Hasty v. United States

VI. HASTY, Appellant, Michael L. Cross-Appeal 27,1992 By order entered October STATES, Appellee. UNITED Clarification,

the District’s Motion for No. 87-CM-1230. Injunc trial court modified the Permanent September by excluding tion of from Appeals. District of Columbia Court of coverage its reinstatement those members of Argued 1994.* June who, plaintiff upon receiving class termi DHS, reapplied nation from notices for GPA Decided Dec. appeal

benefits but failed to the denials of reapplications. cross-appeal,

their In their

plaintiffs contend that the trial court erred in

making disagree this exclusion. We and af

firm. persons appeal

Those who failed to a deni- reapplication effectively

al of their aban- they

doned claim that were entitled to a

continuation benefits. There is no sound require expend

reason the District to providing

scarce resources GPA benefits to who, reason,

persons for whatever are no

longer contending they are entitled to

them. The trial court’s refusal to order the clearly

District to do so was a reasonable equitable powers.

exercise of its

VII.

Conclusion reasons, foregoing

For the on defendants’

appeal remand, we reverse and with instruc- modify

tions that the trial court the Perma- Injunction opin-

nent in accordance with this

ion. plaintiffs’ cross-appeal,

On we affirm. submitted, ordered, parties supplemental argument, briefs. the court * Afteroral Rivera, appointed by ing April organized Severina B. 1987 which was court, DC, Washington, appellant. protest Reagan’s policies then-President Central America. The demonstration was Tourish, Jr., Thomas J. Assistant United place authorized to take on the east front Holder, Attorney, States with whom Erie H. steps center at noontime. At Jr., Attorney, United States R. and John approximately p.m., Hasty 1:26 and fourteen Fisher, Roy W. McLeese III and Thomas C. Capitol other demonstrators entered the and Black, Attorneys Assistant United States in formed a circle the center of the Rotunda brief, were on the appellee. for they began pray where to aloud. Lieutenant WAGNER, Judge, Before Chief and Howse, Robert of the V. member U.S. SCHWELB, Judge, Associate and force, Capitol police approached group the GALLAGHER, Judge. Senior on, they and to asked them move but contin- bullhorn, praying. Using ued Lt. Howse Concurring opinion by Judge Senior group warned the to cease and desist and to p. GALLAGHER at group ignored leave the Rotunda. The officer, kneeled, WAGNER, and continued with their Judge: Chief prayers. approximately p.m., At 1:31 Officer Appellant, Hasty, Michael L. charged was Dodgson Michael and Officer Vodkoe went to demonstrating with one count of in the Unit- group each member of the and informed him (the Capitol Building Capitol) ed States in individually they or her that if failed to leave 9-112(b)(7) (1989), § violation of D.C.Code immediately, they the Rotunda would be entry Capi- and one count of unlawful of the placed Every group under arrest. one in the (1989). § tol in violation of D.C.Code 22-3102 leave, Hasty refused to and the others charges The arose out of a demonstration placed were under arrest. Capitol. Following Rotunda of trial, co-defendant, Hasty and a Donald Rem- Lieutenant Howse testified that mey, guilty were found on each count. On group’s position in the center the Rotunda appeal, Hasty’s principal argument is that passage through blocked area and the trial court in failing erred to instruct group the officers asked the to move on in i.e., standard,” on the “tourist keep passageway order to clear. He guilty § order to find him under D.C.Code 9- further testified officers asked the 112(b)(7), had the burden of group to cease and desist because their activ- proving that his conduct was more demonstration, ities constituted a normally or more substantial than that en- During unlawful in the Rotunda. the entire gaged tourists.1 We conclude that the incident, minutes, which lasted about five narrow construction accorded this court to three to four hundred tourists were inside 9-112(b)(7), D.C.Code order to avoid began singing the Rotunda. Some of them overbreadth, requires constitutional along companions. and his How- - where, here, provisions of the statute ever, stop singing, when asked to these tour- would be unconstitutional absent an in- such complied, police ists and the did not arrest terpretation, the court must assure that a them. defendant’s conviction is based the stat- particular ute as construed. On the facts of Hasty testified that he went to the center given by instruction of the Rotunda to meet the others and to adequate not court was to meet this “sign pray as a of their faith.” He testified requirement. circle, group pray- that the formed a recited ers, read, prayer, and knelt silent I. began singing. them He admitted some of ordering group Hasty’s hearing convictions arose out of a demon- the officer to bullhorn, Capitol Build- over the but he stration the Rotunda of the cease desist Powell, (1978) (appending v. 1161 United States v. Nichol 1. See Dellums son, (1977), Daily Wash.L.Rptr. (D.C.Super.Ct. F.2d n. 22 cert. 313 n. denied, 19, 1969)). 98 S.Ct. 57 L.Ed.2d June any person It shall ignore chose to the order because he was be unlawful deeply in also prayer. He testified he willfully knowingly group persons police refused to asked him leave when demonstrate, picket parade, ... [t]o every there.” because he “had to be Capitol Buildings. within government’s case, At the conclusion previously recognized Ro have that the We judgment made a motion for a “a ‘unique tunda of the is situs acquittal ground on the activity’ place tradi demonstration failed prove had that his conduct was “a ac tionally open to which disruption substantial usual business broadly absolutely.” cess cannot be denied congressional of the rotunda or business.” States, Wheelock United The trial court denied motion. (D.C.1988) Kroll v. States (quoting United give jury also the an instruction declined Police, 1282, F.Supp. Capitol 1289-90 590 explaining part the “tourist standard” as of Instead, demonstrating. (D.D.C.1983)); Berg the definition of the also v. United see provided following States, 394, (D.C.1993); definition: 631 397-98 Ab A.2d States, ... public showing 856, “A is a ney demonstration” 616 859 n. 8 v. United A.2d persons display by group or of assembled (D.C.1992). on neutral restrictions Content together feelings, sympa- of their such as time, in a place, expression manner of thy or or ac- antagonism, toward a cause permissible. Berg, forum 631 A.2d public are interest, showing of or public tion which However, ex at 399. statutes which curtail very nature, necessarily display, by its in- be pressive in such forums must conduct trudes the senses those within “ ‘narrowly significant tailored to serve a eyesight. earshot or interest, open ample governmental and leave ” Id. of communication.’ alternative channels II. Wall, (quoting v. 521 at 398 United States Hasty argues that the trial court erred in (D.C.1987)); Wheelock, 1140, 552 1143 A.2d refusing to include the “tourist standard” at 506. A.2d jury defining “demonstrat- instruction (1) ing.” He that: the “tourist contends § In save 9- order D.C.Code §of 9- standard” is an essential element 112(b)(7) unconstitutionally being over- from (2) 112(b)(7); standard, under the tourist infringing protected on broad to avoid his guilty could found unless con- he not be has the stat expression, this court construed substantially disruptive than duct was more falling prohibit only certain ute to behavior engaged by tourist normally parameters of what has become under Capitol. for con- Rotunda of the Conviction Berg, as the “tourist standard.” See known require- satisfy these duct which does not 398; Dellums, note supra, supra 631 at A.2d contends, ments, his First violates 22, 1, n. F.2d at 184 U.S.App.D.C.at 313 566 Therefore, rights. he contends Amendment restricts n. 22. “The ‘tourist standard’ 205 be- must reversed that his convictions be by only scope penalizing con of statutes opportunity to consider cause the had no more sub that is ‘more or duct by as restricted his conduct under statute number) (in that nor degree or than stantial the tourist standard. mally engaged tourists and others ” Statutory A. Construction routinely permitted_’ Berg, A.2d at 631 112(b)(7) § D.C.Code Dellums, 1, supra 9— 184 (quoting note 205 n. U.S.App.D.C. n. 566 F.2d at at 313 under Hasty was convicted 22).2 Specifically, we construed 9-112(b)(7), have provides: § D.C.Code provide Nicholson, legislative and other materials supra trial court In scope Greene) restricting narrowly a sufficient basis for (Judge construed Harold pun- (1967) imposition of criminal section 124 to § to "save the D.C.Code 9-124 order interferes or conduct which unconstitutionality” grounds ishment for acts statute from Congress, orderly processes of with the vagueness overbreadth. 184 legislators, safety staff individual court conclud- at at 204. 566 F.2d members, visitors, tourists, right to their ed that 9-112(b)(7) § narrowly D.C.Code to make B. Error Claim Instructional only unlawful involve “demonstrations Hasty argues the trial court erred disturbing conduct more than the actions of a failing to instruct the “tourist be, normally taking tourist would while into an element of the offense of standard” is people consideration the to free demonstrating within a U.S. Build- expression.” dom of Markowitz v. United States, (D.C.1991), However, ing. 598 A.2d 409 n. 16 this court has held denied, 1035, 113 818, 121 cert. S.Ct. “tourist standard” is “not an element of (1992) (citations omitted). L.Ed.2d 689 In Rather, a means of offense. standard is Markowitz, we observed that the limitations statute, determining applied par- if a in a placed on the statute this court con has ticular constitutional.” Reale opinions toured it. Id. This court’s have (D.C.1990). States, United narrowly interpreted § construed and 9- Reale, prosecution for a violation of 9- 112(b)(7) to save it from unconstitutional 112(b)(4) (disorderly in the might applied overbreadth insofar as it be galleries Representatives), of the House of 400-01;4 “public forum” cases.3 See id. appellant contended that “the trial court States, Farina v. United n. A.2d should have instructed the (D.C.1993); Wheelock, supra, see also ‘tourist standard’ is an element of Thus, A.2d at 508. the “tourist standard” [charged] at offense.” Id. 15. This court 9-112(b)(7) § by penalizing limits D.C.Code explanation held that the “[a]n ‘tourist only “demonstrations that involve conduct properly jury standard’ was omitted from the disturbing more than the actions of a tourist instructions in this case because it is not an be, normally taking would while into consid any element of offense.” Id. This court people eration the of the to freedom of Markowitz, expression.” explained 598 A.2d at 409. that intimidation, However, pressure, be free from undue n. 7. the issue was left unresolved in noise, limited, Wheelock,supra, or inconvenience. As the A.2d at 2. so 552 506 n. statute is constitutional. therefore, appropriate, It is under the that, stat- government pertinent 4. The under contends ute, Capitol caselaw, to bar or to order the 9-112(b)(7) from Supreme § Court is not fa- Grounds, violent, any group noisy, which is cially limiting invalid and thus no construction armed, behavior; See, disorderly any Ohio, group or required. e.g., in was Osborne v. 495 1691, 103, 112, 1697, purpose pro- which has a to interfere with the U.S. S.Ct. 109 110 L.Ed.2d (1990). Congress, any Supreme cesses of the Member of Con- Under the Court’s First doctrine, visitor, gress, congressional employee, Amendment overbreadth or tour- ist; effect, any group by which has the conduct, regulates expressive where a statute presence, interfering processes with the scope of the statute does not render it Congress, any Congress, Member of con- unconstitutional unless its overbreadth is not visitor, tourist; gressional employee, or real, well, only judged but substantial as in any group damages any part which of the legitimate plainly relation to the statute's buildings, shrubbery, plant life. or margins sweep. Even where a statute at its 312-13, at at 566 F.2d 204-05. infringes protected expression, facial invali- footnote, aIn the trial court articulated what has inappropriate if the remainder of the dation is become known as the "tourist standard” as fol- range easily statute ... covers a whole iden- lows: constitutionally prescribable ... tifiable and category, In each the conduct would have to be conduct. (in disruptive degree more or more substantial omitted). (internal quotations Id. and citations number) normally engaged by than that in government argues § that The insofar as 9- routinely permitted tourists and others on the 112(b)(7) parading, picketing prohibits dem- Grounds. Buildings,” onstrating Capitol "within of the U.S.App.D.C. at 313 n. 566 F.2d at 205 plainly applica- its reach is constitutional in most 22. court affirmed the only "margins," n. This dismissal in the tions and that it is at Nicholson, other, unidentified, charges stating that the trial court yet public and in as Rotunda "adopted buildings, a construction of the statute which “within” those that there is forums any potential unconstitutionality." problem. saves it from United States First Amendment The Nicholson, (D.C.1970). however, government, v. 263 A.2d that this court concedes narrowing already placed a construction on has Thus, government particular Ro- 3. The assumes that the this statute. we address controlling public tunda is a forum for First Amendment issues raised in the context of our Markowitz, precedents. purposes. supra, at 406 See limiting placed is a it [tourist] standard means of deter- construction court, construction, statute, mining applied if a that particu- as in a consistent with ease, prove lar government is of a must to the trier of constitutional. The issue constitutionality for only essentially statute’s fact that conduct which arises where charged it as was prosecution. is raised a defense is “more (in number) Thus, degree government more substantial than need not establish the constitutionality normally engaged of its each tourists or oth- statutes prosecutes routinely permitted” it a in the Rotunda of time defendant. ers concedes, Capitol. it The as might Id. disposition This court’s Reale ’ must, It it has that burden.7 follows dispose appellant’s argument seem that, ensure a is order to defendant required. instruction was It does not.5 convicted of the offense construed to avoid addressing the First Amendment overbreadth, trial unconstitutional court doctrine, Supreme overbreadth Court adequately must instruct so as to Supreme has stated that “where State accurately proscribed describe unconstitutionally an Court narrows over- is on defendant trial. See statute, broad must State ensure Osborne, at 110 S.Ct. at 1700- 495 U.S. are under defendants convicted the statute 1701.8 subsequently as it as it is construed and not Osborne, supra concedes originally written.” also 9-112(b)(7) § (citing prosecution at U.S. 110 S.Ct. under demon forum, upon timely Birmingham, strating re Shuttlesworth evidence, 213-214, 91-92, by the quest, supported 15 L.Ed.2d 176 86 S.Ct. where (1965)). Thus, obligated is while the tourist standard instruct 112(b)(7), not an tourist standard. “element” of because consistent with the 9— Reale, Appeals 5. that in an the disor- were material. The Court of for the We note element of derly impede, an the In affirm conduct offense was "intent to Ninth Circuit reversed conviction. orderly pointed disrupt, ing, Supreme that or disturb the conduct of the Court out the Fifth Congress.” Appellant’s give in of the conduct of a session and Sixth Amendments the Constitution standing shouting consisting up, jury that of have a deter criminal defendant the to display attempting a guilt every "homes not bombs” and to the mine his of element of crime with Representatives while the of was banner House charged judge's which he that the trial is and session, clearly in the of the fell within elements jury pass to on the "material refusal to allow the Thus, id. at instruction on offense. See 14-15. infringed ity” [appellant's] false statements appel- the that elements of the offense assured at -, right. S.Ct. at 2320. The that Id. 115 disruptive or more lant’s conduct was “more jury’s the as Court reiterated that role factfinder normally engaged by ... substantial than that facts, merely to "not to determine the but is routinely permitted” others and tourists and apply the to those and draw the ulti law facts no instruction the “tourist standard” guilt innocence.” Id. at mate conclusion or Nicholson, required. supra 184 See note -, 115 at 2316. S.Ct. n. 22. at 313 n. 566 F.2d at 205 by concurring opinion, joined In a Justices Rehnquist Breyer, Justice O’Connor and Chief day 6. was decided on the same Reale pointed decision does not out the Court’s that Supreme Court's in Osborne. decision "materiality” an whether is resolve conflict §of statement clause element the false concession, making govern- Although 7. that materiality because of the that was assumed but liberty if at consider that it were to ment states Gaudin, supra, government's concession. anew, might question it whether this the issue — -, In case unconstitutional, at S.Ct. at 2320. U.S. there- overbroad and statute is court, government not this while the does before by limiting to requiring a construction in order an "tourist element that the standard” supra. concede upheld. be See note offense, it the narrow con- of the concedes that by placed upon Gaudin, - U.S. -, the statute the courts struction In States v. 8. United prosecution § requires 9- (1995), that under govern S.Ct. 132 L.Ed.2d 112(b)(7) demonstrating Capitol in the Rotun- "materiality” was an ele ment that conceded da, government prove jury must to the making the offense of false statements ment of conduct violated "tourist government prove the defendant’s must under which the court, however, jury must be instructed standard” and that did not U.S.C. 1001. The trial timely accordingly, requested, and warranted “materiality" jury, if but submit the issue jury statements evidence. instructed the instead jury narrowing interpre require Where a not to deter- construction or instruction did placed by upon tation has been Hasty’s mine conduct was more sub- whether that, statute narrowing absent the construc stantial or than that of the ordi- tion, might Therefore, say otherwise be unconstitutional nary we cannot tourist. respect, narrowing some construction or adequately conveyed the the instruction interpretation, upon request sup and where “tourist standard.” ported by evidence, subject must be the ease such that Nor was the evidence proof at trial and should be submitted to Hasty’s jury necessarily had to find that the trier of fact for its determination. See (in degree) conduct was more substantial Osborne, 118-19, supra note U.S. normally engaged than that tourists 1700-01; Gaudin, supra 110 S.Ct. at see also routinely permitted and others in the —8, at -, U.S. at 2317- S.Ct. government’s The evidence Rotunda. However, contends showed that and fourteen others en- instruction, particularly the trial court’s its gathered the Rotunda and in the cen- tered “demonstration,” adequately definition of protest foreign ter in of the United States’ conveyed the substance of the “tourist stan policy concerning Central America. The encompassed Hasty’s dard” to the group Prayer, aloud the his- recited Lord’s argu this case. We examine this speeches scriptural passages and toric light provided. ment in instruction sang prayed min- aloud about five They police to leave “demonstration,” utes. refused when defining the trial so, and, finally, requested them to do knelt court instructed the as follows: down in the center of the Rotunda before public showing A demonstration ... is a testimony being arrested. There was display by group persons assembled they “blocking were the direct route from together feelings, sympa- of their such as Rotunda, praying through north to south thy antagonism, toward a cause or ac- aloud, reading “bringing attention to interest, showing tion of enough them[selves] [and] were loud nature, display, by very necessarily in- bring attention to their area” in center of trudes the senses of those within joined the the Rotunda. Other tourists eyesight. earshot or song, requested group in but ceased when asserts that the trial court’s dispute partic- do so. did not his admonition that the defendant’s conduct ipation, but he testified that he was there must, nature, “by very necessarily in- merely pray peace justice in to for and Cen- trude[ ] the senses of those within ear- throughout tral America and the world. eyesight” adequately conveyed shot or that jury indisputedly must find that the defendant’s con- The evidence did not show violent, Hasty excessively noisy, disruptive duct was more substantial or than that was armed, pur ordinary group disorderly that of an or that he had a of tourists. or contention, processes support pose of its to interfere with the of congres points Congress, any Congress, “in- of to the Webster’s9 definition of member trude,” i.e., visitor, tourist; in,” had employee, “to thrust to “enter sional or or oneself effect, intrusion,” in, into, interfering presence, his and “to thrust or force on, Congress, any upon,” especially permission, processes of the “without with welcome, congressional employ Congress, argument or fitness.” This is not member of Nicholson, ee, visitor, supra persuasive. or tourist. See The court did not instruct 312-13, “intrude,” 1, 184 U.S.App.D.C. at 566 F.2d jury on the definition of and ab- note definition, Although the direct route of sent a unwelcome words or at 166-67. blocked, there was no evidence might to some listener Rotunda was conduct be intrusive moving in or jury anyone impeded from assuming Even that the that was or observer. Therefore, sense, through the Rotunda.10 absent typical the word in its understood Wheelock,supra, we observed in 10. As 9. See Webster’s Third New International Dictio- nary a would have to detour around that tourists (1971). Rotunda, group standing is in the center instruction, in the Rotunda. persuaded an we are not that the ness or the usual activities view, expressed un- jury’s guilty necessarily The that verdict of derived trial court finding Hasty’s demonstrating, from a that der that conduct was its definition disruptive ordinary required. more than an to showing that of was not Counsel cited tourist. ar- support decision in of his Nicholson gument. specifically referred Counsel then C. Standard Review Judge opinion the court to Harold Greene’s argues that Nicholson, 1, supra note which a similar Hasty’s subject error is claim instructional constitutional challenged statute was plain error review did not because overbreadth, preserved its con- and court request explicitly an instruction the tour by “reading it there stitutionality into that appropri Plain is ist standard. error review disruption or mate- had to a be substantial objection ate where no to an instruction is disruption rial ... or of that kind standard States, made at trial. v. United Foreman under for there to be case order (D.C.1993). Under this requested that [the] statute.” Counsel “[tjhere standard, an ‘error’ that is must be Nicholson, court in which tourist read ” ‘plain’ rights.’ that and substantial ‘affect[s] first articulated. The trial court standard is Olano, United 507 U.S. States Subsequently, in the denied the motion.11 (1993). 1770, 1776, S.Ct. 123 L.Ed.2d 508 instructions, concerning conference (1) readily be The error must “obvious Hasty requested the court reconsider law”; apparent,” “clear current and under demonstrating and proffered his definition of (2) clearly prejudicial and “so substantial objected by the to the instruction as framed rights jeopardize very as to fairness and court. Foreman, 633 at integrity of the trial.” A.2d prongs 795. Both must be satisfied. Id. request Hasty’s for a agree that We standard, Against gov we consider the requiring “material and sub instruction argument plain error review. ernment’s disruption not reflect the tourist stantial” did standard, government points out. The Hasty requested writing as the require that it must tourist standard does not find that instruct material, substantial, government prove “willfully knowingly he caused material it disruption; protects minimis disruption so as to even de and substantial interfere “only not more Congress or tourist ac- with the business Farina, activity group than of tourists.” tivity” that of “demonstration However, in substantially supra, A.2d 59 n. materially disruptive.” instruction, Hasty’s requested his view Tinker v. Des Moines School cited Nicholson, the constitu District, 89 S.Ct. earlier reference 112(b)(7), (1969) Nicholson, supra tional concerns L.Ed.2d 731 9 — given, Hasty’s objection to the definition as 566 F.2d 167. to “direct the a record trial, Hasty repeated request there was sufficient At his for rule of law.” instruction, objected judge’s to the correct he to the instruction attention and 499, States, 617 A.2d by the v. United demonstrating proposed court. See Whitaker on (a (D.C.1992) or erroneous defective judgment acquittal for making In a motion require to charge may sufficient Hasty’s request be charge, counsel on the demonstration (citations omitted); charge) but not correct argued government had shown that the cf. 725, Bros., Inc., 632 A.2d v. Kettler disruption Congressional busi- Thoma substantial Hasty to fairly 11. also had filed a motion dismiss only common occur- likely to be a not grounds, arguing in the Rotunda but rence when tourists are on constitutional information unreasonably to inter- 9-112(b)(7) be deemed have unconstitutionally cannot fered with such traffic over- and or the orderliness broad, alternatively, statute should that the activity peacefulness of in the Rotunda. Tour- pro- given be a "Nicholson -like construction” passing through do the Rotunda ists and others “seriously dis- only that are hibit demonstrations they always stay supposed are where not untimely ruptive." denied as This motion was to.... filed. 552 A.2d at (D.C.1993) (the is, all, duty jury’s trial court has no to S.Ct. at 1700. It after instruction) (Sullivan, J., facts, correct an merely concur- function to determine the “not Moreover, ring). apply where a statute has been but to the law those facts draw by interpretation by jurisdic- guilt narrowed the ultimate conclusion of or innocence.” — court, Gaudin, 8, at -, highest tion’s supra “the State must ensure U.S. Therefore, say that defendants are convicted under the stat- S.Ct. at 2316. we cannot subsequently beyond ute as it is reasonable construed.” Os- error was harmless borne, supra note U.S. 110 doubt. Hasty’s arguments

S.Ct. at 1701. were suffi- cient to alert the trial court to con- these III. Therefore, record, cerns. on this we consid- Finally, Hasty argues that his conviction Hasty’s er claim of instructional error to be entry for it unlawful is invalid because adequately preserved. grounded on an unconstitutional arrest. He Finally, government argues appel- guilty contends that if he cannot be found any lant has failed to establish that error in demonstrating, entry the unlawful conviction the court’s instruction affected his substantial must be reversed because rights. contends that prove any specific failed to additional factor strong undisputed, evidence was establishing legal that he otherwise had no appellant’s captured videotape to remain Rotunda. points shown to the at trial. It out reviewing that while characterized In appli his conduct as the constitutional demonstration, “prayer” entry involving rather than he nev- cation of the unlawful statute disputed engaged er that he public property, the acts this court must consider: “ ‘(1) shown the evidence at trial. person lawfully charge [whether] premises expressly order[ed] [demon Where an error is of constitution (2) leave, [whether], strators] to in addi dimension, al “an otherwise valid conviction independent tion to and of the evictor’s reviewing should not be set aside if the wishes, specific there additional exist[ed an] say ‘beyond can a reasonable doubt that the establishing factor lack [demonstrators’] complained error of did not contribute to the legal right Berg, supra, of a to remain.’” ” States, verdict obtained.’ White v. United (quoting 631 A.2d at 399 O’Brien v. United (D.C.1992) (quoting Chap 613 A.2d States, (D.C.1982))(altera California, man v. 87 S.Ct. original). tion in Lieutenant Howse testified (1967)). persuaded 17 L.Ed.2d 705 We are charge that he was in of the Rotunda when the failure to instruct on the “tourist that, using a the demonstration occurred and standard” on the facts of this case left the bullhorn, he ordered the demonstrators to guidance without as to the nature of the refused, they cease and desist. When he expressions proscribed by which are the stat Thus, prong ordered them to leave. the first conceded, purposes ute what is of this of the test was met. See id. The second abe forum. On the instruc met, however, Hasty’s prong was not since provided, tion could convict arrest under the demonstration statute has expression protected by the First Amend Wheelock, not been shown to be valid. prohibition speech ment. The supra, we held that simply “intrudes the senses of those [c]losing security area for aris- reasons eyesight,” within earshot or as the trial court ing presence from the of demonstrators instructed, encompasses many forms of ex security bootstrap cannot serve to con- pression. interpretation an Such overbroad independent justifying factor cern into an prohibited of the nature of the conduct can entry]. their arrest unlawful [for impermissibly infringe upon First Amend Likewise, if the rights. guidance ment Instructional was re 552 A.2d at 509. this ordering Hasty quired not convict reason for to leave the Ro- to assure did preclude engaging him from engaging protected speech. See tunda was to Amendment, Osborne, protected by the First supra 495 U.S. at 110 activities seem, therefore, in relation to the “tourist that claim could not serve as a basis test, by definition the defen- establishing had no to be standard” Id.; “normal- engaged not activities Berg, A.2d at 399.12 dants were the Rotunda. ly engaged in tourists.” reasons, judgments foregoing For the hereby appealed from are re- of conviction of the court agree prior I decisions versed, pro- remanded for and the case is in the trial court of require application ceedings opinion. consistent with this to save the consti- the “tourist standard” test majority tutionality the statute. As the

Reversed and remanded. out, judge here did opinion points sufficiently this court’s con- comply not with GALLAGHER, Judge, concurring: Senior trolling opinions on that score. government’s Initially, agree I reason, in the result in I concur For this involved, statute assertion here that proceeding. 9-112(b)(7) on is constitutional D.C.Code face, narrowing construction and needs no hand, But, the other we are to save it. in this case as writing

not on a clean slate previously decided that what

this court has applied standard” must be

called the “tourist statute,1 which

in the trial court to save the

provides: any person or unlawful for It shall be LOFCHIE, Matthew In re Judd knowingly persons willfully and

group of Respondent. demonstrate, picket parade, [t]o Buildings. any within No. 94-BG-333. constitutionally nothing unreason- I see Appeals. of Columbia Court District the out- restricting able demonstrators actuality, In Capitol buildings. side of the 5, 1995. Dec. Submitted to reach the same protestors are able Dec. 1995. Decided buildings, inside the be- outside as audience the same public enters and exits cause the event, it is not an unrea-

buildings. In pre- Amendment restriction

sonable First in the corridors demonstrations

vent immediately buildings. grounds

those op- all sorts of

adjoining Capitol afford to be heard for demonstrators

portunities entering the corridors without

and seen thereby buildings to demonstrate gov- process of

adversely affect the internal reason, saving constitutional- for no

ernment

ly- avowedly

Here, were the defendants govern- persons protesting

group of America. It would policies in Central

ment’s prong specific factor" "additional satisfied Berg, that the demonstra- it was established entry unlawful test. building regulation. of a were in violation tors at 399. Id. had instructed The trial court A.2d at 400. correctly however, required, to as- government was 1. The statute, regard con- for the with due the obstruction stat- its contentions sert the demonstration ute, to the trolling opinions this court in relation Order No. Capitol police General them, 303.1, have statute. could combination of

Case Details

Case Name: Hasty v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Dec 18, 1995

Citation: 669 A.2d 127

Docket Number: 87-CM-1230

Court Abbreviation: D.C.