Occupy DC protestors' convictions overturned: police order to clear the Occubarn was not lawful

Bolz v. District of Columbia (decided December 8, 2016).

Players: Associate Judges Blackburne-Rigsby and Easterly, Senior Judge Steadman.  Opinion by Judge Easterly.  Concurrence by Judge Steadman.  Jeffrey L. Light for appellants.  Trial judges: Magistrate Judge Elizabeth Wingo and Associate Judge Heidi Pasichow.

Facts: In the fall of 2011, Occupy D.C. protestors began demonstrating in McPherson Square.  One morning in early December, they constructed a wooden structure that they called the “Occubarn.”  After a day-long standoff, police cleared the area of the park around the Occubarn and broke down the structure.  In the course of this confrontation, police arrested several protestors.  This case stems from the District’s prosecution of the protestors for violating the D.C. Crowd and Traffic Control regulation, 24 DCMR § 2100.2, which makes it a crime to fail to obey a police crowd and traffic clearing order.  There was no dispute at trial that the protestors had failed to obey a police order to clear the area; at issue was whether the situation presented an “emergency situation” and whether the police had issued a “necessary order” under § 2100.2. The meanings of both terms were issues of first impression for the DCCA.  In a related case, protestor D.G. was prosecuted for indecent exposure and disorderly conduct for climbing onto the rafters of the Occubarn and urinating in full view of the people on site.

Issue #1: Did the construction of the Occubarn in McPherson Square constitute an “emergency situation,” as that term is used in the Crowd and Traffic Control regulation, 24 DCMR § 2100.2?

Holding #1:  Yes.  The regulation covers “fires, accidents, wrecks, explosions, parades, or other occasions [that] cause or may cause persons to collect” in specified public areas.  See § 2100.2 (emphasis added).  Applying the canon of ejusdem generis, the Court concluded that the meaning of the catchall, i.e. “other occasions,” was informed by the list of words preceding it.  The Court therefore defined the term as follows: “nonroutine incidents with elements of unpredictability and potential disturbance vis-à-vis transportation and public safety.”  Slip op. at 18.  Under this definition, the Court determined that the construction of the Occubarn in McPherson Square did constitute an emergency situation.

Issue #2:  Was the order to clear the area of the Occubarn “necessary” under the Crowd and Traffic Control regulation, 24 DCMR § 2100.2?

Holding #2: No.  The regulation lists specific areas that police are authorized to clear: “public streets, alleys, highways or parkings.”  See § 2100.1.  Applying the canon of expressio unius, the Court reasoned that an enumerated list is presumed to be exhaustive.  Since public parks are not included in the list and are “traditional fora for the exercise of First Amendment activity,” Slip op. at 21, the Court concluded that the regulation does not extend to a public park such as McPherson Square.  Furthermore, a police order may be issued under this regulation only to advance one of three enumerated objectives, including the protection of persons and property.  The Court reasoned there was no evidence that the unpermitted Occubarn might collapse and hurt people, so the District failed to prove that the order was necessary to achieve the purpose of protecting persons and property.  

Issue #3:  Is the indecent exposure statute, D.C. Code § 22-1312, unconstitutionally overbroad because it prohibits “indecent” exposure, rather than being limited to “obscene” acts?  

Holding #3:  No.  Expressive conduct that is facially within the reach of the statute is authorized elsewhere in the Code (such as expressive nudity in certain establishments licensed to sell alcohol), and even the statute’s prohibition on expressive nudity applies only “in public.”  Speech in this setting can be constitutionally regulated because minors or nonconsenting adults might be present.  Therefore, the indecent exposure statute is not substantially overbroad.

Of Note:

• If constitutionally protected conduct is prosecuted under the indecent exposure statute, plaintiffs can still bring an as-applied challenge to the provision.  D.G. did not pursue this strategy. NG

Read full opinion here.