Arshack v. United States

• Decision Date: 25 June 1974
• Docket Number: No. 6882.,No. 6883.,6882.,6883.
• Citation: 321 A.2d 845
• Parties: Alice J. ARSHACK, Appellant, v. UNITED STATES, Appellee. Louis M. BRADFORD et al., Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 845

321 A.2d 845

Alice J. ARSHACK, Appellant, v. UNITED STATES, Appellee.

Louis M. BRADFORD et al., Appellants, v. UNITED STATES, Appellee.

No. 6882.

No. 6883.

District of Columbia Court of Appeals.

Argued September 13, 1973.

Decided June 25, 1974.

Kenneth C. Bass, III, Reston, Va., for appellants, and appointed by this court for appellant in No. 6882.

Gregory C. Brady, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Peter K. Mair, Asst. U. S. Attys., were on the brief, for appellee.

Before KERN, GALLAGHER and YEAGLEY, Associate Judges.

GALLAGHER, Associate Judge:

These appellants were found guilty after trial by jury of willfully and knowingly obstructing and impeding passage within the United States Capitol building.¹ Each was sentenced to a fine of $125.00 or thirty days incarceration. They appeal and make four principal assignments of error: (1) their conduct was within the protection of the First Amendment; (2) it was error for the trial court to fail to instruct the jury that it was the judge of the law as well as the facts; (3) the trial court's instruction on the requisite intent necessary for conviction was inadequate; and, (4) the failure of the trial court to instruct the jury that defendants should be acquitted if their actions were reasonably believed to be justified by obligations imposed by international law. We find no error justifying reversal and affirm.

On June 27, 1972, appellants and others (a group of about 150) climbed the steps of the east front of the Capitol which leads to the Senate wing. They carried a petition which they intended to present to a member of the Senate. The petition recited their grievances concerning United States involvement in Southeast Asia and asked Congress to act thereon.

At the top of the Capitol steps they were met by a Senator and by the Chief of the Capitol Police. The Senator addressed the group, stated he would receive the petition and asked them not to block the corridors or interfere with the operation of the Senate. The Chief told the group that there were "certain limitations" on their right to petition Congress and requested them to abide by the rules and regulations of that body. The Chief also read to the group portions of D.C.Code 1973, § 9-123.² The portion of the Code at issue here was not read until a later time, however.

The Senator then led the group into the Capitol and through the passageways until they reached the corridor outside the Senate chamber.³ At that time the Senate was in session and the Capitol Police had erected stanchions around the corridor in order to permit the group to have an area to express their views and to allow free passage in the corridor and the entrance to the Senate chamber abutting thereon. The group chose to disregard the stanchions, however, and assembled instead in the center of the corridor at the entrance to the Senate chamber. The petition was then read and presented to the Senator who carried it into the Senate chambers where he had it inserted in the Congressional Record.

It was at this point that two members of the group read prepared statements. One statement expressed the position that it was the responsibility of the individual "to obstruct the commission of the crimes of war," and that the time had come to act "even in symbolic defiance of some local ordinance . . . ." The other statement characterized the symbolism of the group's next act, lying down in the corridor. Approximately 120 persons in the group then sat or lay down in the corridor.

The Chief of the Capitol Police "announced to the group [that] they were blocking the corridors and that it was a violation of the statute and not to do so, and unless they either removed themselves from the corridors or placed themselves in a manner as to not obstruct the corridor, it would be necessary to place them under arrest." This announcement was made by bullhorn in order that all members of the group might hear the warning above the noise naturally created by a congregation of people that large. The Capitol Police then cordoned off the area. Appellants and many of their colleagues were arrested. All arrests were orderly. Each appellant has admitted presence in the corridor at the time of the arrests.⁴

At trial, in addition to testimony and photographs, a sound videotape of the above recited incident was received into evidence and viewed by the jury. In addition, the defendants who testified were permitted to state the beliefs and motives behind their actions on June 27. Certain instructions were requested and denied and the jury found each of the defendants guilty.

I

At the close of all evidence and again after the jury returned its verdict the defendants moved for a judgment of acquittal on the theory that their conduct was within the protection of the First Amendment to the Constitution. These motions were denied and appellants cite this as error.

The First Amendment provides that "Congress shall make no law . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Until appellants and their colleagues sat down in the corridor the record shows they were not hindered in presenting their petition to the Senate. It was only when the group chose to seat itself in the corridor that the Capitol Police moved to effectuate their arrest. At trial no defendant testified that these arrests took place simply because the group was petitioning for redress of grievances.

The issue then becomes a question of whether Congress can legislate against the impediment of passage through and the obstruction of its corridors by an aggrieved public which has come to express its complaints. It is appellants' contention that the Congress cannot so legislate where the conduct sought to be proscribed is "complementary" to concededly protected activity. Their argument is bottomed on the premise that their conduct, sitting and lying in the corridor, was an integral part of their petition to the Congress. While we recognize that in some respects appellants' conduct has First Amendment overtones we disagree with their conclusion that what they did cannot be constitutionally proscribed.

D.C.Code 1973, § 9-123(b) (5) provides:

(b) It shall be unlawful for any person or group of persons willfully and knowingly — (5) to obstruct, or to impede passage through or within, . . . any of the Capitol buildings.

The purpose of the statute is to permit Congress to carry out the people's business unhindered by serious disruption. See generally, H.R.Rep. No. 745, 90th Cong., 1st Sess. (1967). Such statutes may be applied to symbolic conduct, that is, conduct which if done at another place might fall within the protection of the First Amendment. Here we arc confronted with a narrowly drawn statute "evincing a legislative judgment that certain specific conduct be limited or proscribed." Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963). Were such statutes to be rendered incapable of application we would not be able to preserve order in our society. While it may be that a society without controversy would be sterile, a society without order would be anarchic. The Supreme Court stated in Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965):

The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom, of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. [Citations omitted.]

Where in the context of complementing protected activity, the line is crossed into what is proscribed by statute, it is necessary to balance appellants' First Amendment rights with those sought to be protected by the statutory proscription. United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), sets out the test:

This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. [Footnotes omitted.]

There is no issue raised as to the power of Congress to enact, constitutionally, the statute involved...