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Tuesday, October 06, 2009

Chalk it up to Vague Statutory Drafting

October brings not only me back to Prawfs (thanks, Dan) but also a bunch of interesting criminal law issues on the University of Arizona  campus in Tucson.  Two students were arrested last week or chalking messages on the sidewalk. Although there has been controversy at other colleges about the permissibility of banning chalking as a matter of school discipline, here the students were locked up.  The charges were ultimately dropped by direction of the President of the University, perhaps because University leaders concluded that it is incredibly embarrassing to arrest students for engaging in harmless free speech.  My student Nick K. enlightened me about the rich jurisprudence of chalking.  A number of courts hold that chalking does not constitute damaging property.

U.S. v. Murtari, 2007 WL 3046746 (N.D.N.Y.Oct. 16 2007); In re H., 303 N.Y.S.2d 823 (App. Div. 1969).  However, it can violate statutes drafted differently.  The U.S. District Court for the District of Columbia recently held that Anti-abortion demonstrators could be prohibited from chalking in front of the White House. Mahoney v. District of Columbia, 2009 WL 3126620 (D.D.C. 2009). 

It is a close question, because the Arizona statute is nice and vague, but I don't think it permits arrests for chalking the ground.  Arizona Revised Statutes 13-1602(A) provides: "A person commits criminal damage by recklessly: 1. Defacing or damaging property of another person; or . . .  5. Drawing or inscribing a message, slogan, sign or symbol that is made on any public or private building, structure or surface, except the ground, and that is made without permission of the owner."  Chalking could well be considered defacing of property and therefore in violation of Section 1.  But Section 5 more specifically deals with inscribing messages, which would seem to include chalking, and creates an exception for inscriptions upon the ground (as it should, assuming that making snow angels, leaf piles, writing messages and other uses of the ground in, say, a public park are legal).  Further, if chalking or other drawing or writing was included within "defacing" or "damaging" there would be no need for Section 5 at all.

Update: Although initially it appeared the  students might be subject to University discipline, evidently the University is now taking the position that chalking the ground does not violate University policy.

Posted by Marc Miller on October 6, 2009 at 07:20 PM | Permalink


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