Devon Tinius v. Luke Choi ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2023 Decided July 7, 2023
No. 22-7047
DEVON TINIUS,
APPELLANT
v.
LUKE CHOI, D.C. METROPOLITAN POLICE OFFICER, ET AL.,
APPELLEES
Consolidated with 22-7048, 22-7049, 22-7050, 22-7051,
22-7052, 22-7053
Appeals from the United States District Court
for the District of Columbia
(No. 1:21-cv-00907)
(No. 1:21-cv-00909)
(No. 1:21-cv-00986)
(No. 1:21-cv-01460)
(No. 1:21-cv-01461)
(No. 1:21-cv-02377)
(No. 1:22-cv-00441)
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James A. DeVita argued the cause and filed the brief for
appellants.
Holly M. Johnson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With her on the brief were Karl
A. Racine, Attorney General, at the time the brief was filed,
Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak,
Principal Deputy Solicitor General, and Thais-Lyn Trayer,
Deputy Solicitor General.
Before: PILLARD and PAN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD , Circuit Judge: Devon Tinius and six other
Plaintiffs were arrested for violating a citywide temporary
curfew in Washington, D.C., in June 2020. At the time of their
arrests, Plaintiffs were standing on a public street peacefully
protesting police killings of Black Americans. The protest was
part of a nationwide wave of demonstrations sparked by the
police killing of George Floyd on May 25 of that year. Not all
responses to the killing were peaceful. A surge of rioting,
vandalism, arson, and looting accompanied the mass protests
in the District of Columbia and several other cities. Seeking to
quell the violence and destruction, D.C. Mayor Muriel Bowser
imposed a one-night curfew on May 31. The curfew barred
virtually all activities in public spaces from 11:00 P.M. to 6:00
A.M. As increased nighttime crime continued, the mayor
renewed the curfew for two more nights, extending it from 7:00
P.M to 6:00 A.M. Ms. Tinius and the other Plaintiffs allege
they were out on the streets four hours after the start of the
curfew on June 1, 2020, when they were arrested for violating
the mayor’s order.
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Plaintiffs sued the arresting officers and the city for
damages. Their principal claim is that, because they were
engaging in peaceful public protests, their arrests for breaking
the curfew violated their First Amendment rights. The district
court granted the Defendants’ motions to dismiss, holding that
the June 1 curfew order was a constitutionally valid time, place,
and manner restriction. The court held that the remaining
claims also failed because they were contingent on the order’s
asserted invalidity under the First Amendment. We affirm.
BACKGROUND
On May 25, 2020, Minneapolis police officer Derek
Chauvin kneeled on the neck of George Floyd, an unarmed
Black man, for nearly ten minutes. While Mr. Floyd gasped
and cried for help, the officer suffocated him to death. Index
Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 821
(9th Cir. 2020); State v. Chauvin, No. 27-cr-20-12646, 2021
WL 2621001, at *4, *6 (Minn. Dist. Ct. June 25, 2021). A
witness’s video showing the final minutes of Mr. Floyd’s life
quickly circulated online. In cities and towns across the United
States, masses of people poured onto the streets to express their
outrage against police killings of Mr. Floyd and other Black
Americans. Index Newspapers LLC, 977 F.3d at 821.
In Washington, D.C., as in some other cities, peaceful
demonstrations coincided with incidents of rioting, vandalism,
looting, and arson. On May 31, 2020, D.C. Mayor Muriel
Bowser moved to protect public safety by imposing a one-night
curfew order (the May 31 Order). The Order recognized the
“outrage that people [felt] following the murder of George
Floyd in Minnesota” the previous week, along with grief over
“hundreds of years of institutional racism.” J.A. 29. The May
31 Order also recounted that vandalism and other crimes had
occurred in the city’s downtown area over the previous several
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nights: In downtown D.C., “numerous businesses and
government buildings were vandalized, burned, or looted” and
officials observed a “glorification of violence, particularly
during later hours of the night.” J.A. 29. The Order stated that
the “health, safety, and well-being of persons within the
District of Columbia [were] threatened and endangered by the
existence of these violent actions.” J.A. 30. The Order also
invoked the need to protect public health during the state of
emergency then in place in response to the COVID-19
pandemic. It recounted that, contravening an emergency order
already in effect, “[m]any protesters are not observing physical
distancing requirements and many protestors are not wearing
masks or face coverings.” J.A. 30.
The May 31 Order imposed a curfew from 11:00 P.M. that
night until 6:00 A.M. the following day. During those hours,
the order stated, “no person, other than persons designated by
the Mayor, shall walk, bike, run, loiter, stand, or motor by car
or other mode of transport upon any street, alley, park, or other
public place within the District.” J.A. 30. The curfew
exempted “[i]ndividuals performing essential duties as
authorized by prior Mayor’s Orders, including working media
with their outlet-issued credentials and healthcare personnel.”
J.A. 30.
On June 1, after another night of destruction, Mayor
Bowser renewed the curfew for that night and the next. The
new curfew order incorporated the May 31 Order’s statements
and included some new ones. According to the June 1 Order,
in “multiple areas” of the city, “numerous businesses, vehicles,
and government buildings” were “vandalized, burned, or
looted,” and over 80 people had been arrested “in connection
with [those] incidents, with the majority charged with
felonies.” J.A. 31. The June 1 Order recounted that, “[o]n the
night of May 31, 2020,” despite the initial curfew, “looting and
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vandalism occurred at multiple locations throughout the city,
in addition to the rioting in the downtown area.” J.A. 31.
“Vandals smashed windows in Northeast DC, upper Northwest
DC stretching to Georgetown, and caused extensive damage in
the Golden Triangle Business Improvement District,
Downtown DC Business Improvement District, and Mount
Vernon Triangle Community Improvement District.” J.A. 32.
The June 1 Order stated that “[r]ioting and looting affected the
operations of District government agencies.” J.A. 32. As for
public health, the Order reiterated that gatherings of more than
ten people violated the COVID-19 emergency declaration. Id.;
see District of Columbia Office of the Mayor, Extensions of
Public Emergency and Public Health Emergency and
Preparation for Washington, DC Reopening at 7 (May 13,
2020), https://perma.cc/N8ZF-V9FN (last updated June 27,
2023).
The June 1 curfew started earlier than the previous night’s,
at 7:00 P.M. instead of 11:00 P.M. And it added to the previous
order’s carveout for “essential” media and healthcare workers
a new exemption for individuals “who are voting and
participating in election activities.” J.A. 32. Violators of the
June 1 Order could face misdemeanor penalties: a fine of up to
$300, or up to ten days’ imprisonment. J.A. 33. The Order did
not require police officers to give people an opportunity to
disperse before arresting them for violating the curfew.
Plaintiffs allege that, at “approximately 11:00 P.M.” on
June 1, “near Lafayette Park and the White House,” Devon
Tinius and the other Plaintiffs were “standing with a group of
like-minded citizens protesting the treatment of African
American citizens by the police.” J.A. 36-37 (Compl. ¶ 8).
Members of the group were “shouting ‘Black Lives Matter’
and saying the names of individuals” including George Floyd
and Breonna Taylor, whom they “believed had been killed by
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police officers without legal justification.” J.A. 36-37 (Compl.
¶ 8). D.C. Metropolitan Police arrested Plaintiffs for violating
the June 1 Order. Before their arrests, Plaintiffs “attempted to
leave the area and to return home,” but the police officers
“continually blocked the path of the demonstrators and refused
to allow them to leave.” J.A. 37 (Compl. ¶ 9). Plaintiffs were
arrested, detained overnight, and released after arraignment the
next morning. In October 2020, the government dismissed all
the charges against Plaintiffs.
In 2021, the seven individual Plaintiffs each sued the
arresting officers under 42 U.S.C. § 1983 for First, Fourth, and
Fourteenth Amendment violations. (As the district court noted,
the complaints contain “substantially identical” allegations.
Tinius v. Choi, No. 21-cv-0907, 2022 WL 899238, at *1 n.1
(D.D.C. Mar. 28, 2022)). For simplicity, we cite to the Tinius
complaint.) Plaintiffs claimed that, by arresting them while
they were peacefully protesting, the officers violated their First
Amendment rights to freedom of speech and assembly. They
argued that the June 1 Order is invalid under the First
Amendment because it did not exempt people engaging in
public protests or other expressive activity. They did not,
however, challenge the Order’s limited exemptions as content
based. Asserting that the June 1 Order was invalid, they claim
the officers lacked probable cause to arrest them and that the
arrests amounted to excessive force in violation of the Fourth
Amendment. Alongside those constitutional claims, Plaintiffs
asserted common-law claims of false arrest, assault, and battery
against the officers and, on a theory of respondeat superior,
against the District of Columbia. Defendants removed the suits
to federal court and moved to dismiss the complaints.
The district court consolidated seven Plaintiffs’
complaints and granted Defendants’ motion to dismiss.
Starting with the First Amendment challenge, the court first
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considered whether the June 1 Order restricted Plaintiffs’
expression. The order addressed “a broad swath of pure
conduct” so arguably need not be scrutinized as “a restriction
on expression at all.” Tinius, 2022 WL 899238, at *9. But the
court acknowledged that “the curfew was enacted in the
specific context of ongoing public protests and counter-
protests” and reached some expressive conduct. Id. Viewing
it as a close question whether the order was a time, place, and
manner restriction of speech or merely had the incidental effect
of curtailing speech, the court noted that “the Supreme Court
has made it clear that ‘the O’Brien test in the last analysis is
little, if any, different from the standard applied to time, place,
or manner restrictions.’” Id. (citing United States v. O’Brien,
391 U.S. 367 (1968), and quoting Ward v. Rock Against
Racism, 491 U.S. 781, 798 (1989)). Proceeding “in an
abundance of caution” to apply First Amendment intermediate
scrutiny appropriate to time, place, and manner restrictions, see
Ward, 491 U.S. at 791, the district court sustained the June 1
Order, concluding that the curfew was narrowly tailored to
significant government interests in public safety and public
health and left open the alternative of daytime protests. Id. at
*9, *12.
Plaintiffs’ remaining claims are largely contingent on their
assertion that the June 1 Order was void as an unconstitutional
speech restriction, so once the district court rejected the First
Amendment claim, it dismissed the other claims as well.
Finally, because the June 1 Order plainly stated what it
prohibited, the district court denied as futile Plaintiffs’ motion
to amend the complaints to add vagueness and overbreadth
challenges.
Plaintiffs appealed. The appeal presses their freedom-of-
expression and vagueness challenges to the curfew order, and
their claims that the consequent invalidity of the curfew order
8
renders their arrests unlawful under both the Constitution and
D.C. common law.
DISCUSSION
Plaintiffs allege that they were engaged in expressive
activity on public sidewalks in the District of Columbia during
curfew hours on June 1, 2020, when the D.C. Police arrested
them. They do not assert that their conduct complied with the
terms of the June 1 Order. Their First Amendment challenge
rests on their contention that, because they were peacefully
“engaged in the type of political speech meant to be protected
by the First Amendment,” Appellants’ Br. 4, the June 1 Order
should have been subjected to strict scrutiny. Plaintiffs do not,
however, claim they were arrested based on their expression.
Alternatively, Plaintiffs argue that the order fails the
intermediate scrutiny applicable to restrictions on the time,
place, and manner of expression. They do not dispute the
substantiality of the government’s interests in protecting public
safety by quelling an outbreak of violent crime, but contend the
order was neither content-neutral nor narrowly tailored.
Plaintiffs also contend that the curfew order was
unconstitutionally vague because it included public “loitering”
among the nighttime activities it barred. Based on their view
that the curfew they violated was itself invalid, Plaintiffs
challenge their arrests on constitutional and common-law
grounds as unsupported by probable cause and an exercise of
excessive force. Finally, they argue the June 1 Order violated
their right to travel within the District of Columbia, but they
made no such claim in the district court so forfeited it.
On behalf of the officers, the District of Columbia
responds that, to the extent the temporary, content-neutral
curfew order limited Plaintiffs’ expressive activities, it was a
valid time, place, and manner restriction: “[T]he curfew
9
satisfied the First Amendment because it was narrowly tailored
to serve the District’s critically important interest in
suppressing the surge in violence and destruction across the
city during the nighttime hours.” Appellees’ Br. 34. The
District points out that Plaintiffs’ constitutional and common-
law challenges to the arrests depend on the success of their
claim that the June 1 Order violates the First Amendment. In
the absence of any allegations that the officers used
unnecessary force in effecting the arrests, the District argues
that the arrest claims fail with the challenge to the June 1 Order.
On de novo review, Shaffer v. George Washington Univ.,
27 F.4th 754, 762 (D.C. Cir. 2022), we affirm the district
court’s judgment dismissing the complaints for failure to state
a claim. In this posture, we accept the facts and all reasonable
inferences that may be drawn from them in Plaintiffs’ favor.
See id. at 763. As did the district court, we treat the existence
and content of the legally operative public curfew orders as
common ground. We see no need to invoke doctrines of
judicial notice or incorporation by reference in order to
reference the curfew orders as we would any source of local
law.
We hold that the June 1 Order was a constitutionally valid
time, place, and manner restriction that gave fair notice of the
prohibited conduct. The balance of Plaintiffs’ claims depends
on the asserted invalidity of the curfew order. In light of our
decision to sustain the order, we also affirm the dismissal of the
remaining claims.
A.
The District of Columbia does not dispute that Plaintiffs
engaged in First Amendment-protected expression, so we first
consider the appropriate level of scrutiny to apply to the June 1
Order. See Green v. DOJ, 54 F.4th 738, 745 (D.C. Cir. 2022).
10
We apply strict scrutiny to content-based restrictions on
expression, and intermediate scrutiny to content-neutral
restrictions. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
641-42 (1994). Intermediate scrutiny applies here because the
governmental interest supporting the June 1 Order was
“unrelated to the suppression of free expression,” O’Brien, 391
U.S. at 377, and did not “appl[y] to particular speech because
of the topic discussed or the idea or message expressed,” Reed
v. Town of Gilbert, 576 U.S. 155, 163 (2015) (defining content-
based regulations). The mayor adopted the curfew as a short-
term emergency measure to prevent nighttime vandalism,
arson, and looting. The challenged order prohibited people
from going out in public during specified hours; it barred
virtually all nighttime public activity, without regard to its
expressive character or message. And it did so in a limited,
appropriately tailored way that left room for Plaintiffs’
expression.
On appeal, Plaintiffs do not dispute that the June 1 Order
was content-neutral on its face. They claim strict scrutiny is
appropriate because they were in fact engaged in peaceful
public expression. In the alternative, they argue that they
should have had an opportunity through discovery to develop a
claim that the curfew was selectively enforced against them
based on their speech. Their first rationale does not support
strict scrutiny, and the second was not raised in the district
court.
Treating the curfew order as a content-neutral time, place,
and manner restriction, we apply intermediate scrutiny. To
determine whether the Order comports with the First
Amendment, we ask whether it served significant government
interests, was narrowly tailored to those interests, and left open
ample alternative channels for speech. Turner Broadcasting,
512 U.S. at 642; Ward, 491 U.S. at 791. Plaintiffs do not
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dispute that the interests stated in the Order—“to protect the
safety of persons and property in the District” and “to reduce
the spread of [COVID-19] and to protect the public health,”
J.A. 32—are significant government interests unrelated to the
suppression of expression. Our analysis therefore turns on the
second and third requirements: whether the June 1 Order was
narrowly tailored to serve the identified public safety and
public health interests, and whether the two-night curfew
allowed ample alternative channels for protestors to
communicate their messages opposing police violence against
Black people.
A time, place, or manner restriction on speech is “narrowly
tailored” so long as it does not “burden substantially more
speech than is necessary to further the government’s legitimate
interests.” Ward, 491 U.S. at 799. Such a restriction may
survive as narrowly tailored even if it is not “the least restrictive
or least intrusive means” of serving the government interest.
Id. at 798.
Mayor Bowser imposed the limited, temporary curfew
order in an incremental process in response to a spike in serious
crime. As the Order explained, “numerous businesses,
vehicles, and government buildings [had] been vandalized,
burned, or looted.” J.A. 31. In the two days preceding the June
1 Order, more than 80 people were arrested in connection with
the vandalism, burning, and looting, “with the majority charged
with felonies.” Id. The order recounted that “looting and
vandalism occurred at multiple locations throughout the city,”
and “[r]ioting and looting affected the operations of District
government agencies.” J.A. 31-32. The initial May 31 Order,
incorporated into the June 1 Order by reference, noted that
these crimes were particularly prevalent “during later hours of
the night.” J.A. 29. Mayor Bowser imposed a one-night
curfew on May 31, and only after looting and vandalism
12
continued that night did she impose the two-night curfew at
issue here. That measured approach shows tailoring to the
public safety interest: The mayor imposed a two-night, eleven
hour-long curfew only after a one-night curfew lasting seven
hours had failed to fully restore order.
Plaintiffs challenge the Order’s tailoring by arguing that it
should have included an exception for First Amendment
activity. They point to the First Amendment exceptions in
long-term juvenile curfews, including the juvenile curfew we
upheld in Hutchins v. District of Columbia, 188 F.3d 531, 546
(D.C. Cir. 1999), to argue that the June 1 Order should have
exempted individuals exercising their First Amendment rights.
But the ordinance at issue in Hutchins operates differently and
serves interests distinct from those supporting the temporary
June 1 Order.
In Hutchins, we reviewed a juvenile-only curfew of
unlimited duration that the D.C. Council put in place after
“determining that juvenile crime and victimization in the
District was a serious problem.” Hutchins, 188 F.3d at 534;
see D.C. Code §§ 2-1542, 2-1543. Unlike the two-day
emergency order under review here, that curfew was not time
limited—indeed, it remains on the books. It bars minors ages
16 and under from venturing out in public without adult
supervision after 11:00 P.M. on weeknights and after midnight
on weekends, subject to eight broad exceptions. Hutchins, 188
F.3d at 534. To “ensure that the ordinance does not sweep all
of a minor’s activities into its ambit but instead focuses on
those nocturnal activities most likely to result in crime or
victimization,” id. at 545, the juvenile curfew allowed young
people to go out alone at night for the purpose of attending
official school activities, “going to or from employment,” or
“exercising First Amendment rights.” Id. at 535. The curfew’s
limitation to minors without adult supervision, and its generous
13
allowance for unaccompanied minors to go out during curfew
hours for various activities that the Council deemed age-
appropriate and constructive, serve the curfew’s overall
purpose to “protect the welfare of minors by reducing the
likelihood that minors will perpetrate or become victims of
crime and by promoting parental responsibility.” Id. at 541-42.
The June 1 Order imposed a very different kind of curfew.
It sought to temporarily clear the streets at night to curb a
sudden rise in rioting, vandalism, arson, and looting. It applied
to adults and minors alike, with narrow exceptions for essential
activities. If the Order had excepted expressive activity, as
Plaintiffs argue the First Amendment required, it would have
left D.C. officials in the same position as before the curfew:
hindered by the unusual volume of people on the streets from
stemming the vandalism and looting. An expressive-activity
exception would have effectively enabled public circulation of
people intent on looting, so long as they traveled with
demonstrators, wore protest messages, shouted political
slogans, or carried placards.
The curfew challenged here is more like the temporary
restriction the Ninth Circuit upheld in Menotti v. City of Seattle,
409 F.3d 1113, 1118 (9th Cir. 2005), than the permanent but
porous juvenile curfew at issue in Hutchins. Menotti sustained
as a constitutional time, place, and manner restriction an order
temporarily barring most public access to parts of downtown
Seattle during the 1999 World Trade Organization conference.
Id. at 1117-18. City officials imposed that order after
vandalism and violence broke out during large-scale
nonviolent protests, id. at 1120, 1123, “mutual insecurity
among police and protestors caused the situation to spiral out
of control,” id. at 1122, and routine policing proved inadequate
because offenders “were able to elude capture” by escaping
into crowds of nonviolent protestors, id. at 1132. Faced with
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an “emergency situation” in which “law-breaking and law-
abiding protestors were often indistinguishable,” id. at 1135,
the City’s imposition of access restrictions was appropriately
tailored to the government’s public safety interest, id. at 1137.
Like the restriction sustained in Menotti, the temporary June 1
Order enabled the city to restore order in the face of a wave of
vandalism occurring in the midst of large-scale peaceful
protests.
The public health interest in preventing large gatherings
also supported the District of Columbia’s decision to choose a
curfew on June 1, 2020, over other methods of addressing the
wave of nighttime crime. That spring, the COVID-19
pandemic in the United States was in an acute phase. Centers
for Disease Control and Prevention, Previous U.S. COVID-19
Case Data (Aug. 27, 2020), https://perma.cc/L35Z-8KHR (last
updated June 27, 2023). In mid-March, President Trump had
declared the novel coronavirus a national emergency. White
House Archives, Proclamation on Declaring a National
Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak (Mar. 13, 2020),
https://perma.cc/7FRL-2L2W (last updated June 27, 2023).
The vaccines were not yet available; public health policy then
in effect for the United States and the District of Columbia
called for physical distancing and limiting large gatherings.
See In re Approval of Jud. Emergency Declared in Cent. Dist.
of California, 955 F.3d 1140 (9th Cir. 2020) (citing April 2020
guidance of the U.S. Centers for Disease Control and
Prevention); District of Columbia Office of the Mayor,
Extensions of Public Emergency and Public Health Emergency
and Preparation for Washington, DC Reopening at 7 (May 13,
2020), https://perma.cc/N8ZF-V9FN (last updated June 27,
2023) (barring gatherings of more than ten people not from the
same household). An alternative to the curfew that might have
served the public safety interest alone, like a protected zone for
15
nighttime peaceful protests, would have impeded the city’s
interest in preventing the spread of COVID-19 by directing
protestors to congregate in protest zones.
Plaintiffs do not challenge the citywide scope of the
curfew. They make no argument that, to be narrowly tailored,
the order should have been limited to the neighborhoods in
which city officials reported violence had already taken place.
In any event, the order recounted that vandalism had occurred
across multiple areas of the city: “smashed windows in
Northeast DC, upper Northwest DC stretching to Georgetown”
and “extensive damage in the Golden Triangle Business
Improvement District, Downtown DC Business Improvement
District, and Mount Vernon Triangle Community
Improvement District.” J.A. 32. Plaintiffs were arrested near
Lafayette Park, within the very Business Improvement
Districts the Curfew Order identified. Even if they had chosen
to press for narrower geographic tailoring, it is unclear in view
of those allegations whether Plaintiffs would have had standing
to challenge the order’s applicability to areas the order did not
cite as having been hit by violence because those were not areas
in which they sought to protest.
Finally, the Order leaves open ample alternative channels
of communication. The relevant expressive channels are those
within the same forum. Initiative and Referendum Inst. v. U.S.
Postal Serv., 417 F.3d 1299, 1310-11 (D.C. Cir. 2005). In the
areas covered by the challenged Order, protestors had two
alternatives: They were free to protest during the day between
the hours of 6:00 A.M. and 7:00 P.M., and to protest at night
after the two-day curfew expired. The Plaintiffs never alleged
or argued that they could not have taken advantage of either
opportunity.
16
In sum, the June 1 Order is a valid time, place, and manner
restriction. It satisfies the applicable intermediate scrutiny.
The Order is content neutral, barring virtually everyone from
the public streets without distinctions based on their topic or
message or, indeed, whether they engaged in any expression at
all. Public safety and preventing the spread of COVID-19, the
two justifications the Order cites, are both undisputedly
significant government interests. The curfew was narrowly
tailored to those interests. The restrictions were calibrated to
serve the government’s stated interests. They were limited to
nighttime hours, applied for just two nights, and were only
imposed after the city’s earlier, one-night curfew failed to quell
the wave of crime. Including an expressive-activity exception
in the curfew would have allowed more hours of speech by
protestors, but it also would have impeded the public safety and
public health objectives of the curfew. The government met its
burden to show that the curfew was not “substantially broader
than necessary” and did not “burden substantially more speech
than [was] necessary” to achieve the public safety interest.
Ward, 491 U.S. at 799-800. And the nighttime-only
restrictions left open ample alternative channels by allowing
daytime protests or protests on ensuing nights.
Plaintiffs argue that the district court erred in dismissing
the complaints before discovery. But they still have not
explained how discovery could have been relevant to their
facial challenges to the Order. Plaintiffs cite Epps v. City &
Cnty. of Denver, 588 F. Supp. 3d 1164 (D. Col. 2022), in which
the plaintiffs obtained discovery that revealed that a facially
speech-neutral curfew was enforced in practice to retaliate
against protesters based on their speech. Id. at 1172-73. But
Epps is inapposite. Plaintiffs in Epps alleged that police
practiced a targeted enforcement policy that differed from the
neutral text of the policy as written; the Complaints in this case
made no such claims.
17
Plaintiffs argue that the two-night curfew “destroyed their
ability to speak at a time when what they had to say was most
effective,” Appellants’ Br. 16, i.e., in the immediate aftermath
of the murder of George Floyd. But “[e]ven protected speech
is not equally permissible in all places and at all times.” Snyder
v. Phelps, 562 U.S. 443, 456 (2011) (quoting Frisby v. Schultz,
487 U.S. 474, 479 (1988)). For example, even though an
ordinance barring “any noise or diversion which disturbs or
tends to disturb” learning during school hours curbed speech at
a time and place that the protesters reasonably preferred, the
Supreme Court upheld it as a fitting means to serve important
interests in avoiding disruption of classwork inside the
building. Grayned v. City of Rockford, 408 U.S. 104, 108, 117-
21 (1972). The Court likewise sustained an ordinance banning
picketing “directed at a single residence” as appropriately
tailored to the city’s interest in “protecting the well-being,
tranquility, and privacy of the home.” Frisby, 487 U.S. at 483-
84, 488. A ban on sleeping in national parks comported with
the First Amendment even when “applied to prohibit
demonstrators from sleeping in Lafayette Park and the
[National] Mall . . . to call attention to the plight of the
homeless,” because it was content-neutral and sufficiently
tailored to the “Government’s substantial interest in
maintaining the parks in the heart of our Capital in an attractive
and intact condition.” Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 289, 296 (1984).
The right to gather together in public spaces, call out
injustice, and demand action is fundamental to a free and
democratic society. Throughout our history, the people and
groups that make up our fractious pluralism have shown up and
spoken out. The First Amendment protects those rights. But it
does not privilege expression irrespective of its timing,
location, or mode. Our Constitution provides for ordered
liberty. Even though the June 1 Order limited some valuable
18
opportunities for public speech and association, the public
interest in keeping the peace by responding effectively to a
surge in vandalism, arson, and looting was not directed at the
suppression of expression, and it justified the June 1 Order’s
temporary restriction on nighttime activity in public spaces.
B.
We next consider Plaintiffs’ vagueness challenge. The
June 1 Order stated in plain terms that it generally forbade
people from venturing out in public during curfew hours on
June 1 and 2, 2020. The relevant portion of the Order states:
“During the hours of the curfew, no person, other than persons
designated by the Mayor, shall walk, bike, run, loiter, stand, or
motor by car or other mode of transport upon any street, alley,
park, or other public place within the District.” J.A. 32 (June
1 Order). The Order thereby gave fair notice to members of the
public of the conduct it prohibited and afforded sufficient
guidance to law enforcement.
Plaintiffs’ sole vagueness challenge is that the June 1
Order “seeks to criminalize ‘loitering.’” Appellants’ Br. 18.
They argue that inclusion of “loitering” on the list of prohibited
public activities rendered the order fatally vague. A statute is
unconstitutionally vague under the Due Process Clause if it
“fails to provide a person of ordinary intelligence fair notice of
what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.” United
States v. Williams, 553 U.S. 285, 304 (2008). Plaintiffs see
both types of vagueness in the Order: They assert that that an
ordinary person would not know what conduct counts as
prohibited “loitering,” and that the Order “leav[es] it up to the
police to decide what the term ‘loitering’ means.” Appellants’
Br. 18-19 (emphasis in original). Both arguments miss the
mark. The June 1 Order did not target loitering in isolation,
19
and the order’s temporary ban on all kinds of nighttime public
activity made “clear what the [Order] as a whole prohibits.”
Grayned, 408 U.S. at 110.
First, the Order gave notice “that will enable ordinary
people to understand what conduct it prohibits.” City of
Chicago v. Morales, 527 U.S. 41, 56 (1999). “Loiter” means
“to remain in an area for no obvious reason,” Loiter, MERRIAM-
WEBSTER’S D ICTIONARY, https://perma.cc/JW2F-27RW (last
updated July 3, 2023), or “to linger idly about a place,” Loiter,
OXFORD ENGLISH D ICTIONARY , https://perma.cc/PBK7-
YQXB (last updated July 3, 2023). To determine whether the
statute provided fair notice, we read “loiter” in context,
applying the noscitur a sociis canon: “a word is known by the
company it keeps.” See United States v. Bronstein, 849 F.3d
1101, 1108 (D.C. Cir. 2017). Ordinary people reading “loiter”
among the list of other activities the curfew order prohibited,
including “walk,” “run,” and “stand,” would understand that
they were generally prohibited from being in a public place
during curfew hours. Indeed, Plaintiffs allege that they were
“standing” in a public place after curfew hours, J.A. 37 (Compl.
¶ 8), so their conduct would have been prohibited even if the
activities the order listed had not included loitering. See
Holder v. Humanitarian L. Project, 561 U.S. 1, 20 (2010);
Hodge v. Talkin, 799 F.3d 1145, 1172 (D.C. Cir. 2015).
Second, the Order did not “authorize” or “encourage
arbitrary and discriminatory enforcement.” Morales, 527 U.S.
at 56. Including loitering in a list of prohibited activities that
also generally bars walking, biking, running, standing, or
“motor[ing] by car or other mode of transport” in any public
place during curfew hours, J.A. 32 (June 1 Order), does not
confer “vast discretion” on the police to draw their own
distinctions between violative and lawful conduct. Morales,
527 U.S. at 61. If anything, including a prohibition on loitering
20
in the curfew order reduced police discretion by filling any
potential gaps in the ban on public activities. “As always,
enforcement requires the exercise of some degree of police
judgment, but, as confined, that degree of judgment here is
permissible.” Grayned, 408 U.S. at 114.
The challenged curfew order is wholly different from
“loitering” provisions that empower officers to make unguided
distinctions between criminal loitering and innocent hanging
out. Plaintiffs claim that “[e]very Court” to have addressed “a
statute with the term ‘loitering’ in it” has held it to be
unconstitutionally vague. Appellants’ Br. 19 (emphasis in
original). They are mistaken. The word “loitering” is not a
First Amendment poison pill. In Shuttlesworth v. City of
Birmingham, 382 U.S. 87 (1965), for example, the Supreme
Court rejected a vagueness challenge to a law making it
unlawful “to so stand, loiter or walk upon any street or sidewalk
in the city as to obstruct free passage” insofar as the statute had
been authoritatively construed to apply to persons who
“block[ed] free passage.” Id. at 88, 91. And the cases
invalidating laws that criminalized loitering, including City of
Chicago v. Morales, 527 U.S. 41 (1999), and Papachristou v.
City of Jacksonville, 405 U.S. 156 (1972), did not involve
general curfews. Rather, they addressed provisions targeting
“loitering” as such, framed in ways that conferred
impermissible discretion on arresting officers.
The ordinance in Morales defined “loitering” in subjective
terms, as “remain[ing] in any one place with no apparent
purpose,” and banned two or more “criminal street gang
members” from “loitering” in a public place after a police
officer ordered them to disperse. 527 U.S. at 47. Because it
gave police officers “absolute discretion” to make “inherently
subjective” distinctions between people with an “apparent
purpose” and those without one, the Court held the ordinance
21
unconstitutionally vague. Id. at 61-62, 66. The June 1 Order,
however, requires no law enforcement officer’s assessment of
anyone’s “apparent purpose.”
The ordinance challenged in Papachristou v. City of
Jacksonville, 405 U.S. 156, similarly invited an
unconstitutional degree of discretion on the part of police
enforcing its “loitering” ban. The ban applied to people the
ordinance classed as “vagrants,” including “common
drunkards,” “habitual loafers,” and “persons wandering or
strolling around from place to place without any lawful purpose
or object.” Id. at 156 n.1, 162 (internal citations and quotation
marks omitted). Those terms were not objective indicia of
observable behavior that could give fair notice to potential
violators or inform arresting officers. Id. at 162. The June 1
Order, in contrast, prohibited virtually all activities in public
spaces during curfew hours, not an undefined and indistinct
subset of activities deemed somehow nefarious. Because it
thereby provided adequate notice to the public and controlled
officers’ discretion, we hold it was not unconstitutionally
vague.
C.
Plaintiffs’ remaining claims depend on their primary
contentions that the curfew was an unjustified speech
restriction or wholly vague, so legally void. If the curfew order
they violated was unlawful, they claim, their arrests infringed
the Fourth Amendment prohibition against “unreasonable . . .
seizures,” U.S. CONST . amend. IV, and the arresting officers’
contact with them amounted to assault and battery. But
Plaintiffs do not dispute that they were present in public in
violation of the terms of the curfew, which was justification
enough. The legal insufficiency of the common law and Fourth
22
Amendment claims follows from our dismissal of the First
Amendment claim.
“Constitutional and common law claims of false arrest are
generally analyzed as though they comprise a single cause of
action.” Amobi v. D.C. Dep’t of Corrections, 755 F.3d 980,
989 (D.C. Cir. 2014). We analyze the legal sufficiency of both
types of claims by asking whether, assuming the truth of the
facts in the complaint, the police had probable cause to arrest.
Id. Probable cause justifies arrest “where the facts and
circumstances within the arresting officer’s knowledge, of
which [the officer] had reasonably trustworthy information, are
sufficient in themselves to warrant a reasonable belief that an
offense has been or is being committed.” Id. at 990 (quoting
Rucker v. United States, 455 A.2d 889, 891 (D.C. 1983)); see
Maryland v. Pringle, 540 U.S. 366, 371 (2003). Probable cause
is a question of law for the court to decide “where the facts are
undisputed.” Amobi, 755 F.3d at 990; see Ornelas v. United
States, 517 U.S. 690, 696-97 (1996).
Plaintiffs allege that they were “standing” in public at
11:00 P.M. on June 1, four hours after the curfew ended. J.A.
37 (Compl. ¶ 8). That allegation alone confirms that the police
had probable cause to arrest Plaintiffs for violating the June 1
Order, under which no person was allowed to “stand” in any
“public place within the District” after 7:00 P.M. on June 1.
J.A. 32. Plaintiffs argue that the police should have given them
an opportunity to “comply with the curfew law by leaving the
scene.” Appellants’ Br. 25. But, unlike a temporary curfew
order issued by Mayor DeBlasio in New York City around the
same time, see In re N.Y.C. Policing During Summer 2020
Demonstrations, 548 F. Supp. 3d 383, 408, 416 (S.D.N.Y.
2021), the District of Columbia’s June 1 Order did not require
police to give curfew violators an opportunity to avoid arrest
by agreeing to disperse. Plaintiffs accordingly fail to state
23
claims of arrest without probable cause in violation of the
Fourth Amendment, or of common-law false arrest.
Plaintiffs’ claims of excessive force in violation of the
Fourth Amendment and their common-law assault and battery
claims also fall short. We evaluate claims of excessive force
by considering whether an officer’s use of force was
“reasonable” under the “facts and circumstances of [the]
particular case . . . judged from the perspective of a reasonable
officer.” Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428
(2017) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
The parallel common-law claims turn on whether an officer
committed assault through “an intentional and unlawful
attempt or threat, either by words or acts, to do physical harm
to the plaintiff” or committed battery through “an intentional
act that causes a harmful or offensive bodily contact.” Smith v.
District of Columbia, 882 A.2d 778, 787 (D.C. 2005) (quoting
Holder v. District of Columbia, 700 A.2d 738, 741 (D.C.
1997)). Under D.C. law, a “police officer has a qualified
privilege to use reasonable force to effect an arrest, provided
that the means employed are not in excess of those which the
[officer] reasonably believes to be necessary.” Scales v.
District of Columbia, 973 A.2d 722, 730 (D.C. 2009) (quoting
Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C.
2007)).
Plaintiffs allege that, by arresting them, the officers
“touch[ed] [them] without [their] consent and without having
legal justification.” J.A. 39 (Complaint ¶ 24). But, again, the
officers had legal justification to arrest Plaintiffs: The officers
saw them gathered in public after 11:00 P.M., in violation of
the constitutionally valid June 1 Curfew Order. Plaintiffs make
the conclusory allegation that the officers “use[d] excessive
force while arresting [them],” J.A. 40 (Compl. ¶ 33), but their
complaint describes no unconsented touching or use of force
24
beyond the bare fact of their arrests. Plaintiffs included an
allegation that their overnight detention in handcuffs injured
their wrists, but they sued the arresting officers, not persons
responsible for the conditions of their detention. That
allegation thus does not support an excessive force claim
against these Defendants. We accordingly affirm the district
court’s dismissal of Plaintiffs’ claims of excessive force and
assault and battery.
D.
Finally, Plaintiffs argue that the June 1 Order violated their
fundamental right to travel, but that claim is forfeited.
Plaintiffs neither pleaded nor pressed a right-to-travel claim in
the district court. Br. in Opp’n to Defs.’ Mot. to Dismiss at 4-
5, 7-8, Tinius v. Choi, No. 21-cv-907, 2022 WL 899238(D.D.C. Mar. 28, 2022).1 We have previously declined to
resolve the unsettled question whether the Constitution protects
a right to intrastate travel. Hutchins, 188 F.3d at 536-41(plurality opinion). The circuits are split on the point, and the
Supreme Court has yet to resolve it. See Cole v. City of
Memphis, 839 F.3d 530, 535 & n.3 (6th Cir. 2016) (collecting
cases); Morales, 527 U.S. at 53-54 (three-justice plurality)
(describing “an individual’s decision to remain in a public
1
Plaintiffs Ajokubi, Maradiga, Smith, and Southee filed opposition
briefs identical to Tinius’ in their cases. Br. in Opp’n to Defs.’ Mot.
to Dismiss, Ajokubi v. Maneechai, No. 21-cv-909; Br. in Opp’n to
Defs.’ Mot. to Dismiss, Maradiga v. Kern, No. 21-cv-1460; Br. in
Opp’n to Defs.’ Mot. to Dismiss, Smith v. Perez, No. 21-cv-986; Br.
in Opp’n to Defs.’ Mot. to Dismiss, Southee v. Varga, No. 21-cv-
1461. Plaintiffs Brown and Green filed different opposition briefs,
but those, too, made no mention of the fundamental right to interstate
travel. Br. in Opp’n to Defs.’ Mot. to Dismiss, Brown v. Choi, No.
22-cv-441; Br. in Opp’n to Defs.’ Mot. to Dismiss, Green v. Smith,
No. 21-cv-2377.
25
place of his choice” as a fundamental right protected by the
Due Process Clause). Given Plaintiffs’ failure to preserve the
issue, the unsettled state of the law, and the officers’
entitlement to qualified immunity against claims not clearly
established, Pearson v. Callahan, 555 U.S. 223, 231 (2009),
we decline to exercise our discretion to consider the
unpreserved claim of violation of an asserted right to travel.
* * *
For the foregoing reasons, we affirm the district court’s
judgment dismissing Plaintiffs’ claims.
So ordered.