Agnew v. Government of the District of Columbia, 263 F. Supp. 3d 89

Background

Plaintiffs (Agnew, Dennis, Williamson) were arrested and prosecuted under D.C. Code § 22-1307(a) (the "incommoding" statute) for allegedly crowding, obstructing, or incommoding sidewalks/entrances and failing to obey police orders; charges were later dismissed for want of prosecution.
Plaintiffs allege the statute is facially void-for-vagueness under the Due Process Clause because it permits arbitrary and discriminatory enforcement by police.
Plaintiffs narrowed their claim in the third amended complaint: they abandoned a notice-based vagueness challenge and assert only that the statute invites arbitrary enforcement.
The District moved to dismiss under Rule 12(b)(6); the court accepted the complaint’s factual allegations as true for the motion but applied the Twombly/Iqbal plausibility standard.
The court treated the claim as a facial challenge and focused on whether the statutory terms vest law-enforcement discretion in wholly subjective judgment (the key test for arbitrary enforcement vagueness).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether D.C. Code § 22-1307(a) is facially void-for-vagueness because it invites arbitrary and discriminatory enforcement	The statute vests unfettered, subjective discretion in officers (analogous to Morales/Kolender), leading to discriminatory enforcement	The statute uses ordinary, objective terms ("crowd," "obstruct," "incommode") and requires observable interference and noncompliance with an officer’s instruction, so it does not authorize purely subjective judgments	Dismissed: statute is not facially vague on arbitrary-enforcement grounds because it lacks the wholly subjective element that invalidated Morales/Kolender
Whether plaintiffs must show an as-applied violation to bring a facial challenge based on arbitrary enforcement	Plaintiffs argued facial relief is appropriate because the statute encourages discriminatory enforcement	Defendant argued plaintiffs failed to plead a facial vagueness claim and relied on isolated arrests	Court: plaintiffs may press a facial challenge on arbitrary-enforcement grounds (citing ANSWER), but they still must show the statute’s text creates subjective enforcement discretion — which they did not here
Whether absence of an explicit mens rea renders the statute void for vagueness	Plaintiffs contended lack of mens rea contributes to vagueness	Defendant noted courts can read mens rea into statutes when required; plaintiffs abandoned notice challenge and focused on arbitrary enforcement	Court: mens rea argument not addressed substantively because plaintiffs limited their claim; omission of mens rea did not decide this facial arbitrary-enforcement challenge
Whether plaintiffs pleaded Monell predicate for § 1983 municipal liability	Plaintiffs alleged pattern/custom and named officer-specific facts	Defendant argued plaintiffs failed to allege a municipal policy or moving force behind constitutional violation	Court: because no predicate constitutional violation was found, § 1983 municipal claim failed; court also questioned whether pleaded facts showed municipal custom versus a single officer’s conduct

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard; legal conclusions not entitled to assumption of truth)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
City of Chicago v. Morales, 527 U.S. 41 (statute struck for vagueness because it required wholly subjective judgments)
Kolender v. Lawson, 461 U.S. 352 (statute invalid where enforcement depended on police’s subjective judgment)
United States v. Williams, 553 U.S. 285 (vagueness analysis: danger is statute requiring wholly subjective judgments)
Monell v. Dept. of Social Servs., 436 U.S. 658 (municipal liability requires policy or custom as moving force)
ANSWER v. District of Columbia, 846 F.3d 391 (D.C. Cir.: facial vagueness challenge may proceed where statute risks arbitrary enforcement)