Bolz v. Dist. of Columbia

• Decision Date: 08 December 2016
• Docket Number: 14–CT–956 to 14–CT–967
• Citation: 149 A.3d 1130
• Parties: Antoinette Bolz, et al., Appellants, v. District of Columbia, Appellee.
• Court: D.C. Court of Appeals

149 A.3d 1130

Antoinette Bolz, et al., Appellants,

v.District of Columbia, Appellee.

14–CT–956 to 14–CT–967

District of Columbia Court of Appeals.

Argued December 3, 2015

Decided December 8, 2016

Jeffrey L. Light for appellants.

John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and John J. Woykovsky, Assistant Attorney General, were on the brief, for appellee.

Before Blackburne–Rigsby and Easterly, Associate Judges; and Steadman, Senior Judge.

Easterly, Associate Judge:

In the fall of 2011, Occupy D.C. protesters began demonstrating in McPherson Square, a federal park. For weeks, they remained there with the tacit, if not express, permission of the federal authorities. Then, one morning in early December, they assembled a wooden structure in the park, the “Occubarn.” The United States Park Police told the protesters to take it down. The protesters did not. After an all-day standoff, the police cleared the area of the Occubarn and tore it down. In the course of these events, the police arrested a number of protesters for failing to obey an order to vacate a structure presumptively deemed unsafe under the District's building regulations. These regulations do not apply to federal land, however, and the District of Columbia prosecuted these protesters under a different regulation—the Crowd and Traffic Control regulation—which makes it a crime to fail to obey a crowd and traffic clearing order. The District also prosecuted one protester, David Givens, for indecent exposure and disorderly conduct.

As a group, the protesters challenge their Crowd and Traffic Control convictions on grounds that the evidence was legally insufficient to establish that that they disobeyed a legitimate crowd and traffic clearing order. We agree. The Crowd and Traffic Control regulation does not authorize or require compliance with police orders to clear people from any public space at any time. Rather, the regulation only applies “[w]hen fires, accidents, wrecks, explosions, parades, or other occasions cause or may cause persons to collect” in the District's public thoroughfares; and these “emergency occasion[s]” only empower police to issue, and demand compliance with, orders “necessary for the purpose of affording a clearing” of those thoroughfares to advance one of the listed objectives of the regulation. 24 DCMR §§ 2100.1–.2 (1983). Although these objectives broadly include the “protection of persons and property,” § 2100.1 (e), the purpose asserted by the District for the clearing order in this case, there must be a nexus between this objective and clearing crowds on the District's public thoroughfares. Moreover, the safety concerns at issue must be substantiated.

We conclude that, although the construction of the Occubarn constituted an “emergency occasion,” the protesters did not fail to comply with a “necessary order.” The order was not “necessary for the purpose of affording a clearing” of a public thoroughfare because it cleared people from a public park. And, it was not “necessary ... for the protection of persons and property,” in the absence of evidence that the police had reason to believe the Occubarn posed a danger to anyone, in particular vis-à -vis crowds on public thoroughfares. As no reasonable factfinder could conclude that the protesters had an obligation to obey the order issued under the Crowd and Traffic Control regulation, we reverse their convictions thereunder.¹

Mr. Givens separately challenges his conviction for indecent exposure, arguing that D.C. Code § 22–1312 (2016 Supp.) is unconstitutionally overbroad. Concluding that the statute is not substantially overbroad in relation to its plainly legitimate sweep, we affirm his conviction.

I. Facts and Procedural History

In the fall of 2011, protesters across the country “occupied” public spaces “to bring awareness to the[ir] concerns about United States economic policy, wealth disparity and the political process.”² At the beginning of October, the Occupy D.C. movement established its base of operations in McPherson Square, a federal park close to the District's corporate lobbying corridor on K Street NW.³ The record does not establish whether the protesters had a permit to occupy the park,⁴ but it appears that federal authorities did not challenge their presence in the park until December 4, 2011, when the events leading to the convictions now on appeal took place.⁵

Before sunrise that morning, Occupy protesters began to assemble a wooden structure in the park. Resembling a barn, and thus earning the moniker “the Occubarn,” the approximately 16 by 24 by 30 foot structure consisted of four modular framing pieces. The Occubarn was meant to be both functional, to protect the protesters from winter weather, and symbolic, to represent the foreclosure crisis, a central concern of their movement. Although the protesters planned to add walls and a roof, the framed space was largely open.

Later that morning, the U.S. Park Police arrived in McPherson Square and informed the protesters that the Occubarn had to be taken down. Apparently aware that federal regulations allow the use of temporary structures during demonstrations,⁶ the protesters offered to show the police that the Occubarn was not permanent and could be taken apart; but according to one protester, the police “didn't seem interested in that at all.” The police gave the protesters one hour to discuss the removal of the structure. The protesters held a meeting within the Occubarn but could not reach a consensus about how to proceed. About midday, ten to fifteen U.S. Park Police officers, some on horses, partially surrounded the structure. The mounted officers then rode into it, causing some protesters to climb into the rafters to get out of their way. Other protesters left the area of the Occubarn.

In the meantime, an inspector from the District's Department of Consumer and Regulatory Affairs (DCRA), received a request for assistance at McPherson Square. Arriving around 12:30 p.m., the inspector examined the Occubarn and saw no signs of imminent danger; instead he noted that “the building appeared pretty solid.” Nevertheless, because it seemed to have been erected without a building permit, he determined, pursuant to the District's building regulations, that it “should not be occupied.” He came to this conclusion even though (as he later acknowledged at trial) the District's building regulations do not apply to federal property. See 12A DCMR § 101.5 (2008) (exempting federal property from the District's building regulations). He informed the on-site U.S. Park Police commander that the Occubarn should be “posted,” i.e., a “standard danger placard” should be affixed to the structure “indicating that it's not safe.”⁷ But the commander asked him to wait until the police had “done some more crowd control activities.”

Lieutenant Robert Lachance of the U.S. Park Police arrived at McPherson Square and assumed command of the scene late that afternoon. At that point, there were still about two dozen people inside the Occubarn. The lieutenant told them that “an inspector was going to come and look at the structure to see if it was safe.” He also told them that if the remaining protesters were required to leave the Occubarn, he would give them multiple warnings and anyone who left before he gave the final warning would not be arrested.

Approximately four hours after the inspector arrived at McPherson Square, he posted the Occubarn. At this point, the police put tape around the Occubarn, leaving the doorway on the south side open so that people could exit if they chose. Lieutenant Lachance then ordered the protesters to “vacate the area,” issuing the same warning three times: “Attention. This is Lieutenant Lachance of the United States Park Police. This structure has been deemed unsafe by DC [RA]. You must vacate the area or be arrested.”⁸ None of the protesters left the structure and the police eventually arrested them all.

One of the protesters, Mr. Givens, had climbed up into the rafters of the Occubarn and resisted multiple attempts by the police to remove him. While there, he developed an urgent need to urinate and relieved himself off the top of the structure in full view of the people on site. Some time later, Mr. Givens complied with the police requests, came down from the rafters, and was arrested. After the police completed the arrests, they bulldozed the Occubarn and discarded the debris.

The District charged all twelve of the protesters involved in this appeal⁹ with failing to obey a crowd and traffic clearing order under the District's Crowd and Traffic Control regulation, 24 DCMR § 2100.2. Mr. Givens was additionally charged with indecent exposure¹⁰ and disorderly conduct.¹¹

The protesters moved to dismiss the Crowd and Traffic Control charges, arguing that 24 DCMR § 2100.2 is unconstitutionally vague and overbroad. The magistrate judge presiding over the case denied the motion, reasoning that § 2100.2 must be read in conjunction with § 2100.1¹² and “applies only in very specific circumstances.” The trial court also rejected the protesters' argument that the Crowd and Traffic Control regulation did not authorize the police to clear a public park, like McPherson Square. Defense counsel had argued that the regulation applied only to “public streets, alleys, highways, or parkings,”¹³ not to parks. But the magistrate judge concluded that the “explicit language” of the regulation did not require “the failure to obey the order ... to occur ... on those areas.” In the same pretrial motion, Mr. Givens challenged the indecent exposure statute as unconstitutionally overbroad; the magistrate judge denied that challenge as well.

After a five-day bench trial, the magistrate judge announced her verdict. Acknowledging that there was no dispute that the protesters had failed to obey Lieutenant...