February 28, 1990
UNITED STATES, APPELLANT
KRIS ROTHMEIER, ET AL., APPELLEES
Appeals from the Superior Court of the District of Columbia; Hon. Eugene N. Hamilton, Trial Judge
Before Newman, Terry and Steadman, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: This government appeal arises from the dismissal of multiple prosecutions brought against the defendants for refusing to cease free speech activities on property belonging to the Washington Metropolitan Area Transit Authority ("WMATA") near a subway entrance. *fn1 The defendants continued with their activity despite a WMATA transit police officer's warning that such activity without a permit was unauthorized. The applicable WMATA regulation forbade any "free speech activity" on WMATA property except pursuant to a permit issued by WMATA. *fn2 Following the defendants' subsequent arrest under the District's unlawful entry statute, D.C. Code § 22-3102 (1989), the trial court dismissed the informations on the ground that the permit requirement was overbroad and hence unconstitutional. The government appealed to this court, pursuant to D.C. Code § 23-104(c) (1989).
During the pendency of this appeal before us, events were unfolding in a related case in the local federal courts. A group of plaintiffs (including two of the appellees before us) brought suit against the general manager of WMATA, seeking a permanent injunction against enforcement of the free speech regulation as unconstitutionally invalid on its face. The trial court granted such an injunction in May 1989. Community [or Creative Non-Violence v. Turner, 714 F. Supp. 29 (D.D.C. 1989). *fn3 On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the injunction as applied to the permit requirement, on the ground that the requirement Was not sufficiently "narrowly tailored" to the government's legitimate interests to qualify as a reasonable time, place, and manner restriction. Community for Creative Non-Violence v. Turner, 893 F.2d 1387, slip op. at 9 (D.C. Cir. 1990). *fn4
The District of Columbia unlawful entry statute provides for the punishment of anyone who remains on either private or public property without lawful authority and who refuses to leave on the demand of the person lawfully in charge. D.C. Code § 22-3102 (1989). With respect to public property, in addition to and independent of the evictor's wishes, there must exist "some additional specific factor" establishing the defendant's "lack of a legal right to remain." See, e.g., United States v. Powell, 563 A.2d 1086, 1089 (D.C. 1989); O'Brien v. United States, 444 A.2d 946, 948 (D.C. 1982). The only additional specific factor invoked here is the permit requirement of the regulation. If that requirement is invalid, it is effectively conceded that the prosecution must fail. See Abney v. United States, 451 A.2d 78, 82 (D.C. 1982) (conviction for unlawful entry reversed where based on regulation unconstitutionally applied to defendant).
Although the cited decision by the local federal appellate court is not per se binding on us, such a decision is, as we have long recognized, "entitled to great respect." M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). At least since the issuance of the injunction by the federal trial court, the permit requirement has not been enforced and any future enforcement will depend upon the issuance of revised regulations in accordance with the federal appellate court decision. Under the circumstances and sharing the concern as to the overbreadth of the permit requirement, we believe that we should treat the holding of the federal decision as persuasive authority "in the interest of harmony between court systems and uniformity of result in the same geographical area." Hornstein v. Barry, 560 A.2d 530, 536 n.15 (D.C. 1989) (en banc). *fn5 Accordingly, the order dismissing the criminal informations against appellees is