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09/16/93 WILLIAM D. BERG v. UNITED STATES

September 16, 1993

WILLIAM D. BERG, ET AL, APPELLANTS
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Luke C. Moore, Trial Judge)

Before Terry, Steadman, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge : Each of the eighteen appellants *fn1 was charged in a three-count information with three misdemeanors: unlawfully demonstrating within the United States Capitol Building, in violation of D.C. Code § 9-112(b)(7) (1989) ("the demonstration statute"); *fn2 obstructing or impeding passage through or within the United States Capitol Building, in violation of D.C. Code § 9-112(b)(5) (1989) ("the obstruction statute"); *fn3 and unlawfully remaining and refusing to quit a public building after being asked to leave by a person lawfully in charge, in violation of D.C. Code § 22-3102 (1989) ("the unlawful entry statute"). *fn4 The charges arose out of a demonstration inside the Rotunda of the United States Capitol Building ("the Rotunda") *fn5 against legislation then pending in Congress which would provide $100 million in military aid to the Contra rebels in Nicaragua.

Following a month-long trial, a jury convicted all eighteen appellants of the three misdemeanor offenses. In these consolidated appeals, *fn6 appellants contend that their convictions violated their First Amendment rights to free speech and to assemble peaceably and petition their government for a redress of grievances, thereby rendering D.C. Code §§ 9-112(5), (7), and 22-3102 unconstitutional as applied to their conduct. *fn7 We affirm. *fn8

I.

The government's evidence showed that at approximately 12:30 p.m. on August 4, 1986, a day when Congress was in session, appellants and others gathered in the center of the Capitol Rotunda. They stood talking both inside and outside of the stanchions which had been set up to mark clear passageways for legislators, employees, and tourists. According to a stipulation by the parties, which was read in open court by the trial Judge, the group totaling approximately 113 had come as part of the Pledge of Resistance "to protest Contra aid, which was then under debate in the Senate, and . . . each [proceeded to] demonstrate in the center of the Rotunda between approximately 12:45 p.m. and the time of their respective arrests . . . by the Capitol Police . . . ."

Following a moment of silence, the group engaged in a "die-in" dramatization of what they called "the slaughter of the innocents" in Nicaragua. They formed a circle and began to re-enact a death scene. Some fell to the floor and unfurled a large banner, *fn9 while others pretended to shoot them by pointing their fingers and making shooting noises. This continued for a minute or two until approximately three-quarters of the group, some wearing clothing splattered with red paint to symbolize the blood of dying Nicaraguan people, were either sitting or lying on the floor displaying the banner. The ten appellants who testified admitted that they were part of the group on the floor. Those who remained standing took turns in reading from prepared texts and leading those on the floor in responsive group readings and chants.

Lieutenant Lawrence Hill of the United States Capitol Police testified on behalf of the government at trial. Lieutenant Hill stated that he was the Section Commander on duty at the Rotunda on August 4, 1986, which meant that he was in charge of enforcing all laws and regulations. He stated that appellants and their fellow demonstrators were much more numerous than ordinary tour groups, which are limited to not more than fifty in the Rotunda. Lieutenant Hill testified that the demonstrators took up "such a large portion of the Rotunda they entirely engulfed the center portion that [the police] had roped off to mark the intersection and to outline the connecting corridors. He testified further that appellants made it "impossible" for anyone using the designated passageways "to gain access" through the Rotunda from either the north to the south or the east to the west. *fn10 According to his testimony, the demonstrators were also louder than ordinary tourists in that they were "shouting" and "speaking in unison" and "could be heard throughout the entire Rotunda."

As soon as the demonstrators started dropping to the floor, Lieutenant Hill, using an amplifier, advised the entire group "that they were in violation of the building regulations [namely, U.S. Capitol Police General Order No. 303.1] *fn11 and asked them to please stand . . . and please cease and desist." Appellants failed to stand. The Chief of Police then ordered the Rotunda closed, and the Capitol Police cleared the Rotunda of everyone except the demonstrators. Lieutenant Hill testified that he then "advised the individuals laying on the floor and demonstrating . . . that the Rotunda was now closed and that they were hereby ordered to [stand up and] leave at this time and if they failed to do so, they would be placed under arrest for unlawful entry." No one in the group got up and left.

Lieutenant Hill testified that he waited for a short period of time and then repeated the identical warning twice more; nonetheless, no one in the group of demonstrators got up and left. Instead, they continued to demonstrate. Lieutenant Hill then ordered the arrest team to move in. He testified that members of the arrest team gave each individual demonstrator one final opportunity to leave the Rotunda before arresting him or her. Moreover, his testimony was that right up until the actual moment of arrest, each individual demonstrator "would have been free to leave." *fn12

II.

Appellants contend on appeal that their expressive conduct in the Capitol Rotunda on August 4, 1986, was entitled to First Amendment *fn13 protection and that, therefore, their convictions should be reversed. Thus, appellants raise an "as applied" *fn14 challenge to each of the three criminal statutes which underlie their convictions. See D.C. Code §§ 9-112(b)(5), (7), and 22-3102. They urge us to follow Wheelock v. United States, 552 A.2d 503 (D.C. 1988), in which this court reversed the convictions of a group of fifty persons who had participated in a demonstration in the Capitol Rotunda. *fn15

We agree that the application of these three criminal statutes to appellants' activities requires First Amendment scrutiny. See Arshack v. United States, 321 A.2d 845, 848 (D.C. 1974). We are not persuaded, however, that any of the ...


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