Two members of the Denver-based federal appeals court took the unusual step on Tuesday of encouraging the U.S. Supreme Court to revisit its century-old precedent finding the constitutional right to a jury trial in “all criminal prosecutions” does not apply to petty offenses.

At the same time, the panel of three judges for the U.S. Court of Appeals for the 10th Circuit overturned David Lesh’s petty offense conviction for taking pictures of himself on National Forest Service land without authorization, deeming the regulation too vague to put a social media influencer on notice that posting an Instagram photo amounted to “work activity.”

“It is one thing to require a movie producer or a photographer for Vogue to seek a permit for using public lands to conduct their business,” wrote Judge Timothy M. Tymkovich in the July 16 opinion. “But it is another thing to say that same individual is liable under the regulation when he or she visits NFS lands for a ski trip and makes a personal video for Instagram.”

In 2021, a magistrate judge found Lesh guilty of two petty offenses related to his unauthorized snowmobiling and photography in the Keystone Resort ski area, and a district judge upheld the convictions on appeal. Lesh advanced multiple arguments to the 10th Circuit, including that petty offenses were subject to the constitutional right to a jury trial.

Tymkovich, in the majority opinion, acknowledged that “unless and until” the Supreme Court revisits its own longstanding conclusions that petty offenses are excluded, the 10th Circuit was obligated to reject Lesh’s claim. However, Tymkovich authored an additional concurring opinion, joined by Judge Veronica S. Rossman, suggesting it was time for the nation’s highest court to reconsider.

“Although the text of the Constitution provides for a trial by jury of ‘all crimes’ … the Supreme Court has not interpreted the jury right to attach to every violation of public law,” read the two-judge concurrence. The carve-out for petty offenses, in the eyes of some experts, “is incompatible with the original public understanding of the Constitution.”

Jason R. Dunn, Colorado’s former U.S. attorney who originally brought the charges against Lesh, declined to comment on the case itself.

“But with regard to the jury trial issue, it is indeed a unique pairing,” he said, referring to Tymkovich, a George W. Bush appointee active in conservative legal circles and Rossman, a former public defender appointed by President Joe Biden. Tymkovich’s view “is the one in the concurrence since he is the author, but she obviously is signing onto the idea that SCOTUS should take it up.”

Berkeley Law Prof. Andrea Roth, whose 2022 article about the “lost right” to a jury trial Tymkovich quoted in his concurrence, said the 10th Circuit was the first federal appeals court to call for the Supreme Court to revisit an exception for petty offenses it first recognized in 1888.

“There’s something very simple and compelling about this argument that the Constitution should mean what it says,” she said. “The text of the Sixth Amendment says ‘in all criminal prosecutions,’ the accused shall enjoy the right to a trial by jury. It doesn’t say ‘in some criminal prosecutions’ or ‘in serious criminal prosecutions.'”

In the underlying case, Keystone Resort ski area, which is located within National Forest Service land, was closed in April 2020 due to the COVID-19 pandemic. Lesh took a snowmobile into the area and uploaded pictures of himself to Instagram. Federal prosecutors charged him with improperly using a snowmobile and conducting “work activity” without authorization.

Then-U.S. Magistrate Judge Gordon P. Gallagher found Lesh guilty of both offenses and imposed a fine and community service. Gallagher reasoned Lesh’s picture amounted to an “advertisement and marketing campaign” to promote his outdoor apparel line.

U.S. District Court Judge Daniel D. Domenico upheld the convictions on appeal, agreeing he was required to apply the Supreme Court’s conclusion that petty offenses are not entitled to a jury trial and that the evidence otherwise supported the prosecution.

During oral arguments to the 10th Circuit, the judges on the panel were troubled by the idea that a person whose business relies on social media can be criminally liable for taking a picture.

“If you believe in slippery slopes — I guess a bad pun with a ski area — there’s a lot of slipperiness here to this prosecution. The hypotheticals are almost endless about what the government thinks a crime would be on Forest Service land,” said Tymkovich, wondering about nature photographers or social media personalities taking pictures while wearing brand clothing.

“Influencers beware,” he added.

Ultimately, the appellate panel concluded the regulation against “work activity” was unconstitutionally vague in Lesh’s case — where the line between his personal and business life was blurred — and that it encourages arbitrary or discriminatory enforcement.

“The government’s view of Mr. Lesh’s conduct would criminalize even the most petty or innocuous social media post. That view could apply to thousands of persons whose crime would be a photo op on public lands,” Tymkovich concluded.

In the separate concurrence, Tymkovich noted various scholars, Supreme Court justices and even The Federalist Papers called into question the jury trial exception for petty offenses, which are a subset of misdemeanors. He also observed the carve-out is in “disregard of” the Constitution’s text.

Lesh’s attorneys indicated they are considering whether to take the question to the nation’s highest court.

“Recent Supreme Court cases have consistently recognized that the jury trial right is fundamental to our system of liberty and must be jealously guarded. We believe this signals an interest in restoring the jury trial right to its full constitutional guarantee,” said Kara Rollins of the New Civil Liberties Alliance.

Roth, the Berkeley professor, believed it was unlikely the Supreme Court would hear Lesh’s case to reevaluate the petty offense carve-out to the jury trial guarantee. Instead, it may wait for an appeal by one of the 26,000 annual petty offense defendants in which the facts suggest the defendant is innocent.

“We’ve got a majority of justices on the Supreme Court who claim they are textualists,” she said. For petty offenses, “you could imagine a jury saying, ‘Why are we spending tax dollars on this to give this guy a criminal record?'”

The case is United States v. Lesh.