Tetaz v. District of Columbia

• Decision Date: 30 July 2009
• Docket Number: No. 07-CT-284.,No. 07-CT-434.,No. 07-CT-262.,No. 07-CT-141.,No. 07-CT-273.,No. 07-CT-285.,No. 07-CT-272.,No. 07-CT-271.,No. 07-CT-140.,No. 07-CT-410.,07-CT-140.,07-CT-141.,07-CT-262.,07-CT-271.,07-CT-272.,07-CT-273.,07-CT-284.,07-CT-285.,07-CT-410.,07-CT-434.
• Citation: 976 A.2d 907
• Parties: Eve L. TETAZ, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

976 A.2d 907

Eve L. TETAZ, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.

No. 07-CT-140.

No. 07-CT-141.

No. 07-CT-262.

No. 07-CT-271.

No. 07-CT-272.

No. 07-CT-273.

No. 07-CT-284.

No. 07-CT-285.

No. 07-CT-410.

No. 07-CT-434.

District of Columbia Court of Appeals.

Argued April 2, 2009.

Decided July 30, 2009.

Mark L. Goldstone, Washington, DC, appointed by the court, for appellants.

Max Obuszewski filed a brief, pro se.

Johnny Barber filed a brief, pro se.

Sidney R. Bixler, Assistant Attorney General, with whom Peter J. Nickles, Acting Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.

Before RUIZ and KRAMER, Associate Judges, and FARRELL, Senior Judge.

FARRELL, Senior Judge:

Following a bench trial, appellants were found guilty of offenses arising from their protest of the Iraq war on or near the grounds of the United States Capitol. Specifically, individual appellants were convicted of unlawful assembly¹ or unlawfully crossing police lines² during demonstrations at the Hart Senate Office Building, the Rayburn House Office Building, the Russell Senate Office Building, and the United States Capitol Building on successive days in September 2006. We affirm their convictions, summarizing the relevant facts as they pertain to each offense-situs and appellants' related arguments.

I.

The Hart Senate Office Building (the "Hart Building")

Although appellants recount the evidence of the Hart Building demonstration and arrests in one or the other of their briefs, they make no argument challenging their convictions for unlawful assembly arising from that demonstration, so that any such challenge has been waived. See, e.g., Ramos v. United States, 569 A.2d 158, 162 n. 5 (D.C.1990). Nonetheless, because that evidence provides context for the actions of the United States Capitol Police in arresting them for the other violations, we summarize it briefly.

According to testimony that the trial judge credited, 300 to 350 people had gathered in the Upper Senate Park, an outdoor grassy area, on September 26 for a demonstration authorized by permit to protest the war in Iraq. U.S. Capitol Police Officer Galope testified that some fifty of these individuals then entered the Hart Building where, in the first floor atrium, they began "singing, and chanting, and reading ... very loudly." According to Galope, other persons in the atrium complained to the police about the volume of the noise. There were onlookers all the way up to the 8th floor of the atrium (some of whom, too, were "calling and complaining of the loudness"), and persons passing through the atrium had to move around the demonstrators. The trial judge found that, although the demonstration was not "loud," there "was some level of disruption" and "incommoding or blocking" of movement. Thus, he found it to be a "reasonable [exercise of] discretion" when the police, after giving three verbal warnings to the group to disperse, arrested those members who refused to do so.

II.

The Rayburn House Office Building (the "Rayburn Building")

Some of the appellants challenge their convictions for unlawful assembly arising from their actions the next day (September 27) at an entrance to the Rayburn Building.³ They argue that the government failed to present sufficient evidence of (a) their intent to impede entry and (b) disorderly conduct on their part or circumstances likely to lead to a breach of the peace—the latter, they contend, a necessary element of proof under the First Amendment. On the contrary, appellants' purpose to impede entry was adequately shown, and the government was not also required to prove an actual or imminent breach of the peace.

In Odum v. District of Columbia, 565 A.2d 302, 304 (D.C.1989), we stated that conviction for unlawful assembly requires proof of two things: "(1) `the presence of three or more persons acting in concert for an unlawful purpose' ...; and (2) commission of the [statutory] act ... alleged in the information" (quoting Kinoy v. District of Columbia, 130 U.S.App. D.C. 290, 299, 400 F.2d 761, 770 (1968) (unlawful assembly "requires both the assembly and the commission of one of the acts forbidden by the statute")). Here, the testimony fairly supporting an inference that the appellants had assembled in front of the Rayburn Building entrance intending to impede entry into the building as a protest was as follows:

According to Captain Lloyd of the U.S. Capitol Police, when he arrived at the Rayburn Building in response to reports of a protest, he saw some twenty-five demonstrators lying in front of the Independence Avenue entrance to the building. The reclining individuals were "blocking [the entrance] completely" and occupying seventy percent of the "plaza area adjacent to the entrance." They had pulled white sheets over themselves and had lined up some fifteen mock coffins on the steps to represent victims of war. Lloyd testified that, because the demonstrators lay "right up against the ... first entrance ... to the building," persons entering had to "hop over" them to enter, while others—"diverted away from that entrance"—"went ... around the corner to the South Capitol entrance." The trial judge found that, "while not 100 percent blocked, [the building entrance] was significantly impeded or incommoded" because "people had to pick their way around individuals lying on the ground in sheets," some "less than two or three feet ... from the entryway."

Appellants' argument that the government showed no intent on their part to impede the entrance, see Odum, supra, 565 A.2d at 302, is without merit. Lloyd testified that the protesters had been told three times that "they were in violation of the Capitol regulations and that if they didn't leave the area or unobstruct the door ... they'd be arrested" (emphasis added). Given these warnings and the obvious inference to be drawn from the appellants' lying up against the doorway, they cannot compare themselves to the protesters in Odum, who while "mov[ing] back and forth across [a] driveway, ... always moved aside to allow traffic to enter," 565 A.2d at 304, thus evincing a non-obstructive purpose.

Nor was the government obliged to prove that appellants were otherwise "disorderly" or that their actions threatened to cause a breach of the peace.⁴ Purposely blocking or impeding entry into a public building enjoys no First Amendment protection, certainly none sufficient to require proof of an imminent breach of the peace before persons who refuse warnings to desist may be punished. In Green v. City of Raleigh, 523 F.3d 293, 302 (4th Cir. 2008), for example, the court upheld an ordinance clause intended "to prevent picketers from `block[ing] the entrance to a building or people's egress into or out of the building.'" The court explained:

The Supreme Court has upheld a similar statute that prohibited picketing "in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any public premises." Cameron v. Johnson, 390 U.S. 611, 612 n. 1, 617, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). Such a provision imposes no burden on speech. As the Johnson Court explained, such a provision "does not abridge constitutional liberty," since obstructing pedestrian access to city or state facilities "bears no necessary relationship to the freedom to ... distribute information or opinion." Id. at 617, 88 S.Ct. 1335 (internal quotation marks omitted)....

Id. at 302-03 (emphasis in original). See also Cox v. Louisiana, 379 U.S. 536, 554-55, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (pointing out that "[g]overnmental authorities have the duty ... to keep their streets open and available for movement," and that "[a] group of demonstrators could not insist upon the right to cordon off ... [an] entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations"); Edwards v. South Carolina, 372 U.S. 229, 231-32, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (reversing convictions for breach of peace on State House grounds, but noting that "[t]here was no obstruction of pedestrian or vehicular traffic"); Arbeitman v. District Court of Vermont, 522 F.2d 1031, 1034 (2d Cir. 1975) ("A state may properly legislate to prevent persons from blocking sidewalks and obstructing traffic," citing Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), "and demonstrators may not insist upon the right to cordon off a street or entrance to a public building," citing Cox, 379 U.S. at 555, 85 S.Ct. 453; "[t]his significant governmental interest justifies legislation aimed only at physical obstruction, a result of body or objects, intended to cause public inconvenience.").

Thus, proof of a real or threatened breach of the peace before assembling meant to block or impede entry to a building may be punished is not required by the First Amendment, and would be an unreasonable limitation on police authority to keep entrances "open and available for movement." Cox, supra, 379 U.S. at 555, 85 S.Ct. 453. It cannot be, we think, that the police constitutionally had to await a fist fight or threats of violence sparked by the inconvenience to persons having to step over demonstrators before they could order the defendants to free the entryway to the Rayburn Building or be arrested. Appellants nevertheless argue that two prior decisions, Williams v. District of Columbia, 136 U.S.App. D.C. 56, 419 F.2d 638 (1969), and Adams v. United States, 256 A.2d 563 (D.C.1969), require the government to prove a breach of the peace. Williams, however, added that proof requirement to the disorderly conduct statute as applied to a case of speech only— the utterance of profane or obscene language in a public place. 136 U.S.App. D.C. at 63, 419 F.2d at 645.⁵ It thus has no relevance to the deliberate obstructing of...