RICHARD Z. DUFFEE v. DISTRICT OF COLUMBIA

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 11-CT-1550 to 11-CT-1566

RICHARD Z. DUFFEE, ET AL., APPELLANTS,

V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CDC-6535-11, etc.)

(Hon. Russell F. Canan, Trial Judge)

(Argued October 22, 2013 Decided July 3, 2014)

Mark L. Gladstone was on the brief for appellants.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,

Solicitor General, Rosalyn C. Groce, Deputy Solicitor General, and John J.

Woykovsky, Assistant Attorney General, were on the brief for appellee.

Before BECKWITH and MCLEESE, Associate Judges, and NEWMAN, Senior

Judge.

MCLEESE, Associate Judge: Appellants were arrested during a protest near

the White House and convicted of failing to obey a lawful order (“FTO”), in

violation of 18 DCMR § 2000.2 (2011), and blocking passage, in violation of D.C.

Code § 22-1307 (2012 Repl.). The primary issue on appeal is whether the trial

2

court erred by holding that the offense of blocking passage does not require proof

that the defendant breached the peace. We agree with the trial court and therefore

affirm appellants’ convictions for that offense.

I.

We view the evidence in the light most favorable to the verdict. See, e.g.,

United States v. Bamiduro, 718 A.2d 547, 548 (D.C. 1998). So viewed, the

evidence established the following. In March 2011, Mr. Duffee, his sixteen

co-appellants, and approximately 150 others marched from Lafayette Park to the

White House sidewalk as part of an organized anti-war demonstration. The

National Park Service, which polices the White House area in conjunction with the

Secret Service, concluded that the demonstrators’ conduct was unlawful for two

reasons: the group did not have a permit to demonstrate on the White House

sidewalk, and members of the group were demonstrating “in a stationary manner”

while carrying signs. The demonstrators locked arms and chanted, and some

members of the group sat down. Because of the size and density of the group, this

conduct impeded the flow of foot traffic in the area and prevented people

unassociated with the demonstration from having free access to the White House

sidewalk.

3

The National Park Service set up a perimeter, informed the group that the

area was closed, and advised the demonstrators to leave. Using a loudspeaker, an

officer read a scripted warning that informed the demonstrators that (1) the group

was in violation of regulations governing the area; (2) the sidewalk was closed; and

(3) all persons who remained in the closed portion of the sidewalk would be

arrested. The officer read the warning three times. The Park Service subsequently

arrested 113 people who remained inside the perimeter, including appellants.

The District charged appellants with FTO and blocking passage. After a

three-day bench trial, the Superior Court found each appellant guilty of both

charges.

On appeal, appellants raise two claims. First, they argue that their

convictions for FTO and blocking passage based on a single course of conduct

merge into a single offense under the Double Jeopardy Clause. The District

concedes that point. We therefore reverse appellants’ convictions for FTO. See,

e.g., Dickerson v. United States, 620 A.2d 270, 274 n.6 (D.C. 1993) (accepting

4

government’s concession that one of two merging offenses should be reversed).1

Second, appellants argue that breach of peace is an element of blocking passage.

We conclude to the contrary.

II.

This court “reviews de novo the elements of a crime which the prosecution

must prove” to support a conviction. Sutton v. United States, 988 A.2d 478, 482

(D.C. 2010). We affirm the trial court’s holding that blocking passage does not

require proof of breach of the peace.

In pertinent part, the statute prohibiting the blocking of passages states:

It is unlawful, alone or in concert with others, to crowd,

obstruct, or incommode the use of any street, avenue,

alley, road, highway, or sidewalk, or the entrance of any

public or private building or enclosure or the use of or

passage through any public conveyance, and to continue

or resume the crowding, obstructing, or incommoding

1

Because the trial court imposed concurrent sentences on each appellant for

FTO and blocking passage, there is no need for resentencing. Collins v. United

States, 73 A.3d 974, 985 (D.C. 2013). The reversal of the FTO convictions

requires set-aside of the $50 assessment imposed upon each appellant. Cf. United

States v. Lloyd, 983 F. Supp. 738, 744 (N.D. Ill. 1997) (reversal of conviction on

Double Jeopardy grounds requires set-aside of special assessment). We therefore

remand for entry of new judgments of conviction based solely on blocking

passage.

5

after being instructed by a law enforcement officer to

cease the crowding, obstructing, or incommoding.

D.C. Code § 22-1307. As appellants acknowledge, this provision does not by its

terms require a breach of the peace.

The legislative history of the provision demonstrates that the District of

Columbia Council intended that no such requirement be read into the provision.

The provision was enacted in its current form in 2011. D.C. Act 18-693, § 302 (a),

58 D.C. Reg. 640, 644 (2011) (emergency legislation); D.C. Act 19-45, § 302 (a),

58 D.C. Reg. 3701, 3705 (2011) (second emergency legislation); D.C. Act 18-699,

§ 2 (a), 58 D.C. Reg. 731 (2011) (permanent legislation). The previous version of

§ 22-1307 provided,

It shall not be lawful for any person or persons within the

District of Columbia to congregate and assemble in any

street . . . or any park or reservation . . . and engage in

loud and boisterous talking or other disorderly conduct,

or to insult or make rude or obscene gestures or

comments or observations on persons passing by, or in

their hearing, or to crowd, obstruct, or incommode the

free use of such street . . . .

D.C. Code § 23-1307 (2001). Although that version also did not by its terms

require proof of a breach of the peace, such a requirement had been read into the

statute as applied in certain circumstances but not others. Compare Adams v.

United States, 256 A.2d 563, 564-565 (D.C. 1969) (imposing breach-of-peace

6

element in case involving assembly on public street, to prevent punishment of

“sightseers, tourists, or school children” who innocently obstruct use of street), and

Williams v. District of Columbia, 136 U.S. App. D.C. 56, 419 F.2d 638 (1969) (en

banc) (imposing breach-of-peace element in case involving use of profane

language, to avoid potential First Amendment free-speech concerns) (interpreting

D.C. Code § 22-1107 (1967), codified as amended at D.C. Code § 22-1307 (2012

Repl.)), with Tetaz v. District of Columbia, 976 A.2d 907, 910-12 (D.C. 2009)

(refusing to impose breach-of-peace element in case involving intentional blocking

of entry into congressional office building).

Before the revised provision was enacted, a working group studied how best

to revise the earlier version of § 22-1307, as well as other related provisions. See

D.C. Council, Committee on Public Safety & the Judiciary, Report on Bill 18-425,

the Disorderly Conduct Amendment Act of 2010, at 2-3 (Nov. 18, 2010). That

working group, the Disorderly Conduct Arrest Project Subcommittee of the

Council for Court Excellence, recommended that § 22-1307 be revised to require

that the defendant disregard a police order to cease the blocking of passage.

Committee Report add. to attachment 2, at 7 (Disorderly Conduct Arrest Project

Subcomm. of the Council for Court Excellence, Revising the District of Columbia

Disorderly Conduct Statutes: A Report and Proposed Legislation (Oct. 14, 2010)).

7

The Subcommittee Report stated that the proposed revision contained “no

requirement that such conduct must be intended or likely to provoke a breach of

the peace . . . .” Id.

The Committee on Public Safety and the Judiciary indicated that it had

“relie[d] heavily on the . . . Subcommittee’s report and draft legislative language.”

Committee Report at 3. Although the D.C. Council changed the wording of

§ 22-1307 in some respects from the version proposed by the Subcommittee, the

Committee Report explained the reasons for those changes. Committee Report at

6-7. The Committee Report did not suggest that any of the changes were relevant

to the question whether a breach-of-the-peace element should be read into the

revised statute. Id.

In sum, the legislative history of the revised version of § 22-1307 confirms

what the plain language of the provision suggests: the D.C. Council did not intend

to impose a breach-of-the-peace element. See, e.g., Carter v. United States, 591

A.2d 233, 234 (D.C. 1996) (adopting statutory interpretation consistent with plain

language and confirmed by legislative history).

8

Appellants make three arguments in support of the view that a breach-of-the-

peace element should be read into the revised version of § 22-1307. We do not

find those arguments persuasive.

First, appellants argue that the revised version of § 22-1307 should be

interpreted to carry forward the breach-of-the-peace element that had been read

into the previous version of the provision. As we have previously noted, however,

prior case law did not treat breach of the peace as an invariable requirement under

the previous version of § 22-1307. Rather, such a requirement was read into the

provision in certain circumstances but not others. See supra pages 5-6. In any

event, we see no basis to interpolate a breach-of-the-peace element into the current

version of § 22-1307, given the absence of support for that requirement in the

statutory text and the clear indications that the legislature did not intend to impose

such a requirement. Cf., e.g., 1618 Twenty-First Tenants’ Ass’n, Inc. v. Phillips

Collection, 829 A.2d 201, 206-07 (D.C. 2003) (declining to adopt interpretation of

statute that legislative history indicated D.C. Council had considered and

“expressly rejected”).

Second, appellants suggest that “serious constitutional problems” would be

presented unless a breach-of-the-peace requirement were read into the revised

9

version of § 22-1307. Appellants cite no authority, however, indicating that a

serious constitutional problem is presented by a statute that forbids people to

continue to block passage on public streets after the police have ordered them to

cease doing so. Moreover, the principle that statutes should be construed to avoid

serious constitutional problems does not authorize courts to interpolate into a

provision a requirement that is not supported by statutory text and that was

consciously rejected by the legislature that enacted the provision. See Thompson v.

United States, 59 A.3d 961, 966 n.12 (D.C. 2013) (declining to apply doctrine of

constitutional avoidance “[g]iven the clarity of the Council’s purpose”).2

Finally, appellants suggest that the Subcommittee Report inaccurately

described the law in this jurisdiction when it said, “The courts have ruled that a

real or threatened breach of the peace is not necessary in order to criminalize this

type of disorderly conduct.” The sentence in the Subcommittee Report is

ambiguous at worst. Read narrowly, it is accurate, because our decision in Tetaz

2

On appeal, appellants do not challenge the constitutionality of § 22-1307,

either facially or as applied. Accordingly, we do not address the issue. See, e.g.,

In re Rips, 947 A.2d 1161, 1163 (D.C. 2008) (declining to consider constitutional

issue that appellant did not raise and parties had not briefed). To the extent that

appellants attempted to raise the issue at oral argument, we generally do not

consider points raised for the first time on appeal at oral argument. Bliss v. Bliss,

733 A.2d 954, 960 n.13 (D.C. 1999); Ramos v. United States, 569 A.2d 158, 162

n.5 (D.C. 1990).

10

established that proof of breach of the peace was not invariably required to

establish that a defendant unlawfully blocked passage under the previous version

of § 22-1307. The sentence would be inaccurate only if it were read broadly to

suggest that proof of breach of the peace was never required under the prior

version of § 22-1307. Any imprecision in the sentence provides no basis for

disregarding the plain language of the provision and the clear purpose of the

legislature. First, we assume that the legislature has a correct understanding of the

law. Robinson v. Georgetown Ct. Condo, LLC, 39 A.3d 1286, 1289-90 & n.14

(D.C. 2012). Moreover, even if it were clear that the legislature was working from

a mistaken understanding of the law, we normally would nevertheless be required

to give effect to the statutory text and the clear legislative intent. Cf. Brown v.

General Servs. Admin., 425 U.S. 820, 828 (1961) (“Whether that understanding of

Congress was in some ultimate sense incorrect is not what is important in

determining the legislative intent . . . . [T]he relevant inquiry is not whether

Congress correctly perceived the then state of the law, but rather what its

perception of the state of the law was.”).

We conclude that the trial court correctly declined to read a breach-of-the-

peace element into the current version of § 22-1307. We therefore affirm

appellants’ convictions for blocking passage. We reverse appellants’ convictions

11

for FTO and remand for entry of judgments based solely on appellants’ convictions

for blocking passage.

So ordered.