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Agnew v. Government of District of Columbia

United States Court of Appeals, District of Columbia Circuit

April 5, 2019

Daryl Thomas Agnew, et al., Appellants
v.
Government of the District of Columbia, Appellee

          Argued September 5, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00340)

          William Claiborne argued the cause and filed the briefs for appellants. Lynn E. Cunningham entered an appearance.

          Sonya L. Lebsack, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General.

          Before: Tatel and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.

          OPINION

          PILLARD, CIRCUIT JUDGE

         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. D.C. Code § 22-1307(a) ("the anti-obstructing statute").

         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, 405 U.S. 156, 170 (1972). Under vague laws, people may use public spaces "only at the whim of any police officer." Appellants' Br. 18 (quoting Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 (1965)).

         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 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.

D.C. Code § 22-1307(a). Violating the law is a misdemeanor punishable by a fine of up to five hundred dollars, imprisonment for up to ninety days, or both. Id. ยง ...


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