UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 23-298 (JEB) DOUGLAS HARRINGTON,

Defendant.

MEMORANDUM OPINION

Defendant Douglas Harrington is charged with eight counts for his alleged participation

in the January 6, 2021, insurrection at the U.S. Capitol. He now moves to dismiss five of those

counts. Since the filing of his Motion, the Government voluntarily dismissed one, but it

maintains that the others remain valid. As Harrington’s Motion relies on a variety of infirm

grounds that this Court and others in this district have persuasively rejected, he does not succeed.

I. Background

The eight counts on which Defendant is indicted are: Civil Disorder, in violation of

(a)(3) (Count I); Obstruction of an Official Proceeding, in violation of

(c)(2) (Count II); Assaulting, Resisting, or Impeding Certain Officers Using a

Dangerous Weapon, Inflicting Bodily Injury, in violation of

(a)(1) and (b) (Count

III); Entering and Remaining in a Restricted Building or Grounds with a Deadly or Dangerous

Weapon, in violation of

(a)(1) and (b)(1)(A) (Count IV); Disorderly and

Disruptive Conduct in a Restricted Building or Grounds, in violation of

(a)(2)

and (b)(1)(A) (Count V); Engaging in Physical Violence in a Restricted Building or Grounds, in

violation of

(a)(4) and (b)(1)(A) (Count VI); Disorderly Conduct in a Capitol

1 Building, in violation of

(e)(2)(D) (Count VII); and Act of Physical Violence in

the Capitol Grounds or Buildings, in violation of

(e)(2)(F) (Count VIII). See

ECF No. 12 (Indictment). Harrington’s Motion seeks dismissal of Counts I, II, IV, V, and VI,

and it “requests that the Court continue his case until the Supreme Court” issues its opinion in

Fischer v. United States,

(2024). See ECF No. 21 (Motion to Dismiss) at 1, 15–

16.

II. Legal Standard

Prior to trial, a defendant may move to dismiss an indictment on the basis that there is a

“defect in the indictment” including a “failure to state an offense.” Fed. R. Crim. P.

12(b)(3)(B)(v). “The operative question is whether the allegations, if proven, would be

sufficient to permit a jury to” conclude that the defendant committed the criminal offense as

charged. United States v. Sanford, Ltd.,

(D.D.C. 2012); United States

v. Bowdoin,

(D.D.C. 2011). An indictment “is sufficient if it, first,

contains the elements of the offense charged and fairly informs a defendant of the charge against

which he must defend, and, second, enables him to plead an acquittal or conviction in bar of

future prosecutions for the same offense.” Hamling v. United States,

(1974).

In reviewing the indictment, a court affords deference to the “fundamental role of the

grand jury.” United States v. Ballestas,

(D.C. Cir. 2015) (quoting Whitehouse

v. U.S. Dist. Court,

, 1360 (1st Cir. 1995)). As a result, “[a]dherence to the

language of the indictment is essential because the Fifth Amendment requires that criminal

prosecutions be limited to the unique allegations of the indictments returned by the grand jury.”

United States v. Hitt,

(D.C. Cir. 2001). A court accordingly cabins its

analysis to “the face of the indictment and, more specifically, the language used to charge the

2 crimes.” United States v. Sunia,

(D.D.C. 2009) (emphases and internal

quotation marks omitted).

III. Analysis

The landscape has changed since Harrington filed his Motion to Dismiss. The Supreme

Court late last month issued its opinion in Fischer v. United States,

(2024),

rejecting the D.C. Circuit’s previously binding interpretation of § 1512(c). The Government

thereafter filed a Motion to Dismiss Count II, see ECF No. 34, which the Court granted. See

Minute Order of July 10, 2024. Defendant’s requests for a continuance and for dismissal of

Count II are thus moot, leaving only his challenges to Counts I and IV–VI. The Court addresses

them in turn.

A. Count I

Harrington attacks the statute underlying the civil-disorder count,

(a)(3),

as unconstitutionally overbroad under the First Amendment and vague under the Fifth. See

MTD at 2–9. That count charges:

On or about January 6, 2021, within the District of Columbia, DOUGLAS HARRINGTON committed and attempted to commit an act to obstruct, impede and interfere with a law enforcement officer, lawfully engaged in the lawful performance of his/her official duties incident to and during the commission of a civil disorder which in any way and degree obstructed, delayed, and adversely affected commerce and the movement of any article and commodity in commerce and the conduct and performance of any federally protected function.

Indictment at 2. The civil-disorder statute under which the Government brings this charge reads:

Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the

3 conduct or performance of any federally protected function — Shall be fined under this title or imprisoned not more than five years, or both.

(a)(3).

1. First Amendment

Under the First Amendment, criminal statutes “that make unlawful a substantial amount

of constitutionally protected conduct may be held facially invalid even if they also have

legitimate application.” City of Houston v. Hill,

(1987). That Amendment

bars laws that “punish[ ] a ‘substantial’ amount of protected free speech, ‘judged in relation to

the statute’s plainly legitimate sweep,’” and for which no “limiting construction” is available.

Virginia v. Hicks,

, 118–19 (2003) (quoting Broadrick v. Oklahoma,

(1973)). “[T]he mere fact[,]” however, “that one can conceive of some impermissible

applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”

Members of City Council of L.A. v. Taxpayers for Vincent,

(1984); see also

United States v. Hoffman,

(D.D.C. 1971) (rejecting First Amendment

challenge to § 231(a)(3) where defendant set forth “hypothetical situations which defendant

contends would result in unconstitutional applications of” statute). Instead, to be invalid, a law’s

application to protected speech must “be real” and “substantial.” Broadrick,

.

Harrington contends that “numerous speech-focused applications render the statute

overbroad.” MTD at 4. For example, he argues that § 231(a)(3) “could apply to a bystander

who yells at police to stop, someone who takes out their cell phone to record police activity, or

someone who makes a lewd gesture to police officers who are trying to quell a disturbance.” Id.

(emphasis added). The Court is all too familiar with these three hypotheticals and has twice

rejected near word-for-word iterations of the same argument because § 231(a)(3)’s “potentially

4 unconstitutional applications are few compared to its legitimate ones.” United States v. Dennis,

, at *2 (D.D.C. Dec. 6, 2022) (citation omitted); see United States v.

Mostofsky,

, 22–23 (D.D.C. 2021) (rejecting same argument).

Harrington does, however, go one step further than previous challengers, as he attempts

to ground his hypotheticals in legislative history that purportedly demonstrates that the statute

“was aimed directly at expressive conduct [from the start].” MTD at 5. This extra effort

notwithstanding, his recitation meets the same fate as those before it, as this Court has construed

§ 231(a)(3)’s plain text to primarily, if not exclusively, target non-expressive conduct rather than

speech. Mostofsky, 579 F. Supp. 3d at 22. Given the text’s clarity, the Court has no need to

consult legislative history.

2. Fifth Amendment

On to his vagueness challenge. Harrington contends that the statute’s lack of a scienter

requirement weighs in favor of its unconstitutionality and that its “language improperly hinders a

person of ordinary intelligence from discerning what conduct it prohibits.” MTD at 3. Once

again, the Court has previously encountered and rejected several of his arguments, and it is

unpersuaded by those it addresses for the first time.

To begin, Defendant is incorrect that the statute is missing a scienter requirement. This

Court and others in this district have previously observed that § 231(a)(3) “criminaliz[es] only

acts performed with the intent to obstruct, impede, or interfere with a law enforcement officer.”

United States v. McHugh,

, 25 (D.D.C. 2022) (construing § 231(a)(3) to

require specific intent). As Harrington concedes, such a “requirement may mitigate a law’s

vagueness, especially with respect to the adequacy of notice to the complainant that his conduct

5 is proscribed.” MTD at 8 (quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.,

(1982)).

Undeterred, Defendant takes aim at several statutory phrases that, he contends, render

§ 231(a)(3) unconstitutionally vague. He begins with “incident to and during the commission of

a civil disorder.” MTD at 5. As it has twice before rejected substantially overlapping and

indistinguishable vagueness challenges to this specific language — see United States v. Mock,

, at *4–5 (D.D.C Jun. 6, 2023); Dennis,

, at *2 (rejecting

argument that statute is replete with vague and imprecise terms) — the Court reaffirms those

holdings in Mock and Dennis and limits the bulk of its analysis to the points that Harrington

raises for the first time.

On his reading, the word “during” muddies § 231(a)(3), as the statute is “silent on . . .

when a civil disorder begins or ends.” MTD at 6. He argues that the term “fails to specify how,

or how closely, a defendant’s conduct must be connected to a civil disorder,” and he provides

hypotheticals to show that it is unclear how the statute applies to a defendant. Id. at 5–7. The

Court is not persuaded. “There is a crucial difference between reasonable people differing over

the meaning of a word and reasonable people differing over its application to a given situation —

the latter is perfectly normal, while the former is indicative of constitutional difficulty.”

McHugh, 583 F. Supp. 3d at 27 (citation omitted). Neither “during” nor the statutory definition

of civil disorder contained in the very next subsection — “any public disturbance involving acts

of violence by assemblages of three or more persons, which causes an immediate danger of or

results in damage or injury to the property or person of any other individual,”

(1)

— are unclear in their meaning. Harrington thus has not demonstrated a constitutional

deficiency in the language.

6 He next sets his sights on another statutory phrase: “in any way obstructs, delays, or

adversely affects commerce or the movement of any article or commodity in commerce or the

conduct or performance of any federally protected function.” MTD at 7. Defendant’s view is

that it neither “explain[s] how material an effect upon commerce must be in order [for the

conduct] to be criminalized” nor “specif[ies] what types of obstructions, delays, or adverse

effects are criminalized.”

Here, Harrington aims at the wrong target.

The language at issue describes the requisite connection between interstate commerce

and a civil disorder, not between the former and the criminalized act. See Mostofsky, 579 F.

Supp. 3d at 18 (“the phrase ‘obstructs, delays, or adversely affects commerce’ modifies ‘civil

disorder’ rather than ‘any act’”) (quoting United States v. Howard,

, at *10

(E.D. Wis. Aug. 30, 2021)). Such a connection is an element of the offense that need not be on

the mind of the actor when he contemplates the criminalized act. See McHugh 583 F. Supp. 3d

at 26 (“the government [need not] prove that a defendant knew that the civil disorder in question

affected interstate commerce”); see also United States v. Buck,

(5th Cir. 2017)

(“[c]ourts have routinely held that a criminal defendant need not know of a federal crime’s

connection to interstate commerce to be found guilty”). As § 231(a)(3) does not require a

defendant to know that the civil disorder affects commerce, Harrington’s contention that the

language fails to precisely notify people of the requisite degree of such an effect must fail.

Defendant’s third and final shot at § 231(a)(3) is that its “reliance on subjective reactions

[of officers] renders violations unpredictable” in violation of the Due Process Clause’s fair-notice

requirement. See MTD at 7. According to Harrington, the criminality of a defendant’s actions

turns on “whether someone other than the defendant experiences [his] conduct as an

interference.” Id. at 8. Once again, a plain reading of the statute and precedent from this district

7 say otherwise. Section 231(a)(3) provides no support for Defendant’s claim that an officer’s

appreciation of conduct as an interference is required. Addressing this same argument, Judge

Royce Lamberth of this district concluded simply that the “[t]he officer’s feelings are irrelevant.”

United States v. Bingert,

, 129 (D.D.C. 2022). This Court agrees.

B. Counts IV, V, and VI

Harrington next seeks dismissal of Counts IV, V, and VI, all of which allege violations of

. That statute penalizes entering or disrupting business in a “restricted building

or grounds.” The statute then defines that phrase:

(1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area—

(A) of the White House or its grounds, or the Vice President’s official residence or its grounds;

(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or

(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance.

(c)(1)(A)–(C). The thrust of Defendant’s argument is that § 1752 permits only

the Secret Service to restrict access to the Capitol and that it did not do so on January 6. In the

alternative, he maintains that the statute does not apply here “because former Vice President

Pence was not ‘temporarily visiting’ the Capitol Building on January 6, 2021.” MTD at 12.

This Court rejected the first of these arguments in Mostofsky, 579 F. Supp. 3d at 28 (“The

text plainly does not require that the Secret Service be the entity to restrict or cordon off a

particular area.”), and the second in United States v. Ballenger,

, at *2

(D.D.C Oct. 26, 2022) (“Many judges in this district have disagreed with [the] suggestion that

8 Vice President Pence was not temporarily visiting the Capitol, given that this term logically

describes what he was doing on January 6.”). It does so again here.

IV. Conclusion

For the foregoing reasons, the Court will deny the Motion with respect to Counts I, IV, V,

and VI. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: July 16, 2024

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