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Case number 17-7114, Daryl Thomas Agnew at L Appellants versus government of the District of Columbia.

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Mr. Claiborne?

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Good morning, your honors.

[00:00:16] Speaker 04:
Good morning.

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May it please the court, my name is William Claiborne.

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I'm on behalf of appellants who were plaintiffs below.

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And my plaintiffs have challenged the districts in promoting statute on the grounds that it violates the second prong of the Board for Vagueness doctrine because it encourages arbitrary and discriminatory enforcement.

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And it is, in fact, arbitrarily and discriminatorily enforced because it's enforced almost entirely against African Americans.

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The statute is so broad that a single person standing on a sidewalk or even next to a

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regardless of their mental state, can be ordered to leave the area.

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The statute says it is unlawful for a person alone or in concert with others to crowd obstruct or accommodate the use of any street, avenue, alley, road, etc.

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It doesn't say that a person standing there is violating the law.

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It says if they are obstructing the use

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of the sidewalk, the road, whatever.

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That's a little different than what you're positing.

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Well, Your Honor, in a sense, what you're saying is true.

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No, it's not in a sense.

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It's right there in your brief.

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It's right there in the statute.

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The statute does not... It's not in a sense.

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It's just true.

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That is what the statute says.

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It's true.

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The statute does not... Okay.

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Prohibit standing or walking.

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However,

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every act of standing or walking as the terms are used in the statute results in crowding and promoting or obstructing.

[00:02:17] Speaker 01:
Really?

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Well, for example, if you're standing on the sidewalk, you're automatically obstructing the use of it.

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That's the way it's enforced.

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Is that your condition?

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Well, if we have to convince us of that in order to win your case.

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Actually, I do not, but that is just how broad it is.

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And we can see that when we look at how it was applied to the plaintiffs in the case.

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None of them was totally blocking the sidewalk.

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None of them was crowding anybody, whatever crowding means.

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And none of them was annoying or locomoting anybody.

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But you're not bringing in his applied challenge.

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You've brought a facial challenge.

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Well, I brought... Right, so we don't... I mean, you have a lot in your...

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complaint in your brief about the specific facts of the case, but aren't I right?

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Our judgment is based just on the language of the statute.

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You could have brought in his applied challenge, or you could have brought a challenge arguing that this statute is used in the district for discriminatory purposes, but that's not what you did.

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So the only question we have to ask, I think, is whether these three words in the statute, we just look at those.

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It doesn't make any difference what the facts of the case are.

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Is that right?

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Not from plaintiff's point of view, and here's why I say that.

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Well, your statement had a couple of points in it.

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One of them is this statute magnifies any indeterminacy in the three predicates because the conduct

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that the statute regulates, it is so pervasive.

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Every single act of using the sidewalk can be construed as crowding and commoting or obstructing.

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And so this statute mimics everyday life.

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And that's what makes these terms.

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Right, but the Supreme Court in Shuttlesworth and Cameron, those two cases,

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The court there said that obstruct.

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The word obstruct was in those cases.

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And the court said that passed this test.

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And in quotes, the court approved block.

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So why are the words here?

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crowding and incommodity.

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Why are they any more subjective than block and obstruct?

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Well, in Shuttlesworth, it's true.

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The Supreme Court used the word obstruct.

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And if you go back and look at the Alabama Court of Appeals, they used the word obstruct.

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But the court

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the Alabama Court based its judgment, as it said, that there must be an actual showing of blocking.

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So to the Alabama Court, the word obstruct means block.

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The word obstruct has many, many different meanings.

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And the D.C.

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Council, the subcommittee working group... Well, wait, excuse me.

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As Judge Sintel said, it says, it says,

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crowd obstruct or incommode the use of any street.

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So for the district to succeed in the prosecution of the statute, they have to show that they were blocking the use.

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You're right about that.

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Well, for example, in the Bay case, I attached the summer judgment opinion in the Bay case, some individuals were standing in a private yard next to the sidewalk.

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The officers told them to leave, and all but two of them left.

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So when the officers came back approximately an hour later, there were two young men standing in a private yard next to a sidewalk, and one of them left.

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And so you just had one person left.

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Now, this was arrested for

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Blocking, well, he was arrested for incommoding.

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Crowding obstructing the sidewalk and in that case judge Dixon said look for the officer to Issue a dispersal order.

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I don't even think the officer must have probable cause that The person at issue was crowding obstructing or blocking so you have a situation What ultimately happened in that case beg your pardon what ultimately happened in that case you were just describing?

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Well, in the criminal case, Mr. Bay was arrested and released after spending a night at the station.

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What ultimately happened was that he was not found guilty of violating the statute, right?

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He was released.

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He never even brought to trial, was he?

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Well, he was not brought to trial, but he was arrested and he did spend the night in jail.

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So the fact that an officer misused a statute does not mean that the officer's definition comes in place of the words in the statute.

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In fact, it's quite the contrary.

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You have an example there of how the courts looked at it and said, that's not a violation.

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Not the court, but the higher up in the police department.

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They just looked at it and said, that's not a violation.

[00:07:36] Speaker 04:
Well, I think

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There's no statute that can't be misapplied by an office.

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Well, I think my point is really what your point is.

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The officer does not even need probable cause to issue a dispersal order.

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And so the statute doesn't tell the officer.

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But you still don't have a violation unless you have a blocking perspective of the use.

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And he didn't have it that time, because that's not the way that statute's written.

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So I think you've got a counter case there that's actually weighing against your position, Counsel.

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Well, if you look at my other three plaintiffs, each one of them was standing on a sidewalk, and each one of them was told to leave because they were not in motion, and each one of them was arrested.

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And in each one of these cases, the person was using the sidewalk the way people use it every day.

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And the statute applied directly to them.

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They were doing according to the statute.

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You see, here's the thing.

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One of the things is these three words are not a single unitary phrase.

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Each one is different.

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The court of appeals, I'm sorry, the D.C.

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council was very clear about that.

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They rejected the use of the single word block and they retained each of these three words.

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And under the canons of construction, if you've got three words, each one of them has a different meaning.

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But Council, under our decision in Bronstein, we took a slightly different approach to that interpretive question.

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We said that where you have more than one word that are getting at different facets of a recognizable problem, you read them together and you understand them to be aiming at that common core.

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Doesn't that go a long way

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to fixing the problem that you identify here in the sense that obstructing, crowding, or incommoding the use of sidewalks and passages is

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clearly understood or made is susceptible of being clearly understood to mean getting in the way of people using those sidewalks and entries for the use that they're intended.

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Well, two points, Your Honor.

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First is,

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This case is distinguishable.

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In Bronstein, the court applied a canon of statutory construction because there was ambiguity about whether more than one word had more than one meaning.

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In this case, there's no ambiguity because the subcommittee working group specifically proposed a single word, blot.

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and the D.C.

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Council expressly rejected the single word in favor of, there are separate words, and there's a separate discussion for each one of the words.

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Does that make a facial challenge any more or less compelling?

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If we did not have that legislative history, if you hadn't told us about that, if we didn't care about that, the statute still has to stand on what it says, doesn't it?

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That's true, but... And we do have

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Going back to Shakespeare at least, you have the concept of making sure it's a sure verb.

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You use more words to make sure that you get the point made.

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The canons are always to be applied in context.

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And the canon that says they have to have, doesn't say they have to have different meanings, it says they're presumed to have different meanings.

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But they're close enough that as Judge Filler suggests, they're overlapping at a core.

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They're trying to make sure that they've covered the core, aren't they?

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the d.c.

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council forecloses that interpretation because there's no d.c.

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council's not here the statute's what we've got i understand yeah but under district of columbia law

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For example, in the Duffy case, if you look at the words in the statute, you take consideration of the legislative history in a situation like this, when you're asking yourself, are these three separate words, each with a discrete meaning, or is this just one unitary term?

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And the DC council made it abundantly clear that these are three separate words, each with a different meaning.

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and the D.C.

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Court of Appeals.

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So would you say that the statutes that, I don't know what the D.C.

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statute says, but around the country there are statutes that make it unlawful to steal, take, or carry away the property of another.

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Would you say that that's, you have to find, you have to have different meanings for each one of those words and therefore that those would all be vague or something?

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I can't.

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I mean it isn't uncommon for legislative bodies and or courts and lawyers

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to use more than one word to make sure that they've got the floor covered.

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Why is this not such a case?

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Well, my plaintiff's argument is it's not such a case because the D.C.

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Council made it abundantly clear that it's rejecting the single-term block in favor of three separate words with three separate meanings.

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They have chosen three words.

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They have chosen three words instead of one word.

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Why is it not just as logical to assume they're doing so to make sure that they're getting more covered as it is to try to cover three different things?

[00:13:16] Speaker 04:
Well, I think there's two reasons.

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The first is the legislative history makes it abundantly clear that the DC councils expressly rejected the unitary term in favor of retaining these three terms.

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We're past that point.

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Where are you looking?

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We know we have the three terms instead of the one term.

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That's clear.

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Without legislative history.

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What do you think the word

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What's your view of what it means?

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Well, if you look at the Coates case, the Supreme Court case.

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Well, just tell me what do you think Incommodity means?

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To subjectively annoy somebody.

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You would have a good case because that's the distinction the court has made, but we have an obligation to interpret statutory language to avoid a constitutional problem.

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Even if it was unclear, even if incomoting could have a different meaning than blocking and crowding, even if it did,

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Even if it did, wouldn't we avoid an interpretation that created a constitutional problem?

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That's a canon of interpretation.

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However, it also runs head on to and collides with

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the clear legislative intent here, which is each one of these terms has a different meaning.

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And plaintiffs argued in their brief that since the D.C.

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Council was so emphatic that each one of these terms had a different meaning, what we have to do is the meaning of each one of these terms is the one that distinguishes it from the other words.

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Mr. Cleaver, where would you point us to for what you're relying on, the D.C.

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Council saying each term has a separate meaning, and in particular, the meaning of income voting?

[00:15:20] Speaker 04:
Well, I do cite to the page number in my brief.

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Which report in which?

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Well, there's a committee... You're referring to the committee report?

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Right.

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And I think it's on page seven.

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There's a discussion of the word proud, and the committee report says, well, you know what?

[00:15:38] Speaker 04:
The committee report on page seven is discussing the subcommittee report.

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First there was a subcommittee report which analyzed the statute before it was amended and proposed the legislation which used the word block.

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And then on page seven of the committee report, that's the report of the Judiciary Committee, the Judiciary Committee looks at each one of the words

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and explains why it's retaining those three words instead of accepting the proposal of the subcommittee report to use the word block.

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The Judiciary Committee rejects the proposal of using the word block and says, here's why we're going to keep crowd in commode and obstruct.

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I do want to ask one other thing, and it may not be normal to ask this question, but something I find very disturbing in your brief.

[00:16:49] Speaker 01:
In page 11, in the discussion of Coates, excuse me, discussion of Williams, it is definition by, quote, loops, close quote, of definition, and definition by, quote, loops of definition, close quote,

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is the definition of, quote, indeterminacy, period, close, quote.

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Then you give a citation, a pen citation, to Williams, 553 U.S.

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at 306.

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Now I expected to be able to turn to Williams at 306 and see what context the court used those terms in.

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Those terms are not in Williams, if there is any.

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So I did a Westlaw search of Williams.

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Those terms are not anywhere in Williams.

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So I did a all-fed search

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Those terms are not anywhere ever used, the loops of definitions, are not anywhere ever used in federal law.

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You cite something as authority for the proposition that it's the definition of indeterminacy, in quotations, and give us a set.

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And it's not there.

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Were you trying to deceive the court, counsel?

[00:17:57] Speaker 04:
Of course not, Your Honor.

[00:17:58] Speaker 01:
Well, what were you doing by putting

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A quote there with a thin citation is something that doesn't exist.

[00:18:05] Speaker 04:
Because Williams focuses on the indeterminacy, that word indeterminacy, or indeterminacy.

[00:18:11] Speaker 01:
It certainly does not say loops of definition is the definition of indeterminacy.

[00:18:15] Speaker 01:
No, but it uses the term.

[00:18:16] Speaker 01:
It doesn't say anything like that.

[00:18:18] Speaker 01:
It doesn't have that term in there.

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I'm not even sure it has indeterminacy, but it certainly doesn't have loops of definition.

[00:18:23] Speaker 04:
Well, I cited that.

[00:18:25] Speaker 01:
I actually Googled it even, and I found only 12 references of none of them the word at all.

[00:18:29] Speaker 04:
Well, I cited Williams for the proposition that Williams makes the test indeterminate.

[00:18:34] Speaker 01:
Would you recognize that usually when you set forth a proposition, including quotation marks, and give offense to that, the court should be able to find that proposition on that page and those words.

[00:18:46] Speaker 01:
And it's not there.

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Would you recommend that you're misleading the court at the very least?

[00:18:52] Speaker 04:
I don't think so, Your Honor.

[00:18:54] Speaker 04:
My intention there was to show that Williams uses indeterminate as the test of what makes a statute vague.

[00:19:06] Speaker 04:
When I Googled the word indeterminate, I came up with a philosophical discussion that it says... If you Google loops of definition, you come up with a philosophical definition.

[00:19:17] Speaker 01:
One of the stats that you find on Google will say that in some cases, that's the only way to do definition is by loops of definition.

[00:19:28] Speaker ?:
Okay.

[00:19:28] Speaker 03:
All right.

[00:19:28] Speaker 03:
Thank you, Mr. Klaymer.

[00:19:29] Speaker 03:
Yes, sir.

[00:19:30] Speaker 03:
You're from the district.

[00:19:40] Speaker 05:
May it please the Court, Sonya Levsak for the District of Columbia.

[00:19:44] Speaker 05:
I'd like to start with a few affirmative points and then respond to some of Mr. Claiborne's arguments.

[00:19:50] Speaker 05:
The claim that the district's blocking passage statute prescribes no course of conduct at all is easily refuted.

[00:19:56] Speaker 05:
The statute's reach is delineated in words of common understanding and coalesced around a core behavior as to which the statute may be constitutionally applied.

[00:20:06] Speaker 05:
The statute is, in this respect, substantially identical to the one the Supreme Court upheld in Cameron, where the Court instructed that words like obstruct or unreasonably interfere require no guessing as to their meaning.

[00:20:21] Speaker 05:
The prohibition against crowding, obstructing, and locomoting is further limited by its application to a defined set of circumstances.

[00:20:29] Speaker 05:
conduct that physically blocks or impedes the use of public thoroughfares.

[00:20:35] Speaker 06:
Slapsack, is it your position that the conduct of the plaintiffs in this case is covered by the statute?

[00:20:44] Speaker 05:
Plaintiffs have brought a facial challenge to the statute.

[00:20:47] Speaker 06:
I'm just asking you, the plaintiffs in this case, the conduct that's described in their complaint, is it covered by the statute?

[00:20:54] Speaker 05:
there may be factual disputes about whether any of the plaintiffs were actually obstructed.

[00:20:59] Speaker 06:
I'm saying the conduct that they allege, assuming it's true, which of course it's only an allegation.

[00:21:04] Speaker 05:
The complaint is careful not to take a position on whether there was obstruction.

[00:21:14] Speaker 05:
What they say is that people were free to come and go around them.

[00:21:17] Speaker 06:
How about the picture of Mr. Agnew standing on the porch?

[00:21:21] Speaker 06:
Is that conduct that violates the statute?

[00:21:25] Speaker 05:
the photo itself wouldn't appear to.

[00:21:27] Speaker 06:
How about the description of the other two plaintiffs as they're described in the complaint?

[00:21:36] Speaker 06:
Violation or not?

[00:21:39] Speaker 05:
Yes, Ms.

[00:21:40] Speaker 05:
Williamson, the conduct that was described in the officer's notes at the time said that she was obstructing the use of the sidewalk.

[00:21:50] Speaker 06:
So again, the officer said that, but the complaint describes conduct that she was engaged in.

[00:21:55] Speaker 06:
And I'm referring you to the facts, not to the officer's conclusion.

[00:22:00] Speaker 05:
Well, I think what the complaint reveals is a dispute about whether or not

[00:22:07] Speaker 05:
the plaintiff was obstructing.

[00:22:09] Speaker 05:
The officers' notes fully reflect an obstruction of the sidewalk or the entryway.

[00:22:14] Speaker 05:
Mr. Dennis was on a ramp.

[00:22:17] Speaker 05:
Mr. Agnew was on a stoop.

[00:22:21] Speaker 05:
And so the officers noted their views that this was an obstruction or violation of the statute.

[00:22:29] Speaker 05:
The plaintiff's complaint says, no, we weren't doing it.

[00:22:31] Speaker 06:
Do we have the documents showing what the officers noted?

[00:22:35] Speaker 05:
They're not in the, they're not in the joint appendix.

[00:22:38] Speaker 05:
I'm not actually sure that they're in the district court record below, but they may be.

[00:22:43] Speaker 06:
So Mr. Dennis, if someone were standing in his yard on a ramp a few feet in front of the porch of his apartment building and an officer wanted to know, does this statute allow me to tell him to move on or not?

[00:22:59] Speaker 06:
Would that person be covered or not?

[00:23:01] Speaker 06:
This is the Dennis situation.

[00:23:03] Speaker 05:
The statute itself requires crowding, obstructing, or incomoting the use of the sidewalk or public thoroughfare or the entrance to a building.

[00:23:12] Speaker 06:
And as the officer said, someone would have had to alter their course, and therefore it's obstructing, crowding, or incomoting.

[00:23:21] Speaker 06:
Do you accept that understanding?

[00:23:25] Speaker 05:
That might be necessary, but not necessarily sufficient.

[00:23:29] Speaker 05:
What would be sufficient?

[00:23:33] Speaker 05:
if the actual use of the sidewalk were being obstructed.

[00:23:38] Speaker 05:
So for example, if two people are just sort of coming and going and one sort of makes room with their shopping bag passing another person, the use of the sidewalk is not being obstructed.

[00:23:50] Speaker 05:
in that example, even if someone might have had to sort of nudge to one side.

[00:23:55] Speaker 05:
So obstruction or crowding, obstructing, or incommoting, the use of or the entry to requires more than a de minimis sort of interaction.

[00:24:07] Speaker 05:
And the statutory language itself makes that clear.

[00:24:10] Speaker 05:
How does it make that clear?

[00:24:13] Speaker 05:
The statute specifically says that crowding, obstructing, or incommoting requires

[00:24:20] Speaker 05:
you know, in order to crowd obstruct or incommode the use of or the entry to.

[00:24:27] Speaker 05:
So that's a functional standard.

[00:24:30] Speaker 05:
It involves something that the officer can observe.

[00:24:34] Speaker 05:
He can take into account the context of the situation.

[00:24:37] Speaker 06:
I thought the district's position was that there needn't actually be anyone being blocked.

[00:24:45] Speaker 06:
Is that the district's position or not?

[00:24:47] Speaker 06:
That you can look at someone all alone on a sidewalk and decide that that is crowding, obstructing, or locomoting?

[00:24:54] Speaker 06:
It could.

[00:24:55] Speaker 06:
That is the district's position that an officer could find someone all alone on the sidewalk and that would be.

[00:25:00] Speaker 03:
Well then, what do you do with the word use?

[00:25:02] Speaker 03:
I thought, I mean, I thought your answer to, Judge Santella's first question to counsel was, for Mr. Clayburn, was to focus on the word use.

[00:25:14] Speaker 03:
You've read the word use out of the statute.

[00:25:17] Speaker 03:
Why would you argue that it doesn't require actually blocking or crowding the use of something?

[00:25:29] Speaker 03:
Why would you make that argument?

[00:25:32] Speaker 05:
I'll clarify.

[00:25:32] Speaker 05:
At the far end of the spectrum, it's possible for someone to arrange themselves on the sidewalk.

[00:25:40] Speaker 05:
For example, a sumo wrestler sitting on the sidewalk, a narrow sidewalk, and absolutely obstructing the entire sidewalk.

[00:25:48] Speaker 05:
The officer could observe that behavior without having another pedestrian go by.

[00:25:54] Speaker 05:
But there's more than that.

[00:25:56] Speaker 05:
The officer, under DC law, must actually observe the crowding and obstructing and incomoting.

[00:26:02] Speaker 05:
So the officer, him or herself, could clearly be the person who is actually interacting with, and the statute requires that interaction, to find out whether the use of the statute or the N.C.A.

[00:26:16] Speaker 03:
So your point is that there doesn't, it just, so if someone lay down across the sidewalk completely, and there was nobody else around, that would be obstructing the use, even though there wasn't anybody there.

[00:26:29] Speaker 03:
That would be within the terms of the statute.

[00:26:30] Speaker 03:
But you're not reading it.

[00:26:32] Speaker 03:
So the word use is still a critical part of the statute as far as you're concerned, right?

[00:26:38] Speaker 06:
Yes.

[00:26:39] Speaker 06:
Although the DC court in Adams construed this terminology without the disorderly conduct element on a sidewalk or in an entryway, that there isn't any need to show that anyone was actually blocked.

[00:26:58] Speaker 05:
Right well Adams was a case under the the old disorderly assembly statute and there the information failed to charge an offense.

[00:27:07] Speaker 05:
There was no sort of.

[00:27:09] Speaker 05:
It took.

[00:27:13] Speaker 05:
it prevented someone from being prosecuted for sort of innocent incommoting, if you will.

[00:27:19] Speaker 05:
And the statute here solves that problem very expressly by requiring that the statute only applies, and this is another limiting factor in the statute, where a person continues or resumes the crowding, obstructing, or incommoting after one being informed that they were.

[00:27:39] Speaker 06:
I read that argument in your brief, and I'm just not sure on reflection that it does the work that you attribute to it.

[00:27:51] Speaker 06:
And this is the difficulty that I have.

[00:27:53] Speaker 06:
In light of Morales, if you have a statute that covers conduct that's vague, let's say, and I'm sitting on my sidewalk in front of my house, on the sidewalk,

[00:28:08] Speaker 06:
with my tool bag and I'm reading the tree box and I'm actually blocking the statute, the sidewalk, and a police officer comes and says, move along.

[00:28:20] Speaker 06:
And I think innocently, I have no intention of blocking.

[00:28:23] Speaker 06:
Nobody's come by here in the last three hours.

[00:28:26] Speaker 06:
If they do, I'll move.

[00:28:27] Speaker 06:
And the officer says, move along.

[00:28:30] Speaker 06:
And I say, well, why?

[00:28:31] Speaker 06:
I don't think I'm violating any law.

[00:28:33] Speaker 06:
And the officer says, yes, you are.

[00:28:35] Speaker 06:
Move along.

[00:28:37] Speaker 06:
it hasn't actually narrowed the statute or rendered it clear that the officer has told me that I'm in violation.

[00:28:45] Speaker 06:
So if there's, if, and it may, you know, you may win on some other ground, but if it is in fact the case that the statute is vague in the way that plaintiffs challenge, I'm not sure that mens rea, that mens rea is provided by the move along order.

[00:29:04] Speaker 05:
If it were the case that crowding, obstructing, and incomoting was a standardless definition, then I would be inclined to agree this case would look a lot like Morales.

[00:29:17] Speaker 05:
The problem is that we know from Cameron and, frankly, a long line of cases that says when you are obstructing, that is essentially wrongful conduct.

[00:29:31] Speaker 05:
The city has a duty to keep public thoroughfare, sidewalks, roads, entrances to public buildings free and clear.

[00:29:39] Speaker 05:
And so the statute is aimed precisely at wrongful behavior.

[00:29:45] Speaker 05:
And we know that it isn't.

[00:29:47] Speaker 06:
But there isn't any intent requirement, is there?

[00:29:50] Speaker 06:
Other than the move along order and the failure to respond.

[00:29:53] Speaker 06:
There's no intent requirement.

[00:29:54] Speaker 05:
Well, there's actually two responses.

[00:29:56] Speaker 05:
One, there was actually no quote unquote intent requirement in Cameron either.

[00:30:02] Speaker 05:
And that didn't trouble the Supreme Court at all.

[00:30:07] Speaker 05:
My sense from reading that case is that the obstruction itself is essentially implied, that one knows what one is doing.

[00:30:18] Speaker 05:
And so the mens rea is essentially baked in to the notion that you're crowding, obstructing, or locomoting.

[00:30:26] Speaker 05:
Now, here, the statute itself doesn't require perhaps what might be a close question, because the officer informs the person that they are crowding, obstructing, or incommoding, and then asks them to stop that behavior.

[00:30:42] Speaker 03:
Right, but Morales said that wasn't sufficient to create a mandatory requirement in that statute.

[00:30:49] Speaker 05:
Pardon me.

[00:30:50] Speaker 03:
Isn't that right?

[00:30:51] Speaker 05:
It wasn't sufficient in Morales because there was nothing that was built on.

[00:30:55] Speaker 03:
It was essentially... Well, what else?

[00:30:56] Speaker 03:
What's in this statute?

[00:30:58] Speaker 03:
By the way, is this argument critical to your defense of the statute?

[00:31:01] Speaker 03:
Do we have to agree with you that there's a mens rea requirement here to hold it constitutional?

[00:31:08] Speaker 05:
No, based on Cameron, where there was no such requirement.

[00:31:12] Speaker 01:
Even without Cameron, is there any constitutional requirement that there be a mens rea?

[00:31:17] Speaker 05:
Not at all.

[00:31:19] Speaker 03:
To be sure, there's no due process violation.

[00:31:21] Speaker 03:
Why are you making such a big deal of this argument?

[00:31:24] Speaker 03:
Why do you say in your brief that there's a mens rea requirement when it's not even necessary to your defense of the statute?

[00:31:33] Speaker 05:
Well, I think we've covered the waterfront in the brief.

[00:31:36] Speaker 03:
I see.

[00:31:37] Speaker 05:
The mens rea requirement is sometimes used to see whether one can mitigate any vagueness that might be found in the statute.

[00:31:46] Speaker 05:
Here the district looks to the statute and this interaction with the officer where there's actually back and forth that would establish purpose is essentially mitigating any vagueness that could be in the statute.

[00:32:01] Speaker 05:
But as the district's brief puts forth, we don't rely on that for the constitutionality of the statute, even if there wasn't A2, which is the statutory provision, which is the interaction with the law enforcement officer of the statute.

[00:32:17] Speaker 03:
No, my question was different.

[00:32:19] Speaker 03:
A2 is in there.

[00:32:21] Speaker 03:
You do have A2 in there.

[00:32:23] Speaker 03:
But if we don't think that that builds a mens rea requirement into the statute,

[00:32:30] Speaker 03:
as Morales said, and we don't think the other words of the statute create one, is it still constitutional?

[00:32:39] Speaker 05:
Yes.

[00:32:39] Speaker 05:
Okay.

[00:32:42] Speaker 05:
What is the meaning of income voting?

[00:32:45] Speaker 05:
So, incommoting in this context means to hinder, to interfere, to obstruct.

[00:32:51] Speaker 06:
If it were not in the statute, would that materially alter it?

[00:32:55] Speaker 06:
Or is, in your view, is incommoting a repetition of obstructing or crowding?

[00:33:02] Speaker 05:
The definitions of each term make clear that these are overlapping definitions.

[00:33:07] Speaker 06:
Holy or not in the case of incommoting, what does incommoting add that isn't already there from crowding or obstructing?

[00:33:16] Speaker 05:
I'm actually not sure it adds anything that the words obstruct wouldn't cover.

[00:33:23] Speaker 05:
The dictionary definitions overlap as a literal matter.

[00:33:28] Speaker 05:
Incommoding was a term more often used.

[00:33:31] Speaker 05:
Again, the phrase crowding, obstructing, and incommoding comes from 1892.

[00:33:35] Speaker 05:
And one of the reasons that the council maintained that language is because it has essentially a long history of being applied.

[00:33:46] Speaker 06:
It's interesting because I was trying to get a handle on what does it mean, and I was looking at some of the older DC cases, and there's a 1901 DC Court of Appeals case, Akers versus Marsh, that defines in commode as causing inconvenience.

[00:34:03] Speaker 06:
And when you, I mean, you know, there is a range of definitions of incommode.

[00:34:08] Speaker 06:
One can mean, you know, hinder, but there's also the sort of more subjective inconvenience.

[00:34:16] Speaker 06:
And that's what causes concern in a statute like this is when officers are invited to understand it,

[00:34:23] Speaker 06:
in that more open-ended, open to interpretation, you know, is it annoy, is it no apparent purpose, or is it something objective?

[00:34:34] Speaker 06:
And to the extent that many of the definitions talk about inconvenience to

[00:34:40] Speaker 06:
passersby, it does seem to have more of the flavor of those problematic terms.

[00:34:46] Speaker 05:
Let me address that directly and specifically Mr. Claiborne's argument that income mode is essentially synonymous with the word annoying.

[00:34:54] Speaker 05:
That may be true as a matter.

[00:34:56] Speaker 05:
I would say inconvenience.

[00:34:58] Speaker 05:
So inconvenience

[00:34:59] Speaker 05:
it probably has two meanings.

[00:35:01] Speaker 05:
One might sort of border on an annoyance, but the other one is essentially to physically sort of impede.

[00:35:10] Speaker 05:
And that's the way the statute uses the term.

[00:35:14] Speaker 05:
Just like there's no such thing as annoying the use of the sidewalk, the inconveniencing the use of the sidewalk makes just as much sense as sort of impeding

[00:35:27] Speaker 05:
the use of the sidewalk or hindering.

[00:35:30] Speaker 05:
So in that sense, inconvenience simply sort of again, sort of just creates a broader statute than the one Mr. Mr. Claiborne would prefer.

[00:35:41] Speaker 05:
But that's no reason that the statute is vague.

[00:35:44] Speaker 05:
So it doesn't require that anyone actually be blocked.

[00:35:49] Speaker 05:
With the caveat that the officer, him or herself, is physically there.

[00:35:54] Speaker 05:
And so to the extent the officer, him or herself, is actually being blocked just as a matter of enforcing the statute.

[00:36:00] Speaker 06:
So the officer has to determine that someone might, someone there might be blocked.

[00:36:07] Speaker 06:
It's not even blocked.

[00:36:09] Speaker 06:
It might be as the officer in this case said, a citizen trying to use the walkway would have had to deviate from the path.

[00:36:21] Speaker 06:
Is that permissible?

[00:36:24] Speaker 06:
or exotic.

[00:36:25] Speaker 06:
I mean, is that a core or an exotic interpretation in your view of what the statute covers?

[00:36:34] Speaker 06:
A citizen trying to use a walkway would have to deviate.

[00:36:37] Speaker 05:
Covered or not?

[00:36:38] Speaker 05:
It might depend on the degree of the obstruction.

[00:36:42] Speaker 05:
So if one had to actually hop off the sidewalk into the road and walk around,

[00:36:47] Speaker 05:
then I would say that would be a common use, a very sort of middle of the road use of the statute.

[00:36:56] Speaker 05:
As one gets closer and closer to how far off the path have you deviated, that's where there is sort of a gray area.

[00:37:04] Speaker 05:
But the Supreme Court has been very clear that these kinds of line drawing problems are not

[00:37:10] Speaker 05:
void for vagueness issues.

[00:37:13] Speaker 05:
They're resolved by the application of reasonable doubt.

[00:37:15] Speaker 05:
The officer must eventually, the District of Columbia ultimately must prove this obstruction.

[00:37:22] Speaker 05:
And so issues, sort of matters of degree, don't raise the void for vagueness question.

[00:37:29] Speaker 06:
The difficulty here

[00:37:32] Speaker 06:
I mean, I understand, you know, obviously the difficulty in writing a statute that's clear.

[00:37:36] Speaker 06:
And I'd like to know what would be lost if the incommoting part were out.

[00:37:42] Speaker 06:
Because if you had a statute that said obstruct or crowd, it would seem to be more constrained.

[00:37:52] Speaker 06:
I'm not sure if you agree.

[00:37:53] Speaker 06:
You were a little waffly when I said it's incommoting cover more.

[00:37:59] Speaker 05:
I don't think it covers more.

[00:38:00] Speaker 05:
I would also say that the fact that words are known by their associates, and again, this is just a statutory canon, the terms sort of converge on a core course of conduct.

[00:38:13] Speaker 05:
And so even if there were sort of outlier dictionary types of definitions, the fact that the crowding, obstructing, or incommoding comes in a phrase, and that phrase is rooted in statutory context,

[00:38:27] Speaker 06:
I see that sitting here in the courtroom and reading Bronstein and constitutional avoidance.

[00:38:35] Speaker 06:
I'm very sympathetic to that position.

[00:38:37] Speaker 06:
It seems like a strong position.

[00:38:39] Speaker 06:
The difficulty is this is used by police officers out in public and the statute, unlike the statute that we looked at in Bronstein, covers

[00:38:49] Speaker 06:
huge amount of conduct, right?

[00:38:52] Speaker 06:
It covers pedestrians in the street avenue, alley, road, highway, or sidewalk, the entrance of any public or private building or enclosure, and pretty much most normal uses of most widths of sidewalks and entrances

[00:39:09] Speaker 06:
partially obstruct other people's use of those places.

[00:39:14] Speaker 06:
So the difficulty is if you have officers who are wanting to bear down on certain components of the citizenry, what in this statute gives them a limit that they know how to keep within that doesn't just give them a move on border control over everybody?

[00:39:36] Speaker 06:
That's the difficulty, and we have the record also of the very high rates of usage of these kind of public order statutes by the police in DC, out of line with cities all over the country.

[00:39:52] Speaker 05:
Well, actually, so the record reflects, so in 2009, when the District of Columbia began thinking about reorganizing the disorderly conduct type statutes, it's in the legislative record here,

[00:40:06] Speaker 05:
In commoting offenses, we're 27 out of approximately 2,700 disorderly conduct offenses.

[00:40:14] Speaker 05:
Last year, so that's 27 in 2009.

[00:40:17] Speaker 05:
Last year, there were 24 arrests.

[00:40:21] Speaker 05:
So the enforcement of the statute is both rare

[00:40:27] Speaker 05:
and flat across or relatively flat across time.

[00:40:34] Speaker 05:
The point that you're making though about how do we sort of get into the narrowing aspect of the statue

[00:40:43] Speaker 05:
The core here is crowding, obstructing, or incomoting.

[00:40:48] Speaker 05:
And just as the Supreme Court found in Cameron, a word like obstruct just doesn't require guessiness to its meaning.

[00:40:55] Speaker 05:
And obstruct is not synonymous with standing or walking or loafing or loitering.

[00:41:01] Speaker 05:
It's obstructing.

[00:41:03] Speaker 05:
It is crowding.

[00:41:04] Speaker 05:
It is incomoting.

[00:41:06] Speaker 05:
And so it's limiting the application of the statute or the common terms

[00:41:10] Speaker 05:
that sort of have ordinary meaning and are sort of coalesced around wrong conduct.

[00:41:20] Speaker 03:
In response to Judge Pillich's question, you gave some statistics about how the statute's actually used in the district.

[00:41:28] Speaker 03:
Is that relevant to this case at this point?

[00:41:32] Speaker 05:
Not at all.

[00:41:34] Speaker 05:
This court is reviewing the statutory language.

[00:41:39] Speaker 05:
The District of Columbia's submission is that the statutory language in no way puts forward a standardless statute that vests unlimited discretion in law enforcement officers.

[00:41:50] Speaker 05:
And that is the gravell of the claim.

[00:41:51] Speaker 03:
One way to know whether the discretion is unlimited is to look to see how the statute's actually enforced in practice.

[00:41:59] Speaker 03:
Wouldn't that tell us something?

[00:42:00] Speaker 05:
I'm aware of no authority.

[00:42:02] Speaker 03:
Pardon me?

[00:42:02] Speaker 05:
I'm not aware of any authority.

[00:42:04] Speaker 03:
I was just asking a logical question.

[00:42:06] Speaker 03:
I mean, if there's some question about what the word incommodity means and there's a clear practice of it being misused in the district, doesn't it tell us something about it?

[00:42:20] Speaker 03:
You cite legislative history, doesn't it tell us what the district thinks about it?

[00:42:23] Speaker 05:
Well, the one case from the District Court of Appeals that, again, this applied the prior version of the statute, but it had the same phrase, crowding, obstructing, or incomoting, is tatats.

[00:42:35] Speaker 05:
In that case, what the court found was that it was a protest context, was that

[00:42:42] Speaker 05:
the protesters were in commoting because they were lying on the ground in front of a building.

[00:42:47] Speaker 05:
And people could sort of have to pick their way over the protesters who were lying on the ground.

[00:42:52] Speaker 05:
And the court said this is an example of in commoting.

[00:42:55] Speaker 05:
That's how they described this behavior.

[00:42:57] Speaker 06:
And it was important to the court there that there was a finding of intentional blocking.

[00:43:04] Speaker 06:
But it's your view that that's not required here.

[00:43:10] Speaker 06:
Intent.

[00:43:11] Speaker 06:
Intentional blocking is not recorded.

[00:43:12] Speaker 05:
The intent could come from the very fact of obstructing.

[00:43:16] Speaker 06:
Circumstantial evidence of intent.

[00:43:17] Speaker 06:
People are lying down trying to actually make it hard for people to go into the congressional building because they want to draw attention to their points.

[00:43:24] Speaker 06:
So there was evidence of intent according to the court of appeals.

[00:43:28] Speaker 06:
That's what I'm saying.

[00:43:30] Speaker 06:
But the court of appeals found it legally significant in terms of

[00:43:33] Speaker 06:
sustained the conviction that there was intent, that it wasn't innocent conduct.

[00:43:38] Speaker 06:
But you're saying that the statute actually doesn't require any showing of intent, so that was a tempest in a teapot.

[00:43:47] Speaker 05:
The statute would be constitutional in our view, even without sort of the second part of the statute.

[00:43:54] Speaker 05:
The fact of obstruction can be, you know, the mens rea can be inferred from the fact of obstruction.

[00:44:04] Speaker 05:
And you're absolutely right about te-tats.

[00:44:06] Speaker 05:
That's exactly the courts.

[00:44:08] Speaker 05:
Well, obviously, this is purposeful.

[00:44:11] Speaker 05:
And therefore, we don't need to show breach of peace.

[00:44:15] Speaker 05:
Again, this is the prior version of the statute, which sort of emerged from common law.

[00:44:22] Speaker 05:
Certainly, having a purpose in your statute is helpful.

[00:44:26] Speaker 05:
on here, it's arguably in there twice.

[00:44:31] Speaker 05:
You don't need the second half.

[00:44:32] Speaker 05:
It's almost maybe belt and suspenders.

[00:44:34] Speaker 05:
But there is a second half where the officer's informing the person.

[00:44:38] Speaker 05:
And they basically, at that point, sort of know that they're crowding obstructionary commoting and are choosing to remain in that posture.

[00:44:46] Speaker 05:
If there are no further questions, the judgment should be affirmed.

[00:44:55] Speaker 05:
Thank you.

[00:44:57] Speaker 03:
Mr. Claiborne, you are out of town, out of time, but you can have two minutes if you would like.

[00:45:05] Speaker 04:
With respect to whether the statutes applied to my clients, the district always took the position in the district court that the statutes did apply to my clients, and I make that point in my brief.

[00:45:20] Speaker 03:
Another point is, in the Adams case... But your complaint alleges that the statute is facially invalid.

[00:45:29] Speaker 03:
That's your allegation, and that's why the district court understood the case.

[00:45:33] Speaker 03:
Under Brown v. Sessions... So it doesn't make any difference at all what the district thought about how the statute applied to your three clients.

[00:45:44] Speaker 04:
It's a question that the court asked the district during the argument, the district

[00:45:50] Speaker 04:
I didn't think was able to say, so I was clarifying the point.

[00:45:54] Speaker 03:
Oh, all right.

[00:45:54] Speaker 03:
But it's not, you agree it's not relevant?

[00:45:57] Speaker 04:
I do not, and because I think this, I think this, whether or not a, under Brown v. Sessoms and the Supreme Court case, Johnson, I think if you want to know whether a,

[00:46:12] Speaker 04:
a claim is as applied or a facial, you look to what the complaint says, and I allege all kinds of facts showing how this statute is applied in an arbitrary and discriminatory manner against African Americans.

[00:46:25] Speaker 04:
I seek monetary relief on behalf of those clients.

[00:46:31] Speaker 04:
And also, the Supreme Court in Johnson has made clear that if a

[00:46:39] Speaker 04:
Statute is vague in one application.

[00:46:43] Speaker 04:
It's vague in every single application.

[00:46:45] Speaker 04:
And I argued both in the district court and in this court that that renders this facial as applied distinction nougatory.

[00:46:55] Speaker 04:
And I pointed out that in Johnson, they're simply in the following decisions by the Supreme Court.

[00:47:02] Speaker 04:
They don't even use the term facial anymore.

[00:47:05] Speaker 04:
They don't use the term applied.

[00:47:07] Speaker 04:
If there's a Fifth Amendment vagueness challenge, the statute's either vague or it's not.

[00:47:12] Speaker 04:
And I do think logically, and as a matter of law, as you were suggesting in one of your questions to counsel, that if you have evidence that the statute is applied.

[00:47:22] Speaker 03:
Okay.

[00:47:22] Speaker 03:
Anything else?

[00:47:24] Speaker 03:
Okay.

[00:47:24] Speaker 03:
Thank you, Mr. Flederman.

[00:47:25] Speaker 04:
Yes, Your Honor.

[00:47:26] Speaker 03:
And thank you both.

[00:47:27] Speaker 03:
The case is submitted.