ANTOINETTE BOLZ v. DISTRICT OF COLUMBIA, 149 A.3d 1130

Background

In December 2011 Occupy D.C. protesters built a 16x24x30 ft wooden structure (“Occubarn”) in McPherson Square, a federal park; U.S. Park Police ordered it removed and arrested protesters who refused.
D.C. building-inspection staff posted the structure as unsafe because it lacked a District permit, but District building rules do not apply on federal land.
The District prosecuted twelve protesters under the Crowd and Traffic Control regulation, 24 DCMR § 2100.2 (failure to obey a crowd/traffic clearing order); David Givens was also prosecuted for indecent exposure and disorderly conduct.
Trial court convicted the protesters under § 2100.2 and Givens for indecent exposure; convictions were affirmed by an associate judge and appealed to the D.C. Court of Appeals.
The Court of Appeals held that § 2100.2 applies only to “emergency occasions” that may cause persons to collect on public streets, alleys, highways, or "parkings," and that an order is "necessary" only if it clears those thoroughfares or advances an enumerated objective with a substantiated safety nexus.
Applying that rule, the court concluded the Occubarn incident was an "emergency occasion" but the vacate order was not a “necessary order” under § 2100.2 (it cleared a park and lacked evidence of danger to persons/property in public thoroughfares), so those convictions were reversed; Givens’s indecent-exposure conviction was affirmed (statute not substantially overbroad).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether protesters were at the scene of an "emergency occasion" under § 2100.2	Protesters: Occubarn did not create an emergency occasion triggering § 2100.2	Government: Occubarn was a nonroutine spectacle that could draw crowds into streets, thus an emergency occasion	Court: Occubarn qualified as an "emergency occasion" (may cause persons to collect)
Whether the vacate order was a “necessary order” under § 2100.2	Protesters: Order was not necessary because § 2100.1 authorizes clearing only of public thoroughfares (streets, alleys, highways, parkings), not parks, and police had no evidence of danger to thoroughfares	Government: Order was necessary to protect persons/property because the Occubarn might collapse and injure people	Court: Order was not "necessary" — it cleared a park (outside § 2100.1 scope) and record lacked reasonable basis to find danger to persons/property vis-à-vis thoroughfares; convictions reversed
Whether § 2100.2 authorizes clearing public parks (scope question)	Protesters: Regulation limited to listed thoroughfares; parks are traditional First Amendment fora and would require explicit text	Government: Regulation applies broadly to occasions that may cause people to collect	Court: Regulation does not extend to public parks; express list is construed as exhaustive; parks are protected assembly spaces
Whether D.C. indecent-exposure statute is facially overbroad	Givens: Prohibiting "indecent" (not just "obscene") exposure can chill protected expressive nudity; facial overbreadth invalidates conviction	Government: Statute targets unprotected public exposure and is narrowly applied; Givens lacks standing only if no First Amendment interest implicated	Court: Statute not substantially overbroad in relation to legitimate sweep (applies only "in public" and targets genital/anus exposure); conviction affirmed

Key Cases Cited

Cullinane v. Washington Mobilization Comm., 566 F.2d 107 (D.C. Cir. 1977) (interpreting Crowd and Traffic Control regulation and reading the regulation as a whole)
Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939) (public parks as traditional public fora for assembly and speech)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (facial overbreadth doctrine; overbreadth must be substantial relative to legitimate sweep)
Reno v. ACLU, 521 U.S. 844 (1997) (sexual expression that is indecent but not obscene can be protected by the First Amendment)
Miller v. California, 413 U.S. 15 (1973) (definition of obscenity and limits on regulation)
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (nudity not inherently expressive; government can regulate nonexpressive nudity)
High v. United States, 128 A.3d 1017 (D.C. 2015) (standard for de novo sufficiency-of-evidence review)
Streit v. District of Columbia, 26 A.3d 315 (D.C. 2011) (reversal for insufficient evidence that police order was lawful)
Rivas v. United States, 783 A.2d 125 (D.C. 2001) (instructing courts to reverse where evidence leaves reasonable doubt as to essential elements)