MARKOWITZ v. U.S.

• Decision Date: 15 October 1991
• Docket Number: No. 88-764,No. 88-763,No. 88-865,No. 88-866,88-763,88-764,88-865,88-866
• Citation: 598 A.2d 398
• Parties: Amy L. MARKOWITZ, Appellant, Peter Caplan, Appellant, Jane Zara, Appellant, Paul E. Ruther, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

598 A.2d 398

Amy L. MARKOWITZ, Appellant, Peter Caplan, Appellant, Jane Zara,Appellant,Paul E. Ruther, Appellant, v. UNITED STATES, Appellee.

Nos. 88-763, 88-764, 88-865 and 88-866.

District of Columbia Court of Appeals.

Argued December 6, 1990.

Decided October 15, 1991.

Appeal from the Superior Court, Arthur L. Burnett, Sr., J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Mark L. Goldstone, for appellants.

R. Craig Lawrence, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and John D. Bates, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, PRYOR and BELSON, Senior Judges. ^*.

Judge Belson was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on July 24, 1991.

BELSON, Senior Judge:

Each of the four appellants was charged with a single count of demonstrating in the United States Capitol building in violation of D.C.Code § 9-112(b)(7) (1981).¹ Following a bench trial, the trial judge found all appellants guilty and sentenced them to five days imprisonment with execution of the sentence suspended. The trial judge then placed appellants on six months probation and ordered each to perform twenty-five hours of community service. On appeal, appellants contend that unless a requirement of a showing of disruption of the activities of Congress is read into section 9-112(b)(7), it should be declared unconstitutionalon its face. Appellants also contend that their conduct was no more disruptive than that of an ordinary tourist or visitor to the Capitol building, and therefore their convictions must be reversed. We affirm.

I.

Following a pretrial evidentiary hearing, the trial judge denied appellants' motion to dismiss on the ground that the prosecutor's refusal to admit appellants into a diversion program unconstitutionally chilled their First Amendment rights and deprived them of equal protection of the law guaranteed by the Due Process Clause of the Fifth Amendment. Appellants do not challenge that ruling on appeal. The judge prefaced his ruling on the motion with an extensive written statement of facts that served as the findings of fact on which he based his ruling. We set forth those findings here:

The testimony of all the witnesses was consistent for the most part. On December 18, 1987, the defendants along with approximately 10 to 15 other persons went to the Capitol Building to present a message or statement to Speaker of the House, Jim Wright, regarding aid to the Contra rebels in Nicaragua. They were escorted to the second floor of the Capitol Building by a page. When they got to the corridor area leading to the Democrat's door to the floor of the House of Representatives, which was then in session, a member of the U.S. Capitol Police force stopped them and asked them where they were going. According to Officer William Hynes the corridor in which they were stopped was then considered a "secure area" or a "restricted area" and was not then open to the general public. They said they wished to see Speaker Wright, whose office was about 30 feet down the corridor, but that they did not have an appointment. Officer Hynes called his detail office and requested that an official be sent up. The detail office called Sergeant Proctor and Sergeant Charles C. Johnson, who in turn called Officer William Turner. Shortly before 11:50 a.m. these three officers arrived at the second floor area where the defendants were located. At about the same time Officer Wells, who was in an adjacent stairwell, heard a commotion and also arrived on the scene. At that time the defendants were talking to some of the officers who agreed that one of the officers would escort Mr. Ruther to Speaker Wright's office to deliver the written message the group had brought. When Mr. Ruther returned, he and the other defendants conferred for a few seconds. It was then that Mr. Caplan began to pull out of his jacket pocket a banner. Ms. Zara took one end of the banner and they began to unfurl it. None of the witnesses testified that it was unfurled completely. Mr. Ruther said he could see enough of the lettering to see that the banner was upside down. Within a few seconds one of the officers grabbed the banner. Then all of the defendants sat down cross-legged in a circle in the corridor and began chanting loudly and clearly "No Contra Aid." Almost simultaneously the officers commenced grabbing the defendants, seizing them, and removing them from the area. The witnesses all agreed that only about a minute elapsed between the time Mr. Caplan and Ms. Zara began to take out the banner and the time the officers began seizing them.

United States v. Ruther, 116 Daily Wash. L.Rptr. 917, (D.C.Super.Ct. Mar. 17, 1988) (footnotes omitted).

The foregoing functioned as the findings of fact on which the motion was decided, and we treat them as such. We also note that the record of the motions hearing was incorporated by agreement into the record of trial. Thus the record facts on which the findings were based were before the judge when he ruled on the merits and found appellants guilty.

At trial, much of the evidence was uncontested. The officers testified consistently with one another that at the time of the incident the corridor appellants were in wasa restricted area of the Capitol building.² Generally, a building access card is needed to enter this corridor when it is restricted and thus not open to the public. Officer Hynes stated that at the time of appellants' conduct, a vote was taking place on the floor of the House of Representatives. Pursuant to regulations, when a vote is occurring, certain hallways and corridors are to be kept clear of all persons to allow free passage by House members. A bell and lighting system is used in the Capitol building to signal when a vote is in progress. Because visitors or tourists may be unfamiliar with this procedure, all persons who come into the area while it is restricted are approached by officers, told it is a secure area, and asked their purpose for being there.

The officers were also consistent in testifying that appellants were approximately five to ten feet from the Democratic door leading to the floor of the House of Representatives. The doorman at the door to the floor of the House of Representatives complained to the officers present that appellants' chanting was loud and disturbing, and could be heard on the House floor. Appellants chanted "NO CONTRA AID" about twelve times. According to Officer Hynes, House members were attempting to gain access to the Democratic door. When appellants began chanting, House members stopped in the hallway and "a crowd of members," approximately twelve, came off the House floor to see what was happening; a few members asked in an angry tone of voice what was going on.³

Appellants were charged with demonstrating in the Capitol building in violation of D.C.Code § 9-112(b)(7) (1989). Along with necessity and international law defenses, appellants asserted that section 9-112(b)(7) was unconstitutional under the First and Fourteenth Amendments. The trial judge declined to apply a narrowing construction to the statute to limit its application to disruptive demonstrations.

The parties did not request that the trial judge make specific findings of fact. Following the bench trial, the trial judge returned a general verdict of guilty.

All right. For the record, the Court has considered the matter, and the Court is of the view at this point that the facts and circumstances involved in this case [do] not justify the necessity defense or the International Law defense, and the Court finds that the evidence relevant to those matters [is] not sufficient at this point to exculpate or exonerate the defendants. And those defenses rejected, the Court finds that on the basis of the testimony and the evidence in the case at this point that the defendants are guilty as charged in the respective informations, and the Court so finds at this time.

Our review is subject to the limitations provided in D.C.Code § 17-305(a) (1989), which provides in pertinent part: "[w]hen the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or withoutevidence to support it." See Robinson v. Jones, 429 A.2d 1372, 1374 (D.C. 1981).

II.

Appellants contend that the statutory prohibition against demonstrating in the Capitol building is unconstitutional "unless a requirement of disruption of, or an interference with Congressional activities . . . is read into the statute." Under their interpretation the statute would prohibit only conduct that disrupts the orderly functioning of Congress. Appellants further contend that because their conduct was not more demonstrative than conduct normally engaged in by tourists or visitors, their convictions must be reversed.

This court has recognized and adopted the Supreme Court's classification of types of government property for purposes of First Amendment analysis. Pearson v. United States, 581 A.2d 347, 349, 351-52 (D.C. 1990), cert. denied, ___ U.S. ___, 112 S.Ct. 51, 116 L.Ed.2d 28 (1991). The consideration of such classifications, commonly referred to as "forum analysis," is employed by the court to weigh the government's interest in limiting the use of its property against the competing interests of those who wish to use the property to conduct expressive activity. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). Such analysis is appropriate because "[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that ...