United States District Court, District of Columbia
BERMAN JACKSON United States District Judge.
Daryl Thomas Agnew, Alex Dennis, and Rayneka Williamson have
brought this lawsuit against the District of Columbia to
challenge their arrests and subsequent prosecutions. 3d Am.
Compl. [Dkt. # 35]. Plaintiffs challenge the legality of D.C.
Code § 22-1307(a), known as the “incommoding
statute, ” arguing that the statute is
unconstitutionally vague because it allows and encourages
arbitrary and discriminatory enforcement. Id.
¶¶ 1, 2. The statute makes it unlawful for a person
or group of people:
(1) To crowd, obstruct, or incommode:
(A) The use of any street, avenue, alley, road, highway, or
(B) The entrance of any public or private building or
(C) The use of or passage through any public building or
public conveyance; or
(D) The passage through or within any park or reservation;
(2) To continue or resume the crowding, obstructing, or
incommoding after being instructed by a law enforcement
officer to cease the crowding, obstructing, or incommoding.
D.C. Code § 22-1307(a).
argue that the statute is both unconstitutional and unwise as
a matter of policy. At one time, plaintiffs argued, with some
force, that the language of the statute does not provide
members of the community with adequate notice of what conduct
it prohibits. See Pls.' Opp. to Def.'s Mot.
to Dismiss [Dkt. # 21] at 19-24. But with the third amended
complaint and the briefing on the instant motion, plaintiffs
have made clear that they are not bringing a notice case. 3d
Am. Compl. ¶ 2. Plaintiffs are only alleging that the
statute is unconstitutionally vague because it is subject to
arbitrary and discriminatory enforcement. Id. A
review of Supreme Court precedent makes it clear that a
statute is invalid on that basis if it contains a term that
defines what is prohibited in terms of the officer's
subjective judgment. Here, no such term appears in the
statute, so this limited challenge to the statute will be
Daryl Thomas Agnew and Rashad Bugg Bey originally filed this
action on March 9, 2015 against the District of Columbia and
the former Chief of Police, Cathy Lanier. Compl. [Dkt. # 1].
After defendants moved to dismiss that complaint, plaintiffs
filed an amended complaint, adding Dennis and Williamson as
plaintiffs to the action. See Mot. to Dismiss [Dkt.
# 12]; Am. Compl. [Dkt. # 15]; see also Min. Order
(Aug. 17, 2015). Defendants moved to dismiss the amended
complaint. Mot. to Dismiss [Dkt. # 16]. In response to the
motion to dismiss, plaintiffs filed an unopposed motion to
amend the complaint again, to “strip away” claims
that plaintiffs decided not to pursue, and to allege certain
facts with “greater precision.” Unopposed Mot.
for Leave to Am. First Am. Compl. & to File 2d Am. Compl.
[Dkt. # 18] at 1-2. The Court granted the motion, and the
second amended complaint was docketed on August 31, 2015.
Min. Order (Aug. 31, 2015); 2d Am. Compl. [Dkt. # 19].
moved to dismiss the second amended complaint in part, and
they also requested a stay of plaintiff Bey's claims
while similar claims were pursued in Superior Court.
Defs.' Mot. to Dismiss Pls.' 2d Am. Compl. or, in the
Alternative, Stay and Dismiss [Dkt. # 20]. Plaintiffs opposed
the motion in part, and they also filed a consent motion to
dismiss certain claims; they dismissed all claims brought by
plaintiff Bey and all claims brought against the Chief of
Police. See Order (Oct. 5, 2015) [Dkt. # 23].
August 11, 2016, the Court held a hearing on the motion to
dismiss the second amended complaint. Min. Entry (Aug. 11,
2016). After the hearing, plaintiffs moved to amend their
complaint again. Pls.' Mot. for Leave to Am. 2d Am.
Compl. & File 3d Am. Compl. [Dkt. # 32]. According to
plaintiffs, the proposed third amended complaint once again
“strips away” allegations relating to claims and
parties that had previously been dismissed, states the
factual allegations “with greater precision, ”
and it “clarifies that [plaintiffs] only claim is that
the District's ‘incommoding' statute is
facially unconstitutional under the second prong of the
vagueness doctrine, the arbitrary and discriminatory
enforcement prong.” Id. at 3. The Court
granted the motion in part; it allowed plaintiffs to make the
changes described in the motion, but it did not permit
plaintiffs to add allegations related to two other people who
were not previously named as plaintiffs in the matter. Order
(Sept. 6, 2016) [Dkt. # 34].
third amended complaint, plaintiffs bring claims against the
District of Columbia under 42 U.S.C. § 1983 for
violating their constitutional rights by arresting them under
the incommoding statute (Count I), and for prosecuting them
under the incommoding statute (Count II). 3d Am. Compl.
¶¶ 130-40. The third amended complaint also
purports to bring class action allegations under section 1983
on behalf of all persons arrested for violating the
incommoding statute, and all persons prosecuted under that
provision. Id. ¶¶ 141-54. On behalf of the
putative classes, plaintiffs demand a declaratory judgment
that the incommoding statute is unconstitutionally vague
under the Fifth Amendment. Id. at 24.
District moved to dismiss the third amended complaint under
Rule 12(b)(6). Def.'s Mot. to Dismiss Pls.' 3d Am.
Compl. [Dkt. # 37] (“Def's. Mot.”);
Def.'s Mem. in Supp. of Def.'s Mot. [Dkt. # 37]
(“Def.'s Mem.”). Plaintiffs oppose the
motion, Pls.' Opp. to Def.'s Mot. [Dkt. # 40]
(“Pls.' Opp.”), and the District has replied
in support of its motion. Def.'s Reply in Supp. of
Def.'s Mot. [Dkt. # 41] (“Def.'s Reply”).
third amended complaint includes the following facts,
accepted as true for purposes of this motion, related only to