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.

If you desire a jury trial, be sure the building itself is open to the public before trespassing.

Jacqueline Frey v. United States (decided May 5, 2016).

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by McLeese. Trial Judge: Ann O’Regan Keary. Jeffrey Light for Ms. Frey. 

Facts: At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee’s desk in a restricted area of the Library of Congress’s Adams Building, which though open to the public during the day was closed at that time. Also, in order to get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public. Ms. Frey testified she had entered the building at 3:30 p.m. the day before, when it was open, and fell asleep in the reading room. When she woke up, the building was closed and she began walking around until she made her way to the office where she was later arrested. After a bench trial, she was convicted of unlawful entry in violation of D.C. Code §22-3302. 

Issue:  Did the trial court err in deciding that Ms. Frey was not entitled to a jury trial? 

Holding: Yes. The unlawful entry statute is divided into two parts. Subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than six months, or both. Thus, since someone charged with an offense punishable by more than 180 days’ imprisonment has a statutory right to a jury trial, anyone charged under subsection (b) has a right to a jury trial. 

In this case, the information filed did not specify which subsection Ms. Frey was accused of violating. The government conceded that the Adams Building of the Library of Congress is a public building, but argued Ms. Frey was subject to subsection (a) because she was found inside the building at a time when it was not open to the public and in a room that is never open to the public.

The Court disagreed with the government’s argument. The Court reasoned that “[i]n light of the United States’s acknowledgment that the Adams Building is a public building rather than a private building, it seems to follow that Ms. Frey entered a public building, as well as various parts of a public building, and did not enter a private building or any part of a private building. Ms. Frey’s conduct therefore appears to have violated subsection (b), rather than subsection (a).” The focus is on where the person entered, in this case a public building, and not specifically where inside that building or when the person was found. 

In 2009, the unlawful entry statute had been divided into two parts, as the D.C. Council wished to draw a distinction between private and public buildings, and buildings where someone would have First Amendment protections. The government claimed this meant the building must be considered “private” because the Council only wanted to give more protections to people who entered private buildings due to their First Amendment rights but that no one has a First Amendment right to be in a building when it is closed. The Court disagreed: “By preserving a jury-trial right in all prosecutions for unlawfully entering public buildings, the Council apparently chose instead to draw a more easily administrable line [than the one the government was asking the court to draw]. In such circumstances, we must adhere to the broader language the Council chose, and we may not artificially limit the statute to the particular circumstances that gave rise to the Council’s concern.” 

Also, the Court noted that legislative history indicated the Council understood the jury-trial right would be “tied to the public character of the building as a whole, not to specific areas within a building.” The Court concluded that a defendant charged with unlawful entry has a right to a jury trial if the building itself is a public building, even if the defendant is found at a time when the building is closed or in an area within the building not open to the public. BM

Read full opinion here.