Daryl Agnew v. Government of the District of Columbia, 920 F.3d 49

Background

D.C. Code § 22-1307(a) makes it a misdemeanor to "crowd, obstruct, or incommode" the use of public streets, sidewalks, building entrances, parks, or public conveyances, and to continue/resume such conduct after an officer orders one to cease; arrest follows only after a disobeyed move-on order.
The statute traces to 19th-century language; prior caselaw construed older versions as targeting group unlawful-assembly conduct and not inadvertent blocking, but a 2011 amendment removed the assembly requirement and added the move-on prerequisite.
Plaintiffs (Dennis, Agnew, Williamson) were arrested under the statute in separate incidents where officers ordered them to leave public walkways or stoops; their prosecutions were later dismissed for want of prosecution.
Plaintiffs brought a facial § 1983 challenge arguing the statute is unconstitutionally vague for authorizing arbitrary and discriminatory enforcement (vagueness second-prong), and also argued the statute lacks a required mens rea.
The district court dismissed the facial challenge, holding the statute supplies adequate standards; the D.C. Circuit reviewed that ruling de novo.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 22-1307(a) is facially vague for authorizing arbitrary/discriminatory enforcement	The terms "crowd, obstruct, or incommode" are vague and leave officers unguided, producing arbitrary enforcement	The terms plainly target observable blocking or hindering conduct; read together and in context they constrain officer discretion	Statute is not facially vague; terms mean blocking/hindering others' use and give adequate standards
Whether relying on others' reactions (e.g., passersby deviating) makes the statute subjective/vague	Criminality depends on third-party reactions, which are inherently subjective and void for vagueness	Observed third-party responses can be objective evidence of obstruction; statute defines proscribed conduct by actor’s interference with public use	Reliance on observed third-party response does not render statute vague; violation requires actual or imminent interference with others' use
Whether the move-on requirement magnifies officer discretion or effectively criminalizes refusal alone	The move-on provision lets officers decide when to order and thus compounds unguided discretion; arrest could be for mere refusal without defined predicate	Move-on order is predicated on observable obstructing conduct; arrest requires both obstruction and disobedience, which limits enforcement	Move-on prerequisite does not cure a vague proscription if the proscription were vague; but here the proscription is not vague, so move-on does not create an unconstitutional discretion grant
Whether the statute is invalid for lack of an express mens rea/scienter requirement	Absence of mens rea makes the statute unconstitutional under due process	The move-on framework ensures at least reckless culpability for arrests (disobedience of a well-founded order); public-welfare offenses sometimes lack scienter	Statute is not invalid for lack of express scienter because arrest follows disobedience of a well-founded move-on order, implying culpability; public-welfare context supports limited scienter exceptions

Key Cases Cited

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (vagueness doctrine: statutes that confer unguided police discretion are unconstitutional)
Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (upholding move-on offense where prior obstruction of free passage is shown)
City of Chicago v. Morales, 527 U.S. 41 (1999) (invalidated loitering ordinance for vagueness where enforcement depended on subjective officer judgment)
Kolender v. Lawson, 461 U.S. 352 (1983) (statute voided where police discretion hinged on undefined requirement for "credible and reliable" identification)
Coates v. City of Cincinnati, 402 U.S. 611 (1971) (invalidated ordinance criminalizing conduct "annoying to persons passing by" for lack of an objective standard)
United States v. Bronstein, 849 F.3d 1101 (D.C. Cir. 2017) (upheld proscription of disruptive harangues in the Supreme Court building; emphasized statutory context and core behavior approach)
Cameron v. Johnson, 390 U.S. 611 (1968) (upheld statute prohibiting picketing that "obstruct[s] or unreasonably interfere[s]" with ingress/egress as sufficiently precise)
Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness doctrine permits some police judgment; statutes may allow reasonable flexibility)
Morissette v. United States, 342 U.S. 246 (1952) (discusses mental-state requirements and that public-welfare offenses may dispense with scienter)
Elonis v. United States, 135 S. Ct. 2001 (2015) (reaffirms significance of mens rea but recognizes exceptions for some public-welfare offenses)