Joe Lanning wasn’t touching the other man very long as the two stood on a secluded forest trail in North Carolina. The hand-to-body contact lasted just until the other man could utter the words: “Police officer, you’re under arrest.” 

Lanning was fully clothed. So was the other man, who’d just agreed to have sex. This was an undercover sting. Convicted at a bench trial on the charge of violating the federal disorderly conduct regulation, Lanning, a widower with no prior criminal history, was sentenced last year to 15 days in jail.

Federal prosecutors alleged Lanning’s left-hand grab of the other man’s crotch was, among other things, obscene and physically threatening. Lanning’s attorneys, who are fighting the conviction, contend the conduct—they call it “brief, flirtatious touching”—didn’t come close to being a crime.

There’s very little guidance among federal appellate courts on the scope of the disorderly conduct regulation, giving the U.S. Court of Appeals for the Fourth Circuit, at a hearing on January 31, the opportunity to provide some insight about the law’s reach.

The dispute, in a nutshell, focuses on whether Lanning’s language and action—grabbing the other man’s crotch—amount to obscene or menacing behavior, two elements of the disorderly conduct regulation. The American Civil Liberties Union is backing Lanning in the case, arguing in a friend-of-the-court brief that the conviction should be vacated. The conduct, the ACLU said, “may have been boorish, vulgar or indecent,” but it wasn’t a crime.

A ruling for the government, Lanning’s attorney said in appellate court papers, would leave people to guess what types of public displays of affection on federal park land are “obscene.” Federal officers’ subjective feelings about what’s disorderly will be allowed to trump an objective standard if Lanning’s conviction is upheld, said his attorney, Ann Hester, an assistant federal public defender.

The case against Lanning stemmed from an undercover operation, set up by the U.S. National Park Service and U.S. Forest Service, to confront sexual solicitation in the area surrounding Sleepy Gap Overlook on the Blue Ridge Parkway, near Asheville, N.C. The authorities said the sting was a response to citizen complaints. Three undercover officers entered the park that day.

National Park Service Ranger Joseph Darling, who was undercover, walked past Lanning near the overlook. Lanning grabbed his own crotch. Darling said he responded with “hi.” Darling walked around for a few more minutes before he went looking for Lanning. The ranger found Lanning, alone, and began chatting with him. Casual conversation, according to prosecutors.

Darling, according to prosecutors, mentioned that Asheville is an “open community.” The government says Lanning soon told the man he wanted him to have sex with him. Darling’s response: “OK.” According to court papers, Lanning then turned away from Darling, “walked backwards towards Darling with his left hand extended behind him, and grabbed the ranger’s crotch area.”

“Fairly firm grasp,” Darling said at trial, according to the government’s brief in the Fourth Circuit. Darling said he immediately grabbed Lanning’s hand and removed it. He arrested Lanning.

Darling, prosecutors said, agreed to have sex with Lanning. But the ranger never consented to have his body touched. Darling said he was “shocked” when Lanning grabbed him.

An assistant U.S. attorney, Amy Ray of the U.S. Attorney’s Office in Asheville, put it like this in court papers in the Fourth Circuit: Although “Ranger Darling agreed to have intercourse with (Lanning), he did not agree to the immediate, public and sexually aggressive grabbing of his genitals” out in the open on a park trail.

Lanning, Ray said, “recklessly created a substantial risk of public alarm or nuisance.” Sexual activity in public, the prosecutor said, interferes with the “reasonable” use of national park property. Lanning’s conduct, according to the government, “fell well within the plain meaning of the regulation.”

The crotch grab, according to prosecutors, was likely to lead to a breach of the peace “as to any member of the public, innocently enjoying a hike or viewing the scenery from the overlook, who had the misfortune to observe” Lanning’s actions.

Hester, a federal defender in Charlotte, N.C., said Lanning didn’t engage in “sexual conduct” under state or federal law. The government, Hester said in court papers, failed to show how Lanning’s touch was obscene, physically threatening or menacing.

The regulation under which Lanning was charged doesn’t define obscene. Hester points to the U.S. Supreme Court assessment of the term in Miller v. California. In that case, from 1973, the high court said an expression is obscene if, among other things, it portrays sexual conduct in a “patently offensive way” and appeals “to the prurient interest in sex.”

The government, Hester said, is urging the Fourth Circuit to define “obscene” as, among other things, “disgusting to the senses” and “repulsive.” Hester said the government’s proposal concerning the definition of “obscene” would invite “discriminatory enforcement” of the law.

Lanning, his attorney also said in the appeal, didn’t act in a way that was likely to incite any bystander. There’s no evidence in the record that there were any bystanders at all, the defense attorney said. Lanning, Hester also said, didn’t use “fighting words” or raise his voice.

The park ranger “sought Lanning out on a secluded trail and directed the conversation toward homosexual activity in an attempt to make Lanning think he was interested in sex,” Lanning’s defense lawyer said in court papers.

Darling’s subjective reaction to the touch—the “shock”—should not be a factor in determining whether Lanning’s action was threatening or menacing, Hester said. A reasonable person in Darling’s position, she said, would have expected such “advances” to happen after just agreeing to have sex.

“Considering Darling’s sexually suggestive behavior and agreement to have sex leading up to Lanning’s touching his crotch, a reasonable person in Lanning’s position would believe that Darling had consented to future sexual advances, including touching his crotch over his clothing,” Hester wrote.

The ACLU’s brief focuses its criticism on the government’s argument that Lanning’s conduct was physically threatening or menacing.

ACLU lawyers Joshua Block and Leslie Cooper argue the trial judge mistakenly allowed Darling’s subjective reaction of the crotch touch to supplant an objective, “reasonable person” standard.

A subjective standard, the ACLU said, is “particularly inappropriate in the context of an undercover sting.” Allowing an undercover agent to lead a person on to believe that “intimate touching” would be consensual—and then arresting the person—doesn’t give the suspect any notice about where to draw the line between legal and illegal conduct, the brief said.

That lack of notice, the ACLU’s legal team said, also “improperly chills the exercise of protected rights to speak about and engage in otherwise legal sexual activities.”

“People have a protected liberty interest in engaging in private, intimate sexual conduct and a First Amendment right to talk about engaging in lawful, private sexual activity even if the sexual overtures occur in public,” the ACLU said.

Mike Scarcella can be contacted at mscarcella@alm.com.