Appellants appeal their convictions under D.C.Code § 9-112(b)(5) (1989 Repl.), on two grounds relating to the jury instructions. First, they contend that without a limiting construction requiring that serious disruption is an element of the offense, the statute is unconstitutional as applied to their non-violent protest on the Capitol Grounds, and hence, the trial judge erred by not instructing the jury that to convict it had to find that appellants’ conduct caused a serious disruption. Second, they contend that the trial judge erred by not instructing the jury on its power to acquit by jury nullification. Finding these contentions unpersuasive, we affirm.
I.
On June 13 and 14, 1988, there was a demonstration on the East lawn of the Capitol Grounds to dramatize the need to respond to the crisis of homelessness. This demonstration, pursuant to a permit, was under the aegis of the Community for Creative Non-Violence (CCNV), and lasted from approximately noon on the 13th to noon on the 14th. At approximately noon on June 14, a group of seventy-five to one hundred people walked from the East lawn demonstration to the South entrance to the Capitol Grounds, known as the South Barricade. 1 Apparently, plans for this second demonstration were not known by appellants in advance. The police, nevertheless, knew about it as much as a day ahead of time and were aware that CCNV intended to block traffic.
By the time the group from the East lawn demonstration arrived at the South entrance, at approximately 12:00 or 12:10 p.m., the police, who had begun redirecting traffic to the North entrance in anticipation of the second demonstration, had closed the street to traffic. There were two police cars, a paddy wagon, a fifty-passenger bus, and several motorcycles parked in the crosswalk as well as approximately thirty police officers at the South Barricade.
The South Barricade demonstrators were in two groups, those on the sidewalk and approximately thirty-four in the street. Those in the street sat down in a circle, which extended from one curb to the other. They held hands, and after a silent prayer, they began to sing. Sitting in a circle on the street was apparently spontaneous and unplanned. The main purpose of the second demonstration was to dramatize, and make more visible, concern about homelessness. At the time, legislation was pending in the House of Representatives to provide assistance to the homeless. Appellant Farina testified that he was present because he was concerned about Congressional spending policies related to homelessness, and about the needs of homeless children. He viewed his activities on June 14 as “consistent with conducting official business, i.e., petitioning Congress in an attention-getting manner,” and stated that he did not intend to break the law or obstruct
Lieutenant Howe, who was in charge at the South Barricade, testified that a roll call vote was taking place in the House at the time of the second demonstration. He indicated that thirty to fifty Members of Congress drive and park at the House steps to go inside to vote. However, there was no evidence that any Member of Congress had attempted to drive through the South Barricade and been unable to do so, and no Member of Congress or tourist complained to the police that she or he could not get by. The sidewalk was not blocked to pedestrian traffic, and there was evidence that Members of Congress and others had been able to walk by on the sidewalk.
Approximately one minute after the group sat in the street, a police officer warned them that if they did not move they would be arrested. More police officers arrived, and began arresting the demonstrators. Each person was individually informed by the arresting officer that she or he could leave and suffer no consequences, or could remain and be arrested. The police did not offer the demonstrators an alternative forum. Although some officers testified that the warning they gave meant that the demonstrators would not be arrested if they moved to the sidewalk, this was not communicated directly to appellants, who were told that they had to “leave” or be arrested.
Thirty-four demonstrators were arrested between 12:30 p.m. and 12:40 p.m. Members of the press and other observers, approximately sixty to one hundred people, who were watching the demonstration from the sidewalk, were not arrested, although the sidewalk became congested so that members of Congress had to “bob and weave” to get through, which took a few seconds of the representatives’ time. The free flow of traffic at the South Barricade resumed at approximately 12:40 p.m.
II.
D.C.Code § 9 — 112(b)(5) (1989 Repl.), provides, in relevant part, that “[i]t shall be unlawful for any person or group of persons willfully and knowingly ... [t]o obstruct, or to impede passage through or within, the United States Capitol Grounds.” At trial, appellants requested the judge to instruct the jury that “serious disruption” was a required element of the statute. They relied on the language in
Arshack v. United States,
Like the Capitol Grounds,
5
streets are traditional fora for expression.
6
See United States v. Wall,
Section 9-112(b)(5) is aimed at achieving a significant and important government interest in ensuring the smooth and efficient functioning of the legislature by facilitating the unimpeded flow of traffic. The Supreme Court has acknowledged that the government has a significant interest in controlling traffic. In
Cox v. Louisiana,
The control of travel on the streets is a clear example of governmental responsibility to ensure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.
Cox v. Louisiana, supra,
The question then is whether § 9-112(b)(5) is narrowly tailored. This requirement does not mean that the government must “grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”
Markowitz, supra,
The Supreme Court has instructed that “[t]he nature of the place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ ”
Grayned v. City of Rockford,
Section 9-112 (b)(5) is a reasonable time, place and manner restriction.
See Ward v. Rock Against Racism, supra,
Appellants fare no better under the test enunciated in
United States v. O’Brien,
a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
O’Brien, supra,
Appellants concede that § 9-112(b)(5) meets the first three
O’Brien
criteria. That conclusion is consistent with this court’s application of the
O’Brien
test.
See, e.g., Abney II, supra,
Appellants’ contention that the trial judge erred by not applying the tourist standard
13
is meritless in view of the instruction that was given, requiring a finding of more than minimal interference and the fact that appellants’ conduct resulted in
Likewise, appellants’ contention that their arrests were not merely an “incidental restriction” on First Amendment freedoms, no greater than essential to serve the government interest, as required by
O’Brien,
because “there were many alternatives short of arrest and prosecution,” such as cordoning off part of the street, is meritless. Contrary to appellants’ argument that the statute was unconstitutional as applied because they were not offered an alternative forum in which to exercise their First Amendment rights, the government is not required to choose the least-restrictive alternative.
See Ward v. Rock Against Racism, supra,
Accordingly, we hold that the trial judge did not err in refusing to give a jury instruction, which included as an element of § 9-112(b)(5) the requirement that the jury find that appellants' conduct caused serious disruption of Congress’ ability to conduct its business.
III.
Finally, consistent with binding authority, we find no error by the trial judge in refusing to give a jury nullification instruction. 18
Jury nullification “permits jurors to acquit a defendant on the basis of their notions of justice, even if they believe he or she is guilty as a matter of law.”
Reale, supra,
On appeal, appellants contend that without being informed of the option to go against the law, the jury may feel constrained or compelled to find a defendant guilty. However, the court has concluded that the practice of not informing the jury of its power to ignore the law “has not negated the jury’s power.”
Arshack, supra,
Finally, appellants’ contention that the trial judge’s instructions constituted a directed verdict of guilt fails. Although, clearly, a judge may not direct a verdict against a criminal defendant,
Minor v. United States,
Accordingly, we affirm the judgments of conviction.
Notes
. The South Barricade is a restricted-access road which has a sign saying "Official Business Only” and is open only to congresspersons, those who have appointments with congresspersons, delivery persons, and so on.
. Appellants moved for judgments of acquittal on the grounds that Arshack required a showing of serious disruption which was not present, that appellants had not obstructed traffic because traffic diversion was caused by the police, that the First Amendment required that appellants be offered an alternative forum, and that the First Amendment protected their actions.
. Appellants do not argue that § 9-112(b)(5) is facially unconstitutional.
. The government argues that appellants should appeal the denial of their motion to dismiss if their claim is that the statute cannot constitutionally apply, and from the judgment of acquittal only if they argue that the evidence did not meet the statutory requirements. However, appellants sought judgments of acquittal on the grounds that the statute could not constitutionally apply to them, which are the same grounds they present on appeal.
See Arshack, supra,
. As this court stated in Wheelock v. United States, 552 A.2d 503, 506 (D.C.1988):
“[t]he general concepts of First Amendment freedom are given added impetus as to speech and peaceful demonstration in Washington, D.C., by the clause in the Constitution which assures citizens of their right to assemble peaceably at the seat of government and present grievances.” A Quaker Action Group v. Morton,170 U.S.App.D.C. 124 , 131,516 F.2d 717 , 724 (1975). The courts in this jurisdiction have long recognized that "[t]he United States Capitol is a unique situs for demonstration activity” and "is a place traditionally open to the public ... to which access cannot be denied broadly or absolutely, [a fact which must be weighed] against the government’s interest in protecting against possible 'damage to buildings and grounds, obstruction of passageways, and even dangers to legislators and staff.’” Kroll v. United States,590 F.Supp. 1282 , 1289, 1290 (D.D.C.1983) (quoting Jeannette Rankin Brigade v. Chief of Capitol Police,342 F.Supp. 575 , 583-85 (D.D.C.), aff'd mem.,409 U.S. 972 ,93 S.Ct. 311 ,34 L.Ed.2d 236 (1972).
See also United States v. Nicholson,
97 Daily Wash.L.Rptr. 1213 (1969) (appended to
Dellums v. Powell,
. See Frisby
v.
Schultz,
The official-use-only nature of this particular street on the Capitol Grounds does not change the analysis. The street on which appellants sat was a restricted access street with a sign marked "official business only.” This road was, arguably, not open to the general public.
But cf. Markowitz v. United States,
. The question of whether § 9-112(b)(5) is unconstitutional without a limiting construction is “a fact-free general principle of law,” reviewed
de novo,
"without deference to [the trial] court’s findings.”
Davis v. United States,
In other cases concerning the facial and as-applied constitutionality of similar statutes, the court has applied a
de novo
standard of review.
See Arshack, supra,
. The statute does not forbid all expressive conduct in the streets.
Compare Jeannette Rankin Brigade, supra,
. In Abney II, the court held that a traffic regulation, aimed at allowing traffic "to proceed in a safe and unimpeded fashion,” "clearly implies a legislative and administrative purpose sufficient to support a restriction of the scope of [the regulation] to instances where the ‘acts or conduct [interfere] with the orderly processes of the Congress, or with the safety of individual legislators, staff members, visitors or tourists....’ As so limited, [the regulation] is constitutional.” Id. at 83. (citations omitted).
. The time, place and manner test applies to both verbal expression and expressive conduct, while the
O’Brien
test applies only to expressive conduct.
See Clark, supra,
.The Abney II court concluded that:
It is certainly within a government’s power to regulate traffic and activities which might otherwise obstruct its orderly operations. Further, the regulation also clearly promotes an important government interest, i.e., the unobstructed flow of traffic on the Capitol grounds. See Arshack v. United States, supra, 321 A.2d at 849 . Likewise, it is obvious that the governmental interest at issue, the free flow of traffic, is not related to the suppression of free expression. See Cox v. Louisiana, supra, [379 U.S.] at 554,85 S.Ct. at 464 .
Abney II, supra,
. In Albertini, supra, the Supreme Court explained that:
an incidental burden on speech is no greater than is essential, • and therefore permissible under O’Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.
. In Nicholson, supra, the trial judge stated the tourist standard by observing that it would be constitutional to penalize:
acts or conduct which interferes with the orderly processes of the Congress, or with the safety of individual legislators, staff members, visitors, or tourists, or their right to be free from intimidation, undue pressure, noise, or inconvenience_ It is appropriate, therefore, under the statute, to bar or to order from the Capitol Grounds, any group which is noisy, violent, armed, or disorderly in behavior; any group which has a purpose to interfere with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist; any group which has the effect, by its presence, of interfering with the processes of Congress, any Member of Congress, congressional employee, visitor, or tourist; and any group which damages any part of the buildings, shrubbery, or plant life.... [and] [i]n each category, the conduct would have to be more disruptive and more substantial (in degree or number) than that normally engaged in by tourists and others and routinely permitted on the Grounds.
. The "tourist standard” was applied in
Wheelock, supra,
. In
Arshack,
the court viewed the fact that an alternative forum was provided as evidence that "the incidental restriction on First Amendment freedoms was no greater than necessary to effectuate the legislative purpose.”
. We do not suggest, however, that the police must specially create a new forum where other alternatives for reaching the same audience are readily available close by, nor that demonstrators must be specifically told of an alternative forum. This is distinct from the necessity for the government to show that alternative forums exist. Availability of alternative forums lessens the burden placed on free speech by restriction of any particular forum.
See Markowitz, supra,
. Arguably, if the particular site is necessary for the method or content of a protest, the government must show serious or severe traffic disruption before its interest in unimpeded traffic flow can outweigh the demonstrators’ interests in free speech.
See Abney II, supra,
. Appellants requested, and were denied, a jury instruction stating that the jury could acquit even if the government proved all elements of the crime beyond a reasonable doubt. Over objection, the jury was instructed that it had a “duty to accept the law as [the judge] state[s] it to you,” that if the government proved its case beyond a reasonable doubt, the jury had a duty to find the defendants guilty, and that "you may not question the wisdom of any rule of law.” Appellant Farina mentioned something approaching the jury nullification power in his closing argument to the jury, and in rebuttal argument the prosecutor told the jury that it had a duty to accept the law as the judge stated it and "not to question the wisdom of the rule of law ... [you have] a duty to decline Mr. Farina’s invitation to become a law unto yourselves.” Defense counsel did not object to the prosecutor’s remarks.
. Thus, in Dougherty, supra, the United States Court of Appeals for the District of Columbia Circuit stated that:
[I]t is pragmatically useful to structure instructions in such wise that a jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions. This requirement ... confines the happening of the lawless jury to the occasional instance that does not violate ... the overall normative effect of the rule of law.
. Appellants argue that New Hampshire has a better rule of allowing defense counsel to argue jury nullification to the jury, which appellants were not allowed to do in the trial court. Appellant Farina's attempt to do so was explicitly countered by the prosecutor's rebuttal argument. However, in the case on which appellants rely, the court states that a jury nullification instruction is not required and merely "further note[s]” that defense counsel was allowed to argue jury nullification in his closing argument.
State v. Mayo,
