Devon Tinius v. Luke Choi

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

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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

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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).

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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

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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

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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

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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.

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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.

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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

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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.