noting that the statute
“allows policemen, prosecutors, and juries to pursue their
personal predilections[,]” and nowhere factoring into that
analysis whether or not a rational trier of fact could have
found facts sufficient to support a conviction).



                                       17
                                            B.

        Turning    to     the   next    prong    of    the       regulation’s      second

element, we analyze whether Defendant’s conduct was “physically

threatening or menacing.”             36 C.F.R. § 2.34(a)(2).

     Even the government concedes that an objective reasonable

person standard applies to this inquiry.                     See Coates v. City of

Cincinnati, 402 U.S. 611, 614 (1971); United States v. Shrader,

675 F.3d 300, 311 (4th Cir.), cert. denied, 133 S. Ct. 757

(2012),    reh’g     denied,     133    S.    Ct.     1320       (2013)   (noting    that

statutes have been “disapproved” where they “merely set out the

subjective effects of conduct and imposed penalties for causing

that injury” and citing Coates).                    Stated differently, a fact

finder     must     focus       not    on     whether        a     particular      victim

subjectively felt physically threatened or menaced, but instead

must ask whether a reasonable person objectively would have felt

so under the circumstances of the case.

     Under the regulation’s plain language, a defendant engages

in disorderly conduct when he “engages in a display or act that

is . . . physically threatening or menacing . . . .”                            36 C.F.R.

§ 2.34(a)(2).           Again, the rule’s promulgator believed “[t]he

harms    that     the   regulation      seeks    to     avoid       [to   be]    commonly

understood[.]”          48 Fed. Reg. at 30270.               And the Ninth Circuit

agreed    that     “the    regulation        contained       only    ‘common      words,’



                                            18
easily    understandable            by    ‘people      of     ordinary       intelligence.’”

Coutchavlis, 260 F.3d at 1155.

      The      American       Heritage         Dictionary         defines        “physical”      as

“[o]f    or    relating       to    the    body.”           Id.    at   1331.       It    defines

“threaten”       as     “express[ing]           a     threat        against       or     giv[ing]

indications of taking hostile action against[.]”                                  Id. at 1813.

It    defines         “menacing”          as    “constitut[ing]              a     threat        to;

endanger[ing.]”              Id.    at     1098.        And       the     dictionary       is    an

appropriate      aid     to    understanding           the    “ordinary,         contemporary,

common meaning” of words undefined by statute.                              Lehman, 225 F.3d

at 428.

      Moving     on     to    the     facts      of    this       case,     Darling,      a   fit,

thirty-three-year-old,               two-hundred-pound                  ranger,        approached

Defendant,        a      sixty-two-year-old                 retiree,         and       initiated

flirtatious conversation.                  Defendant then told Darling that he

“wanted to be F’ed,” to which Darling expressly consented.                                      J.A.

54.     Only after Darling agreed to Defendant’s sexual proposition

and “gave [Defendant] every reason to believe that” Darling was

“good to go,” J.A. 85, did Defendant quickly back up to Darling

and   very      briefly       touch       Darling’s         clothed       crotch,      whereupon

Darling       arrested       him.        And    although          Darling    testified        that

Defendant’s       touch       was     “firm,”         the     government         presented        no




                                                19
evidence    that     Darling      experienced       any   pain     or    suffered     any

injury as a consequence. 6

      Darling testified that he felt “shocked” and “caught . . .

off guard” by Defendant’s touch.                  J.A. 57.        But the disorderly

conduct regulation requires “physically threatening or menacing”

conduct, not merely surprising conduct.                   36 C.F.R. § 2.34(a)(2).

And even if surprise were sufficient to trigger the regulation

(it   is   not),    and    even   if   Darling’s      subjective        reaction     were

relevant    to     our    inquiry    (it    is    not),   it      defies    logic    that

Darling was shocked by Defendant’s touch when it was, in fact,

precisely what Darling had been “string[ing Defendant] along” to

do—“to cross a certain line.”              J.A. 84-85.

      Facts      matter.       Had     Defendant      and      Darling     engaged     in

flirtatious conversation that did not involve an agreement to

have sex, a reasonable person might well have felt physically

threatened or menaced by Defendant’s “[v]ery briefly” touching

Darling’s     clothed      crotch.          Likewise,       had    Defendant    pinned

Darling    down     and    attempted       to    remove   Darling’s        clothing,   a

reasonable person, even one who had consented to sex, might well




      6
       If Defendant had pained or injured Darling, Defendant may
well have been charged with, for example, assault, and not
simply disorderly conduct.



                                            20
have felt physically threatened or menaced by that conduct. 7             But

given the totality of the circumstances actually before us, even

when viewing the evidence in the light most favorable to the

government,    no   rational   fact    finder   could   conclude   that    a

reasonable person would feel physically threatened or menaced by

Defendant’s conduct.     See Penniegraft, 641 F.3d at 571.

                                      C.

     Because   neither   Section   2.34(a)(2)’s    “obscene”   prong   nor

its “physically threatening or menacing” prong can serve as a

basis for Defendant’s conviction, we turn to the third and final

prong of the regulation’s second element: conduct “done in a

manner that is likely to inflict injury or incite an immediate

breach of the peace.”     36 C.F.R. § 2.34(a)(2).       Defendant argues

that the government failed to introduce sufficient evidence to

support his conviction for disorderly conduct “done in a manner

     7
        Defendant argued that “the person to whom [sexual]
advances are directed would have to do something to convey a
lack of consent” and that “it is implied consent unless they do
something to convey to the other person that they are no longer
consenting.”       Oral   Argument   at   2:40,   available     at
http://www.ca4.uscourts.gov/OAaudiotop.htm.     We    find    this
position troubling and note that initiation of sexual activity
does not deprive a person of the right to withdraw consent.
See, e.g., In re John Z., 60 P.3d 183, 184 (Cal. 2003) (deeming
intercourse after withdrawal of consent rape).      Nevertheless,
this is not a case implicating withdrawal of consent.      Rather,
this matter arises out of a sting operation, the whole point of
which was to “get [Defendant] . . . to cross a certain line.”
J.A. 84-85. And “to get [Defendant] where [he] need[ed] to get
him, [Darling] ha[d] to string him along.” J.A. 85.



                                      21
that is likely to inflict injury or incite an immediate breach

of the peace.”         We agree.

       The    promulgating        agency,       in       discussing    these      “commonly

understood” terms, described the conduct covered by this prong

as “actions that . . . constitute ‘fighting words’—those that

result in a ‘clear and present danger’ of violence or physical

harm.”       48 Fed. Reg. at 30270.             In United States v. Poocha, the

Ninth    Circuit       noted     that    the    regulation’s          language    “closely

tracks . . . Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62

S. Ct. 766, 86 L.Ed. 1031 (1942), in which the Court described

the    type    of   language      that    may       be   legally    proscribed      by    the

government—specifically classes of speech ‘which by their very

utterance inflict injury or tend to incite an immediate breach

of the peace.’”           259 F.3d 1077, 1080 (9th Cir. 2001) (citing

with approval United States v. Chung Lee, 1991 WL 193422, at *2

(E.D. Pa. Sept. 20, 1991), and noting that the Lee court stated:

“The     statute     is    designed       to        prohibit    speech     that    incites

violence, or ‘presents a clear and present danger’. . . . This

statute       covers      what    are     known          as    ‘fighting     words’       and

‘incitement to riot.’”).

       Applying the law to the circumstances of this case, even

when viewing the evidence in the light most favorable to the

government, we fail to see how any rational finder of fact could

deem    Defendant’s       conduct       “fighting         words,”     48   Fed.    Reg.   at

                                               22
30270,    or     anything    else    “likely,”         36    C.F.R.      §    2.34(a)(2)

(emphasis added), to result in a “‘clear and present danger’ of

violence” or “riot.”            Poocha, 259 F.3d at 1080.                To reiterate,

Darling        approached       Defendant        and        initiated        flirtatious

conversation.         Defendant then told Darling that he “wanted to be

F’ed,” to which Darling expressly consented.                           J.A. 54.         Only

after Darling agreed to Defendant’s proposition did Defendant

back up to Darling and briefly touch Darling’s clothed crotch,

whereupon Darling arrested him.

      Indeed, Darling had just agreed to have sex with Defendant

and given Defendant “every reason to believe that” Darling was

“good to go.”          J.A. 85.     No rational trier of fact could thus

conclude that Darling himself likely would react violently to

Defendant’s      fleeting       touch.      Further,        if   one    were       to   take

Darling’s real identity, i.e., that of an undercover ranger,

into account, the government’s burden would be even greater,

“‘because a properly trained officer may reasonably be expected

to   exercise     a    higher     degree    of   restraint       than        the   average

citizen, and thus be less likely to respond belligerently to

‘fighting words.’”          Poocha, 259 F.3d at 1081.                   And as to the

broader public, were anyone else to have witnessed the conduct

at issue here—and there is no evidence to that effect—they may

well have had no idea what had transpired, given the fact that

the encounter was, in Darling’s own words, “[v]ery brief[,]” and

                                           23
that Darling himself “wasn’t sure what was happening.”                         J.A. 56.

Even   if   other    park    visitors     had     witnessed      the    incident      and

recognized it for what it was, we fail to see how a rational

fact finder could decide that the “[v]ery brief” touching over

clothes at issue here would likely cause those visitors to react

violently or to riot.

                                          D.

       Before   concluding,       we    point    to    a     recent    Sixth     Circuit

decision,    Alman    v.    Reed,      which    we    find    insightful,      even    if

distinguishable.          703 F.3d 887 (6th Cir. 2013).                In Alman, law

enforcement arrested a gay man during an undercover sting at a

Michigan park.       Id. at 891.        The Alman sting, too, resulted from

complaints of sexual activity in the park.                     Id. at 892.         There

as here, an undercover officer approached Alman and initiated

conversation.        Id.     While the two men engaged in apparently

flirtatious conversation, unlike in this case, the undercover

officer never expressly agreed to engage in anal intercourse, or

anything    else    for    that   matter.        Nevertheless,         “Alman     leaned

forward and reached out and touched the zipper area on the front

of   [the   undercover       officer’s]        crotch.”        Id.    at   893.       The

undercover officer backed away and soon thereafter “pulled out

his badge and told Alman that he was under arrest.”                        Id.    Alman

was charged with being a disorderly person, battery, soliciting



                                          24
and accosting, and criminal sexual conduct in the fourth degree.

Id. at 894.         Ultimately, all of the charges were dismissed. 8

       Alman        (along     with           his        partner        and      a   gay       rights

organization)         brought       a    Section          1983    suit      alleging     that        law

enforcement violated his constitutional rights.                                      Id. at 895.

The district court dismissed the case, but the Sixth Circuit

resuscitated it, expressly holding that law enforcement, as a

matter of law, lacked probable cause as to each offense with

which Alman had been charged.                        Id. at 900.              The Sixth Circuit

held       that     “there      is       nothing           in     the       record     describing

circumstances that would be sufficient to create a reasonable

fear       of    dangerous    consequences.”                Id.       at    897.         The    Court

expressly refused to make “assumptions about Alman’s intentions

that       the    record     does       not       substantiate”            and   noted      that      “a

reasonable officer would have needed more evidence of Alman’s

intentions          before     concluding                that    he        was     inviting         [the

undercover         officer]    to       do    a     public       lewd      act.”      Id.      at    899

(quotation marks omitted).                        Under the circumstances, the Sixth


       8
       Interestingly, the pertinent county prosecutor had an
official policy that “‘[a]n unsolicited sexual act or exposure
to a member of the public or an undercover police officer will
bring a misdemeanor charge of indecent exposure pursuant to MCL
750.335a or disorderly person-obscene conduct pursuant to MCL
750.167(f).   Charges will not be pursued by this office if the
officer’s conduct was designed to make the individual believe
the act was invited or consensual.’” Id. at 894.



                                                    25
Circuit    concluded       that    “no     reasonable             officer”    would    have

thought that Alman committed, or was about to commit, any of the

crimes with which he was charged.                Id. at 899-900.



                                         III.

     Under      the   circumstances        of    this        case,   no    rational    fact

finder    could    have    concluded       beyond        a    reasonable      doubt   that

Defendant engaged in conduct that was physically threatening or

menacing   or     likely   to     inflict       injury       or   incite     an   immediate

breach of the peace.              See 36 C.F.R. § 2.34(a)(2).                      Further,

applying a common definition of “obscene” to this case renders

Section 2.34(a)(2)’s obscenity prong unconstitutionally vague as

applied    to     Defendant.          We    therefore             reverse     Defendant’s

conviction and remand this matter for entry of a judgment of

acquittal. 9

                                                                  REVERSED AND REMANDED




     9
       Defendant made additional, alternative arguments as to why
his conviction should be overturned.       Because the arguments
addressed already result in reversal, we need not, and therefore
do not, engage those alternative arguments.



                                           26
DUNCAN, Circuit Judge, dissenting:

     I respect the thoughtfulness of the majority opinion and

share   its    distaste   for     Officer   Darling’s    conduct.        I    also

appreciate the narrowness of its focus and its careful tethering

to the specific facts before us.               However, the concern that

prompts my brief dissent is that I am unable to agree that the

majority      opinion   accords     the     level   of   deference       to       the

magistrate judge’s findings of fact required by our standard of

review.       I believe that a rational trier of fact could have

found a physical touching such as this implying an immediate

intent to engage in sexual activity in public both obscene and

physically     threatening   or    menacing    within    the   meaning       of    36

C.F.R. § 2.34(a)(2).




                                      27
