United States Court of Appeals, District of Columbia Circuit
September 5, 2018
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.
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
Before: Tatel and Pillard, Circuit Judges, and Sentelle,
Senior Circuit Judge.
PILLARD, CIRCUIT JUDGE
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").
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
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
The District of Columbia's Anti-Obstructing
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
(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). 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. § ...