March 19, 1993
PETER G. FARINA, KELLY D. SULLIVAN, LOUIS R. JULUKE, ANN G. FULLERTON, HATTIE A. PETERSON, DOUGLAS A. HILL, APPELLANTS
UNITED STATES OF AMERICA, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Bruce D. Beaudin, Trial Judge)
Before Rogers, Chief Judge, and Steadman and Sullivan, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge : Appellants appeal their convictions under D.C. Code § 9-112 (b)(5) (1989 Repl.), on two grounds relating to the jury instructions. First, they contend that without a limiting construction requiring that serious disruption is an element of the offense, the statute is unconstitutional as applied to their non-violent protest on the Capitol Grounds, and hence, the trial Judge erred by not instructing the jury that to convict it had to find that appellants' conduct caused a serious disruption. Second, they contend that the trial Judge erred by not instructing the jury on its power to acquit by jury nullification. Finding these contentions unpersuasive, we affirm.
On June 13 and 14, 1988, there was a demonstration on the East lawn of the Capitol Grounds to dramatize the need to respond to the crisis of homelessness. This demonstration, pursuant to a permit, was under the aegis of the Community for Creative Non-Violence (CCNV), and lasted from approximately noon on the 13th to noon on the 14th. At approximately noon on June 14, a group of seventy-five to one hundred people walked from the East lawn demonstration to the South entrance to the Capitol Grounds, known as the South Barricade. *fn1 Apparently, plans for this second demonstration were not known by appellants in advance. The police, nevertheless, knew about it as much as a day ahead of time and were aware that CCNV intended to block traffic.
By the time the group from the East lawn demonstration arrived at the South entrance, at approximately 12:00 or 12:10 p.m., the police, who had begun redirecting traffic to the North entrance in anticipation of the second demonstration, had closed the street to traffic. There were two police cars, a paddy wagon, a fifty-passenger bus, and several motorcycles parked in the crosswalk as well as approximately thirty police officers at the South Barricade.
The South Barricade demonstrators were in two groups, those on the sidewalk and approximately thirty-four in the street. Those in the street sat down in a circle, which extended from one curb to the other. They held hands, and after a silent prayer, they began to sing. Sitting in a circle on the street was apparently spontaneous and unplanned. The main purpose of the second demonstration was to dramatize, and make more visible, concern about homelessness. At the time, legislation was pending in the House of Representatives to provide assistance to the homeless. Appellant Farina testified that he was present because he was concerned about Congressional spending policies related to homelessness, and about the needs of homeless children. He viewed his activities on June 14 as "consistent with conducting official business, i.e., petitioning Congress in an attention-getting manner," and stated that he did not intend to break the law or obstruct or impede passage on United States Capitol grounds. He acknowledged, however, that he knew at the time of the demonstration that "there was a possibility that his action would put him in jeopardy of arrest." Other appellants testified that they had no intent to obstruct or impede traffic, and appellants Sullivan and Fullerton maintained that they did not, in fact, obstruct traffic, nor intend to get arrested. Several appellants admitted, however, that a car could not have driven through the street without hitting one of the demonstrators. Several also testified that they would have moved if a car had attempted to pass.
Lieutenant Howe, who was in charge at the South Barricade, testified that a roll call vote was taking place in the House at the time of the second demonstration. He indicated that thirty to fifty Members of Congress drive and park at the House steps to go inside to vote. However, there was no evidence that any Member of Congress had attempted to drive through the South Barricade and been unable to do so, and no Member of Congress or tourist complained to the police that she or he could not get by. The sidewalk was not blocked to pedestrian traffic, and there was evidence that Members of Congress and others had been able to walk by on the sidewalk.
Approximately one minute after the group sat in the street, a police officer warned them that if they did not move they would be arrested. More police officers arrived, and began arresting the demonstrators. Each person was individually informed by the arresting officer that she or he could leave and suffer no consequences, or could remain and be arrested. The police did not offer the demonstrators an alternative forum. Although some officers testified that the warning they gave meant that the demonstrators would not be arrested if they moved to the sidewalk, this was not communicated directly to appellants, who were told that they had to "leave" or be arrested.
Thirty-four demonstrators were arrested between 12:30 p.m. and 12:40 p.m. Members of the press and other observers, approximately sixty to one hundred people, who were watching the demonstration from the sidewalk, were not arrested, although the sidewalk became congested so that members of Congress had to "bob and weave" to get through, which took a few seconds of the representatives' time. The free flow of traffic at the South Barricade resumed at approximately 12:40 p.m.
D.C. Code § 9-112 (b)(5) (1989 Repl.), provides, in relevant part, that "it shall be unlawful for any person or group of persons willfully and knowingly . . . to obstruct, or to impede passage through or within, the United States Capitol Grounds." At trial, appellants requested the Judge to instruct the jury that "serious disruption" was a required element of the statute. They relied on the language in Arshack v. United States, 321 A.2d 845, 848 (D.C. 1974), that "the purpose of the statute is to permit Congress to carry out the people's business unhindered by serious disruption," citing the House legislative report. The Judge refused to give the instruction, reasoning that the statute was not restricted to cases of serious disruption. Instead, the Judge instructed the jury that the government had to prove that appellants were (1) obstructing or impeding passage through the Capitol grounds, (2) doing so knowingly and willingly, and (3) that appellants' actions "interfered on a more than minimal basis with the orderly processes of the Congress." *fn2 Appellants contend that § 9-112 (b)(5) is unconstitutional as applied to them, *fn3 and that the trial Judge erred by denying their motions for judgments of acquittal. *fn4
Like the Capitol Grounds, *fn5 streets are traditional fora for expression. *fn6 See United States v. Wall, 521 A.2d 1140, 1143 & n.4 (D.C. 1987) (streets are the "quintessential public forums") (citation omitted). Thus, the Supreme court stated in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., supra, 391 U.S. at 315, that "the essence of opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." The South Barricade, a street on the Capitol Grounds, is therefore a public forum where reasonable time, place, and manner limitations on First Amendment rights, such as the restrictions in § 9-112 (b)(5), may be constitutional. Wall, supra, 521 A.2d at 1143. See also United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983); Markowitz, supra, 598 A.2d at 403; Pearson, supra, 581 A.2d at 351. The Supreme Court has made clear that "even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984)). See International Soc'y for Krishna Consciousness, Inc. v. Lee, 112 S. Ct. 2711, 2720 (1992) (Kennedy, J., Concurring). In response to appellants' contention that the statute is unconstitutional as applied to them in the absence of a limiting construction requiring proof of serious disruption, the government has the burden to show that there are compelling reasons to limit First Amendment rights on the United States Capitol Grounds, a quintessential public forum. See Nicholson, supra, 184 U.S. App. D.C. at 315, 566 F.2d at 202 (citing NAACP v. Button, 371 U.S. 415, 438, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963)). *fn7
Section 9-112 (b)(5) is aimed at achieving a significant and important government interest in ensuring the smooth and efficient functioning of the legislature by facilitating the unimpeded flow of traffic. The Supreme Court has acknowledged that the government has a significant interest in controlling traffic. In Cox v. Louisiana, 379 U.S. 536, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965), the Court stated that:
The control of travel on the streets is a clear example of governmental responsibility to ensure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.
Cox v. Louisiana, supra, 379 U.S. at 554 (other citations omitted), quoted in Abney II, supra, 451 A.2d at 83, and Arshack, supra, 321 A.2d at 848. Cf. Markowitz, supra, 598 A.2d at 405 (importance of "free passage to attend meetings and hearings" inside the Capitol building). In the words of the Supreme Court, " group of demonstrators could not insist upon the right to cordon off a street . . . and allow no one to pass who did not agree to listen to their exhortations." Cox v. Louisiana, supra, 379 U.S. at 555 (citations omitted).
Section 9-112 (b)(5) also clearly leaves open "ample alternative channels of communication," Wall, supra, 521 A.2d at 1143, as required for a reasonable time, place and manner restriction. Demonstrations may be conducted on sidewalks and on the grassy areas of the Capitol Grounds, and at other times and in other manners, rather than by sitting in a huge thirty-four-person circle covering the entire width of one of the few streets on the Capitol Grounds while a roll call vote is taking place.
The question then is whether § 9-112 (b)(5) is narrowly tailored. This requirement does not mean that the government must "grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Markowitz, supra, 598 A.2d at 403 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 799-800, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985)) (other citation omitted). "Narrowly tailored" also does not require the government to choose the least restrictive alternative to accomplish its objectives. Abney v. United States, 616 A.2d 856 (D.C. Nov. 20, 1992) (Abney III); Pearson, supra, 581 A.2d at 354-55; Markowitz, supra, 598 A.2d at 406 (quoting Ward v. Rock Against Racism, supra, 491 U.S. at 798). However, the means used must not be "substantially broader than necessary to achieve the government's interest." Markowitz, supra, 598 A.2d at 406 (quoting Ward v. Rock Against Racism, supra, 491 U.S. at 800).
The Supreme Court has instructed that "the nature of the place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.'" Grayned v. City of Rockford, 408 U.S. 104, 116, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972) (demonstration on sidewalk outside high school) (citations omitted). Therefore, the "pattern of normal activities" in the South Barricade, an "official business only" street on the Capitol Grounds, defines the nature of a constitutional restriction. In other words, "the crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Id. See also Wheelock, supra, 552 A.2d at 506 (quoting Grayned, supra, 408 U.S. at 116-17) (other citation omitted). The evidence showed that normal activity at the South Barricade was basically to serve as a conduit for vehicular travel by Members of Congress and other persons with official business at the Capitol, and to allow pedestrian traffic by those and other persons, such as tourists. See note 1, (supra) . Hence, appellants' conduct, involving sitting in a circle of thirty-four people spanning the entire width of the South Barricade, while a roll call vote was taking place, thereby blocking all vehicular passage, was incompatible with that function.
Section 9-112 (b)(5) is a reasonable time, place and manner restriction. See Ward v. Rock Against Racism, supra, 491 U.S. at 791 (citation omitted). As applied to appellants, the statute forbade their sitting, in one of the very few streets for vehicular traffic leading to the Capitol buildings, in a circle which occupied the entire width of a two-lane street, while a roll call vote was taking place in the House of Representatives. *fn8 Thus, the trial Judge's instructions to the jury, requiring a finding of more than minimal interference, assured that § 9-112 (b)(5) would be constitutionally applied by the jury to appellants' actions as a reasonable time, place, and manner restriction, without instructing that serious disruption is an element of the offense. The instructions limited the scope of the statute in a manner consistent with the holding in Abney II, supra, that the government had to show that the defendant's presence actually or potentially threatened the movement of traffic on the Capitol Grounds. Abney, 451 A.2d at 83-84. Cf. Feeley v. District of Columbia, 220 A.2d 325, 327 (D.C. 1966) (§ 22-1107 (1989 Repl.), forbidding congregating on a public street and refusing to move when ordered by police, may be constitutionally applied to demonstrators on the Capitol grounds where "no proof of an actual or impending breach of the peace," when the police reasonably believe there may be violence or a disturbance), vacated on other grounds, Feeley, 128 U.S. App. D.C. 258, 387 F.2d 216 (1967). Appellants' reliance on the "serious disruption" statement in Arshack, supra, 321 A.2d at 848, is misplaced; the statement did not describe an element of the offense, but addressed Congress's purpose for enacting such a statute.
Appellants fare no better under the test enunciated in United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1967), and applied by this court in order to determine whether statutes restricting expressive conduct are constitutional as applied. See, e.g., Abney II, supra, 451 A.2d at 83; Arshack, supra, 321 A.2d at 849; cf. Markowitz, supra, 598 A.2d at 405. The O'Brien Court stated that:
a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
O'Brien, supra, 391 U.S. at 377. The O'Brien test is very similar to the time, place, and manner test. See Clark, supra, 468 U.S. at 298. *fn10 The Supreme Court has "recognized that the standards for assessing time, place, and manner restrictions are little, if any different from the standards applicable to regulations of conduct with an expressive component." International Soc'y for Krishna Consciousness, Inc. v. Lee, supra, 112 S. Ct. at 2721 (citing Clark, supra, 468 U.S. at 298 & n.8; Ward v. Rock Against Racism, supra, 491 U.S. at 798, Barnes v. Glen Theatre, Inc., 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) (plurality opinion)). In general, speech mixed with conduct may be more severely regulated than pure speech. See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., supra, 391 U.S. at 313; Jeannette Rankin Brigade, supra, 342 F. Supp. at 584 (citations omitted).
Appellants concede that § 9-112 (b)(5) meets the first three O'Brien criteria. That Conclusion is consistent with this court's application of the O'Brien test. See, e.g., Abney II, supra, 451 A.2d at 83-84. *fn11 Rather, they maintain that the statute fails to meet O'Brien's fourth requirement because the statute is not merely an "incidental" restriction on First Amendment freedoms and is more restrictive than is essential to achieve the government's objectives. For the reasons noted in addressing whether the statute was narrowly tailored, see pages 9-11, (supra) , this argument clearly fails. See United States v. Albertini, 472 U.S. 675, 688, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985); *fn12 see also Abney III, supra, 616 A.2d 856, slip op. at 10. Under Abney II's analysis, § 9-112 (b)(5) meets the fourth O'Brien criteria of an incidental restriction no greater than essential to meet the government's interest, and is not unconstitutional as applied to appellants, who had positioned themselves in such a manner as to block vehicular traffic. See Abney II, supra, 451 A.2d at 83-84. In Arshack, supra, 321 A.2d at 848, the court held that § 9-123 (b)(5), which is identical in relevant part to the current § 9-112 (b)(5), was narrowly drawn. The court was satisfied that the incidental restriction caused by the police roping off an area for the group to assemble while presenting their petition to the Senate, so that the group would not block passage through the corridor, was "no greater than necessary to effectuate the legislative purpose." 321 A.2d 845, at 849. The fact that appellants were blocking a street, while the demonstrators in Arshack, supra, 332 A.2d at 847, were blocking a corridor inside of the Capitol, is a distinction that, at least here, does not change the analysis. The likelihood of interference with the business of the legislature from blockage of the South Barricade street was manifest since a roll call vote was being held and forty to fifty Members of Congress usually drove through the South Barricade to the Capitol to vote. Accordingly, the trial Judge correctly ruled in denying appellants' requested instruction that such actual and "potential" disruption met O'Brien 's requirement that restrictions on First Amendment rights be only incidental and only as stringent as essential to meet the government's interests.
Appellants' contention that the trial Judge erred by not applying the tourist standard *fn13 is meritless in view of the instruction that was given, requiring a finding of more than minimal interference and the fact that appellants' conduct resulted in the complete blockage of vehicular traffic at the South Barricade. *fn14 Cf. Reale v. United States, 573 A.2d 13, 15 (D.C. 1990) (under § 9-112 (b)(4), forbidding disorderly conduct in Capitol building, tourist standard not an element of the offense but only a test of whether the statute is constitutional as applied).
Likewise, appellants' contention that their arrests were not merely an "incidental restriction" on First Amendment freedoms, no greater than essential to serve the government interest, as required by O'Brien, because "there were many alternatives short of arrest and prosecution," such as cordoning off part of the street, is meritless. Contrary to appellants' argument that the statute was unconstitutional as applied because they were not offered an alternative forum in which to exercise their First Amendment rights, the government is not required to choose the least-restrictive alternative. See Ward v. Rock Against Racism, supra, 491 U.S. at 798. Furthermore, the government had provided appellants an alternative site on the East lawn where they had demonstrated for the previous twenty-four hours and a second demonstration was continuing on the sidewalk near the South Barricade. See Wall, supra, 521 A.2d at 1145; see also Abney III, supra, 616 A.2d 856, slip op at 11-12; Leiss v. United States, 364 A.2d 803, 808 (D.C. 1976) (no demonstration on White House grounds, but demonstrator could have moved fifteen feet away and been outside White House grounds), cert. denied, 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654 (1977). Unlike the corridor in Arshack, supra, *fn15 the street which appellants' circle spanned was closely surrounded and bordered by other fora, namely, the sidewalks and grassy areas immediately abutting the South Barricade. *fn16 At least one of the appellants testified to understanding the police officers' warnings to mean that the demonstrators could have avoided arrest by moving to the sidewalk and did not need to leave the area entirely. Appellants have not shown that their message or communication required their sitting down across the entire width of a two-lane street, which was one of the few roads providing vehicular access to the Capitol building. *fn17
Finally, appellants' contention that the South Barricade was blocked primarily by the police, and not by them, is an argument that there was insufficient evidence that they violated the statute. We find no error by the trial Judge in denying appellants' motions for judgment of acquittal. See Bridges v. United States, 381 A.2d 1073, 1079 (D.C. 1977) (standard of review for sufficiency of the evidence claims) (citation omitted), cert. denied, 439 U.S. 842, 58 L. Ed. 2d 141, 99 S. Ct. 135 (1978). Evidence as to whether appellants or the police first blocked traffic was susceptible to more than one reasonable interpretation. There was no evidence of the exact second when the police began redirecting traffic. A reasonable juror could have found beyond a reasonable doubt that appellants caused the traffic to be redirected. Appellants do not argue that the police officers' alleged anticipatory blocking of the South Barricade lured them into using the street for part of their second demonstration. Cf. Wheelock, supra, 552 A.2d at 509.
Accordingly, we hold that the trial Judge did not err in refusing to give a jury instruction, which included as an element of § 9-112 (b)(5) the retirement that the jury find that appellants' conduct caused serious disruption of Congress' ability to conduct its business.
Finally, consistent with binding authority, we find no error by the trial Judge in refusing to give a jury nullification instruction. *fn18
Jury nullification "permits jurors to acquit a defendant on the basis of their notions of Justice, even if they believe he or she is guilty as a matter of law." Reale, supra, 573 A.2d at 15. Jury actualities are unreviewable and unreversible. See United States v. Dougherty, 154 U.S. App. D.C. 76, 93, 95, 473 F.2d 1113, 1130, 1132 (1972). Courts have held that while the jury has the power to ignore the law in order to find a defendant not guilty, that power is to be used sparingly and courts will not inform the jury of that option. *fn19 While acknowledging that "no doubt juries sometimes act out of compassion and in disregard of the law," this court has concluded that it "will not place upon such conduct by juries the stamp of judicial approval through instruction from the court." Arshack, supra, 321 A.2d at 851 (upholding trial court's refusal to give jury nullification instruction). See also United States v. Washington, 227 U.S. App. D.C. 184, 189, 705 F.2d 489, 494 (1983). But see Dougherty, supra, 154 U.S. App. D.C. at 104, 473 F.2d at 1141 (irrational not to inform jury of nullification power) (Bazelon, C.J., Concurring in part and Dissenting in part).
On appeal, appellants contend that without being informed of the option to go against the law, the jury may feel constrained or compelled to find a defendant guilty. However, the court has concluded that the practice of not informing the jury of its power to ignore the law "has not negated the jury's power." Arshack, supra, 321 A.2d at 845. See Dougherty, supra, 154 U.S. App. D.C. at 96, 473 F.2d at 1133 (rejecting argument that conscientious jurors may feel compelled to find guilt "to defer to an assumption of necessity that is contrary to reality"). The court has considered this issue many times and the law is clear. *fn20
Finally, appellants' contention that the trial Judge's instructions constituted a directed verdict of guilt fails. Although, clearly, a Judge may not direct a verdict against a criminal defendant, Minor v. United States, 475 A.2d 414, 416 (D.C. 1984) (citations omitted), an instruction that the jury "must" find the defendant guilty if it finds that the government has proved every element of the offense beyond a reasonable doubt is not a directed verdict, if given in the context of other instructions which inform the jury about the presumption of innocence, the government's burden of proving each element of the offense beyond a reasonable doubt, and other matters such as the fact that the jury must consider all the instructions given, as a whole. Watts, supra, 362 A.2d at 705-06, 709 (en banc); see also Reale, supra, 573 A.2d at 15 (permissible to tell jury it must convict if all elements of offense met) (citation omitted); Dougherty, supra, 154 U.S. App. D.C. at 100-101, 473 F.2d at 137-38 & n.54 (rejecting argument that court directed verdict where jury instruction explicitly stated that defendant's motives for violating the law were no defense).
Accordingly, we affirm the judgments of conviction.