Smith v. United States

Decision Date03 May 1982
Docket NumberNo. 13791.,No. 13790.,13790.,13791.
Citation445 A.2d 961
PartiesMarcy G. SMITH, Appellant, v. UNITED STATES, Appellee. Liz C. REILEY, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Charles W. Halleck, Washington, D. C., appointed by the court, for appellants.

John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the case was argued, Earl J. Silbert, U. S. Atty., Washington, D. C., when the original brief was filed, and John A. Terry, John Brooks Harrington, and E. Anne McKinsey, Asst. U. S. Attys., Washington, D. C., were on the briefs, for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER, HARRIS,* MACK, FERREN, PRYOR and BELSON, Associate Judges.

NEBEKER, Associate Judge:

Appellants were convicted of violating the unlawful entry statute, D.C.Code 1973, § 22-3102, based upon their refusal to desist from conducting a demonstration on the White House grounds. Appellants challenge their convictions on the grounds that (1) the informations charging the offense were fatally defective, and (2) the application of the unlawful entry statute under this case is precluded by the First Amendment of the United States Constitution. We affirm the convictions.

I

On April 18, 1978, Officer Thomas Brady of the United States Secret Service Uniformed Division was assigned to a post at the East Gate of the White House, through which tourists routinely enter. At about 11:00 a. m., a tourist informed Officer Brady that there was some sort of demonstration going on inside the White House grounds. He investigated the report, and observed four women, including appellant Reiley, lying on a slate patio just to the side of the tour line, approximately 50 feet inside the fence to the right of the east portico. The women were lying in puddles of what appeared to be a mixture of ashes and water. Those puddles had not been on the slate earlier in the day. Appellant Smith was standing near the prone women, addressing other tourists as they passed.

Officer Brady did not know for what cause the demonstration was being staged, but upon approaching appellant Smith he heard her make reference to "[n]uclear weapons or something like that." The officer asked the demonstrators to leave, and informed them that their refusal would subject them to arrest under the unlawful entry statute. He repeated this advice, but received no response from any of the demonstrators. Thereafter, the women additionally were informed in turn by three senior Secret Service officers who were summoned to the scene — Sergeant Elexia, Lieutenant Campbell, and finally Lieutenant Jenkins — that they would be arrested if they did not leave. When appellants and their three companions ignored the repeated warnings, the officers ultimately closed off the tourist line and arrested the five demonstrators.

After waiving a jury trial, appellants were tried together; the trial judge found them guilty.

II

Appellants first contend that the government failed either to charge or to prove a violation of the unlawful entry statute because Officer Brady was not "the person lawfully in charge" of the White House tour area on the day of the arrests.1 The amended informations charged appellants with:

Unlawful entry, in that without lawful authority [they] remained upon certain property consisting of 1600 Pennsylvania Avenue, Northwest, against the will of Thomas Brady, the person lawfully in charge thereof, after having been given notice to leave.2

Appellants argue that it was Lieutenant Jenkins, not Officer Brady, who was "lawfully in charge" of the Executive Mansion on that day. This being so, they argue, Officer Brady had no authority under the statute to order appellants to leave the area in which they were demonstrating. Appellants base this contention on a memorandum issued sometime prior to January 1978 by the then-President's counsel, Robert J. Lipshutz, stating:

You are hereby informed that the President has designated the Chief of the United States Secret Service Uniformed Division (or the person acting in that capacity) or, in his absence the senior Official of the United States Secret Service Uniformed Division on the scene, as the person lawfully in charge of the Executive Mansion and grounds, and any other building in which the White House Offices are located, for the purposes of Title 22, Section 3102 of the Code of Laws of the District of Columbia. [Defendants' Exh. 1, R. 9]

When the incident occurred, Lieutenant Jenkins was the senior officer on duty at the White House — the "Watch Commander," in the parlance of the Secret Service. Appellants claim that their convictions under § 22-3102 were invalid because the informations listed Officer Brady as the person lawfully in charge, even though he was not the Watch Commander at the time the demonstrators were asked to leave. In effect, appellants suggest that the Watch Commander, who is responsible for the overall security operations for the entire White House complex, must leave his post and appear personally to warn any disorderly person, whether or not that person is engaged in any sort of protest or demonstration, that he must leave.

Appellants' argument is inconsistent with both the plain language of the Lipshutz memorandum and our decision in Whittlesey v. United States, D.C.App., 221 A.2d 86 (1966). The Lipshutz memorandum provides that in the absence of the Watch Commander, the person "lawfully in charge" of the White House grounds for purposes of § 22-3102 is "the senior Official of the United States Secret Service Uniformed Division on the scene. . . ." Both Captain Elgin and Lieutenant Jenkins of the Secret Service testified that for practical reasons, the first officer to arrive at the scene of a disturbance or demonstration regularly is considered to be the senior officer "on the scene" for purposes of giving a notice to quit and making the decision to enforce the unlawful entry statute. It understandably is not the practice of the Secret Service to require the Watch Commander to appear and individually to enforce the statute in every instance of a potential disturbance. We agree with the government that it would be unreasonable, within a complex as large as the grounds of the Executive Mansion, to require that only the senior officer on duty is empowered to enforce § 22-3102.

The government's position is supported firmly by our ruling in Whittlesey, supra. In that case, we rejected the argument that only the President could order demonstrators to leave the White House under the statute. Although the issue in Whittlesey was whether the Commanding Officer of the White House Police (then the functional equivalent of the present Watch Commander in the Secret Service) had authority under § 22-3102 to give demonstrators a notice to quit, we see no reason to limit Whittlesey narrowly to its facts. As we then stated, "[i]t would be highly unreasonable to hold that in a public building there is only one person, the one with senior authority, who is lawfully in charge." 221 A.2d at 89. The court went on to reason that "a person may be lawfully in charge even though there are other persons who could, if they choose to do so, countermand or override his authority, and that with respect to given premises, there may be more than one person who has the authority to order a removal." Id. at 91. Cf. Fatemi v. United States, D.C.App., 192 A.2d 525, 528 (1963), aff'd (D.C.Cir., No. 18043, Mar. 24, 1964), cert. denied, 377 U.S. 997, 84 S.Ct. 1916, 12 L.Ed.2d 1048 (1964) (embassy minister, as agent of ambassador, had authority to permit District of Columbia police to enter embassy and to arrest foreign nationals). We conclude that the senior Secret Service officer on the scene is empowered as the lawful occupant to demand that appellants quit the premises — the White House grounds. Since Brady was considered to be the senior officer on the scene, the informations properly charged appellants with violations of § 22-3102.

III

A more sensitive issue is presented by appellants' claim that their arrests and convictions were inconsistent with the First Amendment of the Constitution. At the heart of their argument is the well-established rule that the government may regulate speech and communicative conduct on public property only in a narrow and reasonably necessary manner which serves significant government interests. See, e.g., Grayned v. Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Any regulation impinging upon such activity must be content-neutral and nondiscriminatory. See United States Postal Service v. Council of Green burgh Civic Associations, 453 U.S. 114, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972); Cox, supra, 379 U.S. at 555-56, 85 S.Ct. at 464-65; Leiss v. United States, D.C.App., 364 A.2d 803, 807-08 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). Factors to be weighed in determining the reasonableness of any restrictions infringing upon free expression include "the nature of the particular public property, the weight of the governmental interests involved, the availability of alternative avenues of expression, and the extent to which the regulation unnecessarily interferes with First Amendment rights." Leiss v. United States, supra, at 808.

Appellants point out that when they were arrested, they were in an area of the White House which was open to the public during regular visiting hours. Their demonstration was peaceful and had not impeded the orderly flow of tourist traffic (although during appellants' arrests the Secret Service stopped the tourist line...

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