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02/21/90 DAVID SIMON v. UNITED STATES

COURT OF APPEALS OF THE DISTRICT OF COLUMBIA


February 21, 1990

DAVID SIMON, RUSSELL MOKHIBER, MARY MALONEY, NEIL NININGER, FREDERIC A. MAXWELL, JOHN W. HIRZY, AND B. WARDLAW, APPELLANTS
v.
UNITED STATES, APPELLEE

Appeals from the Superior Court of the District of Columbia; Hon. Noel A. Kramer, Trial Judge

Before Newman, Ferren, and Steadman, Associate Judges.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: Appellants challenge their convictions for unlawful entry, D.C. Code § 22-3102 (1989), based on their refusal to leave the Library of Congress at a new closing hour when an authorized person ordered them to do so. Only one issue merits Discussion, and in all respects we affirm. *fn1

Because of "First Amendment considerations," we have interpreted § 22-3102 "to require some additional specific factor beyond the mere direction of an authorized person to leave the property in order to make a person's presence on public property illegal." Shiel v. United States, 515 A.2d 405, 408 (D.C. 1986), cert. denied, 485 U.S. 1010, 99 L. Ed. 2d 706, 108 S. Ct. 1477 (1988); see also O'Brien v. United States, 444 A.2d 946, 948 (D.C. 1982); Carson v. United States, 419 A.2d 996, 998 (D.C. 1980). Appellants argue that the order changing the closing hour is the only "additional specific factor" that could serve to justify their convictions; that this order is a "regulation" within the meaning of 2 U.S.C. § 167f (a) (1988) which was never published in a daily newspaper as required, 2 U.S.C. § 167f (b); that the order is therefore invalid; and that their convictions, accordingly, must be reversed for lack of an "additional specific factor." We hold that the order changing the closing hour at the Library of Congress was issued pursuant to 2 U.S.C. § 136 (1988), not § 167f; that § 136 has no newspaper publication requirement, and thus that appellants' argument fails.

There are two sources of regulations for the Library of Congress: § 136 and § 167f. *fn2 The Library's regulations published in the Code of Federal Regulations have been promulgated pursuant to § 136 and are set forth in 36 C.F.R. Parts 701 (Procedures and Services), 702 (Conduct on Library Premises), and 703 (Availability of Library of Congress Records). The order we are concerned with here was issued as contemplated by regulations under 36 C.F.R. 701 and 702 that expressly address "announced hours of public opening." *fn3 Clearly, Congress contemplated unlawful entry prosecutions for violations of regulations issued under § 136. According to 2 U.S.C. § 167h (1988), the Library of Congress police have general authority to enforce and make arrests for violations "of any law of the United States, any law of the District of Columbia, or of any state, or any regulation promulgated pursuant thereto. . . ."

An order that sets the Library's closing hours is not clearly responsive to the concerns for protection and decorum that regulations promulgated under § 167f (a), (supra) note 2, are intended to address. Nor is such an order akin to the concerns addressed in 2 U.S.C. §§ 167a to 167e, *fn4 which are also covered by § 167f. *fn5 Finally, an unlawful entry prosecution is not the most explicit basis for enforcing 167f, since violation of that provision is expressly punishable under 2 U.S.C. § 167g (1988) by a fine of not more than $100 or imprisonment for not more than sixty days, or both (or by imprisonment for not more than five years for public property damage exceeding $100). *fn6

Because the closing hours order in this case was properly issued pursuant to 2 U.S.C. § 136, therefore, no newspaper publication was required. *fn7


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