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United States v. Barnes

United States District Court, District of Columbia

October 24, 2019




         Defendants Shailly Barnes, Graylan S. Ellis Hagler, Jimmy Hawkins, William Lamar, Hershey A. Mallette, Rosalyn W. Pelles, Noam Sandweiss-Back, Robert T. Stephens, and Elizabeth Theoharis (collectively “Defendants”) were arrested while praying on the Supreme Court plaza and charged with violating 40 U.S.C. § 6135 (“§ 6135” or “Section 6135”). See 40 U.S.C. § 6135 (2018). Section 6135 makes it unlawful “to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds [“the Assemblages Clause”], or to display in the Building and grounds a flag, banner or device designed or adapted to bring into public notice a party, organization, or movement [“the Display Clause”].” Id. Defendants Barnes, Hagler, Lamar, Mallette, Pelles, Sandweiss-Back, Stephens, and Theoharis have jointly moved to dismiss the Information as unconstitutional. See Defs.' Joint Mot. Dismiss (“Defs.' Mot.”), ECF No. 108.[1] Defendant Hawkins has separately filed a Motion to Dismiss, in which he incorporates the arguments in Defendants' Joint Motion to Dismiss and raises a selective prosecution claim. See generally Mot. Dismiss for Selective Prosecution and Compel Disc. (“Hawkins Mot.”), ECF No. 109.[2] Defendants collectively argue that the charges against them should be dismissed because: (1) § 6135 violates their First Amendment right to prayer and to all instances of prayer in the plaza; and (2) § 6135 is unconstitutionally overbroad and vague. Defs.' Mot. at 5. Mr. Hawkins also separately argues that he has been subjected to selective prosecution and asks that the Court dismiss the charges against him on that basis or, alternatively, authorize discovery regarding selective prosecution. Hawkins Mot. The Court DENIES the joint motion to dismiss and Mr. Hawkins' separate motion for the reasons set forth below.[3]


         On June 11, 2018, Defendants allegedly were among a group of demonstrators marching on First Street, N.E., near the United States Supreme Court. See Opp'n Mot. at 1. Defendants identify as religious individuals and leaders associated with The Poor People's Campaign: A National Call for Moral Revival.[5] Defs.' Mot. at 1-2. During the march, Defendants wore matching clothing connecting them to the Poor People's Campaign. Opp'n Mot. at 1.

         After First Street, N.E., was reopened for vehicle use at the conclusion of the march, approximately 100 to 150 demonstrators remained on the sidewalk in front of the Supreme Court building. Id. at 2. The United States Supreme Court Police Department (“USSCPD”) surveyed the crowd and observed the nine Defendants depart from the larger group, walk onto the lower steps of the Supreme Court plaza, and gather in a circle near the base of the stairs of the Supreme Court building. Id. No arguments had been scheduled before the Court on that date. Defs.' Mot. at 2. Members of the public were on the plaza, and individuals with recording devices surrounded Defendants. Id.; see also Defs.' Mot. Ex. 3, Governmental Camera 101. Defendants prayed together on the Supreme Court plaza. Defs.' Mot. at 1-2. Defendants describe their prayer as “address[ing] voter suppression, economic inequality, and persistent poverty in the United States.” Id. at 2. While Defendants were gathered at the base, one defendant, Elizabeth Theoharis, gave a speech through a microphone connected to a megaphone. Opp'n Mot. at 2. She passed the microphone to others gathered around her. Id.

         USSCPD blocked entry to the Court's main door to prevent Defendants from progressing into the building. Id. While Defendants prayed in the plaza, USSCPD Chief Jeff Smith issued three warnings to Defendants within a ten-minute timespan. Id. With each warning, Chief Smith notified Defendants that if they did not leave the premises, USSCPD would arrest them. Id. After Defendants ignored the warnings, USSCPD began arresting the Defendants. Id. These arrests drew applause from onlooking demonstrators from the sidewalk. Id. The Defendants were arrested and charged with violating 40 U.S.C. § 6135. Id. at 3.

         In an Information filed June 12, 2018, the United States charged Defendants with violating 40 U.S.C. § 6135. See Information at 2, ECF No. 1. Defendants face a maximum fine of up to $5, 000 and a maximum sentence of up to sixty days in jail. See 18 U.S.C. § 3571(b)(6) (2018); 40 U.S.C. § 6137(a) (2018). Defendants have been on pretrial release since their initial appearance before this Court on June 12, 2018.



         Defendants contend that the Information should be dismissed because § 6135 violates the First Amendment as applied to Defendants' alleged conduct on June 11, 2018 and to all instances of prayer on the Supreme Court plaza. Defs.' Mot. at 5; Hawkins Mot. at 1. The statute provides that, “[i]t is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” 40 U.S.C. § 6135 (2018). In Hodge v. Talkin, the D.C. Circuit found § 6135 constitutional as applied to the Hodge plaintiff's desire to picket, leaflet, and make a speech in the Supreme Court plaza. Hodge v. Talkin, 799 F.3d 1145, 1150 (D.C. Cir. 2015). Defendants contend that their prayer is an expressive activity that was not addressed in Hodge, and that precluding them from praying on the Supreme Court plaza would violate the First Amendment. See Defs.' Mot. at 5. Defendants also assert that § 6135 is overbroad and unconstitutionally vague. See Id. at 6. The United States counters that § 6135 is a reasonable restriction on speech that is neither overbroad nor void for vagueness. See Opp'n Mot. at 6-9. The Court concludes that § 6135 may be constitutionally applied to Defendants' alleged conduct at the Supreme Court on June 11, 2018, and therefore rejects Defendants' First Amendment challenge to the Information.

         A. Section 6135 Does Not Violate the First Amendment as Applied to Defendants or Other Individuals Who Wish to Pray on the Supreme Court Plaza

         1. Legal Standard Governing First Amendment Claims

         The First Amendment protects the right to free speech and expression, but does not give individuals an unfettered right to engage in expressive activity “wherever (and whenever) [they] would like.” Hodge, 799 F.3d at 1157. The government may restrict speech on government property, and the scrutiny to which those restrictions will be subjected turns on the nature of the forum where the speech takes place. See Minnesota Voters Alliance v. Manksy, 138 S.Ct. 1876, 1885 (2018). Restrictions on speech in public forums are scrutinized more closely than restrictions on speech in nonpublic forums. See id. In public forums, “the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.” Id. In nonpublic forums, the government may prohibit speech “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.” Id.; see also Hodge, 799 F.3d at 1150. Thus, to determine whether a restriction on speech violates the First Amendment, courts “proceed in three steps: first, determining whether the First Amendment protects the speech at issue, then identifying the nature of the forum, and finally assessing whether the [government's] justifications for restricting …speech ‘satisfy the requisite standard.'” Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985)).

         2.Hodge v. Talkin

         The Court's analysis of Defendants' First Amendment claims must begin with the D.C. Circuit's holding in Hodge v. Talkin, given the overlap between the issues addressed in Hodge and the arguments Defendants raise here. In Hodge, a student who had previously been arrested for violating § 6135 sought to return to the Court to picket, distribute leaflets, and make political speeches on the Supreme Court plaza. 799 F.3d at 1154. Mr. Hodge argued that § 6135 violated his First Amendment rights to expression and was unconstitutionally overbroad and vague. See id. When reviewing Mr. Hodge's challenge to the statute's restriction of his First Amendment rights, the Court declined to classify Mr. Hodge's constitutional claims as a purely facial or as applied challenge, and instead “examine[d] the validity of the statute's application to . . . [the Supreme Court] plaza-looking beyond the plaintiff's particular conduct when assessing the statute's fit.” Id. at 1156-57.

         Hodge upheld the constitutionality of § 6135, rejecting Mr. Hodge's assertion that the statute was “unconstitutional in all its applications in the Supreme Court plaza.” Hodge, 799 F.3d at 1157. First, the D.C. Circuit determined that the Supreme Court plaza is a nonpublic forum, after reviewing its structural design, its public accessibility, and the importance of maintaining “the Court's central purpose, the administration of justice to all who seek it.” Id. at 1158-62. As such, the First Amendment allows the government to implement “reasonable restrictions on speech [at the plaza] as long as it refrains from suppressing particular viewpoints.” Id. at 1150. Applying that test, the D.C. Circuit determined that § 6135 reasonably relates to the government's interests in “preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure.” Id. It further held that § 6135 is neither overbroad nor vague, in part because the statute applies only to expressive conduct intended to attract attention. See Id. at 1168.

         3. Section 6135 Does Not Unreasonably Restrict Defendants' ...

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