[00:00:00] Speaker 00:
Case number 22, 1747.

[00:00:02] Speaker 00:
That intention is a balance versus Luke Choi, DC, metropolitan police officer.

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Mr. DeVita for the balance, Ms.

[00:00:12] Speaker 00:
Johnson for the police.

[00:00:15] Speaker 00:
Good morning.

[00:00:20] Speaker 02:
On June 1st of 2020, the District of Columbia government was concerned about looting, burning and vandalism in the city.

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In response, they enacted a curfew, which did not regulate looting, burning, or vandalism, but which, in fact, criminalized ordinarily innocent activities like walking, biking, and running.

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The curfew did not contain a First Amendment exception, and the curfew also contained a term, lawyering, which no court has ever been able to define satisfactorily.

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What this court has to determine is whether or not

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curfew law is constitutional, because if the court includes that it is not constitutional, then everything else falls by the wayside.

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For example, respect claims false arrest.

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My contention would be that you have to start with a law that's valid.

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You have to start with a law that's constitutional, because if you don't, there's no authority to act at all.

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There's no authority to make the arrest.

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And as a result, it doesn't matter whether the officers were acting in good faith

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doesn't matter whether they claim that their activities were privileged, because they have to have a law which allows them to make the arrest.

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For example, I couldn't arrest anybody in this room because they don't have the authority.

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And so any attempt on my part would be illegal, no matter whether they had a good faith belief in it's reasonableness or not.

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Mr. Devita, how do you respond to the district's argument that the use of the term loitering in the statute is quite different from its use in other statutes that bar loitering?

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Because here, it's one of several terms that make clear that it wasn't lawful during the curfew period for people to be out and about for any purpose, except for the very narrow exceptions.

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And you didn't file a reply brief, so we don't know what your response is on that.

[00:02:09] Speaker 02:
Well, my response is, I think, was actually within the brief I had.

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which is that if you let the police make those determinations, you've essentially created a statute that doesn't give any

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any boundaries at all to what the police can do.

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For example, the district court.

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But that doesn't really respond to their point because their point is that the precedents that find loitering to be vague are vague because it's difficult for either the members of the public or the police to know when someone is

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legitimately waiting for their ride versus when someone is loitering.

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Whereas under this statute, whether you're waiting for a ride, walking, running, driving, or loitering, it's all equally prohibited.

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So that line between legitimate presence on the street and illegitimate loitering is just not salient under this curfew.

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Once again,

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The statute doesn't define the term, and if it doesn't define the term, I don't see how you can read in the argument that people should interpret it to mean that you don't have any right to be on the street at all.

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Loitering doesn't mean that you don't have any right to be on the street at all.

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And does this putative vagueness affect your clients at all?

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They acknowledged they were there.

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under the terms of the curfew after it came into play?

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Well, you know, who knows what the police were arresting them for?

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It was never really specified.

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And at this point in time, I think the problem is whether you start with a statute that's constitutional to begin with.

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And there certainly was no, every court in this country that has ever looked at a law or a curfew or any other type of legal

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any type of law that had the word loitering in it, has always said it's impossible to define.

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For example, the U.S.

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District Court said loitering would mean lagging behind.

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How do you determine when somebody's lagging behind?

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What's the time amount that you're supposed to be on the street?

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If you stop to look at a store, are you waiting too long?

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The long and the short of it is, the district court and the government cannot read into the word loitering

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The idea that people who are not trained in the law should automatically assume that that means that you can't be on the street at all.

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Who knows what loitering is?

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And that's really the problem is that if you leave it like that, you leave it up to the police to make those decisions.

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And the police may very well look at somebody who's out on the street, decide that they don't like what they're saying, and say, well, he's been on the street 10 minutes, he's loitering.

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Well, what if he's on the street 5 minutes, when he'd be loitering, 15 minutes, he's out loitering.

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It's just completely undefined.

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And that's the basic problem with the courts.

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uh trying to prevent is a statute that's that vague that leaves it up to the police officer to decide who he likes or she likes who they don't like who they want on the street they don't want on the street if it's completely vague the police can do anything they want may i may ask you a question um so you are challenging the constitutionality of this curfew order

[00:05:21] Speaker 05:
And with respect to your First Amendment claims, the defendants are the individual police officers.

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And so I'm wondering why the District of Columbia is not a defendant since you're challenging the curfew order and if there are any precedents that adopt the same procedure where you're suing individual police officers when you're challenging the constitutionality of an order like a curfew order.

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Well, first of all, under 42 USC section 1983, in order to prove that the city is liable, you have to prove that the actions were the result of custom policy and practice in the city.

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And I just don't think that applies to this situation.

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The city is a defendant in respect to the common law.

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because they have they have responded at superior liability.

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But I'm puzzled by that.

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This is their policy.

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They adopted the curfew as official policy of the city now.

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The mayor adopted it.

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Yeah, I understand that.

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That's a good question.

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To be honest, ordinarily in situations, I've always I've always sued the police officer simply because they are the individuals who are

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acting as long as long as they're in the case.

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Uh, and I take, I take your point to be that even if the way you frame the case, it couldn't invalidate the curfew.

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It, your, your point is that it didn't extend authority, didn't constitutionally extend authority to the arresting officer.

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That's correct.

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And you know, uh, I really think the custom policy and practice in terms of

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actually habits that the city engages in, for example, if there's a pattern of arresting people for excessive force.

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I wasn't considering it in the light that you were talking about.

[00:07:14] Speaker 05:
But then don't you run into the problem of qualified immunity.

[00:07:18] Speaker 02:
Well, that's what I was trying to address at the outset, which is that I think that you have to have two steps here.

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The first step is, did they have any lawful authority to do what they were doing at all?

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For example, I can't arrest anybody in this room because I don't have the lawful authority to do it.

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And so no matter what I do, anything I do is illegal because I don't have the lawful authority to act.

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It has to be clearly established.

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Not only that, but you have to start off with a law.

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There has to be a law.

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And if the law is unconstitutional, it's void from the moment it was enacted.

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But how are the police officers supposed to know that when they're out enforcing a curfew order?

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And that's another good question.

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So the question becomes, let's say these officers were acting in good faith.

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Let's say they reasonably they were enforcing the law.

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The problem is that if you take that, if you let them assert that defense, it leaves my clients without a regress.

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And if you take a look at the Yale College decision here, which I cited, which took me a long time to find, it's really old law.

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But what the court said in that case is that you just can't, you can't allow the public officials to escape liability because it leaves somebody who's been had their constitutional rights violated without a remedy.

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And I think that's the basic bottom line here is that if you don't start up with a law, you don't even get into reasonable good faith.

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You don't even get into privilege.

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You have to have a lot in order to be able to act at all.

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And I think the Yale College decision, as I mentioned, is on point and it basically holds that you can't allow the public, you can't allow the government, you can't allow the police

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to escape liability for their actions if you're acting on it with respect to an invalid law.

[00:09:02] Speaker 03:
But that case predates Harlow, Anderson v. Creighton, all of the Supreme Court's contemporary qualified immunity doctrine.

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And the courts do grapple, as you mentioned, with the

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question when and under what circumstances are members of the public entitled to address, but it's under a rubric that post-dates Yale College.

[00:09:30] Speaker 02:
Well, old doesn't necessarily mean invalid.

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I'm 64 years old myself, but more of a point.

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I don't think any of the decisions she's talking about

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dealt with unconstitutional statutes.

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All right.

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We should move on and hear from other council.

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Did you intend to reserve time?

[00:09:49] Speaker 02:
One minute.

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We'll give you the one minute.

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Now we'll hear from this Johnson.

[00:10:02] Speaker 00:
Good morning.

[00:10:03] Speaker 03:
If you want to change the height there, it's over on the right.

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And it actually helps us hear the more direct the microphone is in front of you.

[00:10:12] Speaker 04:
Thank you.

[00:10:13] Speaker 04:
Good morning.

[00:10:14] Speaker 04:
May it please the court, Holly Johnson, for the District of Columbia.

[00:10:17] Speaker 01:
I'm going to move this one this way?

[00:10:18] Speaker 01:
Yeah, thank you.

[00:10:19] Speaker 04:
Is that better?

[00:10:19] Speaker 04:
Thank you.

[00:10:24] Speaker 04:
In 1979, the Supreme Court held that probable cause is not defeated by the unconstitutionality of the law.

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And I want to be clear.

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By no means are we conceding that the curfew was unconstitutional.

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But this was where the court left off.

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So I want to start there.

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And what the court said there, the Supreme Court said, is that the police must enforce laws until and unless they're declared unconstitutional.

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And pointed out all of the risks and dangers of having the police decide whether they think a law is constitutional to enforce it.

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So probable cause itself, even if this court were to find that the curfew was unconstitutional, would not be defeated by that finding.

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But even beyond that, in Letterman, this court held that even an astonishingly broad unconstitutional law on

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It was a ban on demonstrating on the Capitol sidewalk, so it was a First Amendment case.

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But even that, the enactment of the law foreclosed speculation of the police officer regarding the reconstitutionality.

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So even that astonishingly broad and according to this court, plainly unconstitutional law, still the officer was entitled to qualified immunity with regard to the arrest because it had not been declared unconstitutional.

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The standard for qualified immunity is whether a law is clearly established.

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All of the constitutional claims here could easily be disposed of via qualified immunity.

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I don't know that that's the direction this court wants to go or whether that's necessary.

[00:11:52] Speaker 03:
I'm curious about what you think would be the better course.

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We always have a choice in a case such as this where there's a qualified immunity assertion on officials' part, whether to go the Socie, Pearson, Root, and under those cases, whether to

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decide the merits or whether to say to assume the merits and decide.

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Do you have a argument as to which course we should choose?

[00:12:17] Speaker 04:
I think there could be some benefit to a ruling on the merits on the First Amendment.

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for purposes of clarity going forward.

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There's no doubt that the mayor at some point in the future will have to declare a public emergency again.

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It's entirely possible.

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A curfew would need to be declared either due to a natural disaster or civil unrest.

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So it would be nice to know the court's position on that.

[00:12:38] Speaker 04:
With regard to this, we believe, completely forfeited claim regarding intrastate travel or even with regard to the loitering thing, we don't think those are substantial enough arguments to require anything beyond a qualified immunity

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holding.

[00:12:52] Speaker 03:
And of course, when you say with regard to the loitering, I thought that was the first amendment.

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But I thought that was the only other constitutional argument.

[00:13:03] Speaker 04:
Or I guess tailoring tailoring would be the loitering is a vagueness argument.

[00:13:07] Speaker 04:
Yes.

[00:13:08] Speaker 04:
Well, my understanding is that vagueness comes under due process.

[00:13:11] Speaker 04:
So that would be a Fifth Amendment claim.

[00:13:13] Speaker 04:
It's not really clear because all of these fell under the rubric of false arrest.

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So you sort of had to parse out the amendment.

[00:13:19] Speaker 04:
So there's a first amendment claim, just a very straight up claim.

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The district does not dispute that there was an infringement on first amendment rights and that some level of heightened scrutiny would be warranted.

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We believe that.

[00:13:31] Speaker 04:
The appropriate level of scrutiny would be the chalk and Smith line of cases because this was a public emergency and obviously prefer that this court I like that as a possibility, but we focused our briefing on intermediate scrutiny because that's where the district court landed and because we think that this this rule.

[00:13:51] Speaker 04:
Survives intermediate scrutiny with flying colors.

[00:13:55] Speaker 05:
So can you talk a little bit about that?

[00:13:56] Speaker 05:
Because the one thing that I see that gives me some pause is that this was a curfew for the entire city.

[00:14:03] Speaker 05:
Yeah, I was that tailored.

[00:14:04] Speaker 04:
Yes.

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So.

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I want to just lay a marker and say that we believe that even under strict scrutiny, this would survive.

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But I will focus on the tailoring required under intermediate scrutiny, because this was a content neutral law.

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Under intermediate scrutiny, first for the legal standard, it doesn't have to be the least restrictive means.

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It just has to be a means where it would be less effective absent the restriction.

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And there are very good reasons to do a district-wide curfew in a situation like this.

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The undisputed facts in their alleged in the complaint

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is that civil unrest, dangerous civil unrest, was happening all over the district.

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And so there was no question as to where it was going to pop up.

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If this court looks to the Jeffries case cited in my brief, it is a district court case, but it's from the city of New York.

[00:14:50] Speaker 04:
It involves a curfew, I think, the same weekend, the same events, so it's very similar.

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And in Jeffries, Jeffries applied strict scrutiny.

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The court pointed out that the

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rioting and violence and vandalism was taking place in different boroughs.

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Not every single street, not every single borough, but because it was popping up in different areas, it was perfectly reasonable.

[00:15:15] Speaker 04:
to do a citywide curfew for the brief period of time for those two nights.

[00:15:20] Speaker 03:
What about the lack of any carve out any first amendment demonstration area that have been policed and localized away from businesses and other buildings subject to looting?

[00:15:34] Speaker 04:
So the first amendment carve out I want to

[00:15:37] Speaker 04:
If I can take a moment before I respond to that, because I do want to point out that the practical reasons for a district wide curfew are really important.

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The last thing that the district wants to do is to push the violence and destruction out of the middle of the city and into the residential areas.

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And there could be some real equity concerns with regard to that as well as to which parts of the city are shut down.

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It could cause racial imbalance.

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So there were a lot of reasons not to do that.

[00:16:02] Speaker 04:
Is that in the record or is this something that needs discovery?

[00:16:06] Speaker 04:
It doesn't need discovery because it's clear and straightforward.

[00:16:09] Speaker 04:
If you look at, like, the Jeffrey case sort of gives you examples of how this works.

[00:16:13] Speaker 04:
If you look at the purposes of the curfew that are listed in Juan C., which is a California case coming out of the Rodney King protests, I mean, in answer, and I apologize, Judge Pillard, I do want to get to your question, but in answer in the one regarding the event signs,

[00:16:29] Speaker 04:
This court held that you don't need evidence where there's a straightforward line of reasoning between the means and the ends, and that the quantum of evidence needed will vary with the novelty and plausibility of the justification.

[00:16:41] Speaker 04:
The curfew in response to rioting is not novel.

[00:16:44] Speaker 04:
It is a very standard approach.

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It's very plausible that that's how you restore peace and order.

[00:16:52] Speaker 05:
So I guess my follow-up would just be then where

[00:16:55] Speaker 05:
complaint or you're saying it's undisputed that the riot was all over the city.

[00:16:59] Speaker 05:
Where can I find that?

[00:17:00] Speaker 04:
So there's a couple of places.

[00:17:01] Speaker 04:
First of all, in the complaint itself, if you look at J.A.

[00:17:04] Speaker 04:
35, the plaintiffs alleged that the mayor's order cites the fact that numerous businesses, vehicles and government buildings have been vandalized, burned or looted and that rioting had occurred in and it lists all these areas across the district.

[00:17:19] Speaker 04:
So that's in the complaint itself.

[00:17:21] Speaker 04:
But beyond that, the complaint incorporates the curfew orders

[00:17:25] Speaker 04:
And there's been no dispute on the part of the plaintiffs that those are properly incorporated into the complaint.

[00:17:30] Speaker 04:
This court's rules and the district court's rules allow for incorporation of documents.

[00:17:34] Speaker 04:
And the curfew orders, I would say probably the best place to look is JA32 and JA31, like details, everything that had happened in the previous nights, and explains that these were not isolated

[00:17:50] Speaker 04:
incidents, more than 80 arrests took place in the two nights preceding this curfew and more than the majority of those were felonies.

[00:17:57] Speaker 04:
So this was a very serious circumstance.

[00:17:59] Speaker 04:
The other reason we know

[00:18:00] Speaker 04:
but it was serious, is that the mayor declared a public emergency and there's a statutory standard for that as well.

[00:18:06] Speaker 05:
So if I may though, like looking at the language that you're citing, it says Northeast, Northwest, stretching to Georgetown, Golden Triangle Business Improvement District, Downtown DC Business Improvement District, and the Mount Vernon Triangle Community District.

[00:18:23] Speaker 05:
There's a lot of DC that's not included in here.

[00:18:26] Speaker 05:
Southeast and Southwest.

[00:18:28] Speaker 04:
Well, first of all, I mean,

[00:18:31] Speaker 04:
Yes, I mean, this is not list in detail everywhere.

[00:18:35] Speaker 05:
But again, it's talking about narrow tailoring.

[00:18:37] Speaker 05:
It's supposed to to be related to to where the problem is.

[00:18:40] Speaker 05:
And if the problem's not all over the city, why is this curfew?

[00:18:45] Speaker 04:
Because the risk of pushing the rioting out into other neighborhoods and where is that?

[00:18:54] Speaker 04:
It's not.

[00:18:55] Speaker 04:
It's common sense.

[00:18:56] Speaker 04:
And I understand we're working on a motion to dismiss her.

[00:18:58] Speaker 04:
That's what I'm saying.

[00:18:59] Speaker 04:
And we will also know, and I think this is important, that this is not an argument that the plaintiffs have raised.

[00:19:04] Speaker 04:
The only tailoring that they propose, and it is their burden to propose the alternatives, the only tailoring that the plaintiffs propose is a First Amendment exception, which is the question that I've been making Judge Pillard wait for.

[00:19:16] Speaker 04:
So I'm going to turn to that now.

[00:19:18] Speaker 04:
The problem with the First Amendment exception is that when the

[00:19:24] Speaker 04:
danger arises out of people who are purporting to be out there exercising their First Amendment rights.

[00:19:30] Speaker 04:
There's no line between the would-be wrongdoers and the protesters themselves.

[00:19:38] Speaker 04:
So that's the first problem.

[00:19:41] Speaker 04:
I will note that there are no examples or cases or anything cited by the plaintiffs in which an emergency curfew had a First Amendment exception.

[00:19:48] Speaker 04:
The First Amendment exception always comes into play with permanent

[00:19:52] Speaker 04:
not with these emergency curfews or with permanent restrictions.

[00:19:55] Speaker 04:
on certain activities.

[00:19:57] Speaker 04:
The second thing I would point out is that the First Amendment exception would not protect the protesters.

[00:20:03] Speaker 04:
And if you look at 1C, one of the purposes of the curfew during a time of civil unrest is to protect the innocent people who are out there, to make it clear that when they are out there, they are safe.

[00:20:15] Speaker 04:
And when it's not safe, they come inside.

[00:20:17] Speaker 04:
And also, if this court looks at Manati, that's... Why wouldn't it protect the protesters?

[00:20:22] Speaker 03:
Put them in a place where they can be adequately policed.

[00:20:27] Speaker 03:
you localize the number of people and the nature of the activity that's permitted outside.

[00:20:32] Speaker 04:
So again, the plaintiffs have the duty to propose so that we can properly respond to alternatives and nobody's ever proposed a zone in which there was a safety patrol protest.

[00:20:44] Speaker 01:
Well, one of the other things the city was asserting was that during a period of COVID and they did not want collections of people.

[00:20:50] Speaker 01:
I mean, you're jumping right in there, right in the order.

[00:20:54] Speaker 05:
It is that's a really good point.

[00:20:56] Speaker 01:
It's not just that there might be a spread of the bad behavior, but there was a problem of encouraging the spread of people that was prohibited.

[00:21:05] Speaker 01:
Gatherings of 10 people or more was already prohibited.

[00:21:08] Speaker 04:
Of course, I appreciate you raising that.

[00:21:10] Speaker 04:
That's another reason it's in the record.

[00:21:12] Speaker 04:
and certainly corralling up all the protesters into one location and creating like a protest zone.

[00:21:16] Speaker 04:
But again, that wasn't, that's not an alternative that's been raised by the plaintiffs here.

[00:21:20] Speaker 04:
They argued that it was unconstitutional for want of a carve out.

[00:21:24] Speaker 04:
Yeah, the carve out but not a carve out in which there was a safe.

[00:21:27] Speaker 04:
I'm talking about specifically creating one location.

[00:21:30] Speaker 04:
If there was a carve-out that allowed First Amendment activity to go on everywhere, then you run into the problem the police had during the WTO protests, which is pointed out in Manati, which is that the protesters, by no fault of their own, got in the way of the police.

[00:21:45] Speaker 04:
They entered traffic, which made it so the police couldn't respond.

[00:21:48] Speaker 04:
And the people who were intent on violence used the protesters kind of as human shields.

[00:21:53] Speaker 04:
They would merge in and out of the protests.

[00:21:56] Speaker 04:
And so if you imagine, just from a practical point of view,

[00:22:00] Speaker 04:
police officer encountering group of people and maybe their intent on joining a riot.

[00:22:05] Speaker 04:
They encountered this group of people and they tell the people that those people say, well, we're protesting first amendment exception.

[00:22:14] Speaker 04:
And they go on their merry way.

[00:22:15] Speaker 04:
Well, there's, there's no way for the police to enforce that.

[00:22:18] Speaker 03:
So it just would have been in practice.

[00:22:20] Speaker 03:
All right.

[00:22:20] Speaker 03:
You had a sentence to wrap up your, I see your time.

[00:22:24] Speaker 03:
I'm good.

[00:22:25] Speaker 03:
Thank you.

[00:22:26] Speaker 03:
Thank you, Ms.

[00:22:27] Speaker 03:
Johnson.

[00:22:29] Speaker 03:
Mr. DeVita, I think we ate into your rebuttal time, but you sought to preserve a minute, and it looks like we will give you that.

[00:22:38] Speaker 02:
Democracy can be a fragile thing.

[00:22:41] Speaker 02:
It's dependent on people being able to exercise their First Amendment rights.

[00:22:46] Speaker 02:
My clients weren't criminals.

[00:22:48] Speaker 02:
All they were doing was protesting what they believed to be police brutality.

[00:22:53] Speaker 02:
This curfew law is unconstitutional for several reasons.

[00:22:56] Speaker 02:
First of all, it's overrun.

[00:22:58] Speaker 02:
Secondly, it's void for Vegas.

[00:23:01] Speaker 02:
The District of Columbia knows how to create a curfew that has the First Amendment exception.

[00:23:05] Speaker 02:
If you take a look at the Waters v. Barrett case and the Hutchins case, we had precedent in this court, the U.S.

[00:23:12] Speaker 02:
District Court.

[00:23:14] Speaker 02:
In the first case, they found the law to be unconstitutional, or found the law to be constitutional because it did have an exception.

[00:23:21] Speaker 02:
In Hutchins, it did not.

[00:23:24] Speaker 02:
The long and the short of it is,

[00:23:26] Speaker 02:
There should be an exception in the law for First Amendment activities.

[00:23:29] Speaker 02:
Otherwise, governments can use a curfew law to curb speech that they simply don't like.

[00:23:36] Speaker 03:
Thank you.

[00:23:36] Speaker 03:
Case is submitted.