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Tetaz v. District of Columbia

July 30, 2009


Appeals from the Superior Court of the District of Columbia (CDC-21526-06, et al) (Hon. Rufus G. King, III, Trial Judge)

The opinion of the court was delivered by: Farrell, Senior Judge

Argued April 2, 2009

Before Ruiz and KRAMER, Associate Judges, and FARRELL, Senior Judge.

Dissenting opinion in part by Associate Judge RUIZ, at p. 18.

Following a bench trial, appellants were found guilty of offenses arising from their protest of the Iraq war on or near the grounds of the United States Capitol. Specifically, individual appellants were convicted of unlawful assembly*fn1 or unlawfully crossing police lines*fn2 during demonstrations at the Hart Senate Office Building, the Rayburn House Office Building, the Russell Senate Office Building, and the United States Capitol Building on successive days in September 2006. We affirm their convictions, summarizing the relevant facts as they pertain to each offense-situs and appellants' related arguments.

I. The Hart Senate Office Building (the "Hart Building")

Although appellants recount the evidence of the Hart Building demonstration and arrests in one or the other of their briefs, they make no argument challenging their convictions for unlawful assembly arising from that demonstration, so that any such challenge has been waived. See, e.g., Ramos v. United States, 569 A.2d 158, 162 n.5 (D.C. 1990). Nonetheless, because that evidence provides context for the actions of the United States Capitol Police in arresting them for the other violations, we summarize it briefly.

According to testimony that the trial judge credited, 300 to 350 people had gathered in the Upper Senate Park, an outdoor grassy area, on September 26 for a demonstration authorized by permit to protest the war in Iraq. U.S. Capitol Police Officer Galope testified that some fifty of these individuals then entered the Hart Building where, in the first floor atrium, they began "singing, and chanting, and reading . . . very loudly." According to Galope, other persons in the atrium complained to the police about the volume of the noise. There were onlookers all the way up to the 8th floor of the atrium (some of whom, too, were "calling and complaining of the loudness"), and persons passing through the atrium had to move around the demonstrators. The trial judge found that, although the demonstration was not "loud," there "was some level of disruption" and "incommoding or blocking" of movement. Thus, he found it to be a "reasonable [exercise of] discretion" when the police, after giving three verbal warnings to the group to disperse, arrested those members who refused to do so.

II. The Rayburn House Office Building (the "Rayburn Building")

Some of the appellants challenge their convictions for unlawful assembly arising from their actions the next day (September 27) at an entrance to the Rayburn Building.*fn3 They argue that the government failed to present sufficient evidence of (a) their intent to impede entry and (b) disorderly conduct on their part or circumstances likely to lead to a breach of the peace - the latter, they contend, a necessary element of proof under the First Amendment. On the contrary, appellants' purpose to impede entry was adequately shown, and the government was not also required to prove an actual or imminent breach of the peace.

In Odum v. District of Columbia, 565 A.2d 302, 304 (D.C. 1989), we stated that conviction for unlawful assembly requires proof of two things: "(1) 'the presence of three or more persons acting in concert for an unlawful purpose' . . . ; and (2) commission of the [statutory] act . . . alleged in the information" (quoting Kinoy v. District of Columbia, 130 U.S. App. D.C. 290, 299, 400 F.2d 761, 770 (1968) (unlawful assembly "requires both the assembly and the commission of one of the acts forbidden by the statute")). Here, the testimony fairly supporting an inference that the appellants had assembled in front of the Rayburn Building entrance intending to impede entry into the building as a protest was as follows:

According to Captain Lloyd of the U.S. Capitol Police, when he arrived at the Rayburn Building in response to reports of a protest, he saw some twenty-five demonstrators lying in front of the Independence Avenue entrance to the building. The reclining individuals were "blocking [the entrance] completely" and occupying seventy percent of the "plaza area adjacent to the entrance." They had pulled white sheets over themselves and had lined up some fifteen mock coffins on the steps to represent victims of war. Lloyd testified that, because the demonstrators lay "right up against the . . . first entrance . . . to the building," persons entering had to "hop over" them to enter, while others - "diverted away from that entrance" - "went . . . around the corner to the South Capitol entrance." The trial judge found that, "while not 100 percent blocked, [the building entrance] was significantly impeded or incommoded" because "people had to pick their way around individuals lying on the ground in sheets," some "less than two or three feet . . . from the entryway."

Appellants' argument that the government showed no intent on their part to impede the entrance, see Odum, supra, 565 A.2d at 302, is without merit. Lloyd testified that the protesters had been told three times that "they were in violation of the Capitol regulations and that if they didn't leave the area or unobstruct the door . . . they'd be arrested" (emphasis added). Given these warnings and the obvious inference to be drawn from the appellants' lying up against the doorway, they cannot compare themselves to the protesters in Odum, who while "mov[ing] back and forth across [a] driveway, . . . always moved aside to allow traffic to enter," 565 A.2d at 304, thus evincing a non-obstructive purpose.

Nor was the government obliged to prove that appellants were otherwise "disorderly" or that their actions threatened to cause a breach of the peace.*fn4 Purposely blocking or impeding entry into a public building enjoys no First Amendment protection, certainly none sufficient to require proof of an imminent breach of the peace before persons who refuse warnings to desist may be punished. In Green v. City of Raleigh, 523 F.3d 293, 302 (4th Cir. 2008), for example, the court upheld an ordinance clause intended "to ...

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