Armfield v. US, 01-CM-274.

Decision Date05 December 2002
Docket NumberNo. 01-CM-274.,01-CM-274.
PartiesBen W. ARMFIELD, Appellant v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Ben W. Armfield, pro se.

Michael C. Liebman, Assistant United States Attorney, for appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., Luis A. Lopez, Siu P. Wong, and Melinda J. Foster, Assistant United States Attorneys, were on the brief for appellee.

Before TERRY and STEADMAN, Associate Judges, and NEBEKER, Senior Judge.

TERRY, Associate Judge:

Appellant Ben Armfield was convicted of disrupting the House of Representatives, in violation of D.C.Code § 9-112(b)(4) (1995).1 On appeal he contends (1) that the statute is unconstitutional as applied to him because it violates his right to free speech and to petition the government under the First Amendment; (2) that the statute is unconstitutional because it violates his right to equal protection and due process of law under the Fifth Amendment; (3) that the government presented insufficient evidence to support his conviction; and (4) that the prosecutor made two improper comments during closing argument that prejudiced his defense. We affirm.

I

On September 14, 2000, appellant went to the visitors' gallery of the House of Representatives in the United States Capitol. At that time the House was in session, debating an appropriations bill for the District of Columbia. Officer Ryan Schauf, a member of the Capitol Police, noticed appellant as he entered the gallery and took a seat in the first row. From prior experience, the officer suspected that appellant was going to attempt to make a statement from the gallery. Officer Schauf approached appellant and asked whether he was going to disrupt the session; appellant replied, "I don't know yet."

A few minutes later, when the House was voting on the appropriations bill, appellant told Officer Schauf that he was "going to do it now." Appellant then "stood up or started to stand from his chair and yelled out `Mr. Speaker, Mr. Speaker.'" Despite warnings from Officer Schauf telling him to sit down and be quiet, appellant continued to speak in a loud voice for about a minute. The Speaker of the House heard appellant, as did another Capitol Police officer standing 100 feet away. The Speaker went to the rostrum, struck his gavel, and requested that the Sergeant at Arms restore order in the gallery. Appellant then fell silent. Officer Schauf escorted him out of the gallery and placed him under arrest.

Appellant testified that he had planned to make a statement immediately after the House vote on the District of Columbia appropriations bill in order to protest the fact that District residents do not have voting representation in Congress. He said that he did not intend to disrupt the proceedings, but expected instead to wait for a pause in the proceedings after the vote was "officially over." He admitted, however, that the voting might still have been going on when he made his "statement" from the gallery. Appellant also admitted that he "wanted [his] message to be heard" by all the members of the House who were present.

II
A. The First Amendment Claim

Appellant contends that the statute prohibiting the disruption of either House of Congress is unconstitutional as applied to him because he is a citizen of the District of Columbia, unrepresented by a voting member of Congress, who has a right to petition Congress under the First Amendment. Section 9-112(b)(4) makes it unlawful for any person "willfully and knowingly . . . to utter loud . . . language, or to engage in any disorderly or disruptive conduct, at any place . . . within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof. . . ." According to appellant, the statute violates his First Amendment right to petition Congress and to voice his opinion when Congress is enacting legislation for the District of Columbia. He maintains that the gallery of the House of Representatives should be open to the citizens of the District for public comment when the House is considering legislation related to the District. We cannot accept such an argument.

The First Amendment states, "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST. AMEND. I. While the Supreme Court has recognized that "[t]he right of free public discussion of the stewardship of public officials. . . [is] a fundamental principle of the American form of government," New York Times Co. v. Sullivan, 376 U.S. 254, 275, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (footnote omitted), this right is not without limits. In particular, when someone claims the right to speak in a public place, "[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

Section 9-112(b)(4) was held to be constitutional as written in Smith-Caronia v. United States, 714 A.2d 764 (D.C.1998). We said in Smith-Caronia, a case with facts very similar to those presented here,2 that section 9-112(b)(4) is "viewpoint-neutral on its face and imposes reasonable time, place, and manner restrictions on speech consistent with the significant government interest it serves, while leaving open ample means of communication not calculated to disrupt the orderly conduct of the legislature's business." Id. at 766. We did not decide, however, whether the Senate gallery (or, by extension, the House gallery) was a designated public forum or a non-public forum for First Amendment purposes, see id. at 765; see also Markowitz v. United States, 598 A.2d 398, 403 (D.C.1991),

cert. denied, 506 U.S. 1035, 113 S.Ct. 818, 121 L.Ed.2d 689 (1992), and we see no need to rule on that point in this case either.

When a particular forum is designated as "public" for First Amendment purposes, it must be open to all speakers; the government may not limit access to certain groups while excluding others. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)

(rule giving access to university facilities to all registered student organizations except religious groups held unconstitutional); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (ordinance that prohibited all picketing except by members of labor unions held unconstitutional); Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (same); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951) (grant of permission to use parks to some groups but not others held unconstitutional); see also Fedorov v. United States, 600 A.2d 370, 377 n. 8 (D.C.1991) (en banc) ("Just as discrimination based on race or religion is clearly forbidden by the Constitution, `so is discrimination on the basis of protected First Amendment activities. . . .'" (citations omitted)).

Appellant argues that residents of the District of Columbia, of whom he is one, should be able to use the House gallery as a special public forum to substitute for their lack of direct representation in Congress. This argument flies in the face of well-established First Amendment principles. Even if we were to decide that the House gallery is a "public" forum under relevant Supreme Court precedents, that gallery could not be held open for First Amendment expression solely for residents of the District. The Constitution does not confer any special rights on residents of the District of Columbia that are denied to residents of the fifty states. In particular, District residents cannot have a First Amendment forum reserved for them that is not available to other persons or groups. Furthermore, if the gallery were opened for First Amendment expression to all groups or individuals, section 9-112(b)(4) would be useless as a means of preserving order in the House or Senate. Section 9-112(b)(4), as we held in Smith-Caronia, permissibly regulates the First Amendment activities of all persons, regardless of where they reside. We hold that District of Columbia residents do not and cannot have any special First Amendment rights that are not equally available to other persons who live outside the District.3

B. The Fifth Amendment Claim

Appellant also argues that section 9-112(b)(4) deprives him of equal protection of the laws under the Fifth and Fourteenth Amendments. He cannot seek relief under the Fourteenth Amendment, of course, because it applies only to the states and not to the District of Columbia. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954)

; Smith v. United States, 460 A.2d 576, 578 n. 3 (D.C. 1983). To the extent that appellant relies on equal protection principles inherent in the due process clause of the Fifth Amendment, see Bolling, 347 U.S. at 500,

74 S.Ct. 693; Smith, 460 A.2d at 578 n. 3, his argument fares no better than his First Amendment claim.

Section 9-112(b)(4) is not the source of the differential treatment of which appellant complains. That statute applies to "any person or group of persons," making no distinction between residents of the District and anyone else. It is the Constitution itself which is the cause of appellant's frustration about his lack of representation in Congress. See Adams v. Clinton, 90 F.Supp.2d 35, 67-68 (D.D.C

.) (dismissing a suit by District of Columbia citizens seeking the right to vote for a member of Congress because the Constitution grants that right only to residents of the states, not to residents of the District), aff'd, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (2000). We obviously cannot declare the Constitution, or any part of it, unconstitutional, not...

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    ...concerned citizens "can make their views known to Congress besides speaking from the House or Senate gallery." Armfield v. United States , 811 A.2d 792, 797 n.3 (D.C. 2002) (noting that citizens can "write letters," "make speeches," or even "contact the media to convey their message[ ]"). A......

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