Abney v. United States

• Decision Date: 22 September 1982
• Docket Number: No. 80-1287.,No. 79-561.,No. 80-1282.,79-561.,80-1282.,80-1287.
• Citation: 451 A.2d 78
• Court: D.C. Court of Appeals
• Parties: Stacey ABNEY, Appellant, v. UNITED STATES & District of Columbia, Appellees. UNITED STATES, Appellant, v. Stacey ABNEY, Appellee. DISTRICT OF COLUMBIA, Appellant, v. Stacey ABNEY, Appellee.

Page 78

451 A.2d 78

Stacey ABNEY, Appellant, v. UNITED STATES & District of Columbia, Appellees.

UNITED STATES, Appellant, v. Stacey ABNEY, Appellee.

DISTRICT OF COLUMBIA, Appellant, v. Stacey ABNEY, Appellee.

No. 79-561.

No. 80-1282.

No. 80-1287.

District of Columbia Court of Appeals.

No. 79-561 Argued October 23, 1980.

Nos. 80-1282, 80-1287 Argued July 7, 1981.

Decided September 22, 1982.

Lawrence A. Mintz and Dale C. Andrews, Washington, D. C., for appellant in No. 79-561.

Anthony C. DiGioia, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, Asst. U. S. Atty., Washington, D. C., at the time the brief was filed, and William D. Nussbaum, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellees in No. 79-561. Benjamin B. Sendor, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee in No. 79-561.

Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., at the time of argument, and Richard B. Nettler, Asst. Corp. Counsel, Washington, D. C., entered an appearance for the District of Columbia in Nos. 79-561 and 80-1287.

David N. Saperstein, New York City, filed an amicus curiae brief for The American Civil Liberties Union Fund of the National Capital Area in No. 79-561.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the briefs were filed, John A. Terry, Asst. U. S. Atty., Washington, D. C., at the time the briefs were filed, David E. Sellinger and Anthony C. DiGioia, Asst. U. S. Attys., Washington, D. C., were on the briefs, for appellant in No. 80-1282.

George H. Kendall, Washington, D. C., appointed by this court, for appellee in Nos. 80-1282 and 80-1287.

Before KELLY, KERN and. MACK, Associate Judges.

MACK, Associate Judge:

Appellant Abney challenges his convictions for sleeping or lying on an improved portion of the Capitol grounds in violation of Art. 10, § 47(b)(2) of the Traffic Regulations for the United States Capitol Grounds (hereinafter 47(b)(2)) which provides, in pertinent part:

(b) In order to insure that the movement of all vehicular and other traffic (including pedestrian), is allowed to proceed in a safe and unimpeded fashion . . . the following shall be unlawful within the [Capitol] Grounds:

(2) any sleeping or lying down on the paved or improved portions of the Buildings and Grounds (such as streets, roads, sidewalks, walkways, steps, curbs, gutters, doorways, alcoves, walls) at any time. . . .

and for unlawful entry in violation of D.C. Code 1973, § 22-3102 [now D.C.Code 1981, § 22-3102] which reads, in pertinent part:

Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building or other property . . . against the will of the . . . person lawfully in charge there-David lawful authority to or remain therein or thereon shall refuse to quit the same on the demand of the . . . person lawfully in charge thereof, shall be deemed guilty of a misdemeanor . . . .

The government appeals, and Abney cross-appeals, from a dismissal of identical charges against Abney in a subsequent prosecution. The prosecutions stemmed from Abney's arrests on October 18, 1978 and April 15, 1980 for lying in an alcove underneath the east front steps of the Capitol and his subsequent failure to follow the instructions of Capitol police officers that he either sit up or leave.¹

The evidence presented in the government's earlier prosecution was as follows: At approximately 9:30 p.m. on October 18, 1978, approximately five hours after the Capitol building had been closed to the public, a Capitol police officer approached Abney (who was lying prone in an alcove but, according to an officer's testimony, was not intimidating² anyone nor was he blocking a nearby doorway, sidewalk, or roadway)³ and informed him that he was in violation of 47(b)(2). Abney refused to leave, stating that he was protesting the Veterans Administration's denial of his benefits and, consequently, had a constitutional right to remain. The officer then ordered a crime scene search officer to take a picture of Abney and, thereafter, issued him a traffic citation; and, after Abney again refused to leave, arrested him for unlawful entry. The entire process lasted fifteen minutes during which, one officer testified, several tourists walked past the scene and were forced to walk in the roadway because "[the police] were standing adjacent to the Defendant at that time."⁴ Abney testified that at the time of his arrest he was located in a "stall," approximately three feet by three feet and that he was not in anyone's way. He continued:

If they could walk through that wall, strong enough to walk through there or ride through there, they could run over me, or step over me. They would have to turn and come in here and do what they want to me. On the street all they have to do is go along, but if they'd be on the street and wanted to see me, I'd tell them my trouble. Other than that, if they don't want to interfere with me, they can keep walking.

The trial court refused to instruct the jury that if it found Abney had a bona fide belief that he had legal authority to remain on the Capitol grounds, he could not be found guilty of unlawful entry. Instead the court instructed the jury that since Abney had no basis for his alleged belief, it did not constitute a defense. The court found Abney guilty of violating the regulation, stressing that due to Abney's presence and the commotion surrounding his arrest, persons were forced to stray from the sidewalk near the alcove into an adjacent roadway. See Arshack v. United States, D.C.App., 321 A.2d 845 (1974). The jury then found Abney guilty of unlawful entry.

Abney appeals this conviction on numerous grounds: 1) that the trial court erred in ruling that 47(b)(2) is not unconstitutional, either on its face or as applied to him; 2) that, therefore, there existed no legal authority to ask him to leave the Capital grounds; 3) that, as such, his refusal to leave did not constitute unlawful entry; and 4) that the trial court erred in refusing to instruct the jury as to his bona fide right to remain on the Capitol grounds and in instructing the jury that since Abney's belief in his right to remain was unreasonable, it could not comprise a defense to the charges against him.

The government contends, however, that 1) Abney's sleeping on the Capitol grounds was not protected and, as such, 47(b)(2) is not unconstitutional either on its face or as applied; 2) Abney's mere refusal to leave the Capitol grounds, unsupported by a violation of 47(b)(2), was a proper basis for the unlawful entry charge as long as the order to leave was reasonable and given in good faith;⁵ and 3) the trial court's rulings regarding Abney's proffered good faith defense were correct.⁶

The evidence presented in Abney's motion to dismiss the government's latter prosecution was as follows: Abney testified that he went to the Capitol to protest on April 15, 1980 and entered an alcove under the east front center steps of the Capitol at approximately 9:30 p.m. He further testified that between that time and the arrival of the Capitol Police he spoke with several pedestrians regarding his disability benefits grievance and that he at no time had lain on a nearby sidewalk or in an adjacent roadway so as to block traffic. He also called several witnesses to support his claim that 47(b)(2) was being selectively enforced against him. They all offered accounts of persons reclining on improved areas of the Capitol grounds, during organized demonstrations and at other times, who were not asked by Capitol Police to move or sit up.

Two Capitol Police officers testified as to the events surrounding Abney's arrest. One testified that he approached Abney at 11:05 p.m. and that Abney was lying under the Capitol steps in an alcove against a wall on top of newspapers with a paper bag over his head. He then told Abney that he was violating 47(b)(2) to which Abney replied that he was protesting. He then issued Abney a ticket for his violation of 47(b)(2) and, when Abney thereafter refused to either sit up or move, arrested him for unlawful entry. Lastly, he testified that he had seen no civilians around Abney on that night and, although he stated that Abney could have rolled into a nearby roadway, both he and another officer agreed that Abney was blocking neither the nearby sidewalk nor the roadway.

The court, after finding that Abney's conduct neither actually nor potentially threatened the movement of traffic on the Capitol grounds, granted his motion to dismiss both charges ruling that, as applied, 47(b)(2) impermissibly abridged Abney's First Amendment rights. The court, however, rejected Abney's claims that 47(b)(2) is an overbroad and unreasonable time, place and manner regulation and that 47(b)(2) had been selectively enforced against him. Consequently, Abney cross-appeals from the court's latter two rulings,⁷ while the government appeals the court's ruling that 47(b)(2) was unconstitutionally applied on four bases: 1) that sleeping is not conduct mixed with speech; 2) the trial court's finding that Abney's conduct did not potentially threaten movement of traffic was clearly erroneous;⁸ 3) the trial court erred in failing to consider the available alternative means of communication which Abney could have used; and 4) the trial court's decision would require selective enforcement of an otherwise uniform regulation which prohibits all sleeping on improved portions of the Capitol grounds.

We find that 47(b)(2) is facially constitutional. We find that the regulation was nonetheless unconstitutionally applied to Abney. As such, we reverse his convictions of a 47(b)(2) violation and unlawful entry in No....