Date: 11-21-2014

Case Style: United States of America v. Louis Agront, Sr.

Case Number: 13-10218

Judge: Raymond C. Fisher

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Northern District of California (San Francisco County)

Plaintiff's Attorney: Melinda Haag, United States Attorney, Barbara J. Valliere,
Chief, Appellate Division, and Anne M. Voigts (argued),
Assistant United States Attorney, Office of the United States
Attorney, San Francisco, California, for Plaintiff-Appellee.

Defendant's Attorney: Steven G. Kalar, Federal Public Defender, Heather M.
Angove (argued) and Cynthia C. Lie, Assistant Federal Public
Defenders, Federal Public Defender’s Office, San Jose,
California, for Defendant-Appellant.

Description: We consider whether a Department of Veterans Affairs
(VA) regulation prohibiting disorderly conduct that creates
loud, boisterous, and unusual noise, see 38 C.F.R.
§ 1.218(a)(5) and (b)(11), is unconstitutionally vague as
applied to the defendant, Louis Agront, Sr. The regulation,
reasonably interpreted, includes a controlling standard of
conduct: it prohibits the creation of “loud, boisterous, and
unusual noise” that would tend to disturb the normal
operation of a VA facility. Applying that interpretation, we
hold that the regulation is not vague as applied to the
defendant and that sufficient evidence supported his
conviction. We therefore affirm.
I
In September 2011, Agront visited the emergency room
at the Veterans Affairs hospital in Palo Alto, California. His
adult son and two adult daughters had brought him to the
hospital during the late afternoon because they were
concerned about recent changes in his behavior, although
they had not told him that was the reason. Instead, Agront
believed his visit was to treat knee and foot pain he had been
experiencing. When he did not receive the treatment he
expected, Agront left the VA hospital and began walking
home. His children went after him around an hour later and,
to induce him to return to the hospital and have bloodwork
done, falsely told Agront that his normal podiatrist would
treat him if he returned.
UNITED 4 STATES V. AGRONT
Upon arriving back at the hospital that evening, Agront
was initially seen by VA nurse Laura Rutherford. Agront’s
children told her outside his hearing that, although he
believed he was being treated for knee pain and significant
weight loss, they were concerned about his increasingly
erratic behavior. She observed that Agront was alert and
oriented, able to maintain linear thoughts and converse
appropriately, but also that he kept pacing, had pressured and
quick speech, did not want to sit and generally seemed to not
want to remain at the hospital. She stood outside the door
while he was attended by a doctor and testified that he
became agitated and “stormed off.”
Agront then spoke to VA social worker Susan Harrison in
the hospital lobby. Because he believed he had been treated
poorly, he was very upset and wanted to leave. She observed
that his body language was tense, his face was red and his
speech was pressured and rapid; he also seemed angry and
fidgety to her, and would start to become loud but then reduce
his volume. After he “stormed out” of the lobby, his
daughters stayed to speak with her while his son followed
him.
Agront and his son began yelling at each other in the
parking lot loudly enough to be heard in the hospital lobby 25
yards away. Concerned the situation might escalate into
physical violence and hoping to deescalate the situation,
Harrison asked Rutherford to call the VA police, then left
with Agront’s daughters to monitor the situation. After
Rutherford called the police, she too left to monitor the
situation in the parking lot.
When the first VA police officer to respond arrived at the
scene, around 9:00 p.m., he could not discern exactly what
UNITED STATES V. AGRONT 5
was being said, but he could hear yelling from his car 15
yards away with the windows rolled up, the doors closed and
the engine running. The officer later learned Agront had been
trying to leave the premises, whereas his son was trying to
prevent him from doing so and to persuade him to come back
to the hospital for treatment. Agront and his son were
pushing and shoving each other, but they did not exchange
blows. One of Agront’s daughters was standing between
them, trying to separate them. This behavior continued even
after the officer pulled up in his marked police car with lights
flashing.
The officer announced his presence and told everyone to
step back. Everyone except Agront did so. Agront instead
turned toward the officer, took what the officer perceived as
a partial potential combat stance and refused to comply with
the officer’s orders. When the officer told Agront several
times to sit on the curb, he continuously refused to do so. At
some point, Agront explained he had an injured back. The
officer then helped Agront sit down, although there is
evidence Agront may have resisted. The timing and duration
of these events are not evident in the record.
What happened next is not clear because the magistrate
judge, concluding it was not relevant to the charged offense,
sustained the defendant’s objection to further testimony about
the incident. What is undisputed is that the officer eventually
arrested Agront, but not his son. According to the officer,
Agront continued to yell at his son even as he was being
handcuffed. The officer testified he arrested Agront because
Agront had maintained his position blocking access to the
UNITED 6 STATES V. AGRONT
parking lot,1 refused to comply with the verbal commands of
a uniformed police officer, took a combative position,
actively resisted the orders of other police officers who had
later arrived on the scene, continued to yell loudly and tried
to reengage in an argument with his son. After the arrest, a
treating psychiatrist examined Agront at the officer’s request
to determine whether he was a danger to himself or anyone
else; evidently the psychiatrist concluded he did not pose
such a danger because Agront was discharged. The officer
finished collecting witness statements around 2:00 a.m.
In December 2011, Agront was charged in a criminal
information with “engag[ing] in disorderly conduct which
created a loud, boisterous, and unusual noise, while on
property under the charge and control” of the VA, a Class B
misdemeanor, in violation of 38 C.F.R. § 1.218(b)(11).2 He
1 The officer did not observe any vehicles that were being blocked from
entering the parking lot, although he may not have seen any that were
because he was focused on the incident.
2 This regulation provides, in full:
Disorderly conduct which creates loud, boisterous, and
unusual noise, or which obstructs the normal use of
entrances, exits, foyers, offices, corridors, elevators,
and stairways or which tends to impede or prevent the
normal operation of a service or operation of the
facility, $250.
38 C.F.R. § 1.218(b)(11). Technically, subsection (b)(11) provides only
a penalty; the substantive offense conduct is defined as:
Disturbances. Conduct on property which creates loud
or unusual noise; which unreasonably obstructs the
usual use of entrances, foyers, lobbies, corridors,
offices, elevators, stairways, or parking lots; which
UNITED STATES V. AGRONT 7
was tried before a magistrate judge and convicted. Agront
moved to dismiss the information, arguing that, as applied to
his conduct, § 1.218(b)(11) is void for vagueness in violation
of the Due Process Clause of the Fifth Amendment. The
magistrate judge denied his motion and sentenced him to six
months of probation, a $50 fine and a $10 special assessment.
Agront appealed to the district court, which affirmed his
conviction. He timely appealed to this court.
II
We review de novo whether a regulation is void for
vagueness and whether sufficient evidence supported a
conviction. See United States v. White Eagle, 721 F.3d 1108,
1113 (9th Cir. 2013); United States v. Elias, 269 F.3d 1003,
1014 (9th Cir. 2001).
A. Vagueness
A criminal statute or regulation is unconstitutionally
vague if it “fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it
otherwise impedes or disrupts the performance of
official duties by Government employees; which
prevents one from obtaining medical or other services
provided on the property in a timely manner; or the use
of loud, abusive, or otherwise improper language; or
unwarranted loitering, sleeping, or assembly is
prohibited.
Id. § 1.218(a)(5). Although the parties focused exclusively on subsection
(b)(11), we look to the language of both subsections. See Grayned v. City
of Rockford, 408 U.S. 104, 110 (1972) (considering “what the ordinance
as a whole prohibits” when conducting a vagueness analysis (emphasis
added)).
UNITED 8 STATES V. AGRONT
authorizes or encourages seriously discriminatory
enforcement.” United States v. Williams, 553 U.S. 285, 304
(2007). Because Agront has not argued that his First
Amendment rights are at issue and has brought only an asapplied
challenge, we “need only examine the vagueness
challenge under the facts of the particular case and decide
whether, under a reasonable construction of the statute, the
conduct in question is prohibited.” United States v. Naghani,
361 F.3d 1255, 1259–60 (9th Cir. 2004) (quoting United
States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989))
(internal quotation marks omitted).
Agront first argues that 38 C.F.R. § 1.218(b)(11) should
be interpreted to include a “controlling standard of conduct”
requiring that the “loud, boisterous, and unusual noise”
prohibition extend only to conduct that would tend to disturb
the normal operation of a VA facility.3 He argues that, as
applied to his conduct, the regulation is manifestly vague
even under this 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. This arbitrary enforcement, he contends, illustrates that
the regulation is “susceptible to the precise arbitrary and
discriminatory enforcement that the vagueness doctrine is
intended to prohibit.”
3 Relying on United States v. Richard Williams, 892 F.2d 1044, 1990
WL 811 (6th Cir. 1990) (unpublished), Agront argued that the controlling
standard of conduct should be whether the requisite noise “tend[s] to
disturb the routine operations of a Veterans Administration hospital.” For
the reasons given below, we hold the regulation is more appropriately
interpreted to prohibit noise which tends to disturb the normal operation
of a VA facility.
UNITED STATES V. AGRONT 9
The government disputes that any controlling standard of
conduct is required when applying the regulation, arguing the
regulation’s language is sufficiently definite on its own terms.
Further, the government argues that the decision to cite
Agront but not his son or the other patient was an appropriate
exercise of discretion by the police officer.
We agree with Agront that § 1.218(b)(11) – read in
conjunction with § 1.218(a)(5), the substantive provision
defining “disturbances” (hereafter collectively “the
regulation”) – includes a requirement that the “[d]isorderly
conduct which creates loud, boisterous, and unusual noise”
also be conduct that would tend to disturb the normal
operation of a VA facility. We reject his vagueness
challenge, however, because the regulation, so interpreted, is
not unconstitutionally vague as applied to Agront’s conduct.
In so holding, we are guided by the Supreme Court opinion
in Grayned v. City of Rockford, 408 U.S. 104 (1972),
although we recognize it applied a “more stringent vagueness
test,” Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 499 (1982), because it involved
conduct protected by the First Amendment.
In Grayned, the Court rejected a vagueness challenge to
an ordinance that prohibited making “any noise or diversion
which disturbs or tends to disturb the peace or good order of”
a school or class when school is in session. 408 U.S. at
107–08. The Court noted that the ordinance forbade “noisy
or diversionary activity” only “at fixed times – when school
is in session – and at a sufficiently fixed place – ‘adjacent’ to
the school.” Id. at 111 (footnote omitted). Section 1.218 also
applies only in fixed locations, “property under the charge
and control of VA.” 38 C.F.R. § 1.218(a)–(b).
UNITED 10 STATES V. AGRONT
Grayned also noted that the ordinance was explicitly
designed for the protection of schools. See 408 U.S. at 110.
Subsections 1.218(a)(5) and (b)(11) are similarly designed, as
a whole, to maintain a calm environment at VA facilities.
The government permissibly “seeks to prohibit disturbances”
on VA property because: “(1) the purpose of VA facilities is
to serve and care for veterans, (2) many veterans have
heightened sensitivities, and (3) disturbances, including loud
noises, can trigger psychological reactions from the VA
patient population.” United States v. Szabo, 760 F.3d 997,
1003 (9th Cir. 2014). As the VA nurse testified in this case,
it is particularly important that VA medical facilities maintain
a calm environment because:
We have a lot of people that suffer from
psychiatric disorders, and that could be really
disruptive having someone yelling or two
people yelling, anyone yelling. It could be
really harmful to the people because it could
trigger – certain events cause more problems
to people in the hospital, especially the
Veterans Hospital, given what they’ve been
through.
The prohibition on “[d]isorderly conduct” creating “loud,
boisterous, and unusual noise” on VA property therefore
serves “[t]he government’s interest in caring for veteran
patients and not triggering adverse psychological reactions
from such patients.” Id. at 1003 (holding that prohibiting,
under § 1.218(a)(5), “a visitor from yelling obscenities and
threatening physical violence is eminently reasonable” in
view of this interest).
UNITED STATES V. AGRONT 11
Most importantly, the Court in Grayned held that,
“[a]lthough the prohibited quantum of disturbance is not
specified in the ordinance,” its purpose of protecting schools
made it apparent “that the measure is whether normal school
activity has been or is about to be disrupted.” Grayned,
408 U.S. at 112. The Court observed that because the
ordinance was “written specifically for the school context,
where the prohibited disturbances are easily measured by
their impact on the normal activities,” it “gives fair notice to
those to whom [it] is directed.” Id. (alteration in original)
(quoting Am. Commc’ns. Ass’n v. Douds, 339 U.S. 382, 412
(1950)) (internal quotation marks and footnote omitted).
So too here. The regulation does not explicitly define a
necessary quantum of “loud, boisterous, and unusual noise.”
But just as the “quantum of disturbance” in Grayned was
defined by the school context, here the requisite quantum of
noise is found by looking to the context in which the
regulation applies: “property under the charge and control of
VA” – in this case, a hospital. 38 C.F.R. § 1.218(a)–(b). As
the district court correctly noted, “[a] person of common
intelligence would understand that the prohibition on ‘loud,
boisterous, and unusual noise’ is in relation to the
environment of a VA facility as opposed to a baseball
stadium or train station.” At a VA facility, as in a school,
“the prohibited disturbances are easily measured by their
impact on the normal activities.” Grayned, 408 U.S. at 112.4
4 As of December 31, 2013, VA facilities included 820 VA Community-
Based Outpatient Clinics, 300 VA Vet Centers, 150 VA Hospitals, 131
VA National Cemeteries and 56 Veterans Benefits Administration
Regional Offices. See Department of Veterans Affairs: VA Facilities
Statistics at a Glance 2, available at http://www.va.gov/vetdata/docs/
Quickfacts/Homepage_slideshow_3_31_14.pdf. All such facilities
UNITED 12 STATES V. AGRONT
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
a VA facility.5
The text of the regulation itself supports this
interpretation. Notably, § 1.218(a)(5) – defining
“Disturbances” – prohibits conduct “which creates loud or
unusual noise,” conduct that “obstructs” use of various areas
of access, and also conduct “which otherwise impedes or
disrupts the performance of official duties by Government
employees” (emphasis added). Use of the term “otherwise”
indicates that, in order to be prohibited conduct, “loud and
unusual noise” also would need to rise to the level of
impeding or disrupting normal VA operations. See
WEBSTER’S THIRD NEW INT’L DICTIONARY 1598
(2002) (defining “otherwise” as “in a different way or
manner” (emphasis added)).
conduct normal activities against which prohibited disturbances can be
easily measured.
5 In Grayned, the Court noted that it was troubled in the abstract “by the
imprecision of the phrase ‘tends to disturb,’” but it held that phrase was
acceptable because state courts interpreted it “to prohibit only actual or
imminent interference with the ‘peace or good order’ of the school.”
408 U.S. at 111–12. We similarly interpret conduct that “would tend to
disturb the normal operation of a VA facility,” to mean conduct that poses
an “actual or imminent interference” with that facility’s operation.
UNITED STATES V. AGRONT 13
This concept is further evident in § 1.218(b), the
“Schedule of offenses and penalties.” The penalty provision
that corresponds to § 1.218(a)(5)’s “disturbances” states:
Disorderly conduct which creates loud,
boisterous, and unusual noise, or which
obstructs the normal use of entrances, exits,
foyers, offices, corridors, elevators, and
stairways or which tends to impede or prevent
the normal operation of a service or operation
of the facility, $250.
§ 1.218(b)(11). As solely a penalty provision, § 1.218(b)(11)
must be read to cover the same conduct prohibited by the
substantive provision. And, taken together, these provisions
plainly target, and equate, only conduct serious enough to
disturb the normal operation of a VA facility.
Applying this reasonable construction of the regulation,
Agront’s conduct was clearly prohibited. See Naghani, 361
F.3d at 1259–60. He and his son yelled, pushed and shoved
at each other in a VA hospital parking lot, prompting a VA
nurse and social worker to call the police and leave their
ordinary duties to monitor the situation. The yelling could be
heard from inside the hospital lobby 25 yards away and from
inside a running police car with the windows up and the doors
closed 15 yards away. These actions constitute “[d]isorderly
conduct which creates loud, boisterous, and unusual noise”
that would tend to – and, in fact, did – disturb the normal
operation of a VA hospital. The regulation need not identify
a specific decibel level for the level of noise that would
qualify for a penalty; the normal operation of VA facilities
provides an adequate measure for determining what
constitutes prohibited conduct.
UNITED 14 STATES V. AGRONT
The regulation also does not encourage arbitrary and
discriminatory enforcement. See Williams, 553 U.S. at 304.
Agront’s argument that such encouragement is manifest in the
record because he was arrested and cited for violating the
regulation, whereas his son and a patient playing loud music
from a radio were not, fails because a regulation is
unconstitutionally vague only if it is “so standardless that it
authorizes or encourages seriously discriminatory
enforcement.” Id. (emphasis added).
Agront has not shown that citing him but not his son or
the radio-playing patient was discriminatory. Rather, as the
district court found, the officer permissibly exercised his
discretion based on his “observations and investigation into
the incident.” See Grayned, 408 U.S. at 114 (“As always,
enforcement requires the exercise of some degree of police
judgment, but, as confined, that degree of judgment here is
permissible.” (emphasis added)). The district court correctly
observed that the decision to cite only Agront was an exercise
of discretion “not as to whether there was a violation but
rather whether a citation was necessary.” 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.6
6 Notably, the VA in November 2010 “determined that arrest is
generally not an appropriate remedy in a situation where the Department
must balance the rights and needs of a disruptive patient against the need
to protect other patients, guests, and staff.” Responding to Disruptive
Patients, 75 Fed. Reg. 69,881, 69,881 (Nov. 16, 2010) (codified at 38
C.F.R. § 17.106, now § 17.107). Instead, the agency recognized that
certain patients have “a pattern of disruptive behavior,” and that the better
course is to understand and plan for that pattern and to set “safe conditions
for care delivery,” thereby “interven[ing] in ways that can prevent
subsequent episodes requiring removal and arrest.” Id.
UNITED STATES V. AGRONT 15
Because the controlling standard of conduct is reasonably
clear and Agront clearly violated that standard, we hold that
the VA’s disorderly conduct regulation is not
unconstitutionally vague as applied to Agront. See also
Szabo, 760 F.3d at 1003 (rejecting the defendant’s as-applied
vagueness challenge to 38 C.F.R. § 1.218(a)(5) because his
actions – “threaten[ing] to harm the receptionist, his doctor,
and a VA security guard using violent and profane language,”
as well as “yell[ing] at the top of his lungs and engag[ing] in
threatening behavior” – unambiguously fell within its
prohibitions “on ‘loud’ and ‘abusive’ language and on
‘conduct . . . which creates loud or unusual noise’”); United
States v. Richard Williams, 892 F.2d 1044, 1990 WL 811, at
*2 (6th Cir. 1990) (unpublished) (rejecting the defendant’s
vagueness challenge to 38 C.F.R. § 1.218(a)(5) and (b)(11)
because “the controlling standard of conduct is reasonably
clear”); United States v. Dyers, No. 1:06-MJ 455 AJB, 2007
WL 397109, at *8–9 (N.D. Ga. Jan. 30, 2007) (rejecting the
defendant’s vagueness challenge to 38 C.F.R. § 1.218(a)(5)
and (b)(11) because their terms “are easily and
understandably defined”); United States v. Fentress, 241 F.
Supp. 2d 526, 529 (D. Md. 2003) (rejecting the defendant’s
vagueness challenge to 38 C.F.R. § 1.218(b)(11) because its
controlling standard of conduct is reasonably clear), aff’d,
69 F. App’x 643 (4th Cir. 2003) (unpublished).
B. Sufficiency of the Evidence
To prevail on his sufficiency of the evidence challenge,
Agront must show that, viewing the evidence in the light
most favorable to the prosecution, no rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. See United States v. Tello, 600 F.3d
1161, 1164 (9th Cir. 2010). Agront argues there was
UNITED 16 STATES V. AGRONT
insufficient evidence adduced at trial that his conduct would
tend to disturb the normal operation of the hospital.
We disagree. The evidence not only established that his
conduct would tend to disturb the normal operation of the
hospital, but also that the hospital’s operation was actually
disturbed. Agront has not challenged the magistrate judge’s
factual findings that (1) the altercation between Agront and
his son could be heard inside the facility 25 yards away and
(2) a VA nurse and social worker were drawn away from
their ordinary tasks to monitor the situation. These facts are
sufficient to establish that the normal operation of the hospital
was disturbed. Contrary to Agront’s contention, it makes no
difference that these were the same employees who had
attended him earlier because, during the altercation, they had
been diverted from their normal duties to ensure the situation
in the parking lot did not escalate.
There is no support for Agront’s argument that
§ 1.218(b)(11) requires proof that his conduct was audible in
or disruptive to the hospital’s treatment areas or patient
residences. The normal operation of a VA hospital is not
limited to what occurs in patient treatment areas – indeed, the
regulation also forbids obstructing “the normal use of
entrances, exits, foyers, offices, corridors, elevators, and
stairways.” 38 C.F.R. § 1.218(b)(11); see also id.
§ 1.218(a)(5) (prohibiting “unreasonably obstruct[ing] the
usual use of entrances, foyers, lobbies, corridors, offices,
elevators, stairways, or parking lots”); cf. United States v.
Roper, 215 F. App’x 32, 34 (2d Cir. 2007) (summary order)
(affirming the defendant’s conviction under 38 C.F.R.
§ 1.218(a)(5) because the defendant “unreasonably obstructed
the usual use of the hospital’s lobby by creating such a
commotion that people waiting in line were distracted, and
UNITED STATES V. AGRONT 17
security officers were required to leave their checkpoint to
deal with the situation”).
Sufficient evidence therefore supported Agront’s
conviction.

Outcome: 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 a VA facility. Applying that
interpretation of the regulation, we affirm Agront’s
conviction.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: