McFarlin v. District of Columbia
| Decision Date | 01 August 1996 |
| Docket Number | 94-CO-1069 and 94-CO-1461.,No. 94-CO-1068,94-CO-1068 |
| Citation | 681 A.2d 440 |
| Court | D.C. Court of Appeals |
| Parties | Gerald Patrick McFARLIN & Warren L. Taylor, Appellants, v. DISTRICT OF COLUMBIA, Appellee. Willie D. WILLIAMS, Appellant, v. DISTRICT OF COLUMBIA, Appellee. |
Ronald G. Dove, with whom Newman T. Halvorson, Jr., and Carol E. Bruce were on the brief, Washington, DC, for appellants McFarlin & Taylor.
Paul J. Kollmer, with whom Diane C. Gaylor, and Jacqueline A. Baillargeon, Washington, DC, were on the brief, for appellant Williams.
Sidney R. Bixler, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel, Robert R. Rigsby, Deputy Corporation Counsel, and Rosalyn Calbert Groce, Assistant Corporation Counsel, were on the briefs, for appellee.
Before STEADMAN1, FARRELL, and REID, Associate Judges.
These consolidated cases involve charges under the District of Columbia Panhandling Act, D.C.Code §§ 22-3311 et seq. (1989 repl.), against appellants Willie D. Williams, Gerald Patrick McFarlin and Warren L. Taylor. All three were convicted of violating § 3(b) of the Act, D.C.Code § 22-3312(b) which provides: "No person may ask, beg, or solicit alms in any public transportation vehicle; or at any bus, train, or subway station or stop." Taylor and McFarlin contend that their conduct did not violate the statute. In addition, all of the appellants challenge the constitutionality of § 3(b) of the Act. For the reasons stated below, we affirm the conviction of Mr. Williams and reverse the convictions of Mr. McFarlin and Mr. Taylor.
On September 9, 1993, the Corporation Counsel for the District of Columbia charged Mr. Williams with panhandling or begging "in an aggressive manner in an area open to the general public, in violation of D.C. Act 10-34, effective June 9, 1993." At the time, Mr. Williams was 32 years old, unemployed and lived in a shelter for homeless people. He received approximately $111 in food stamps each month, and from time to time would ask people on the street for money. On September 8, 1993, according to his testimony, he positioned himself at the Metro Center subway station above ground area at 12th and F Streets, N.W., held a paper cup in his hand and as people stepped off the subway escalator, said: "Sir, ma'am, can you spare a little change." Williams estimated that he was about six feet from the top of the escalator. He was arrested after asking Metro Transit police officers on "casual clothes detail" for change.
Officer Darryl T. Godinez was one of the arresting officers. He stated that he observed Mr. Williams around 2:25 p.m. at the Metro Center subway station. According to him, Mr. Williams "would get in front" of people when they reached "the top of the escalator," and would "stick the cup in front of them, blocking their path, and asking and begging for money." The other arresting officer, Donald L. Holman, estimated that Mr. Williams was "less than a foot" or "about a foot" from the escalator.
At the beginning of a hearing before a trial court commissioner on May 17, 1994, the District announced an oral amendment to the charge against Mr. Williams: "What we want to do, then, is to amend the information to charge `non-aggressive' panhandling." Mr. Williams objected, but the commissioner allowed the oral amendment on the ground that since jeopardy had not attached, the District could dismiss the case and repaper it. He offered to postpone the hearing to allow more time for preparation, but counsel for Mr. Williams decided to proceed.
Prior to hearing testimony, the commissioner also ruled on Mr. Williams' December 17, 1993, motion to dismiss the information against him on First and Fifth Amendment constitutional grounds. He denied the motion and concluded that the Panhandling Act was constitutional because: (1) the District had a compelling interest to ensure "the safety and orderly maintenance of the flow of the customers, especially with respect to dangerous objects such as a moving escalator"; (2) the statute is narrowly tailored and does not foreclose alternative channels of communication; (3) the statute is content neutral and the term "no person" includes charitable organizations; and (4) the term "at a subway station" is not vague because "a reasonable man would know that being at the top of the escalators would mean that they were at the subway station." After ruling on the constitutionality issue, the commissioner heard the testimony of Officers Godinez and Holman, and Mr. Williams, and concluded that Mr. Williams violated § 3(b) of the Act. The only document designated for appeal which includes the commissioner's ruling is the Judgment and Commitment/Probation Order. According to that order, a five day jail sentence was imposed, but execution was suspended and Mr. Williams was ordered to complete ten hours of community service and ninety days of supervised probation. The sentence was stayed pending the outcome of any appeals.
On May 27, 1994, Mr. Williams filed a motion asking that a trial judge review and reverse the judgment of the commissioner, on the ground that the commissioner erred in declaring the statute constitutional. On August 25, 1994, the trial judge affirmed the commissioner's judgment, solely on the ground that "the evidence presented to the Hearing Commissioner justified a finding that the defendant was soliciting for money, and that he was on Metro subway station property at the time of the solicitation." The trial judge's order also contains the following factual findings:
The trial judge's order summarized Mr. Williams' testimony that he was "standing on the sidewalk" and "by the side of the Metro elevator" with a McDonald styrofoam cup in his hand asking as passengers exited from the escalator, "Sir, ma'am, can you spare a little change."
Mr. Williams filed a motion on August 31, 1994, requesting a ruling on the constitutional issue which the commissioner had decided in favor of the District but which the trial court had not addressed at all. On October 11, 1994, the trial judge issued an order which rejected Mr. Williams' constitutional arguments, and concluded that "the statute denying the defendant the right to panhandle" on "Metro property ... at the very top of an escalator on which people were exiting from the subway station" constituted "a valid time, place and manner restriction." The trial judge cited O'Brien v. United States, 444 A.2d 946 (D.C.1982). Mr. Williams filed an appeal on November 9, 1994.2
Mr. Taylor and Mr. McFarlin are professional musicians. They often played together in the above ground area of the Metro Center subway station. They regarded their playing at subway stops as an "advertisement" of their services. A September 15, 1993, information charged both men with panhandling or begging, "in a prohibited area to wit: Metro station in violation of D.C. Act 10-34, effective June 9, 1993."
Around 1:50 in the afternoon of July 21, 1993, Mr. McFarlin set up his electric keyboard which was about two feet long, two speakers and a battery in the roofed-in, above ground area of the Metro Center station stop, at 13th and G Streets, N.W. Three escalators were located at the stop; the one closest to the street was an ascending escalator and the other two were descending. Mr. Taylor had his saxophone, and a bucket was placed near him. The men played music and passersby dropped money in the bucket, although the men never asked for any money. The men asserted that money was given to them because of their "skill and musical ability."
Officer Carol Triplett of the Metro Transit Police saw Mr. McFarlin and Mr. Taylor while she was on duty and as she was about to get off the escalator ascending from the interior part of the Metro Center subway station to the street area. The men were closest to the two escalators that descended into the station; the middle escalator was not working. Officer Triplett initially thought that Mr. McFarlin was about sixteen feet from the escalators, and Mr. Taylor approximately eleven and a half feet. However, the hearing commissioner later questioned both her estimates of distance, and the need for any focus on distance. He made no factual findings regarding how far the men were located from the top of the escalator. Officer Triplett saw only a few subway passengers in the area, and did not observe Mr. McFarlin or Mr. Taylor blocking their passageway. The men stopped playing when they saw Officer Triplett and Mr. McFarlin started to put his equipment away. Other officers arrived on the scene, and Officer Triplett arrested the men for panhandling. The money in the bucket, amounting to eighty dollars and sixty-eight cents, was taken as evidence.
After a hearing before a trial court hearing commissioner, § 3(b) of the Act was ruled to be constitutional, and Mr. McFarlin and Mr. Taylor were found guilty of violating the statutory provision. In an oral decision announced on February 1, 1994, the commissioner made...
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