Agnew v. Government of District of Columbia, 040519 FEDDC, 17-7114

Docket Nº:17-7114
Opinion Judge:PILLARD, CIRCUIT JUDGE
Party Name:Daryl Thomas Agnew, et al., Appellants v. Government of the District of Columbia, Appellee
Attorney:William Claiborne argued the cause and filed the briefs for appellants. Lynn E. Cunningham entered an appearance. Sonya L. Lebsack, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Karl A. Racine, At...
Judge Panel:Before: Tatel and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.
Case Date:April 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Daryl Thomas Agnew, et al., Appellants

v.

Government of the District of Columbia, Appellee

No. 17-7114

United States Court of Appeals, District of Columbia Circuit

April 5, 2019

Argued September 5, 2018

Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00340)

William Claiborne argued the cause and filed the briefs for appellants. Lynn E. Cunningham entered an appearance.

Sonya L. Lebsack, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General.

Before: Tatel and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.

OPINION

PILLARD, CIRCUIT JUDGE

The District of Columbia is a diverse and thriving city of approximately 700, 000 residents. As the nation's capital, it is the site of hundreds of mass events each year. The District also annually hosts tens of millions of tourists from around the nation and the world. To promote and protect the shared use and enjoyment of the city's public areas by residents and visitors alike, District of Columbia law makes it a misdemeanor "to crowd, obstruct, or incommode" the use of streets, sidewalks, or building entrances, and "continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease" doing so. D.C. Code § 22-1307(a) ("the anti-obstructing statute").

The plaintiffs, three District of Columbia residents who were arrested under the statute, challenge it as unconstitutionally vague on its face on the ground that it authorizes an impermissible degree of enforcement discretion. The District's anti-obstructing statute applies virtually anywhere a pedestrian might be in public. And history teaches that unbridled discretion to control individuals' use of public spaces can be an instrument of abuse. The Supreme Court has invalidated laws that give the police unfettered discretion to punish-or banish-anyone at all, often with the heaviest toll on "poor people, nonconformists, dissenters, [or] idlers." See Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). Under vague laws, people may use public spaces "only at the whim of any police officer." Appellants' Br. 18 (quoting Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 (1965)).

The statute challenged here confers no such sweeping power. Its terms are clear enough to shield against arbitrary deployment; it bars only blocking or hindering others' use of the places it identifies. Further, a person is not subject to arrest unless he refuses to move out of the way when an officer directs him to do so. The statute does not criminalize inadvertent conduct, nor does it authorize the police to direct a person to move on if he is not currently or imminently in the way of anyone else's shared use of the place at issue. Because we conclude that the anti-obstructing statute is not unconstitutionally vague on its face, we affirm the district court's dismissal of the complaint.

BACKGROUND

A. The District of Columbia's Anti-Obstructing Statute

In the District of Columbia, "[i]t is unlawful for a person, alone or in concert with others:" (1) To crowd, obstruct, or incommode:

(A) The use of any street, avenue, alley, road, highway, or sidewalk;

(B) The entrance of any public or private building or enclosure;

(C) The use of or passage through any public building or public conveyance; or

(D) The passage through or within any park or reservation; and

(2) To continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease the crowding, obstructing, or incommoding.

D.C. Code § 22-1307(a). Violating the law is a misdemeanor punishable by a fine of up to five hundred dollars, imprisonment for up to ninety days, or both. Id. § 22-1307(c); id. § 22-3571.01(b)(3).

The District of Columbia's obstructing ban has been on the books in one form or another since the nineteenth century. From 1892 to 2011, the provision appeared within an "act for the preservation of the public peace and the protection of property." See Act of July 29, 1892, ch. 320, 27 Stat. 322, 323; Act of July 8, 1898, ch. 638, 30 Stat. 723; Act of June 29, 1953, ch. 159, 67 Stat. 90, 97-98; Act of May 26, 2011, D.C. Law 18-375, § 2(a) (codified at D.C. Code § 22-1307). For the majority of that time, the statute made it unlawful "to congregate and assemble" in order to "crowd, obstruct, or incommode the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any public or private building or inclosure."1See Act of July 8, 1898, ch. 638, 30 Stat. 723; see also Act of June 29, 1953, ch. 159, 67 Stat. at 97-98. Since the beginning, it has focused on preserving the public order and minimizing the risk of public inconvenience, rather than punishing conduct that causes direct or immediate injury. Cf. Morissette v. United States, 342 U.S. 246, 254-56 & n.14 (1952).

Both this court and the District of Columbia Court of Appeals held that the predecessor law applied only to groups of three or more people who had assembled for the purpose of crowding, obstructing, or incommoding, reasoning that the statute incorporated the common-law definition of unlawful assembly. Kinoy v. District of Columbia, 400 F.2d 761, 766, 769-70 (D.C. Cir. 1968); see also Odum v. District of Columbia, 565 A.2d 302, 303-04 (D.C. 1989) (invalidating the conviction of a lone individual's obstruction of truck's entrance to a construction site). And the District of Columbia Court of Appeals long held that that law did not prohibit inadvertent conduct, noting that "[i]t would hardly be contended . . . that if defendants had met on one of the spacious sidewalks of Pennsylvania [A]venue to conduct a peaceable conversation, though in a degree inconveniencing pedestrians, they would be guilty, under the statute, of crowding and obstructing the free use of the walk." Hunter v. District of Columbia, 47 App. D.C. 406, 409 (1918).

In some cases, the District of Columbia Court of Appeals framed its approach as a requirement that the forbidden conduct-"crowd[ing], obstruct[ing], or incommod[ing]" the use of public spaces, for example, or loud or boisterous talking-threaten a breach of the peace. See Adams v. United States, 256 A.2d 563, 564-65 (D.C. 1969). The court feared that, without that limiting construction, the statute could "allow punishment of the members of a group of sightseers, tourists, or school children, who might innocently congregate and assemble on a public street in such a manner as to crowd, obstruct, or incommode" others' use. Adams, 256 A.2d at 564-65; see Williams v. District of Columbia, 419 F.2d 638, 642 (D.C. Cir. 1969) (en banc). Consistent with that concern, the District of Columbia Court of Appeals did not require a showing that a breach of the peace had been threatened when "appellants' purpose to impede entry was adequately shown"-as it held was the case when a group of people laid down in front of the entrance to a congressional building to protest the Iraq War. Tetaz v. District of Columbia, 976 A.2d 907, 910 (D.C. 2009).

In 2011, the District of Columbia Council amended the anti-obstructing statute to essentially its current form. The provision is no longer limited to groups of people who "congregate and assemble" for an unlawful purpose, nor does it require the government to prove any threat to public peace. Duffee v. District of Columbia, 93 A.3d 1273, 1277 (D.C. 2014). The law instead requires an officer who (1) observes a person crowding, obstructing, or incommoding another's use of a way or passage to (2) direct the obstructer to move on; it authorizes arrest only if the person disobeys the officer's directive. See D.C. Code § 22-1307(a)(2). The Council added the "move-on" order prerequisite to "prevent[] the arrest of individuals who are not intentionally trying to obstruct the passage of others and are prepared to alter their conduct when instructed to do so." See Joint Appendix (J.A.) 123 (Council for Court Excellence, Disorderly Conduct Arrest Project Subcommittee, Revising the District of Columbia Disorderly Conduct Statutes: A Report and Proposed Legislation). The Council thought that limitation would "eliminate[] any problems in proving the improper intent of a person who persists in blocking after a warning to desist." Id.

B. Factual Background

Alex Dennis, Daryl Agnew, and Rayneka Williamson were each arrested in unrelated incidents for violating the...

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