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11/20/92 STACEY ABNEY v. UNITED STATES

November 20, 1992

STACEY ABNEY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia Criminal Division; (Hon. Gregory E. Mize, Trial Judge)

Before Ferren, Schwelb and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, Stacey Abney, challenges the constitutional validity of Capitol Police Board Order 91.1 (January 18, 1991) upon which his conviction of two counts of unlawful entry are based. *fn1 He also contends that the trial court erred in failing to instruct the jury on his defense of a "bona fide belief" in his "right to remain" on the area of the Capitol grounds where he was arrested. We affirm.

I.

The evidence showed that appellant had been conducting a demonstration at the U.S. Capitol grounds for many years to protest the denial of veterans' benefits for diseases which he claims he contracted during service in World War II. See Abney v. United States, 451 A.2d 78 (D.C. 1982) (Abney II); United States v. Abney, 175 U.S. App. D.C. 247, 534 F.2d 984 (1976) (Abney I). As a part of his continued protest, appellant virtually lived under the steps of the Capitol. According to the evidence, he usually demonstrated for about six hours a day on the Capitol steps before retreating to an area under the steps (the carriage way) to sleep. The police authorities usually tolerated appellant's presence except when tightened security measures were placed in effect for special occasions (e.g., Presidential State of the Union addresses, visits from heads of states, or Inaugural events).

On January 18, 1991, the Capitol Police Board issued Order 91.1 closing all steps and the areas adjacent to the U.S. Capitol except for certain specified areas. *fn2 The order was issued to address increased security concerns created by the Persian Gulf crisis and potential threats of terrorist activities as a result of it. The order specified that its objectives were to insure the safety of government officials and visitors by maintaining unobstructed passageways for rapid evacuation in case of fire or explosion and to protect persons and property by preventing anyone from placing a bomb or other dangerous device in the area. The order also provided for the police to make safe and reasonable arrangements for cordoning off "a limited area on the East Front center steps to accommodate larger groups of visitors to the Capitol for the sole purpose of controlled and continuous access which is to be at all times strictly monitored by the Capitol Police . . . ." The order allowed the police to create a comfortable perimeter around the building so that police could provide better security for the Capitol, its visitors and workers in the event of bomb explosions or attack. The Chief Deputy of the Uniform Services Bureau, Robert Langley, transmitted the order to the commanding officer of the Capitol Division for implementation on January 18, 1991. A cover memorandum stated: "You are reminded that Mr. Abney is in violation of the provisions of this order and should he refuse to quit the area, he is to be arrested immediately." *fn3 Mr. Abney was well known to the Capitol Police at the time because of his protest activities.

There were two other demonstrations in the area of the east front Capitol Rotunda steps during this period, one by the Community for Creative Non-Violence (CCNV) and the other by the Native American Indian Support Group. There were about five individuals conducting a 24-hour a day protest with the CCNV group. About seven persons were protesting during the daytime with the Native American Indian Support Group. Both groups were directed to the grassy area away from the east front steps, and they complied. Other groups had their permits cancelled. Although appellant was arrested on January 19th and 20th, *fn4 he returned to the restricted area on January 21st where he was arrested at 2:00 p.m. in an area adjacent to the Rotunda steps. Officer Thomas Wissemann explained the new regulation to appellant, asked him three or four times to leave the area, and directed him to an alternative location on the east front grassy area where he could continue his demonstration. Appellant responded that he was demonstrating and refused to leave, and the police arrested him. The next day appellant was arrested again underneath the steps of the Rotunda by Sergeant Thomas Reynolds and Officer Bruce Atchinson. Sgt. Reynolds asked appellant to leave the area five times and directed him to the east front grassy area where it was lawful to demonstrate. Again, appellant said that he was demonstrating, and he refused to leave.

Appellant testified in his own behalf at trial that at the times of his arrests, he was protesting the government's refusal to award him veterans' benefits to which he was entitled as a result of diseases he suffered during his army service. Appellant said he did not want to move to the designated area because no one would see him there. He also testified that he was not blocking any entrance when arrested. Appellant stated that he thought he could demonstrate in the restricted area because he believed the courts would uphold his First Amendment rights to protest as they had on other occasions.

II.

Under D.C. Code $22-3102 (1989) a person who enters on public or private property without lawful authority or who refuses to leave on demand of one lawfully in charge of that property may be convicted of unlawful entry. *fn5 This court has held that when public property is involved, in order "to protect the unlawful entry statute from unconstitutional vagueness and to protect First Amendment rights, . . . the government must prove not only that a person lawfully in charge of public premises has ordered the defendant to leave but that there is 'some additional specific factor establishing the party's lack of a legal right to remain.'" Wheelock v. United States, 552 A.2d 503, 505 (D.C. 1988) (footnote omitted) (quoting O'Brien v. United States, 444 A.2d 946, 948 (D.C. 1982)); See also Hemmati v. United States, 564 A.2d 739, 741 (D.C. 1989). *fn6 The independent factor establishing the prohibition against remaining in the area where appellant was arrested is Capitol Police Board Order 91.1. *fn1 Appellant challenges the constitutional validity of the order as written and as applied. Specifically, appellant argues that the order: (1) served no "compelling state interest" and was not the least restrictive means of assuring the security of the Capitol during the Gulf war crisis; (2) failed to provide alternative means for appellant's protest; and (3) should have applied only when an actual or imminent threat to the security of the area arose. We reject each of these arguments.

Appellant concedes that the order is a reasonable means of achieving the legitimate governmental interest of providing enhanced security at the Capitol during the Gulf war insofar as group demonstrations such as that of CCNV or the Native American Indian Support Group are concerned. However, he contends that it was unnecessary to include among those restricted from the area a known, lone demonstrator. Appellant premises this argument on the requirement that any governmental restriction on the use of a public forum, such as the Capitol, *fn8 must be narrowly drawn to serve a significant state interest. See Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 800, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985); see also Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). Moreover, he argues, any curtailment on free expression in a public forum must be "no greater than is essential to the furtherance of [a substantial government] interest." See United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). In any event, appellant contends that the police order is unconstitutional as applied to him because there was no evidence that he posed an actual threat to the security or evacuation of the Capitol by his lone demonstration.

Essentially, appellant argues that the regulation should have contained a provision exempting individual protestors like him. Reasonable time, place and manner restrictions on expressive conduct need not be so narrowly drawn to pass constitutional muster. The validity of a government regulation, unrelated to the suppression of speech, concededly designed to achieve a substantial governmental interest, is not dependent upon whether the decisionmaker could have developed an alternative measure imposing the restriction on fewer individuals. See Clark v. Community for Creative Non. Violence, 468 U.S. 288, 299 (1984); see also Ward v. Rock Against Racism, 491 U.S. 781, 798, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1984). On the contrary, "so long as the means chosen are not substantially broader than necessary to achieve the government's interest . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." Ward, 491 U.S. at 800. The idea that courts should engage in second-guessing the responsible authorities about how a legitimate governmental interest might have been achieved better has been rejected explicitly by the Supreme Court. Clark, 468 U.S. at 299. The point is well summarized in the following excerpt from the Court's decision: *fn9

we are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the Government interest in preserving park lands. There is no gainsaying that preventing overnight sleeping will avoid a measure of actual or threatened damage to Lafayette Park and the Hall. The Court of Appeals' suggestions that the Park Service minimize the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage, whether by sleeping or otherwise, and these suggestions represent no more than a disagreement with the Park Service over how much protection the core parks require or how an acceptable level of preservation is to be attained. We do not believe, however, that either United States v. O'Brien or the time, place, or manner decisions assign ...


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