Daryl Agnew v. Government of the District of Columbia
Opinion
The District of Columbia is a diverse and thriving city of approximately 700,000 residents. As the nation's capital, it is the site of hundreds of mass events each year. The District also annually hosts tens of millions of tourists from around the nation and the world. To promote and protect the shared use and enjoyment of the city's public areas by residents and visitors alike, District of Columbia law makes it a misdemeanor "to crowd, obstruct, or incommode" the use of streets, sidewalks, or building entrances, and "continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease" doing so.
The plaintiffs, three District of Columbia residents who were arrested under the statute, challenge it as unconstitutionally vague on its face on the ground that it authorizes an impermissible degree of enforcement discretion. The District's anti-obstructing statute applies virtually anywhere a pedestrian might be in public. And history teaches that unbridled discretion to control individuals' use of public spaces can be an instrument of abuse. The Supreme Court has invalidated laws that give the police unfettered discretion to punish-or banish-anyone at all, often with the heaviest toll on "poor people, nonconformists, dissenters, [or] idlers."
See
Papachristou v. City of Jacksonville
,
The statute challenged here confers no such sweeping power. Its terms are clear enough to shield against arbitrary deployment; it bars only blocking or hindering others' use of the places it identifies. Further, a person is not subject to arrest unless he refuses to move out of the way when an officer directs him to do so. The statute does not criminalize inadvertent conduct, nor does it authorize the police to direct a person to move on if he is not currently or imminently in the way of anyone else's shared use of the place at issue. Because we conclude that the anti-obstructing statute is not unconstitutionally *52 vague on its face, we affirm the district court's dismissal of the complaint.
BACKGROUND
A. The District of Columbia's Anti-Obstructing Statute
In the District of Columbia, "[i]t is unlawful for a person, alone or in concert with others:"
(1) To crowd, obstruct, or incommode:
(A) The use of any street, avenue, alley, road, highway, or sidewalk;
(B) The entrance of any public or private building or enclosure;
(C) The use of or passage through any public building or public conveyance; or
(D) The passage through or within any park or reservation; and
(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.
The District of Columbia's obstructing ban has been on the books in one form or another since the nineteenth century. From 1892 to 2011, the provision appeared within an "act for the preservation of the public peace and the protection of property."
See
Act of July 29, 1892, ch. 320,
Both this court and the District of Columbia Court of Appeals held that the predecessor law applied only to groups of three or more people who had assembled for the purpose of crowding, obstructing, or incommoding, reasoning that the statute incorporated the common-law definition of unlawful assembly.
Kinoy v. District of Columbia
,
In some cases, the District of Columbia Court of Appeals framed its approach as a requirement that the forbidden conduct-"crowd[ing], obstruct[ing], or incommod[ing]" the use of public spaces, for example, or loud or boisterous talking-threaten a breach of the peace.
See
Adams v. United States
,
In 2011, the District of Columbia Council amended the anti-obstructing statute to essentially its current form. The provision is no longer limited to groups of people who "congregate and assemble" for an unlawful purpose, nor does it require the government to prove any threat to public peace.
Duffee v. District of Columbia
,
B. Factual Background
Alex Dennis, Daryl Agnew, and Rayneka Williamson were each arrested in unrelated incidents for violating the anti-obstructing statute. Each case was eventually dismissed for want of prosecution. The three arrestees then challenged the anti-obstructing statute as unconstitutionally vague on its face. On our
de novo
review of the order granting the District's motion to dismiss, we assume the truth of all of plaintiffs' plausibly pleaded allegations, and draw all reasonable inferences in their favor.
Weyrich v. The New Republic, Inc.
,
The police arrested Mr. Dennis on the evening before Thanksgiving in 2014 in Southeast D.C. He had stepped outside of *54 his home to get some air and was standing on a ramp near his apartment building when a police car drove by. The ramp is wide enough for more than one person to pass abreast, and no one was seeking to come or go from that entrance at the time. A police officer, yelling from the passing squad car, directed Dennis to leave. Dennis objected that he need not move from his own home, and the officer arrested him.
On Christmas Eve of 2014, the same police officer arrested Mr. Agnew a few doors down from Mr. Dennis' apartment. Agnew was standing with his daughter's mother on the stoop of her building, leaving space for other people to pass. Indeed, "many people were in fact coming and going around them because it was Christmas eve." J.A. 33. The officer drove up and yelled at them to leave. Agnew responded that he had come outside to smoke so as not to irritate his daughter's asthma, that her mother lived there, and that they had every right to be there, but the officer again yelled at them to leave. When Agnew refused, the officer arrested him. Both Dennis' and Agnew's police reports cited them for "standing in a manner that would cause a citizen or citizens trying to utilize the walkway to deviate from their path of walking." J.A. 37.
The police arrested Ms. Williamson in February of 2015 in a commercial area of Southeast D.C. She was on the sidewalk in front of a business when an officer told her to move because she was "disrupting the smooth flow of pedestrian traffic." J.A. 38. No one was trying to walk on that sidewalk at the time, and the way was clear for pedestrians to come and go. Williamson objected that she was doing nothing wrong. She did not leave in response to the officer's directive, but continued to allow other people in the area "to have free movement." J.A. 39. The officer returned a half hour later and arrested her, stating in his report that "he observed pedestrians having to maneuver around her to get by on the sidewalk," and that "merchants were complaining about her in the area."
C. Procedural Background
Agnew filed this case in federal court in 2015, claiming false arrest and unlawful prosecution on the ground that the anti-obstructing statute is unconstitutionally vague and overbroad. During the next six months, Agnew amended the complaint twice to narrow his claims and add plaintiffs Dennis and Williamson. When the District moved to dismiss the second amended complaint, the court permitted the plaintiffs to further amend to remove allegations relating to dismissed claims and to "clarif[y] that [their] 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."
Agnew v. District of Columbia
,
The operative complaint presses a single claim under
The district court granted the District's motion to dismiss the plaintiffs' facial challenge, holding that the anti-obstructing statute does not encourage arbitrary and
*55
discriminatory enforcement. The court held that the statute is not standardless; contrary to the plaintiffs' principal contention, violation of the anti-obstructing statute "does not depend upon an element that can vary with the eye of the beholder."
Agnew
,
ANALYSIS
The Due Process Clause protects individuals from laws that are so vague that they cannot be understood with reasonable consistency-whether by the people who must obey the law or the officials charged with applying it. A law may be unconstitutionally vague either because it "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits," or because it "authorize[s] and even encourage[s] arbitrary and discriminatory enforcement," or both.
City of Chicago v. Morales
,
A law invites arbitrary and discriminatory enforcement when "there are no standards governing the exercise of the discretion" it grants.
Papachristou
,
A law may, however, require law enforcement officers to use their discretion without being unconstitutionally vague. Enforcing criminal laws necessarily "requires the exercise of some degree of police judgment."
Grayned v. City of Rockford
,
*56
Thus, "if the general class of offenses to which [a] statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal cases could be put where doubts might arise."
United States v. Harriss
,
A. The anti-obstructing statute is not unconstitutionally vague on its face.
Because it is readily apparent that the terms "to crowd, obstruct, or incommode" the use of public ways mean to block or hinder other people's ability to pass through or use a common space, we hold that the anti-obstructing statute is not unconstitutionally vague on its face. Indeed, the Supreme Court has rejected vagueness challenges to similar laws. In
Shuttlesworth
, the Court upheld an Alabama law that made it a crime to "stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on,"
The plaintiffs here argue that both "crowd" and "incommode" are vague. They contend that the District of Columbia Court of Appeals has already held that "crowd" is vague. Not so. In the case that the plaintiffs cite, it was the statutory use of "unnecessarily crowding"-a phrase not present here-that the court thought "ambiguous" in isolation.
In re A.B.
,
The statute's use of the word "incommode" also does not render it vague; the three words read together in context are plainly concerned with impediment or hinderance. "Incommode" on its own is admittedly less clear than "crowd" or "obstruct." As the district court recognized, "incommode" has both a subjective meaning-"[t]o subject to inconvenience or discomfort; to trouble, annoy, molest, embarrass, inconvenience"-and an objective meaning-"to hinder, impede, obstruct (an action, etc.)."
Incommode
, Oxford English Dictionary, www.oed.com/view/Entry/93672;
see
Agnew
,
The statute is not impermissibly vague just because the term "incommode" "may not roll off the average person's tongue today," and does "not mean the same thing to all people, all the time."
See
Bronstein
,
Our understanding of the statute also comports with the surplusage canon's directive that a statute not be interpreted in a way that renders any part of it superfluous.
See
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy
,
The statute's origins support reading "crowd, obstruct, or incommode" as mutually reinforcing terms that together reach the kinds of blocking the Council deemed problematic. The phrase was not newly selected in 2011, but was retained from the predecessor statutes to promote consistency and preserve relevant case law. See J.A. 53-54 (D.C. Council, Committee on Public Safety and the Judiciary, Report on Bill 18-425). The plaintiffs contend that the Council's decision not to substitute the word "block" for the three retained terms shows that it eschewed the very meaning the District now advances so as to keep in place an impermissibly amorphous and unbounded formulation. We instead see the Council's choice as favoring coverage and a degree of continuity without loss of clarity.
*58 The District of Columbia Council's objective in proscribing "crowd[ing], obstruct[ing], or incommod[ing]" further confirms the statute's meaning. The challenged law "is meant to give police the power to defuse a situation that disturbs the public." J.A. 50 (D.C. Council, Committee on Public Safety and the Judiciary, Report on Bill 18-425) (quoting Citizen Complaint Review Board, Report and Recommendation on Disorderly Conduct Arrests Made by Metropolitan Police Department Officers). The point of doing so was to regulate conduct that impedes the public's shared use of common public spaces. The provision enables the police to intervene before members of the public resort to self-help to clear impediments. The statute does not apply to minor inconveniences or merely subjective annoyance, but only to observed obstacles or blockages. The objective meaning of the phrase "crowd, obstruct, or incommode" serves that purpose.
Indeed, the anti-obstructing statute does exactly what the Supreme Court deemed permissible in
Coates
. The
Coates
Court invalidated as facially vague a Cincinnati ordinance that prohibited "three or more persons" from "assembl[ing] ... on any of the sidewalks ... and there conducting themselves in a manner annoying to persons passing by."
The anti-obstructing statute does not punish conduct that has no effect on other members of the public; it is violated only by actual or imminent obstruction of another person. That is because the provision applies only to crowding, obstructing, and incommoding "the use of" the specified places by other people. Unless there is someone else who is trying to use the same space and whose use is obstructed, the statute by its own terms is not violated and no "move on" directive is warranted.
For similar reasons, ordinary, quotidian use of public spaces in the manner in which they were intended to be used does not violate the statute. When one person walks on a sidewalk, drives down a street, picnics in a park, or sits and rests awhile on a plaza's bench, she will necessarily prevent the simultaneous use by anyone else of the precise space she occupies-in some sense blocking another's use. But such conduct, and the bare physical displacement of others that it inevitably entails, does not alone qualify as "obstruct[ing], crowd[ing] or incommod[ing] the use" of those places. Rather, the statute forbids behavior that impedes the people's common use of public spaces. The statutory text, read with a dose of common sense, confirms that a violation occurs only when a person effectively appropriates more than his fair share of a public area or walk, in conflict with the prerogatives of other people also seeking to use that space.
Plaintiffs err in asserting that the statute carries criminal consequences for inadvertent conduct. No one is subject to
*59
arrest under the anti-obstructing statute until an officer has probable cause to believe that a person has in fact "crowd[ed], obstruct[ed] or incommod[ed]" the use of public space and "continue[d] or resume[d] the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease."
The plaintiffs' other arguments-specifically, that the statute turns on the subjective responses of other members of the public, that the move-on provision magnifies police discretion in the absence of a mens rea requirement, and that the statute is discriminatorily enforced-do not persuade us that the law is void for vagueness.
According to the plaintiffs, the statute is vague because it "bases criminality on the reaction of unknown others to the presence of a person on the public sidewalks, rather than on the accused's conduct." Appellants' Br. 43-44. They point in particular to notations in the plaintiffs' arrest reports asserting that anyone trying to use the walkway would have needed to "deviate from their path of walking" due to the reported obstructions. J.A. 33, 36-37 (complaint);
see also
J.A. 39 (complaint). Reliance on the reaction of others, the plaintiffs say, has led courts to invalidate other laws as vague, and requires us to do so here.
See
Appellants' Br. 44 (citing
Coates
,
The plaintiffs misread those cases. The Supreme Court invalidated the loitering ordinance in
Coates
on vagueness grounds because its violation turned wholly on police assessments of the subjective annoyance of other members of the public.
The plaintiffs also argue that the move-on provision magnifies police discretion, and that the statute is vague due to the lack of a
mens rea
requirement. They correctly note that the move-on provision itself gives the officer no added guidance for determining "whether an order should be made in the first place." Appellants' Br. 48. Indeed, the
Morales
Court made the same point, observing that the fact that the ordinance at issue there did "not permit an arrest until after a dispersal order has
*60
been disobeyed [did] not provide any guidance to the officer deciding whether such an order should issue."
We accordingly reject the District of Columbia's contention that the requirement of a move-on order could "mitigate" vagueness in the description of the proscribed conduct. See Appellee's Br. 32. Contrary to the District's argument, id. at 33, vagueness of a conduct prohibition cannot be cured by the intentionality of an individual's refusal to cease that conduct once instructed to do so: If the statute failed to define what it barred, a move-on order would be no more than an exercise of the officer's unguided discretion-perhaps trained on conduct that the legislators never sought to (and perhaps constitutionally could not) reach. A person's knowing failure to obey such an order could do nothing either to cure the officer's lawless discretion or to establish the individual's culpability. But here we do not rely on any putative curative effect of a suspect's intent in the face of statutory vagueness, because the statute is not vague. A violation of the prohibition on crowding, obstructing, or incommoding is a prerequisite to a move-on order, so it cannot be, as plaintiffs claim, that "the mere refusal to move on after a police officer's [directive to] move or 'cease' is the offense." Appellants' Br. 48.
The plaintiffs also see vagueness in the statute's failure to specify how far a person must go when told to move on, or for how long. They argue that the move-on provision essentially empowers the police to banish people from public spaces. But "how far" and "how long" are self-defining under the statute: Individuals need not vacate the public space altogether, they must simply stop blocking the use of the way or place at issue. Because the statute vests no banishment power in police, it can suffer no defect on that account.
As further evidence that the law is vague, the plaintiffs point to their allegations that the anti-obstructing statute is being enforced in a racially discriminatory, harassing manner. The facts of the plaintiffs' arrests as they allege them are troubling. The conduct they describe would appear to fall outside the scope of the statute, correctly understood. But the plaintiffs here do not bring a claim of racially discriminatory prosecution.
Cf
.
United States v. Armstrong
,
We note that, even as the plaintiffs have expressly limited their case to a facial challenge, they have described their claim to us as "elud[ing] ready classification" as either facial or as-applied. Appellants' Br. 16 (quoting
Hodge v. Talkin
,
B. The anti-obstructing statute is not defective for lack of a mens rea requirement.
Finally, we reject the plaintiffs' argument-independent of their vagueness challenge-that the anti-obstructing statute is invalid under the Due Process Clause for want of a scienter requirement. While the statute does not include any express mens rea requirement for the initial obstructing, the move-on provision (when applied to conduct that violates the ban against crowding, obstructing or incommoding) ensures that anyone arrested for failing to move on has at least a reckless state of mind. In other words, the statute does not specify that only people who "crowd, obstruct, or incommode" with a certain mens rea may be directed to move on but, because any arrest or other criminal consequence of the anti-obstructing statute can only follow the arrestee's receipt and disobedience of a well-founded "move on" directive, those weightier consequences are necessarily accompanied by some proof of violation with mens rea . Indeed, it was for this very purpose that the District of Columbia Council added the move-on provision when it amended the anti-obstructing statute. See J.A. 123. Rather than requiring proof of a breach of the peace to protect individuals against arrest for inadvertent conduct, the current version of the statute employs the move-on provision to achieve the same goal in a more focused way.
Even if the statute lacked a scienter requirement, plaintiffs' assertion that it would thereby be invalid under
Elonis v. United States
, --- U.S. ----,
* * *
For the foregoing reasons, we affirm the district court's dismissal of the complaint.
So ordered.
In full, it stated that "[i]t shall not be lawful for any person or persons within the District of Columbia to congregate and assemble in any street, avenue, alley, road, or highway, or in or around any public building or inclosure, or any park or reservation, or at the entrance of any private building or inclosure, and [ (a) ] engage in loud and boisterous talking or other disorderly conduct, or [ (b) ] to insult or make rude or obscene gestures or comments or observations on persons passing by, or in their hearing, or [ (c) ] to crowd, obstruct, or incommode the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any public or private building or inclosure." Act of July 8, 1898, ch. 638,
Reference
- Full Case Name
- Daryl Thomas AGNEW, Et Al., Appellants v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, Appellee
- Cited By
- 21 cases
- Status
- Published