Daryl Agnew v. Government of the District of Columbia , 920 F.3d 49 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2018 Decided April 5, 2019
No. 17-7114
DARYL THOMAS AGNEW, ET AL.,
APPELLANTS
v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00340)
William Claiborne argued the cause and filed the briefs for
appellants. Lynn E. Cunningham entered an appearance.
Sonya L. Lebsack, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With her on the brief were Karl A. Racine,
Attorney General, Loren L. AliKhan, Solicitor General, and
Stacy L. Anderson, Acting Deputy Solicitor General.
Before: TATEL and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The District of Columbia is a
diverse and thriving city of approximately 700,000 residents.
As the nation’s capital, it is the site of hundreds of mass events
each year. The District also annually hosts tens of millions of
tourists from around the nation and the world. To promote
and protect the shared use and enjoyment of the city’s public
areas by residents and visitors alike, District of Columbia law
makes it a misdemeanor “to crowd, obstruct, or incommode”
the use of streets, sidewalks, or building entrances, and
“continue or resume the crowding, obstructing, or
incommoding after being instructed by a law enforcement
officer to cease” doing so. D.C. Code § 22-1307(a) (“the anti-
obstructing statute”).
The plaintiffs, three District of Columbia residents who
were arrested under the statute, challenge it as
unconstitutionally vague on its face on the ground that it
authorizes an impermissible degree of enforcement discretion.
The District’s anti-obstructing statute applies virtually
anywhere a pedestrian might be in public. And history
teaches that unbridled discretion to control individuals’ use of
public spaces can be an instrument of abuse. The Supreme
Court has invalidated laws that give the police unfettered
discretion to punish—or banish—anyone at all, often with the
heaviest toll on “poor people, nonconformists, dissenters, [or]
idlers.” See Papachristou v. City of Jacksonville, 405 U.S.
156, 170 (1972). Under vague laws, people may use public
spaces “only at the whim of any police officer.” Appellants’
Br. 18 (quoting Shuttlesworth v. City of Birmingham, 382 U.S.
87, 90 (1965)).
The statute challenged here confers no such sweeping
power. Its terms are clear enough to shield against arbitrary
3
deployment; it bars only blocking or hindering others’ use of
the places it identifies. Further, a person is not subject to
arrest unless he refuses to move out of the way when an officer
directs him to do so. The statute does not criminalize
inadvertent conduct, nor does it authorize the police to direct a
person to move on if he is not currently or imminently in the
way of anyone else’s shared use of the place at issue. Because
we conclude that the anti-obstructing statute is not
unconstitutionally vague on its face, we affirm the district
court’s dismissal of the complaint.
BACKGROUND
A. The District of Columbia’s Anti-Obstructing
Statute
In the District of Columbia, “[i]t is unlawful for a person,
alone or in concert with others:”
(1) To crowd, obstruct, or incommode:
(A) The use of any street, avenue, alley, road,
highway, or sidewalk;
(B) The entrance of any public or private
building or enclosure;
(C) The use of or passage through any public
building or public conveyance; or
(D) The passage through or within any park or
reservation; and
(2) To continue or resume the crowding,
obstructing, or incommoding after being
instructed by a law enforcement officer to cease
the crowding, obstructing, or incommoding.
D.C. Code § 22-1307(a). Violating the law is a misdemeanor
punishable by a fine of up to five hundred dollars,
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imprisonment for up to ninety days, or both. Id. § 22-1307(c);
id. § 22-3571.01(b)(3).
The District of Columbia’s obstructing ban has been on
the books in one form or another since the nineteenth century.
From 1892 to 2011, the provision appeared within an “act for
the preservation of the public peace and the protection of
property.” See Act of July 29, 1892, ch. 320, 27 Stat. 322,
323; Act of July 8, 1898, ch. 638, 30 Stat. 723; Act of June 29,
1953, ch. 159, 67 Stat. 90, 97-98; Act of May 26, 2011, D.C.
Law 18-375, § 2(a) (codified at D.C. Code § 22-1307). For
the majority of that time, the statute made it unlawful “to
congregate and assemble” in order to “crowd, obstruct, or
incommode the free use of any such street, avenue, alley, road,
highway, or any of the foot pavements thereof, or the free
entrance into any public or private building or inclosure.” 1
See Act of July 8, 1898, ch. 638, 30 Stat. 723; see also Act of
June 29, 1953, ch. 159, 67 Stat. at 97-98. Since the beginning,
it has focused on preserving the public order and minimizing
the risk of public inconvenience, rather than punishing conduct
that causes direct or immediate injury. Cf. Morissette v.
United States, 342 U.S. 246, 254-56 & n.14 (1952).
Both this court and the District of Columbia Court of
Appeals held that the predecessor law applied only to groups
1
In full, it stated that “[i]t shall not be lawful for any person or persons
within the District of Columbia to congregate and assemble in any street,
avenue, alley, road, or highway, or in or around any public building or
inclosure, or any park or reservation, or at the entrance of any private
building or inclosure, and [(a)] engage in loud and boisterous talking or
other disorderly conduct, or [(b)] to insult or make rude or obscene gestures
or comments or observations on persons passing by, or in their hearing, or
[(c)] to crowd, obstruct, or incommode the free use of any such street,
avenue, alley, road, highway, or any of the foot pavements thereof, or the
free entrance into any public or private building or inclosure.” Act of July
8, 1898, ch. 638, 30 Stat. 723.
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of three or more people who had assembled for the purpose of
crowding, obstructing, or incommoding, reasoning that the
statute incorporated the common-law definition of unlawful
assembly. Kinoy v. District of Columbia, 400 F.2d 761, 766,
769-70 (D.C. Cir. 1968); see also Odum v. District of
Columbia, 565 A.2d 302, 303-04 (D.C. 1989) (invalidating the
conviction of a lone individual’s obstruction of truck’s
entrance to a construction site). And the District of Columbia
Court of Appeals long held that that law did not prohibit
inadvertent conduct, noting that “[i]t would hardly be
contended . . . that if defendants had met on one of the spacious
sidewalks of Pennsylvania [A]venue to conduct a peaceable
conversation, though in a degree inconveniencing pedestrians,
they would be guilty, under the statute, of crowding and
obstructing the free use of the walk.” Hunter v. District of
Columbia, 47 App. D.C. 406, 409 (1918).
In some cases, the District of Columbia Court of Appeals
framed its approach as a requirement that the forbidden
conduct—“crowd[ing], obstruct[ing], or incommod[ing]” the
use of public spaces, for example, or loud or boisterous
talking—threaten a breach of the peace. See Adams v. United
States, 256 A.2d 563, 564-65 (D.C. 1969). The court feared
that, without that limiting construction, the statute could “allow
punishment of the members of a group of sightseers, tourists,
or school children, who might innocently congregate and
assemble on a public street in such a manner as to crowd,
obstruct, or incommode” others’ use. Adams, 256 A.2d at
564-65; see Williams v. District of Columbia, 419 F.2d 638,
642 (D.C. Cir. 1969) (en banc). Consistent with that concern,
the District of Columbia Court of Appeals did not require a
showing that a breach of the peace had been threatened when
“appellants’ purpose to impede entry was adequately
shown”—as it held was the case when a group of people laid
down in front of the entrance to a congressional building to
6
protest the Iraq War. Tetaz v. District of Columbia, 976 A.2d
907, 910 (D.C. 2009).
In 2011, the District of Columbia Council amended the
anti-obstructing statute to essentially its current form. The
provision is no longer limited to groups of people who
“congregate and assemble” for an unlawful purpose, nor does
it require the government to prove any threat to public peace.
Duffee v. District of Columbia, 93 A.3d 1273, 1277 (D.C.
2014). The law instead requires an officer who (1) observes a
person crowding, obstructing, or incommoding another’s use
of a way or passage to (2) direct the obstructer to move on; it
authorizes arrest only if the person disobeys the officer’s
directive. See D.C. Code § 22-1307(a)(2). The Council
added the “move-on” order prerequisite to “prevent[] the arrest
of individuals who are not intentionally trying to obstruct the
passage of others and are prepared to alter their conduct when
instructed to do so.” See Joint Appendix (J.A.) 123 (Council
for Court Excellence, Disorderly Conduct Arrest Project
Subcommittee, Revising the District of Columbia Disorderly
Conduct Statutes: A Report and Proposed Legislation). The
Council thought that limitation would “eliminate[] any
problems in proving the improper intent of a person who
persists in blocking after a warning to desist.” Id.
B. Factual Background
Alex Dennis, Daryl Agnew, and Rayneka Williamson
were each arrested in unrelated incidents for violating the anti-
obstructing statute. Each case was eventually dismissed for
want of prosecution. The three arrestees then challenged the
anti-obstructing statute as unconstitutionally vague on its face.
On our de novo review of the order granting the District’s
motion to dismiss, we assume the truth of all of plaintiffs’
plausibly pleaded allegations, and draw all reasonable
7
inferences in their favor. Weyrich v. The New Republic, Inc.,
235 F.3d 617, 623 (D.C. Cir. 2001). The facts described here
are drawn from the complaint.
The police arrested Mr. Dennis on the evening before
Thanksgiving in 2014 in Southeast D.C. He had stepped
outside of his home to get some air and was standing on a ramp
near his apartment building when a police car drove by. The
ramp is wide enough for more than one person to pass abreast,
and no one was seeking to come or go from that entrance at the
time. A police officer, yelling from the passing squad car,
directed Dennis to leave. Dennis objected that he need not
move from his own home, and the officer arrested him.
On Christmas Eve of 2014, the same police officer arrested
Mr. Agnew a few doors down from Mr. Dennis’ apartment.
Agnew was standing with his daughter’s mother on the stoop
of her building, leaving space for other people to pass. Indeed,
“many people were in fact coming and going around them
because it was Christmas eve.” J.A. 33. The officer drove up
and yelled at them to leave. Agnew responded that he had
come outside to smoke so as not to irritate his daughter’s
asthma, that her mother lived there, and that they had every
right to be there, but the officer again yelled at them to leave.
When Agnew refused, the officer arrested him. Both Dennis’
and Agnew’s police reports cited them for “standing in a
manner that would cause a citizen or citizens trying to utilize
the walkway to deviate from their path of walking.” J.A. 37.
The police arrested Ms. Williamson in February of 2015
in a commercial area of Southeast D.C. She was on the
sidewalk in front of a business when an officer told her to move
because she was “disrupting the smooth flow of pedestrian
traffic.” J.A. 38. No one was trying to walk on that sidewalk
at the time, and the way was clear for pedestrians to come and
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go. Williamson objected that she was doing nothing wrong.
She did not leave in response to the officer’s directive, but
continued to allow other people in the area “to have free
movement.” J.A. 39. The officer returned a half hour later
and arrested her, stating in his report that “he observed
pedestrians having to maneuver around her to get by on the
sidewalk,” and that “merchants were complaining about her in
the area.” Id.
C. Procedural Background
Agnew filed this case in federal court in 2015, claiming
false arrest and unlawful prosecution on the ground that the
anti-obstructing statute is unconstitutionally vague and
overbroad. During the next six months, Agnew amended the
complaint twice to narrow his claims and add plaintiffs Dennis
and Williamson. When the District moved to dismiss the
second amended complaint, the court permitted the plaintiffs
to further amend to remove allegations relating to dismissed
claims and to “clarif[y] that [their] only claim is that the
District’s ‘incommoding’ statute is facially unconstitutional
under the second prong of the vagueness doctrine, the arbitrary
and discriminatory enforcement prong.” Agnew v. District of
Columbia, 263 F. Supp. 3d 89, 91 (D.D.C. 2017); see also J.A.
20 (Sept. 6, 2016 Order).
The operative complaint presses a single claim under 42
U.S.C. § 1983 against the District, challenging the plaintiffs’
arrests and prosecutions under a statute they contend is
unconstitutionally vague on its face for failure to guide
enforcement discretion. The plaintiffs seek individualized
damages and injunctive relief, but tie those requests to the
asserted facial invalidity of the statute rather than, for example,
any claim that, even if the statute is facially valid, the way it
9
was applied to them was nonetheless unconstitutional. See
Appellants’ Br. 16.
The district court granted the District’s motion to dismiss
the plaintiffs’ facial challenge, holding that the anti-obstructing
statute does not encourage arbitrary and discriminatory
enforcement. The court held that the statute is not
standardless; contrary to the plaintiffs’ principal contention,
violation of the anti-obstructing statute “does not depend upon
an element that can vary with the eye of the beholder.”
Agnew, 263 F. Supp. 3d at 97. The court recognized that
although the term “incommode” was arguably unclear on its
own, “its presence in the series, ‘to crowd, obstruct, or
incommode[,]’” clarified its meaning. Id. at 98 n.5.
ANALYSIS
The Due Process Clause protects individuals from laws
that are so vague that they cannot be understood with
reasonable consistency—whether by the people who must
obey the law or the officials charged with applying it. A law
may be unconstitutionally vague either because it “fail[s] to
provide the kind of notice that will enable ordinary people to
understand what conduct it prohibits,” or because it
“authorize[s] and even encourage[s] arbitrary and
discriminatory enforcement,” or both. City of Chicago v.
Morales, 527 U.S. 41, 56 (1999); accord ANSWER v. District
of Columbia, 846 F.3d 391, 409 (D.C. Cir. 2017). The
plaintiffs challenge the anti-obstructing statute as vague only
for the second reason. They say it fails to define what it means
to “crowd, obstruct, or incommode” the use of the specified
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ways and spaces with enough clarity to prevent arbitrary or
discriminatory enforcement.
A law invites arbitrary and discriminatory enforcement
when “there are no standards governing the exercise of the
discretion” it grants. Papachristou, 405 U.S. at 170. This
category includes laws whose application turns on subjective
judgments or preferences either of officers or of third parties.
In Morales, for example, the Court invalidated a Chicago
ordinance that forbade “criminal street gang members” from
“loitering” in any public place. 527 U.S. at 45-47, 60. The
ordinance’s definition of loitering—“remain[ing] in any one
place with no apparent purpose”—was unconstitutionally
vague because it left to the unguided judgment of the police
what constituted an “apparent purpose.” Id. at 60-62.
Similarly, in Kolender v. Lawson, 461 U.S. 352 (1983), the
Court invalidated a statute that prohibited loitering or
wandering without “credible and reliable identification”
because the police had unbridled discretion in the absence of
any definition of what kind of identification counted as
“reliable” or “credible.” Id. at 358. And in Coates v. City of
Cincinnati, 402 U.S. 611 (1971), the Court struck down a
loitering ordinance triggered by public lingering that was
“annoying” to passersby. Id. at 612, 614.
A law may, however, require law enforcement officers to
use their discretion without being unconstitutionally vague.
Enforcing criminal laws necessarily “requires the exercise of
some degree of police judgment.” Grayned v. Rockford, 408
U.S. 104, 114 (1972). A valid statute may be “marked by
‘flexibility and reasonable breadth, rather than meticulous
specificity.’” Id. at 110 (quoting Esteban v. Cent. Mo. State
Coll., 415 F.2d 1077, 1088 (8th Cir. 1969) (Blackmun, J.)).
For example, in United States v. Bronstein, 849 F.3d 1101
(D.C. Cir. 2017), we upheld a statute that forbade “mak[ing] a
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harangue or oration . . . in the Supreme Court Building,”
because we thought it apparent that the statutory terms were
“meant to cover any form of public speeches that tend to
disrupt the Supreme Court’s operations.” Id. at 1104, 1109.
Thus, “if the general class of offenses to which [a] statute is
directed is plainly within its terms, the statute will not be struck
down as vague even though marginal cases could be put where
doubts might arise.” United States v. Harriss, 347 U.S. 612,
618 (1954).
A. The anti-obstructing statute is not
unconstitutionally vague on its face.
Because it is readily apparent that the terms “to crowd,
obstruct, or incommode” the use of public ways mean to block
or hinder other people’s ability to pass through or use a
common space, we hold that the anti-obstructing statute is not
unconstitutionally vague on its face. Indeed, the Supreme
Court has rejected vagueness challenges to similar laws. In
Shuttlesworth, the Court upheld an Alabama law that made it a
crime to “stand or loiter upon any street or sidewalk of the city
after having been requested by any police officer to move on,”
382 U.S. at 88, provided the government had shown that,
before the officer’s request to move on, the accused had
“obstruct[ed] free passage,” id. at 91. And in Cameron v.
Johnson, the Court upheld a Mississippi law that prohibited
“engag[ing] in picketing or mass demonstrations in such a
manner as to obstruct or unreasonably interfere with free
ingress or egress to and from” public buildings or “with free
use of public streets, sidewalks, or other public ways adjacent
or contiguous thereto.” 390 U.S. 611, 612 n.1, 615 (1968).
“The terms ‘obstruct’ and ‘unreasonably interfere’ plainly
require no guess[ing] at [their] meaning,” the Court concluded.
Id. at 616 (internal quotation marks omitted) (alterations in
original). To the contrary, the Mississippi law was “a precise
12
and narrowly drawn regulatory statute evincing a legislative
judgment that certain specific conduct be . . . proscribed.” Id.
(quoting Edwards v. South Carolina, 372 U.S. 229, 236
(1963)).
The plaintiffs here argue that both “crowd” and
“incommode” are vague. They contend that the District of
Columbia Court of Appeals has already held that “crowd” is
vague. Not so. In the case that the plaintiffs cite, it was the
statutory use of “unnecessarily crowding”—a phrase not
present here—that the court thought “ambiguous” in isolation.
In re A.B., 395 A.2d 59, 62 n.3 (D.C. 1978). The court
nonetheless rejected the vagueness challenge because the
phrase’s meaning was clear as it appeared in the statute
alongside prohibitions on “jostling against” and “placing a
hand in proximity of” someone else’s handbag. Id. at 61, 62
n.3. The same kind of contextual reading validates the law
challenged here.
The statute’s use of the word “incommode” also does not
render it vague; the three words read together in context are
plainly concerned with impediment or hinderance.
“Incommode” on its own is admittedly less clear than “crowd”
or “obstruct.” As the district court recognized, “incommode”
has both a subjective meaning—“[t]o subject to inconvenience
or discomfort; to trouble, annoy, molest, embarrass,
inconvenience”—and an objective meaning—“to hinder,
impede, obstruct (an action, etc.).” Incommode, Oxford
English Dictionary, www.oed.com/view/Entry/93672; see
Agnew, 263 F. Supp. 3d at 98 & n.5. But the statute’s
grouping of “incommode” together with “crowd” and
“obstruct” helps to sharpen the way the drafters were using it.
Under the canon of noscitur a sociis, a word is generally known
by the company it keeps. Bronstein, 849 F.3d at 1108. To
crowd is defined as “[t]o press, push, thrust, shove” or “[t]o
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press toward a common centre, to gather or congregate closely
so as to press upon one another.” Crowd, Oxford English
Dictionary, http://www.oed.com/view/Entry/45035. To
obstruct is “[t]o block or impede passage along or through (an
opening, thoroughfare, waterway, etc.); to place or be an
obstacle in; to render impassable or difficult of passage.”
Obstruct, Oxford English Dictionary,
http://www.oed.com/view/Entry/129983. Both “crowd” and
“obstruct” refer to observable blockages of otherwise open
places. In this context, it is plain that “incommode” covers
similar conduct.
The statute is not impermissibly vague just because the
term “incommode” “may not roll off the average person’s
tongue today,” and does “not mean the same thing to all people,
all the time.” See Bronstein, 849 F.3d at 1107-08 (quoting
Roth v. United States, 354 U.S. 476, 491 (1957)). The
meaning of a statutory term need not be immediately obvious
to an average person; indeed, “[e]ven trained lawyers may find
it necessary to consult legal dictionaries, treatises, and judicial
opinions before they may say with any certainty what some
statutes may compel or forbid.” Id. at 1107 (quoting Rose v.
Locke, 423 U.S. 48, 50 (1975)). Standards that require study
or interpretation are not thereby rendered vague. Rather,
“when the vagueness doctrine assesses a legal term’s meaning
to ‘ordinary people,’ it is assessing meaning with the
elementary rule of statutory interpretation” that a word is
understood by its common meaning, id. at 1108, even if the
word itself is no longer in everyday use.
Our understanding of the statute also comports with the
surplusage canon’s directive that a statute not be interpreted in
a way that renders any part of it superfluous. See Arlington
Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 299 n.1
(2006). Each of the three terms makes a distinct contribution
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to the prohibition of pedestrians’ blocking—whether it be by
one person alone “obstructing,” by “crowding” together with
others, or by otherwise “incommoding” the use of the place by,
for example, spraying a garden hose across where people are
trying to walk. That the terms also substantially overlap does
not contravene the surplusage canon, which must “be applied
with the statutory context in mind”; after all, “sometimes
drafters do repeat themselves.” Bronstein, 849 F.3d at 1110
(alterations and internal quotations omitted); accord Arlington
Cent., 548 U.S. at 299 n.1. The readily discernible meaning
of the words is apparent in the way that they “converge upon
[certain] behavior” and so are useful as descriptors of “the
‘core’ behavior to which the statute may constitutionally be
applied.” Bronstein, 849 F.3d at 1108 (quoting United States
v. Poindexter, 951 F.2d 369, 385-86 (D.C. Cir. 1991))
(alterations in original).
The statute’s origins support reading “crowd, obstruct, or
incommode” as mutually reinforcing terms that together reach
the kinds of blocking the Council deemed problematic. The
phrase was not newly selected in 2011, but was retained from
the predecessor statutes to promote consistency and preserve
relevant case law. See J.A. 53-54 (D.C. Council, Committee
on Public Safety and the Judiciary, Report on Bill 18-425).
The plaintiffs contend that the Council’s decision not to
substitute the word “block” for the three retained terms shows
that it eschewed the very meaning the District now advances
so as to keep in place an impermissibly amorphous and
unbounded formulation. We instead see the Council’s choice
as favoring coverage and a degree of continuity without loss of
clarity.
The District of Columbia Council’s objective in
proscribing “crowd[ing], obstruct[ing], or incommod[ing]”
further confirms the statute’s meaning. The challenged law
15
“is meant to give police the power to defuse a situation that
disturbs the public.” J.A. 50 (D.C. Council, Committee on
Public Safety and the Judiciary, Report on Bill 18-425)
(quoting Citizen Complaint Review Board, Report and
Recommendation on Disorderly Conduct Arrests Made by
Metropolitan Police Department Officers). The point of doing
so was to regulate conduct that impedes the public’s shared use
of common public spaces. The provision enables the police to
intervene before members of the public resort to self-help to
clear impediments. The statute does not apply to minor
inconveniences or merely subjective annoyance, but only to
observed obstacles or blockages. The objective meaning of
the phrase “crowd, obstruct, or incommode” serves that
purpose.
Indeed, the anti-obstructing statute does exactly what the
Supreme Court deemed permissible in Coates. The Coates
Court invalidated as facially vague a Cincinnati ordinance that
prohibited “three or more persons” from “assembl[ing] . . . on
any of the sidewalks . . . and there conducting themselves in a
manner annoying to persons passing by.” 402 U.S. at 611,
614. But “[c]onduct that annoys some people does not annoy
others.” Id. at 614. The fact that the law hinged on the term
“annoying” made it defective “not in the sense that it requires
[people] to conform [their] conduct to an imprecise but
comprehensible normative standard but rather in the sense that
no standard of conduct is specified at all.” Id. The Court
specified, however, that Cincinnati could “prevent people from
blocking sidewalks [or] obstructing traffic,” provided it did so
“through the enactment and enforcement of ordinances
directed with reasonable specificity toward the conduct to be
prohibited.” 402 U.S. at 614. That is exactly what the
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District’s anti-obstructing statute does: it constrains a
specific, objectively defined and observable behavior.
The anti-obstructing statute does not punish conduct that
has no effect on other members of the public; it is violated only
by actual or imminent obstruction of another person. That is
because the provision applies only to crowding, obstructing,
and incommoding “the use of” the specified places by other
people. Unless there is someone else who is trying to use the
same space and whose use is obstructed, the statute by its own
terms is not violated and no “move on” directive is warranted.
For similar reasons, ordinary, quotidian use of public
spaces in the manner in which they were intended to be used
does not violate the statute. When one person walks on a
sidewalk, drives down a street, picnics in a park, or sits and
rests awhile on a plaza’s bench, she will necessarily prevent the
simultaneous use by anyone else of the precise space she
occupies—in some sense blocking another’s use. But such
conduct, and the bare physical displacement of others that it
inevitably entails, does not alone qualify as “obstruct[ing],
crowd[ing] or incommod[ing] the use” of those places.
Rather, the statute forbids behavior that impedes the people’s
common use of public spaces. The statutory text, read with a
dose of common sense, confirms that a violation occurs only
when a person effectively appropriates more than his fair share
of a public area or walk, in conflict with the prerogatives of
other people also seeking to use that space.
Plaintiffs err in asserting that the statute carries criminal
consequences for inadvertent conduct. No one is subject to
arrest under the anti-obstructing statute until an officer has
probable cause to believe that a person has in fact “crowd[ed],
obstruct[ed] or incommod[ed]” the use of public space and
“continue[d] or resume[d] the crowding, obstructing, or
17
incommoding after being instructed by a law enforcement
officer to cease.” D.C. Code § 22-1307(a)(2). Even when an
officer observes someone “crowd[ing], obstruct[ing], or
incommod[ing]” and warns him to stop doing so, the person
cannot be arrested unless he ignores the officer’s directive and
decides to keep obstructing. The statute thus does not
criminally punish those who accidentally block the use of a
public space.
The plaintiffs’ other arguments—specifically, that the
statute turns on the subjective responses of other members of
the public, that the move-on provision magnifies police
discretion in the absence of a mens rea requirement, and that
the statute is discriminatorily enforced—do not persuade us
that the law is void for vagueness.
According to the plaintiffs, the statute is vague because it
“bases criminality on the reaction of unknown others to the
presence of a person on the public sidewalks, rather than on the
accused’s conduct.” Appellants’ Br. 43-44. They point in
particular to notations in the plaintiffs’ arrest reports asserting
that anyone trying to use the walkway would have needed to
“deviate from their path of walking” due to the reported
obstructions. J.A. 33, 36-37 (complaint); see also J.A. 39
(complaint). Reliance on the reaction of others, the plaintiffs
say, has led courts to invalidate other laws as vague, and
requires us to do so here. See Appellants’ Br. 44 (citing
Coates, 402 U.S. at 613, In re A.B., 395 A.2d at 62 n.3, and
Seattle v. Webster, 802 P.2d 1333, 1338-39 (Wash. 1990)).
The plaintiffs misread those cases. The Supreme Court
invalidated the loitering ordinance in Coates on vagueness
grounds because its violation turned wholly on police
assessments of the subjective annoyance of other members of
the public. 402 U.S. at 611-12, 614. The Court has not,
18
however, voided a statute just because its violation may be
evidenced by observed third-party conduct in response to the
acts prohibited. The cases that the plaintiffs invoke do not say
otherwise. Indeed, Webster, which does not in any event bind
us, is directly contrary to the plaintiffs’ position. The
Supreme Court of Washington held that the Seattle ordinance
in question, which prohibited “intentionally . . . obstruct[ing]
pedestrian or vehicular traffic,” was not vague. Webster, 802
P.2d at 1337-39. The ordinance did not “base criminality on
the reaction of others”—instead, “it define[d] the proscribed
conduct solely in reference to the person interfering with the
flow of pedestrian or vehicular traffic.” Id. at 1339. Police
officers need not guess at or make projections about what is in
the minds of passersby in order to observe, for example,
pedestrians walking in the street to get past a person lying
across the width of a busy downtown sidewalk. It would be
appropriate in that situation to rely on the observation that
people in fact had to “deviate from their path of walking.”
The plaintiffs also argue that the move-on provision
magnifies police discretion, and that the statute is vague due to
the lack of a mens rea requirement. They correctly note that
the move-on provision itself gives the officer no added
guidance for determining “whether an order should be made in
the first place.” Appellants’ Br. 48. Indeed, the Morales
Court made the same point, observing that the fact that the
ordinance at issue there did “not permit an arrest until after a
dispersal order has been disobeyed [did] not provide any
guidance to the officer deciding whether such an order should
issue.” 527 U.S. at 62. If the statutory description of the
blockages to which the statute applies were unconstitutionally
vague, the move-on provision could not cure—and might well
19
compound—its enforcement-discretion defect. See Morales,
527 U.S. at 62; Shuttlesworth, 382 U.S. at 90.
We accordingly reject the District of Columbia’s
contention that the requirement of a move-on order could
“mitigate” vagueness in the description of the proscribed
conduct. See Appellee’s Br. 32. Contrary to the District’s
argument, id. at 33, vagueness of a conduct prohibition cannot
be cured by the intentionality of an individual’s refusal to cease
that conduct once instructed to do so: If the statute failed to
define what it barred, a move-on order would be no more than
an exercise of the officer’s unguided discretion—perhaps
trained on conduct that the legislators never sought to (and
perhaps constitutionally could not) reach. A person’s
knowing failure to obey such an order could do nothing either
to cure the officer’s lawless discretion or to establish the
individual’s culpability. But here we do not rely on any
putative curative effect of a suspect’s intent in the face of
statutory vagueness, because the statute is not vague. A
violation of the prohibition on crowding, obstructing, or
incommoding is a prerequisite to a move-on order, so it cannot
be, as plaintiffs claim, that “the mere refusal to move on after
a police officer’s [directive to] move or ‘cease’ is the offense.”
Appellants’ Br. 48.
The plaintiffs also see vagueness in the statute’s failure to
specify how far a person must go when told to move on, or for
how long. They argue that the move-on provision essentially
empowers the police to banish people from public spaces. But
“how far” and “how long” are self-defining under the statute:
Individuals need not vacate the public space altogether, they
must simply stop blocking the use of the way or place at issue.
20
Because the statute vests no banishment power in police, it can
suffer no defect on that account.
As further evidence that the law is vague, the plaintiffs
point to their allegations that the anti-obstructing statute is
being enforced in a racially discriminatory, harassing manner.
The facts of the plaintiffs’ arrests as they allege them are
troubling. The conduct they describe would appear to fall
outside the scope of the statute, correctly understood. But the
plaintiffs here do not bring a claim of racially discriminatory
prosecution. Cf. United States v. Armstrong, 517 U.S. 456,
463-66 (1996). And identified instances of a statute’s
misapplication do not tell us whether the law is
unconstitutional in every application. See City of Houston v.
Hill, 482 U.S. 451, 458 (1987); United States v. Salerno, 481
U.S. 739, 745 (1987). It may be that similar allegations could
bolster an as-applied challenge. They do not, however,
support the sole claim at issue here.
We note that, even as the plaintiffs have expressly limited
their case to a facial challenge, they have described their claim
to us as “elud[ing] ready classification” as either facial or as-
applied. Appellants’ Br. 16 (quoting Hodge v. Talkin, 799
F.3d 1145, 1156 (D.C. Cir. 2015)). They contend that, if they
succeeded in facially invalidating the statute, they would also
be entitled to damages and individualized declaratory and
injunctive relief. Id. As the district court incisively
explained and plaintiffs themselves acknowledge, however, the
predicate to the claims for individualized relief is facial
invalidity. Because the statute is not unconstitutionally vague
21
on its face, we need not separately address the requested
individualized relief.
B. The anti-obstructing statute is not defective for
lack of a mens rea requirement.
Finally, we reject the plaintiffs’ argument—independent
of their vagueness challenge—that the anti-obstructing statute
is invalid under the Due Process Clause for want of a scienter
requirement. While the statute does not include any express
mens rea requirement for the initial obstructing, the move-on
provision (when applied to conduct that violates the ban
against crowding, obstructing or incommoding) ensures that
anyone arrested for failing to move on has at least a reckless
state of mind. In other words, the statute does not specify that
only people who “crowd, obstruct, or incommode” with a
certain mens rea may be directed to move on but, because any
arrest or other criminal consequence of the anti-obstructing
statute can only follow the arrestee’s receipt and disobedience
of a well-founded “move on” directive, those weightier
consequences are necessarily accompanied by some proof of
violation with mens rea. Indeed, it was for this very purpose
that the District of Columbia Council added the move-on
provision when it amended the anti-obstructing statute. See
J.A. 123. Rather than requiring proof of a breach of the peace
to protect individuals against arrest for inadvertent conduct, the
current version of the statute employs the move-on provision
to achieve the same goal in a more focused way.
Even if the statute lacked a scienter requirement,
plaintiffs’ assertion that it would thereby be invalid under
Elonis v. United States, 135 S. Ct. 2001 (2015), is unfounded.
Although “the ‘general rule’ is that a guilty mind is ‘a
necessary element in the indictment and proof of every
crime,’” id. at 2009 (quoting United States v. Balint, 258 U.S.
22
250, 251 (1922)), “there are exceptions.” Id. In particular,
“public welfare offenses” like public obstruction, which are
aimed principally at maintaining the general social order rather
than punishing wrongdoers, sometimes lack a scienter
requirement. See Morissette, 342 U.S. at 254-56 & n.14. In
any event, plaintiffs’ claim that a crime without a scienter
requirement is unconstitutional under the Due Process Clause
is inapposite here. As against an inadvertent obstructor, the
statute only authorizes a nonpunitive police order to “move on”
and cease obstructing; to be subjected to arrest or other
criminal consequence, a person must have flouted a well-
founded move-on directive. The statute thereby avoids
criminalizing unintentional violations.
* * *
For the foregoing reasons, we affirm the district court’s
dismissal of the complaint.
So ordered.