STATE OF RIDGEWAY
SUPERIOR COURT FOR RIDGEWAY COUNTY
STATE OF RIDGEWAY;
-v-
NPCWAR,
Defendant.
Case No. RSC-CM-2779
MOTION TO DISMISS
Presiding Judge: Hon. Arthur_Chen
INTRODUCTION
Defendant NPCWAR, by and through undersigned counsel, hereby moves this Court
pursuant to Rule 13(c) of the Ridgeway Rules of Criminal Procedure to dismiss all charges in the
above-captioned matter. In support thereof, the Defendant states as follows.
The prosecution of this matter is infected by two independent and compounding
deficiencies, each sufficient on its own to warrant dismissal, and together presenting a pattern
that this Court should not permit to proceed to trial. First, R.C.C. § 3.08, the statute under which
Count One is charged, is unconstitutionally void for vagueness. The void-for-vagueness doctrine,
rooted in the Due Process Clause of the Fourteenth Amendment, is binding on this Court and
requires that every criminal statute give fair notice of what conduct is prohibited and provide
sufficient standards to prevent arbitrary enforcement. R.C.C. § 3.08 satisfies neither requirement.
Independently and additionally, Article I, §§ I, VI of the Ridgeway Constitution commands that
no person be deprived of liberty except by the laws of the land: a guarantee that a statute with no
definitional content whatsoever cannot satisfy. Second, the Statement of Probable Cause
underlying Count Two fails under the Russell framework because it does not independently
establish the elements of the offense and relies on a single exhibit described only in conclusory
terms of the charge itself.
ARGUMENT
I. GOVERNING LEGAL STANDARD
A. The Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment prohibits the enforcement of a
criminal statute that is unconstitutionally vague. This doctrine is binding on this Court as a
matter of federal constitutional law and applies regardless of how this Court construes
Ridgeway’s own constitution.
In Kolender v. Lawson, 461 U.S. 353, 357 (1983), the United States Supreme Court tied
together several pieces of case law to develop the governing two-pronged standard: a penal
statute must be defined with sufficient definiteness that (1) ordinary people can understand what
conduct is prohibited, and (2) it does not encourage arbitrary and discriminatory enforcement.
This formulation was reaffirmed in Skilling v. United States, 561 U.S. 358 (2010).
The doctrinal foundation was laid in Grayned v. City of Rockford, 408 U.S. 104, 108-109
(1972), where the Court held that a vague law “impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.” The Court further held in Winters v. New
York, 333 U.S. 507, 515-16 (1948) that citizens cannot be required to guess at the meaning of a
penal enactment, and in Morissette v. United States, 342 U.S. 246 (1952) that where a statute
provides no definite meaning, courts cannot supply one. That obligation belongs exclusively to
the Legislature.
In Johnson v. United States, 576 U.S. 591 (2015), the Court confirmed that a statute is
void for vagueness even where some conduct clearly falls within it, so long as the statute as a
whole fails to provide an intelligible standard. In City of Chicago v. Morales, 527 U.S. 41 (1999),
the Court struck down an ordinance that vested unfettered enforcement discretion in officers with
no statutory principle to constrain its application.
B. Article I §§ I and VI of the Ridgeway Constitution
Separately and independently, the Ridgeway Constitution compels the same result from
its own text. Article I, § I guarantees that every person shall find “a certain remedy, by having
recourse to the laws [...] completely and without any denial; conformably to the laws.” Article I,
§ VI guarantees that “nor can any person be justly deprived of liberty, except by the laws of the
land”.
These provisions stand on their own. A statute that provides no intelligible standard of
conduct is not a “law of the land”, it is an open-ended grant of prosecutorial discretion. The
void-for-vagueness doctrine gives operational content to what Article I, § VI already commands
on its face, and it does so as an independent matter of Ridgeway constitutional law, separate from
and in addition to the federal floor established by the Fourteenth Amendment.
The Vermont Supreme Court’s interpretation of this identical constitutional text drawn
verbatim from Chapter I, Articles 4 and 10 of the Vermont Constitution of 1777 confirms this
reading. Vermont has construed “laws of the land” to require that a criminal statute define the
offense with sufficient certainty to inform a person of ordinary intelligence of the proscribed
conduct and to prevent arbitrary enforcement. State v. Cantrell, 151 Vt. 130, 133, 558 A.2d 639,
641 (1989). That Vermont’s highest court reached the same conclusion as Kolender from the
same constitutional text is persuasive confirmation that the Kolender standard correctly captures
what Article I, § VI of the Ridgeway Constitution independently demands.
D. The Fifth and Sixth Amendments
The constitutional sufficiency of a criminal charging instrument is governed by the
guarantees of the Fifth Amendment to the United States Constitution and the Sixth Amendment
to the United States Constitution. Together, these provisions require that an indictment both (1)
contain the elements of the offense charged and fairly inform the defendant of the charge against
which they must defend, and (2) enable the defendant to plead an acquittal or conviction as a bar
to future prosecutions for the same offense.
In Russell v. United States, 369 U.S. 749 (1962), the United States Supreme Court
articulated and enforced this dual requirement, holding that an indictment must do more than
simply track the statutory language where the statute itself contains generic or undefined terms.
The Court emphasized that where guilt depends “so crucially upon such a specific identification
of fact,” the indictment must descend to particulars and cannot leave the defendant to guess at
the theory of prosecution. The Court grounded this rule in earlier precedent. In United States v.
Hess, 124 U.S. 483 (1888), it held that merely reciting statutory language is insufficient where
those terms fail to fully, directly, and expressly set forth all elements necessary to constitute the
offense.
This principle operates as an independent constitutional constraint parallel to, but distinct
from, doctrines such as void-for-vagueness. Even where a statute is clear, a prosecution cannot
proceed unless the indictment itself supplies the necessary factual specificity. Where it does not,
the defect is fatal: the defendant is deprived of fair notice, exposed to the risk of arbitrary
prosecution, and stripped of the ability to assert double jeopardy in any future proceeding.
Accordingly, under Russell, dismissal is not discretionary but required where the
charging instrument fails to allege the essential facts constituting the offense with sufficient
particularity.
II. ATTEMPTED MURDER IS UNCONSTITUTIONALLY VAGUE
A. R.C.C. § 3.08 Has No Ordinary Meaning Capable of Defining a Criminal Offense
The threshold question is what R.C.C. § 3.08 means. The word “attempts” is entirely
undefined in the Ridgeway Code. In ordinary usage it encompasses a spectrum from forming an
intent, to acquiring a weapon, to approaching a target, to raising a firearm, to discharging it and
missing. No ordinary person reading the statute could know which point on the spectrum triggers
criminal liability. That uncertainty is not a drafting gap amenable to judicial correction. Under
Morissette, the obligation to define the criminal act belongs to the Legislature. Where the
Legislature has declined to do so, the statute cannot stand.
The contrast with the surrounding homicide statutes makes this failure undeniable.
R.C.C. § 3.10, Murder in the Second Degree, contains three enumerated alternative definitions,
each specifying distinct mental states and conduct elements. R.C.C. § 3.07, Voluntary
Manslaughter, requires that death be caused “in the heat of passion.” The Legislature knows how
to draft a precise criminal statute. Its failure to do so in R.C.C. § 3.08 is not accidental. The State
may characterize this brevity as a deliberate choice to incorporate common law meaning
wholesale, but that argument fails for two independent reasons. First, the canon that legislatures
are presumed to legislate against a background of common law, recognized in Morissette, applies
only where the term in question carries a single, settled, universally accepted meaning.
“Attempt” does not meet that threshold.
American jurisdictions apply no fewer than four distinct tests for criminal attempt: the
substantial step test, the proximity test, the probable desistance test, and the res ipsa loquitur test.
Under identical facts, they reach different results. A term whose common law meaning varies by
jurisdiction provides no more notice than a term with no meaning at all, and the Defendant
cannot be expected to know which of four competing frameworks a Ridgeway court will apply
when the Legislature has declined to choose among them. Second, and in any event, the
void-for-vagueness doctrine specifically prohibits courts from supplying definitions the
Legislature omitted; that is the holding of Morissette. The fact a court could construct a workable
definition does not save the statute, as if it did, no statute could ever be void for vagueness
because courts can always construct a definition.
B. R.C.C. § 3.08 Fails to Provide Fair Notice
Under Kolender’s first prong and Winters, a criminal statute must give ordinary people
fair notice of what conduct is prohibited. R.C.C. § 3.08 fails this requirement entirely. It offers no
threshold act, no mens rea element beyond the undefined word “attempts,” and no limiting
principle of any kind. A citizen reading the statute cannot know whether purchasing a firearm
constitutes an attempt to kill, whether following a person constitutes an attempt to kill, or
whether raising a weapon but not discharging it constitutes an attempt to kill. The statute answers
none of these questions because it contains no definitional content from which answers could be
derived. This is precisely the guesswork that Winters prohibits and that Article I, § VI of the
Ridgeway Constitution independently forbids by requiring that deprivation of liberty conform to
“the laws of the land”.
C. R.C.C. § 3.08 Vests Unconstrained Discretion in Enforcement
Under Kolender’s second prong and Grayned, a statute must provide sufficient standards
to prevent arbitrary and discriminatory enforcement. R.C.C. § 3.08 provides none. Because
“attempts to kill” is entirely undefined, every actor in the criminal justice system must
independently determine on an entirely ad hoc basis what level of conduct satisfies the statute.
Two defendants who engage in identical conduct could be charged differently, convicted
differently, and sentenced differently, with no statutory principle ensuring consistency. Under
Morales, this standardless sweep is independently fatal. The Defendant faces a 20-minute term
of imprisonment on a charge defined by a five-word statute that refuses to constrain prosecutorial
discretion.
D. The Statute Cannot Be Saved By Narrow Construction
Even where a statute is vague, courts may sometimes save it through narrowing
construction, but only where the text provides a limiting principle that courts can identify and
enforce. Johnson foreclosed the argument that the existence of clear core applications saves the
statute as a whole. The text of R.C.C. § 3.08 provides no foothold for narrowing construction
whatsoever. It contains no definitions, no threshold act, no mens rea specification, and no
limiting language of any kind. To supply these elements judicially would not be to construe the
statute, it would be to rewrite it. That is the Legislature’s task, not this Court’s, and it cannot be
performed at the expense of a criminal defendant. Where no narrowing construction is available,
invalidation is the only permissible result.
The State may contend that facial invalidation requires showing the statute is
unconstitutional in all of its applications under United States v. Salerno, 481 U.S. 739 (1987).
That standard does not apply to vagueness challenges in the same way it applies to other facial
challenges. In Johnson v. United States, 576 U.S. 591, 602-03 (2015), the Supreme Court
explicitly held that the vagueness doctrine does not require a defendant to demonstrate
unconstitutionality in every conceivable application. The doctrine targets the standard itself, not
merely its application to particular conduct. Furthermore, even under Salerno, the Defendant
need only show that no set of circumstances exists under which R.C.C. § 3.08 provides
constitutionally sufficient notice, and a statute with no definitions, no threshold act, and no mens
rea specification satisfies that standard, because the absence of definitional content is a structural
defect that infects every application of the law equally.
III. PROBABLE CAUSE FAILS RUSSELL
A. Probable Cause Fails First Russell Prong — Elements Aren’t Established
The first requirement under Russell is that the charging instrument and its supporting
probable cause statement contain each element of the offense charged. R.C.C. § 5.04 requires
under its first prong that the firearm be drawn or exhibited in a rude, angry, or threatening
manner. This is a specific descriptive requirement that demands factual content about the manner
of the drawing or exhibition. It is not satisfied by characterizing the conduct as brandishing,
which is merely restating the charge in the terms of the statute.
The probable cause statement at paragraph [3] states that "approximately five seconds
after approaching, the suspect brandished his Salvo firearm in front of the victim and a witness,
and began firing in an apparent attempt to murder the tow operator." At paragraph [4], it states
that "the suspect brandished a firearm within city limits and attempted to murder the tow
operator." Neither paragraph addresses the manner of the drawing under the first prong. There is
no description of the Defendant's physical demeanor at the moment of drawing, the direction in
which the firearm was pointed at the moment of drawing, whether any verbal exchange preceded
the draw, the distance between the parties at the moment of drawing, or any other factual
circumstance that would allow this Court to independently assess whether the exhibition was
rude, angry, or threatening as the statute requires. The affiant's characterization of the conduct as
brandishing is a legal conclusion, not a factual finding, and legal conclusions do not satisfy the
Russell requirement that the charging instrument contain the elements of the offense.
B. Probable Cause Fails Second Russell Prong — Can’t Plead Double Jeopardy
The second requirement under Russell is that the charging instrument be specific enough
to enable the defendant to plead an acquittal or conviction in bar of future prosecutions for the
same offense. As the Supreme Court explained in Russell, the vice of a conclusory charging
instrument is not only that it fails to inform the defendant of the charge, but that it leaves open
the possibility that the charging authority found probable cause for conduct different from what
is ultimately proved at trial, making it impossible for the defendant to identify with confidence
the specific act for which he was charged.
The probable cause statement here describes the alleged brandishing only in the
conclusory terms of the statute ("the suspect brandished a firearm") without identifying the
specific physical act, the specific moment in the confrontation, or the specific manner of drawing
that constitutes the alleged offense. The confrontation as described in the probable cause
statement involved multiple acts with a firearm over a period of several seconds. Without
particularity as to which precise act is alleged to constitute brandishing, the Defendant cannot
determine whether a future charge of brandishing arising from the same incident would involve
the same act or a different moment in the confrontation, and therefore cannot plead double
jeopardy with confidence.
C. The Single Exhibit is Described in Conclusory Terms
The entire evidentiary foundation of the brandishing charge rests on Exhibit A, described
in the appendix of evidence only as "footage of the suspect NPCWAR, brandishing a firearm and
attempting to murder the tow operator." This description does not describe what the footage
shows. It asserts the legal conclusion that the footage supports the charges in precisely the same
terms as the charges themselves. The description of the exhibit is circular with the charge it is
offered to support. As the Supreme Court made clear in Russell, the government cannot establish
probable cause by describing its evidence in the terms of the offense and then claiming the
evidence supports the offense. That is assertion, not analysis, and it is precisely what the Russell
framework is designed to exclude.
The exhibit description provides this Court with no basis to assess what the footage
actually shows, whether it reveals the manner of the draw under the first prong of R.C.C. § 5.04,
whether it captures the tow operator's conduct immediately before the Defendant drew his
weapon, or whether it is more consistent with self-defense than with unlawful brandishing. The
State's subsequent disclosure of the video file in its Discovery and Witness List filed April 28,
2026, does not cure this deficiency.
IV. CONCLUSION
R.C.C. § 3.08 is unconstitutionally vague. It fails both prongs of the standard established
by binding federal constitutional law under Kolender v. Lawson and its progeny. It independently
fails the guarantees of Article I, §§ I and VI of the Ridgeway Constitution, which requires that no
person be deprived of liberty except by the laws of the land, a standard that a five-word statute
with no definitions, no threshold act, and no mens rea specification cannot satisfy. The obligation
to define the criminal offense belongs to the Legislature. It has not done so.
The probable cause statement fails Russell’s two prongs in that the elements are not
established without using the statute’s own language, nor are they established in a way which
allows a Double Jeopardy argument to be made if the State were to try the same facts again. All
counts must be dismissed with prejudice.
V. TABLE OF AUTHORITIES
Cases
City of Chicago v. Morales, 527 U.S. 41 (1999)
Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)
Johnson v. United States, 576 U.S. 591 (2015)
Kolender v. Lawson, 461 U.S. 352 (1983)
Morissette v. United States, 342 U.S. 246 (1952)
Russell v. United States, 369 U.S. 749 (1962)
Skilling v. United States, 561 U.S. 358 (2010)
State v. Cantrell, 151 Vt. 130, 133, 558 A.2d 639, 641 (1989)
United States v. Hess, 124 U.S. 483 (1888)
United States v. Salerno, 481 U.S. 739 (1987)
Winters v. New York, 333 U.S. 507, 515-16 (1948)
Statutes
R.C.C. § 3.07 - Voluntary Manslaughter
R.C.C. § 3.08 - Attempted Murder
R.C.C. § 3.10 - Murder in the Second Degree
R.C.C. § 5.04 - Brandishing
DATED: April 30th, 2026 Respectfully submitted,
/s/
v1oletelo1v, Esq.
Attorney
R. Bar No. 11104
Counsel of Record
