ANTOINETTE BOLZ v. DISTRICT OF COLUMBIA

District of Columbia

Court of Appeals

Nos. 14-CT-956 to 14-CT-967

DEC - 8 2016

ANTOINETTE BOLZ, et al.,

Appellants,

v. CDC-2624-12; CDC-2625-12;

CDC-2626-12; CDC-2642-12;

DISTRICT OF COLUMBIA, CDC-2643-12; CDC-2648-12;

Appellee. CDC-2651-12; CDC-2652-12;

CDC-2654-12; CDC-2656-12;

CDC-2659-12; CDC-2661-12

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: BLACKBURNE-RIGSBY and EASTERLY, Associate Judges; and

STEADMAN, Senior Judge.

JUDGMENT

This case came to be heard on the transcript of record and the briefs filed, and

was argued by counsel. On consideration whereof, and as set forth in the opinion filed

this date, it is now hereby

ORDERED and ADJUDGED that the protesters’ convictions under the

Crowd and Traffic Control Regulation are reversed, and protester David Givens’s

conviction for indecent exposure is affirmed.

For the Court:

Dated: December 8, 2016.

Opinion by Associate Judge Catharine Easterly.

Opinion by Senior Judge John Steadman, concurring in judgment.

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

12/8/16

14-CT-956 to 14-CT-967

ANTOINETTE BOLZ, ET AL., APPELLANTS

V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(Nos. CDC-2624-12, CDC-2625-12, CDC-2626-12, CDC-2642-12, CDC-2643-12,

CDC-2648-12, CDC-2651-12, CDC-2652-12, CDC-2654-12, CDC-2656-12,

CDC-2659-12, CDC-2661-12)

(Hon. Elizabeth Carroll Wingo, Magistrate Judge)

(Hon. Heidi M. Pasichow, Associate Judge)

(Argued December 3, 2015 Decided December 8, 2016)

Jeffrey L. Light for appellants.

John D. Martorana, Assistant Attorney General, with whom Karl A. Racine,

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General,

Rosalyn Calbert Groce, Deputy Solicitor General, and John J. Woykovsky,

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

Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and

STEADMAN, Senior Judge.

Opinion by Senior Judge STEADMAN, concurring in the judgment, at page

30.

2

EASTERLY, Associate Judge: In the fall of 2011, Occupy D.C. protesters

began demonstrating in McPherson Square, a federal park. For weeks, they

remained there with the tacit, if not express, permission of the federal authorities.

Then, one morning in early December, they assembled a wooden structure in the

park, the “Occubarn.” The United States Park Police told the protesters to take it

down. The protesters did not. After an all-day standoff, the police cleared the

area of the Occubarn and tore it down. In the course of these events, the police

arrested a number of protesters for failing to obey an order to vacate a structure

presumptively deemed unsafe under the District’s building regulations. These

regulations do not apply to federal land, however, and the District of Columbia

prosecuted these protesters under a different regulation—the Crowd and Traffic

Control regulation—which makes it a crime to fail to obey a crowd and traffic

clearing order. The District also prosecuted one protester, David Givens, for

indecent exposure and disorderly conduct.

As a group, the protesters challenge their Crowd and Traffic Control

convictions on grounds that the evidence was legally insufficient to establish that

that they disobeyed a legitimate crowd and traffic clearing order. We agree. The

Crowd and Traffic Control regulation does not authorize or require compliance

with police orders to clear people from any public space at any time. Rather, the

3

regulation only applies “[w]hen fires, accidents, wrecks, explosions, parades, or

other occasions cause or may cause persons to collect” in the District’s public

thoroughfares; and these “emergency occasion[s]” only empower police to issue,

and demand compliance with, orders “necessary for the purpose of affording a

clearing” of those thoroughfares to advance one of the listed objectives of the

regulation. 24 DCMR §§ 2100.1–.2 (1983). Although these objectives broadly

include the “protection of persons and property,” § 2100.1 (e), the purpose asserted

by the District for the clearing order in this case, there must be a nexus between

this objective and clearing crowds on the District’s public thoroughfares.

Moreover, the safety concerns at issue must be substantiated.

We conclude that, although the construction of the Occubarn constituted an

“emergency occasion,” the protesters did not fail to comply with a “necessary

order.” The order was not “necessary for the purpose of affording a clearing” of a

public thoroughfare because it cleared people from a public park. And, it was not

“necessary . . . for the protection of persons and property,” in the absence of

evidence that the police had reason to believe the Occubarn posed a danger to

anyone, in particular vis-à-vis crowds on public thoroughfares. As no reasonable

factfinder could conclude that the protesters had an obligation to obey the order

4

issued under the Crowd and Traffic Control regulation, we reverse their

convictions thereunder.1

Mr. Givens separately challenges his conviction for indecent exposure,

arguing that D.C. Code § 22-1312 (2016 Supp.) is unconstitutionally overbroad.

Concluding that the statute is not substantially overbroad in relation to its plainly

legitimate sweep, we affirm his conviction.

I. Facts and Procedural History

In the fall of 2011, protesters across the country “occupied” public spaces

“to bring awareness to the[ir] concerns about United States economic policy,

wealth disparity and the political process.”2 At the beginning of October, the

Occupy D.C. movement established its base of operations in McPherson Square, a

1

Because we conclude that the protesters’ convictions must be reversed on

sufficiency grounds, we need not address their arguments that the District’s Crowd

and Traffic Control regulation is unconstitutionally overbroad or that the trial court

committed reversible error by not sanctioning the government under Rule 16 for

failing to preserve the Occubarn as evidence.

2

Henke v. Dep’t of the Interior, 842 F. Supp. 2d 54, 56 (D.D.C. 2012)

(alteration in original).

5

federal park close to the District’s corporate lobbying corridor on K Street NW.3

The record does not establish whether the protesters had a permit to occupy the

park,4 but it appears that federal authorities did not challenge their presence in the

park until December 4, 2011, when the events leading to the convictions now on

appeal took place.5

Before sunrise that morning, Occupy protesters began to assemble a wooden

structure in the park. Resembling a barn, and thus earning the moniker “the

Occubarn,” the approximately 16 by 24 by 30 foot structure consisted of four

modular framing pieces. The Occubarn was meant to be both functional, to protect

the protesters from winter weather, and symbolic, to represent the foreclosure

crisis, a central concern of their movement. Although the protesters planned to add

walls and a roof, the framed space was largely open.

Later that morning, the U.S. Park Police arrived in McPherson Square and

informed the protesters that the Occubarn had to be taken down. Apparently aware

3

See id. at 57.

4

It is possible that they did not need one. See 36 C.F.R. § 7.96 (g)(2)(ii)(B)

(2011) (exempting from the permit requirement, under certain circumstances,

demonstrations in McPherson Square of no more than five hundred people).

5

See Henke, 842 F. Supp. 2d at 57–58.

6

that federal regulations allow the use of temporary structures during

demonstrations,6 the protesters offered to show the police that the Occubarn was

not permanent and could be taken apart; but according to one protester, the police

“didn’t seem interested in that at all.” The police gave the protesters one hour to

discuss the removal of the structure. The protesters held a meeting within the

Occubarn but could not reach a consensus about how to proceed. About midday,

ten to fifteen U.S. Park Police officers, some on horses, partially surrounded the

structure. The mounted officers then rode into it, causing some protesters to climb

into the rafters to get out of their way. Other protesters left the area of the

Occubarn.

In the meantime, an inspector from the District’s Department of Consumer

and Regulatory Affairs (DCRA), received a request for assistance at McPherson

Square. Arriving around 12:30 p.m., the inspector examined the Occubarn and

saw no signs of imminent danger; instead he noted that “the building appeared

pretty solid.” Nevertheless, because it seemed to have been erected without a

building permit, he determined, pursuant to the District’s building regulations, that

it “should not be occupied.” He came to this conclusion even though (as he later

6

See 36 C.F.R. § 7.96 (g)(5)(vi) (authorizing under certain circumstances

“temporary structures [to] be erected for the purpose of symbolizing a message or

meeting logistical needs”).

7

acknowledged at trial) the District’s building regulations do not apply to federal

property. See 12A DCMR § 101.5 (2008) (exempting federal property from the

District’s building regulations). He informed the on-site U.S. Park Police

commander that the Occubarn should be “posted,” i.e., a “standard danger placard”

should be affixed to the structure “indicating that it’s not safe.”7 But the

commander asked him to wait until the police had “done some more crowd control

activities.”

Lieutenant Robert Lachance of the U.S. Park Police arrived at McPherson

Square and assumed command of the scene late that afternoon. At that point, there

were still about two dozen people inside the Occubarn. The lieutenant told them

that “an inspector was going to come and look at the structure to see if it was safe.”

He also told them that if the remaining protesters were required to leave the

Occubarn, he would give them multiple warnings and anyone who left before he

gave the final warning would not be arrested.

7

At trial, the inspector indicated it was his understanding that under 12A

DCMR § 115.1 of the District’s building regulations, the failure to complete the

permitting process and obtain a certificate of occupancy rendered a structure

unsafe as a matter of law.

8

Approximately four hours after the inspector arrived at McPherson Square,

he posted the Occubarn. At this point, the police put tape around the Occubarn,

leaving the doorway on the south side open so that people could exit if they chose.

Lieutenant Lachance then ordered the protesters to ”vacate the area,” issuing the

same warning three times: “Attention. This is Lieutenant Lachance of the United

States Park Police. This structure has been deemed unsafe by DC[RA]. You must

vacate the area or be arrested.”8 None of the protesters left the structure and the

police eventually arrested them all.

One of the protesters, Mr. Givens, had climbed up into the rafters of the

Occubarn and resisted multiple attempts by the police to remove him. While there,

he developed an urgent need to urinate and relieved himself off the top of the

structure in full view of the people on site. Some time later, Mr. Givens complied

with the police requests, came down from the rafters, and was arrested. After the

police completed the arrests, they bulldozed the Occubarn and discarded the debris.

8

This was the lieutenant’s best recollection at trial of the warning he issued.

Before trial, the District had represented that he specifically cited 12 DCMR §

115.1 in his warning to the protesters.

9

The District charged all twelve of the protesters involved in this appeal9 with

failing to obey a crowd and traffic clearing order under the District’s Crowd and

Traffic Control regulation, 24 DCMR § 2100.2. Mr. Givens was additionally

charged with indecent exposure10 and disorderly conduct.11

The protesters moved to dismiss the Crowd and Traffic Control charges,

arguing that 24 DCMR § 2100.2 is unconstitutionally vague and overbroad. The

magistrate judge presiding over the case denied the motion, reasoning that

§ 2100.2 must be read in conjunction with § 2100.112 and “applies only in very

9

Antoinette Bolz, David Givens, Richard Lehner, Nathaniel Gorecki, Sariel

Lehyani, Georgia Pearce, Caitlin McClure, Emm Talarico (named Marc Smith at

the time of trial), Andrew Veysey, Kelly Mears, Sophie Vick, and George Parsons.

10

D.C. Code § 22-1312 (2016 Supp.).

11

D.C. Code § 22-1321 (e) (2016 Supp.) (“It is unlawful for a person to

urinate . . . in public, other than in a urinal or toilet.”).

12

24 DCMR § 2100.1 first provides:

When fires, accidents, wrecks, explosions, parades, or

other occasions cause or may cause persons to collect on

the public streets, alleys, highways, or parkings, the

Chief of Police, an inspector or captain of the police, or

an officer acting for him or her may establish an area or

zone that he or she considers necessary for the purpose of

affording a clearing for the following:

(a) The operation of firemen or policemen;

(b) The passage of a parade;

(c) The movement of traffic;

(continued…)

10

specific circumstances.” The trial court also rejected the protesters’ argument that

the Crowd and Traffic Control regulation did not authorize the police to clear a

public park, like McPherson Square. Defense counsel had argued that the

regulation applied only to “public streets, alleys, highways, or parkings,”13 not to

parks. But the magistrate judge concluded that the “explicit language” of the

regulation did not require “the failure to obey the order . . . to occur . . . on those

areas.” In the same pretrial motion, Mr. Givens challenged the indecent exposure

statute as unconstitutionally overbroad; the magistrate judge denied that challenge

as well.

After a five-day bench trial, the magistrate judge announced her verdict.

Acknowledging that there was no dispute that the protesters had failed to obey

Lieutenant Lachance’s order to clear the area of the Occubarn, she explained that

the protesters’ duty to comply with the order turned on whether the order itself was

(…continued)

(d) The exclusion of the public from the vicinity of a riot,

disorderly gathering, accident, wreck, explosion, or other

emergency; and

(e) The protection of persons and property.

24 DCMR § 2100.2 then provides: “Each person present at the scene of an

emergency occasion shall comply with any necessary order or instruction of any

police officer.”

13

See infra note 18 (discussing the definition of “parking”).

11

lawful. Referencing 24 DCMR § 2100.1, the magistrate judge concluded that this

had been “an emergency occasion” and the police had issued a “necessary order”

under § 2100.2. Accordingly, the magistrate judge found the protesters guilty

beyond a reasonable doubt of failing to obey a clearing order under the Crowd and

Traffic Control regulation. The magistrate judge also found Mr. Givens guilty of

both disorderly conduct and indecent exposure because he had made an

unnecessary “display” of himself while urinating. An associate judge of the

Superior Court reviewed this verdict14 and affirmed the protesters’ convictions.

This appeal followed.

II. Analysis

A. Failure To Obey a Crowd and Traffic Control Order

The protesters argue that their convictions for failure to obey an order under

the District’s Crowd and Traffic Control regulation are unsupported by sufficient

evidence and must be reversed. In bench trials and jury trials alike, we review

14

See D.C. Code § 11-1732 (k) (2013 Repl.); Super. Ct. Crim. R. 117

(g)(1).

12

challenges to the sufficiency of evidence de novo.15 High v. United States, 128

A.3d 1017, 1020 (D.C. 2015). We examine the evidence in the light most

favorable to the government, “with due regard for the right of the . . . trier of fact[]

to weigh the evidence, to determine the credibility of witnesses, and to draw

reasonable inferences.” Nero v. United States, 73 A.3d 153, 157 (D.C. 2013). But

if the evidence so viewed “is such that a reasonable [factfinder] must have a

reasonable doubt as to the existence of any of the essential elements of the crime,”

it is insufficient and we must reverse. Rivas v. United States, 783 A.2d 125, 134

(D.C. 2001) (en banc).

The protesters were convicted under 24 DCMR § 2100.2, which states that

any “person present at the scene of an emergency occasion shall comply with any

necessary order or instruction of any police officer.” Restated, there are three

elements to this offense: (1) the defendant must be present at the scene of an

emergency occasion; (2) the police must issue a necessary order; and (3) the

defendant must fail to comply. In this case, the third element—the protesters’

noncompliance with the U.S. Park Police order to vacate the Occubarn—is

15

We owe no deference to the associate judge’s affirmance of the

magistrate judge’s order. Bradley v. District of Columbia, 107 A.3d 586, 594

(D.C. 2015) (citing Super. Ct. Crim. R. 117).

13

undisputed.16 The viability of the protesters’ convictions thus turns on whether the

District presented sufficient evidence regarding the first two elements: that the

protesters were present at the scene of an emergency occasion and that the crowd

and traffic clearing order was necessary to address it. Cf. Streit v. District of

Columbia, 26 A.3d 315, 319 (D.C. 2011) (reversing appellants’ convictions for

failure to obey a “lawful order” under 18 DCMR § 2000.2 because the government

did not present sufficient evidence that the police order was lawful).

This court has not previously considered what constitutes “an emergency

occasion” or a “necessary order” under § 2100.2, neither of which is expressly

defined in the Crowd and Traffic Control regulation. As the parties have

acknowledged throughout this litigation, however, the regulation must be read as a

whole. Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 118 (D.C. Cir.

1977) (noting that interpretation of the Crowd and Traffic Control regulation “must

be based upon reading the entire regulation rather than ‘a part or word thereof’”)

16

We note, however, that the police did not tell the protesters that the

clearing order was issued under the District’s Crowd and Traffic Control

regulation. Instead, the police directed the protesters to vacate the structure

pursuant to 12A DCMR § 115 of the D.C. building regulations. The protesters

have not argued that this discrepancy had any impact on the adequacy of the notice

they received or the legitimacy of their arrest. Thus, we do not address this issue.

14

(quoting Siegman v. District of Columbia, 48 A.2d 764, 766 (D.C. 1946)).17 Doing

so conforms to basic principles of statutory and regulatory construction. See

Washington v. District of Columbia, 137 A.3d 170, 174 (D.C. 2016)

(acknowledging that this court must “look to the provisions of the whole law”).

Reading this particular regulation as a whole is all the more appropriate because

what is now a regulation with subparts, 24 DCMR § 2100.1–.4, was an undivided

paragraph in its original version, D.C. Police Reg., art. 6, § 5a (1963).

We first examine the requirement under § 2100.2 that the defendant be

“present at the scene of an emergency occasion.” We find guidance as to the

meaning of “emergency occasion” from the original version of the regulation,

which indicated at the outset (as it still does in § 2100.1) that it applied “[w]hen

fires, accidents, wrecks, explosions, parades, or other occasions cause or may

17

In Cullinane, the United States Court of Appeals for the District of

Columbia Circuit considered vagueness and overbreadth challenges to D.C. Police

Reg., art. 6, § 5a (1963), the Crowd and Traffic Control regulation’s predecessor.

Cullinane, 566 F.2d at 117–19. Although we conclude that we need not address

the constitutional claims in this case, we find some of the statutory construction in

Cullinane persuasive authority for our analysis of what must be proved to support a

conviction for failure to obey a crowd and traffic clearing order. See M.A.P. v.

Ryan, 285 A.2d 310, 312–13 (D.C. 1971) (holding that this court is not bound by

decisions of the D.C. Circuit issued after December 29, 1971).

15

cause persons to collect on the public streets, alleys, highways, or parkings.”18

D.C. Police Reg., art. 6, § 5 (a). It then demanded compliance with clearing orders

from “every person at such an occasion,” id. (emphasis added), clearly referring

back to that opening clause.19 When the regulation was divided into its current

18

The antiquated term “parking” refers to interstitial areas of the public

thoroughfares and is not to be confused with a park. Black’s Law Dictionary

defines the term as a “strip of land, lying either in the middle of the street or in the

space between the building line and the sidewalk . . . intended to be kept as a park-

like space.” Black’s Law Dictionary (4th ed. 1951). The regulation governing the

“upkeep” of “public parking[s],” 24 DCMR § 102 (1981), defines the term, for the

purposes of that section, slightly differently as “that area of public space devoted

to open space, greenery, parks, or parking that lies between the property line,

which may or may not coincide with the building restriction line, and the edge of

the actual or planned sidewalk that is nearer to the property line,” § 102.8

(emphases added). The regulation further requires owners or occupants of

property abutting such “parkings” to maintain them. § 102.1. The government

cites both these authorities in its brief without reconciling their meaning. But

however a parking under § 2100.1 is precisely delimited, it does not extend to a

public park like McPherson Square.

19

Thus the regulation read in relevant part:

When fires, accidents, wrecks, explosions, parades, or

other occasions cause or may cause persons to collect on

the public streets, alleys, highways, or parkings . . . [a

police officer] may establish such area or zone as he

considered necessary for the purpose of affording a

clearing for: (1) the operation of fireman or policemen;

(2) the passage of a parade; (3) the movement of traffic;

(4) the exclusion of the public from the vicinity of a riot,

disorderly gathering, accident, wreck, explosion, or other

emergency; and (5) the protection of persons and

property. Every person present at the scene of such an

occasion shall comply with any necessary order or

instruction of any police officer.” Id. (emphases added).

16

subparts—§ 2100.1 (addressing the authority of the police to clear public

thoroughfares in certain circumstances) and § 2100.2 (addressing the obligation to

obey clearing orders)—the opening clause of § 2100.2 was amended to refer to

“[e]ach person at the scene of an emergency occasion.” Compare D.C. Police

Reg., art. 6, § 2 (a) (1981) (amending prior version), with 24 DCMR § 2100 (1983)

(emphasis added). We have no indication that this alteration was intended to

change the meaning of the regulation; instead it appears that the intent was to

provide a clear referent for the “occasions” in § 2100.1 that define the regulation’s

scope. Moreover, reading “emergency occasion” this way makes practical sense:

to be effective, the situational authority of the police to “afford[] a clearing” of

thoroughfares under § 2100.1 must be coextensive with police power under

§ 2100.2 to demand compliance with orders issued to effect such clearings.20

Thus, we conclude that “an emergency occasion” in § 2100.2 refers to “fires,

20

By the same token, we see no indication that the situational authority of

the police should be interpreted more broadly under § 2100.2 than under § 2100.1

to give the police the authority to issue crowd and traffic clearing orders in any

event deemed by the police to be an “emergency.” This would raise the specter of

martial law powers, not to mention potential vagueness and overbreadth problems.

See Mack v. United States, 6 A.3d 1224, 1233–34 (D.C. 2010) (courts must

construe ambiguous language so as “to avoid serious constitutional doubts”

(quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009))).

17

accidents, wrecks, explosions, parades, or other occasions [that] cause or may

cause persons to collect” in specified public areas, under § 2100.1.21

Having clarified that “emergency occasion” refers to the opening clause of

§ 2100.1, we examine that language. It contains a subject, which consists of a list

of situations (“fires, accidents, wrecks, explosions, parades”) and a catchall (“other

occasions”). It also includes a modifying verb phrase that identifies the

consequential impact of the subject occasions: that they “cause or may cause

persons to collect on the public streets, alleys, highways, or parkings.” All of the

occasions specifically enumerated in § 2100.1, “fires, accidents, wrecks,

explosions, [and] parades,” will presumptively have that impact; we assume that is

why they are enumerated. The question then is what are the “other occasions” that

“cause or may cause” people to collect in the public thoroughfares? The canon of

21

We acknowledge that describing such occasions as “emergencies,” as

§ 2100.2 does, might, at first blush, seem inapt. While “fires, accidents, wrecks,

[and] explosions” qualify, “parades” are less obviously so categorized. As noted

above, however, “emergency occasion” references the entire predicate clause of the

regulation, including “cause or may cause persons to collect” in the public

thoroughfares of the District (“public streets, alleys, highways, or parkings”).

Thus, the occasions that trigger the regulation (including parades) are fittingly

designated “emergenc[ies]” in the context of crowd and traffic control because of

their sudden and unpredictable impact on transportation and public safety. Cf.

Cullinane, 566 F.2d at 119 (noting that “the regulation deals only with

extraordinary or emergency ‘occasions’ in which substantial factors of

unpredictability exist”).

18

ejusdem generis counsels that the meaning of a catchall term is informed by the list

of words preceding it.22 Accordingly, the catchall term “other occasions”

incorporates the commonality of “fires, accidents, wrecks, explosions, [and]

parades.” Particularly when interpreted with the modifying verb phrase, these

terms reference nonroutine incidents with elements of unpredictability and

potential disturbance vis-à-vis transportation and public safety. See supra note 22.

Turning to the facts of this case, we must consider whether the police were

confronted with “an emergency occasion,” and because the construction of a barn-

like structure is not one of the enumerated occasions in § 2100.1, we examine

whether it falls within the “other occasions” catchall. The assembly of the

Occubarn, a 16 by 24 by 30 foot structure, in McPherson Square was clearly a

nonroutine event with unpredictable consequences. Whether this spectacle created

a potential disturbance such that it may have caused people to collect in public

thoroughfares is a closer question. The government argues that the presence of the

22

See, e.g., Paroline v. United States, 134 S. Ct. 1710, 1721 (2014) (“[I]t is

. . . a familiar canon of statutory construction that [catchall] clauses are to be read

as bringing within a statute categories similar in type to those specifically

enumerated.”) (second alteration in original); Markowitz v. United States, 598 A.2d

398, 408 (D.C. 1991) (holding that the catchall term “other activities” in a police

regulation defining “demonstration activity” must “refer[] to actions in the same

class” as the preceding list of words, so as “not [to] broaden the definition to

include activities of every type”).

19

Occubarn was a spectacle that drew a “very noisy and kind of chaotic” crowd and

that, “absent police activity, an even larger crowd may have gathered and spilled

into the streets.” The protesters argue that it is unreasonable to think that a crowd

of “a couple hundred people would have spilled over into the streets,” particularly

given that McPherson Square is so large that special events do not require a permit

unless attendance exceeds five hundred people.23 The flaw in the protesters’

analysis, however, is that the regulation does not require the police to have

predictive powers and assess with any particular probability that an event will

cause people to collect in the public thoroughfares. Assuming other aspects of the

regulation are complied with, it allows police to act prophylactically and broadly

defines an emergency occasion as certain events that may cause people to collect in

the public thoroughfares. With this construction, we conclude that the police were

confronted with an emergency occasion.

We next consider whether the order to clear the area of the Occubarn was

“necessary” under the Crowd and Traffic Control regulation. Like “emergency

occasion,” “necessary order” in § 2100.2 references specific language in § 2100.1.

Cullinane, 566 F.2d 118 (holding that “[t]he word ‘necessary’ in this sentence of

the regulation,” now § 2100.2, “has the same meaning that it does in the preceding

23

See supra note 4.

20

sentence,” now § 2100.1). Section 2100.1 gives the police a particular tool to use

in emergency occasions: “an officer . . . may establish an area or zone that he or

she considers necessary for the purpose of affording a clearing for” the regulation’s

listed objectives. For two reasons, we conclude that the order to vacate the

Occubarn was not a “necessary order” under § 2100.2.

To begin with, an order can only be “necessary for the purpose of affording

a clearing” if it clears the areas that actually need clearing: the specifically

identified areas in which people may “collect,” i.e., “public streets, alleys,

highways or parkings.” The expressio unius canon “informs us that when a list is

enumerated it may be presumed to be exhaustive unless otherwise provided,” as,

for example, through clear evidence of legislative intent. District of Columbia v.

Brookstowne Cmty. Dev. Co., 987 A.2d 442, 447–48 (D.C. 2010). We lack any

evidence suggesting that the list is not exhaustive or that the Crowd and Traffic

Control regulation was meant to apply to public parks.24 Indeed, although

iterations of this regulation have been in place for decades, we are aware of no

24

Because we conclude that the regulation does not apply to parks, we need

not address whether it applies to federal parks in particular or whether the U.S.

Park Police can rely on this regulation to make arrests on federal property. See

D.C. Code § 5-207 (2013 Repl.) (authorizing park police to make arrests on federal

property for violations of federal laws and regulations); § 5-201 (giving the park

police “the same powers and duties” as the Metropolitan Police Department in the

District of Columbia).

21

court decision examining, much less upholding, the application of this regulation to

parks.25

Our disinclination to read this regulation to extend to parks is further

buttressed by the fact that parks are traditional fora for the exercise of First

Amendment activity. See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496,

515 (1939) (noting that parks, as well as streets, “have immemorially been held in

trust for the use of the public and, time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and discussing public

questions”). Such activity is protected both by the First Amendment to the U.S.

Constitution and by local statute.26 Given this protected status, we are confident

25

In the seven demonstrations at issue in Cullinane, the police used the

Crowd and Traffic Control regulation to disperse large groups of people that

“block[ed] traffic,” filled “heavily-travelled thoroughfares” from “building line to

building line,” or otherwise attempted “to block access to the city.” 566 F.2d at

112–15. Similarly, in Streit, 26 A.3d at 316, the defendants were demonstrating on

the sidewalk in front of the White House, not in a park. Although sidewalks are

not included in the thoroughfares listed in § 2100.1, they are generally considered

to be part of the streets. See, e.g., Alvarez v. United States, 576 A.2d 713, 715

(D.C. 1990) (citing various authorities for the proposition that “[t]he ‘street’

includes both the roadway and the sidewalk”). In any event, Streit did not

foreclose a challenge to the application of the Crowd and Traffic Control

regulation outside public thoroughfares because it did not address the issue.

26

D.C. Code § 5-331.03 (2013 Repl.) (recognizing that the “right to

organize and participate in peaceful First Amendment assemblies” is “subject

[only] to reasonable restrictions designed to protect public safety, persons and

property, and to accommodate the interest of persons not participating in the

(continued…)

22

that if the Crowd and Traffic Control regulation were intended to authorize the

police to clear public parks, it would say so explicitly, as it does with public

streets. Cf. Alvarez v. United States, 576 A.2d 713, 715–16 (D.C. 1990)

(explaining that the Council meant to prohibit the possession of open containers of

alcohol in all public spaces where the statute prohibited such possession on “any

street, alley, park or parking”) (emphasis added). As the police had no authority

under § 2100.1 to clear an area inside McPherson Square, they did not issue a

“necessary order” under § 2100.2.

In addition to being limited to clearing thoroughfares, a “necessary order”

under § 2100.2 must be issued to advance one of the enumerated objectives of

§ 2100.1: “(a) [t]he operation of firemen or policemen; (b) [t]he passage of a

parade; (c) [t]he movement of traffic; (d) [t]he exclusion of the public from the

vicinity of a riot, disorderly gathering, accident, wreck, explosion or other

(…continued)

assemblies . . . to use the parks for recreational purposes”); § 5-331.08 (prohibiting

the police from establishing an “emergency area or zone . . . by using a police line

to encircle, or substantially encircle, a demonstration, rally, parade, march, picket

line, or other similar assembly (or subpart thereof) conducted for the purpose of

persons expressing their political, social, or religious views,” except in limited

circumstances “where there is probable cause to believe that a significant number

or percentage of the persons located in the area or zone have committed unlawful

acts (other than failure to have an approved assembly plan) and the police have the

ability to identify those individuals and have decided to arrest them”).

23

emergency; [or] (e) [t]he protection of persons and property.” § 2100.1 (a)–(e).

On appeal, as at trial, the District argues that the police were acting to protect

persons and property. But while the police are authorized to issue clearing orders

they “consider necessary” for the enumerated purposes, those purposes may not be

entirely hypothetical or conjectural. The police may not clear an area they

consider necessary for the “passage of a parade” when there is no parade, or for the

“exclusion of the public from the vicinity of a riot” when there is no riot. See

§§ 2100.1(b), (d). And the police may not clear an area they consider necessary

for the “protection of persons and property” without demonstrating that persons or

property are in possible danger and thus in need of special protection.27

The District does not dispute this; it argues, however, that it proved that the

police had reason to believe persons and property were in actual danger because

there was evidence that that the unpermitted Occubarn might collapse and hurt

both the protesters and any bystanders.

27

Without such a limitation, the police would have largely unconstrained

authority to issue crowd and traffic clearing orders: Having discerned an

emergency occasion (which, as discussed above, requires only some possibility

that people may gather in public thoroughfares) and invoking their ever-present

general obligation to promote public safety, they could issue clearing orders simply

because empty streets are safe streets.

24

Preliminarily, regardless of whether the police had reasonable grounds to

believe that the Occubarn was unsafe, this safety concern was unrelated to clearing

the adjoining thoroughfares. The regulation designed to clear the thoroughfares

does not give the police carte blanche to address any perceived public safety

concern unrelated to that fundamental purpose. However much other statutes or

regulations, present or future, may bear upon police power to act in such a

situation, it would warp the language of the particular regulation to uphold

appellants’ convictions thereunder.

But even as to the safety concerns asserted by the District, the record fails to

support the conclusion that the police reasonably believed that the Occubarn was a

safety hazard. The magistrate judge found that when Lieutenant Lachance issued

his order to vacate the Occubarn on the evening of December 4, 2011, “he had no

idea about its [st]ability,” but he “did not think” it presented an “immediate

danger.” Moreover, by the time Lieutenant Lachance issued his order, the

structure had been in place all day and the police had had full access to it. The

District presented no evidence that anyone discerned any structural defect in the

Occubarn during this time. The DCRA building inspector who was summoned to

inspect the structure testified that the structure showed no signs of instability. And

he only determined that the structure should be posted as unsafe because it

25

appeared to be unpermitted, in violation of District of Columbia building

regulations that have no application on federal land. This fact prompted the

magistrate judge to conclude that the danger signs he affixed had little “force”

under the circumstances. As a further indication that the protesters were not in any

actual danger, the police asked the inspector to delay posting the structure for

hours, until they conducted more “crowd control activities.” Indeed, the District

effectively conceded this issue at trial by arguing in closing: “This is not a case

about the structural integrity of [the Occubarn].”

In sum, while the District established that the police were confronted by an

emergency occasion, it failed to prove beyond a reasonable doubt that the

protesters disobeyed a “necessary order.” The District failed to present sufficient

evidence both that the order was necessary to “afford[] a clearing” in the areas the

police were authorized to clear and that the order was necessary to achieve one of

the objectives of the Crowd and Traffic Control regulation, namely the protection

of persons and property. This is not to say that the police had no power to address

what appears to have been their goal—not crowd or traffic control, but getting rid

of the Occubarn. It is only to say that they could not do so under the auspices of

24 DCMR § 2100.2. Accordingly, we conclude that the protesters’ convictions for

failing to obey an order issued under § 2100.2 must be reversed.

26

B. Mr. Givens’s Indecent Exposure Conviction

The only remaining issue to address is Mr. Givens’s overbreadth challenge

to the indecent exposure statute, which in relevant part makes it “unlawful for a

person, in public, to make an obscene or indecent exposure of his or her genitalia

or anus.”28 D.C. Code § 22-1312. Mr. Givens argues that this provision is

unconstitutionally overbroad because it facially prohibits “indecent”—not just

“obscene”—exposure and thus covers some theatrical and artistic displays of

nudity that are protected by the First Amendment.29 See Reno v. ACLU, 521 U.S.

844, 874 (1997) (“In evaluating the free speech rights of adults, we have made it

perfectly clear that ‘[s]exual expression which is indecent but not obscene is

protected by the First Amendment.’” (quoting Sable Commc’ns of Cal., Inc. v.

FCC, 492 U.S. 115, 126 (1989))). “Facial overbreadth claims have . . . been

28

As Mr. Givens’s challenge is directed only to the portion of the statute

under which he was convicted, we do not address its other provisions.

29

The District argues that Mr. Givens lacks standing to raise an overbreadth

challenge because the statute does not implicate the First Amendment and our

exception to prudential third-party standing rules only applies “in limited

circumstances.” Gamble v. United States, 30 A.3d 161, 166 (D.C. 2011).

Although “the absence of First Amendment concerns renders an overbreadth claim

non-justiciable under notions of prudential third party standing,” McNeely v.

United States, 874 A.2d 371, 381 (D.C. 2005), the indecent exposure statute

facially prohibits some expressive conduct, thereby implicating the First

Amendment and affording Mr. Givens standing to raise this challenge. See

Broadrick v. Oklahoma, 413 U.S. 601, 611–12 (1973).

27

entertained where statutes, by their terms, purport to regulate . . . expressive or

communicative conduct.” Broadrick v. Oklahoma, 413 U.S. 601, 612–13 (1973).

Although we agree that the challenged provision of § 22-1312 could be interpreted

to cover some forms of expressive conduct and thus implicates the First

Amendment, this fact is not dispositive of the constitutional inquiry. Rather, “the

overbreadth of [the] statute must not only be real, but substantial as well, judged in

relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615.

Examining the reach of the challenged provision, we observe that it applies

to a wide range of nonexpressive conduct, which is not protected by the First

Amendment. See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000)

(noting that “[b]eing in a state of nudity is not an inherently expressive condition”).

At the same time, certain kinds of expressive conduct that fall within the facial

reach of the statute are affirmatively authorized elsewhere in the District’s Code.

See D.C. Code § 25-372 (2013 Repl.) (permitting expressive nudity in certain

establishments licensed to sell alcohol).30

30

To the extent that two statutes conflict, “the more specific statute governs

the more general one.” District of Columbia v. Gould, 852 A.2d 50, 55 (D.C.

2004).

28

Even as to expressive nudity, the provision’s imposition on First

Amendment rights is limited. It applies only “in public,” a phrase that the

legislative history defines as “in open view; before the people at large,” D.C.

Council, Report on Bill 18-425 at 7 (Nov. 19, 2010). Thus, the challenged

provision does not encompass a number of the settings cited by Mr. Givens, for

example, an in-studio display of nudity for a painting class or an indoor theatrical

performance that requires the purchase of a ticket. Instead, the revised statute

confines this provision’s reach to settings wherein expressive nudity can be

constitutionally regulated because minors might be present or nonconsenting adults

are not easily shielded from displays of nudity.31 Cf. Parnigoni v. District of

Columbia, 933 A.2d 823 (D.C. 2007) (upholding, under an earlier form of § 22-

1312 that lacked an express “in public” element, a conviction for conduct that

31

Mr. Givens argues that the Supreme Court has “held that the sexual

expression of adults that is ‘indecent’ but not ‘obscene’ is constitutionally

protected.” But although courts have been willing to protect the rights of

consenting adults to transmit and receive indecent materials, they have also

permitted states to regulate the dissemination of some indecent materials to minors

and nonconsenting adults. See Ginsberg v. New York, 390 U.S. 629, 636 (1968)

(“[M]aterial which is protected for distribution to adults is not necessarily

constitutionally protected from restriction upon its dissemination to children. In

other words, the concept of obscenity or of unprotected matter may vary according

to the group to whom the questionable material is directed or from whom it is

quarantined.”); see also Reno, 521 U.S. at 875 (acknowledging that the Supreme

Court has “repeatedly recognized the governmental interest in protecting children

from harmful materials” but qualifying that “that interest does not justify an

unnecessarily broad suppression of speech addressed to adults” via the internet).

29

occurred in a private home). Moreover, the challenged provision does not prohibit

all nudity in public. It prohibits the exposure only of one’s genitals or anus,

thereby directing the prohibition at certain kinds of nudity that tend to be sexually

evocative even if not “obscene.” See Miller v. California, 413 U.S. 15, 24, 27

(1973) (defining obscene materials as “works which depict or describe [hard core]

sexual conduct, . . . appeal to the prurient interest,” and lack “serious literary,

artistic, political, or scientific value”).

On the whole, the reach of the indecent exposure provision into

constitutionally protected territory is limited and thus not “substantial . . . in

relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615.

Accordingly, we conclude that the indecent exposure statute is not substantially

overbroad. To the extent that constitutionally protected conduct is prosecuted

under § 22-1312, plaintiffs can follow the “traditional rules of practice,”

Broadrick, 413 U.S. at 615, by bringing as-applied challenges that seek to

invalidate applications of the statute to their particular expressive conduct. Mr.

Givens does not challenge the indecent exposure statute as applied, nor does he

challenge the sufficiency of the evidence used to convict him. Thus we affirm his

conviction for indecent exposure.

30

III. Conclusion

For the reasons set forth above, we reverse the protesters’ convictions under

the Crowd and Traffic Control regulation, and affirm Mr. Givens’s conviction for

indecent exposure.

So ordered.

STEADMAN, Senior Judge, concurring in the judgment: I agree with the

majority that the evidence does not establish the necessary nexus between the

cordoning off of the Occubarn for safety reasons and crowd control on the public

thoroughfares. To my mind, this alone is sufficient to dispose of the appeal in

favor of the appellants charged under §2100.2. I go no further in that analysis.