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03/19/93 PETER G. FARINA v. UNITED STATES AMERICA

March 19, 1993

PETER G. FARINA, KELLY D. SULLIVAN, LOUIS R. JULUKE, ANN G. FULLERTON, HATTIE A. PETERSON, DOUGLAS A. HILL, APPELLANTS
v.
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.

I.

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.

II.

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. ...


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