SMITH v. UNITED STATES, 445 A.2d 961 (D.C.App. 1982)
Marcy G. SMITH, Appellant, v. UNITED STATES, Appellee.
Liz C. REILEY, Appellant, v. UNITED STATES, Appellee.
Nos. 13790, 13791.
District of Columbia Court of Appeals.
Argued En Banc September 30, 1981.
Decided May 3, 1982.
Appeal from the Superior Court, District of Columbia, Edward
A. Beard, J.
Page 962
Charles W. Halleck, Washington, D.C., appointed by the
court, for appellants.
John R. Fisher, Asst. U.S. Atty., Washington, D.C., with
whom Charles F. C. Ruff, U.S. Atty., Washington, D.C., at the
time the case was argued, Earl J. Silbert, U.S. Atty.,
Washington, D.C., when the original brief was filed, and John
A. Terry, John Brooks Harrington, and E. Anne McKinsey, Asst.
U.S. Attys., Washington, D.C., were on the briefs, for
appellee.
Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER,
HARRIS,[fn*] MACK, FERREN, PRYOR and BELSON, Associate Judges.
[fn*] Associate Judge HARRIS did not participate in the disposition
of this appeal. He retired from this court effective February
5, 1982.
NEBEKER, Associate Judge:
Appellants were convicted of violating the unlawful entry
statute, D.C.Code 1973, § 22-3102, based upon their refusal to
desist from conducting a demonstration on the White House
grounds. Appellants challenge their convictions on the grounds
that (1) the informations charging the offense were fatally
defective, and (2) the application of the unlawful entry
statute under this case is precluded by the First Amendment of
the United States Constitution. We affirm the convictions.
I
On April 18, 1978, Officer Thomas Brady of the United States
Secret Service Uniformed Division was assigned to a post at the
East Gate of the White House, through which tourists routinely
enter. At about
Page 963
11:00 a. m., a tourist informed Officer Brady that there was
some sort of demonstration going on inside the White House
grounds. He investigated the report, and observed four women,
including appellant Reiley, lying on a slate patio just to the
side of the tour line, approximately 50 feet inside the fence
to the right of the east portico. The women were lying in
puddles of what appeared to be a mixture of ashes and water.
Those puddles had not been on the slate earlier in the day.
Appellant Smith was standing near the prone women, addressing
other tourists as they passed.
Officer Brady did not know for what cause the demonstration
was being staged, but upon approaching appellant Smith he heard
her make reference to "[n]uclear weapons or something like
that." The officer asked the demonstrators to leave, and
informed them that their refusal would subject them to arrest
under the unlawful entry statute. He repeated this advice, but
received no response from any of the demonstrators. Thereafter,
the women additionally were informed in turn by three senior
Secret Service officers who were summoned to the scene —
Sergeant Elexia, Lieutenant Campbell, and finally Lieutenant
Jenkins — that they would be arrested if they did not leave.
When appellants and their three companions ignored the repeated
warnings, the officers ultimately closed off the tourist line
and arrested the five demonstrators.
After waiving a jury trial, appellants were tried together;
the trial judge found them guilty.
II
Appellants first contend that the government failed either to
charge or to prove a violation of the unlawful entry statute
because Officer Brady was not "the person lawfully in charge"
of the White House tour area on the day of the arrests.[fn1] The
amended informations charged appellants with:
Unlawful entry, in that without lawful authority
[they] remained upon certain property consisting
of 1600 Pennsylvania Avenue, Northwest, against
the will of Thomas Brady, the person lawfully in
charge thereof, after having been given notice to
leave.[fn2]
Appellants argue that it was Lieutenant Jenkins, not Officer
Brady, who was "lawfully in charge" of the Executive Mansion on
that day. This being so, they argue, Officer Brady had no
authority under the statute to order appellants to leave the
area in which they were demonstrating. Appellants base this
contention on a memorandum issued sometime prior to January
1978 by the then-President's counsel, Robert J. Lipshutz,
stating:
You are hereby informed that the President has
designated the Chief of the United States Secret
Service Uniformed Division (or the person acting
in that capacity) or, in his absence the senior
Official of the United States Secret Service
Uniformed Division on the scene, as the person
lawfully in charge of the Executive Mansion and
grounds, and any other building in which the White
House Offices are located, for the purposes of
Title 22, Section 3102 of the Code of Laws of the
District of Columbia. [Defendants' Exh. 1, R. 9]
When the incident occurred, Lieutenant Jenkins was the senior
officer on duty at
Page 964
the White House — the "Watch Commander," in the parlance of
the Secret Service. Appellants claim that their convictions
under § 22-3102 were invalid because the informations listed
Officer Brady as the person lawfully in charge, even though he
was not the Watch Commander at the time the demonstrators were
asked to leave. In effect, appellants suggest that the Watch
Commander, who is responsible for the overall security
operations for the entire White House complex, must leave his
post and appear personally to warn any disorderly person,
whether or not that person is engaged in any sort of protest or
demonstration, that he must leave.
Appellants' argument is inconsistent with both the plain
language of the Lipshutz memorandum and our decision in
Whittlesey v. United States, D.C.App., 221 A.2d 86 (1966). The
Lipshutz memorandum provides that in the absence of the Watch
Commander, the person "lawfully in charge" of the White House
grounds for purposes of § 22-3102 is "the senior Official of
the United States Secret Service Uniformed Division on the
scene . . . ." Both Captain Elgin and Lieutenant Jenkins of the
Secret Service testified that for practical reasons, the first
officer to arrive at the scene of a disturbance or
demonstration regularly is considered to be the senior officer
"on the scene" for purposes of giving a notice to quit and
making the decision to enforce the unlawful entry statute. It
understandably is not the practice of the Secret Service to
require the Watch Commander to appear and individually to
enforce the statute in every instance of a potential
disturbance. We agree with the government that it would be
unreasonable, within a complex as large as the grounds of the
Executive Mansion, to require that only the senior officer on
duty is empowered to enforce § 22-3102.
The government's position is supported firmly by our ruling
in Whittlesey, supra. In that case, we rejected the argument
that only the President could order demonstrators to leave the
White House under the statute. Although the issue in Whittlesey
was whether the Commanding Officer of the White House Police
(then the functional equivalent of the present Watch Commander
in the Secret Service) had authority under § 22-3102 to give
demonstrators a notice to quit, we see no reason to limit
Whittlesey narrowly to its facts. As we then stated, "[i]t
would be highly unreasonable to hold that in a public building
there is only one person, the one with senior authority, who is
lawfully in charge." 221 A.2d at 89. The court went on to
reason that "a person may be lawfully in charge even though
there are other persons who could, if they choose to do so,
countermand or override his authority, and that with respect to
given premises, there may be more than one person who has the
authority to order a removal." Id. at 91. Cf. Fatemi v. United
States, D.C.App., 192 A.2d 525, 528 (1963), aff'd (D.C. Cir.,
No. 18043, Mar. 24, 1964), cert. denied, 377 U.S. 997, 84 S.Ct.
1916, 12 L.Ed.2d 1048 (1964) (embassy minister, as agent of
ambassador, had authority to permit District of Columbia police
to enter embassy and to arrest foreign nationals). We conclude
that the senior Secret Service officer on the scene is
empowered as the lawful occupant to demand that appellants quit
the premises — the White House grounds. Since Brady was
considered to be the senior officer on the scene, the
informations property charged appellants with violations of §
22-3102.
III
A more sensitive issue is presented by appellants' claim that
their arrests and convictions were inconsistent with the First
Amendment of the Constitution. At the heart of their argument
is the well-established rule that the government may regulate
speech and communicative conduct on public property only in a
narrow and reasonably necessary manner which serves significant
government interests. See, e.g., Grayned v. Rockford,
408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Cox v.
Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965);
Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9
L.Ed.2d 697 (1963). Any regulation impinging upon
Page 965
such activity must be content-neutral and nondiscriminatory.
See United States Postal Service v. Council of Greenburgh Civic
Associations, 453 U.S. 114, 101 S.Ct. 2676, 2686, 69 L.Ed.2d
517 (1981); Police Department of Chicago v. Mosley,
408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972); Cox,
supra, 379 U.S. at 555-56, 85 S.Ct. at 464-65; Leiss v. United
States, D.C.App., 364 A.2d 803, 807-08 (1976), cert. denied,
430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). Factors to
be weighed in determining the reasonableness of any
restrictions infringing upon free expression include "the
nature of the particular public property, the weight of the
governmental interests involved, the availability of
alternative avenues of expression, and the extent to which the
regulation unnecessarily interferes with First Amendment
rights." Leiss v. United States, supra, at 808.
Appellants point out that when they were arrested, they were
in an area of the White House which was open to the public
during regular visiting hours. Their demonstration was peaceful
and had not impeded the orderly flow of tourist traffic
(although during appellants' arrests the Secret Service stopped
the tourist line temporarily). Similarly, there was no
indication that appellants' activities were likely to incite
other tourists to violence or to endanger the safety of the
President or the First Family. For those reasons, and because
their activities were "communicative" in nature, appellants
contend that their arrests "constituted an impermissible
discriminatory, content-related ad hoc regulation of free
speech beyond that reasonably required by the circumstances."
Appellants' argument has facial appeal and might well be
persuasive if we were dealing with almost any other form of
public property. The unique nature of the grounds of the
Executive Mansion, however, justifies more stringent regulation
of conduct within the White House complex than would be
tolerated on most other government properties. In Leiss v.
United States, supra, a case factually similar to the instant
controversy, we recognized these special considerations:
Unrestricted access to the White House obviously
is incompatible with its character and functions.
The White House fulfills significant governmental,
public, and private functions which make it far
more than a symbol of the executive branch of
government toward which individual grievances
legitimately may be directed. It serves as an
office complex for the President and much of his
staff, requiring order and efficiency for the
day-today performance of vital and often sensitive
administrative activities; as a public museum,
requiring the maintenance of the degree of
safekeeping and decorum to which our national
heritage is entitled; and as a home for the First
Family, requiring the provision of a private
refuge from the rigors of public life and an
unfailing vigilance against the acts of
potentially violent individuals. [364 A.2d at
808.]
Appellants argue that they were no different from other
tourists except for the fact that appellant Reiley laid down on
the ground and appellant Smith addressed other tourists as they
passed.[fn3] They contend that their conduct did nothing to impact
adversely upon the governmental functions described in Leiss.
We cannot agree that the Secret Service must wait until a
demonstration at the White House becomes violent or boisterous
before steps are taken to curb it. Protests and politically
motivated demonstrations inherently involve some degree of
controversy. When controversy is flaunted before a large
captive audience, there is always a chance for violence or
unrest, however slight.[fn4] The officers of the Secret
Page 966
Service have a duty to preserve the safety of all of those
within the White House complex, from the President to the
thousands of tourists who pass through the mansion.
See 18 U.S.C. § 3056 (1976). They also are charged with
administrative functions, one of which implicitly is to see
that the tour line is maintained in a routine and orderly
fashion during visiting hours. See 3 U.S.C. § 202 (1976). When
conduct such as appellants' requires that even one or two
Secret Service officers be diverted from their usual posts to
insure that no disruptive activity ensues, the normal White
House routine is disturbed. In this light, we do not consider
it to be unreasonable for the Secret Service to limit the
public's access to the White House solely to the purpose of
touring through portions of the Executive Mansion. As we stated
in Leiss, supra, "[t]he Secret Service and the Executive
Protective Service should not be expected to formulate
day-by-day changes in their protective procedures to
accommodate all those who wish to make the White House their
personal forum." 364 A.2d 808. The Supreme Court squarely has
rejected the notion "that people who want to propagandize
protests or views have a constitutional right to do so whenever
and however and wherever they please." Adderley v. Florida,
385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); accord,
Heffron v. International Society for Krishna Consciousness,
Inc., 452 U.S. 640, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298
(1981). Cf. United States Postal Service v. Council of
Greenburgh Civic Associations, supra, 101 S.Ct. at 2685 ("the
First Amendment does not guarantee access to property simply
because it is owned or controlled by the government"). See also
Cox v. Louisiana, supra, 379 U.S. at 554-55, 85 S.Ct. at
464-65. It is the policy of the Secret Service to prohibit any
form of demonstration within the interior grounds of the White
House, regardless of the nature of the message sought to be
conveyed.[fn5] This policy reflects the Secret Service's protective
duties and its concern for security, as well as a desire to
maintain the dignity and aesthetic grandeur of the Executive
Mansion. Appellants have failed to show that enforcement of the
unlawful entry statute against them was in any way
content-based, or that the statute was applied to them in other
than an even-handed fashion.
We take note of this policy, not because as unpublished
(Ferren, J., dissent at p. 974) it has any prescriptive weight,
but simply to show that enforcement of the unlawful entry
statute by the White House security people is reasonable and
not content oriented. No doubt it would have been easier for
any of us to decide this case if a public notice proscribed a
concerted water and ashes exercise (Ferren, J., dissent at p.
975, n.9). On the other hand, it is hardly sensible to weave
into our jurisprudence the notion that such an exercise when
coupled with a refusal to desist and leave is not proscribed by
the unlawful entry statute above.[fn6]
Page 967
Appellants' arrests might well have been susceptible to
charges of unreasonableness had they occurred on government
property other than the interior of the White House grounds
— e.g., on the steps of the United States Capitol [see United
States v. Nicholson, D.C.App., 263 A.2d 56 (1970) (per curiam),
aff'd, United States v. Nicholson, D.C.Ct.Gen.Sess., 97
Wn.D.L.Rep. 1213 (1969)], on the sidewalk in front of the
Supreme Court [see Grace v. Burger, 665 F.2d 1193 (D.C.
Cir. 1981) (Notice of Appeal filed December 11, 1981)] or on the
sidewalk just outside the White House fence [see A Quaker
Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111
(1969)]. Once inside the gates, however, "the complex and
elaborate security precautions" which are indispensable at the
White House provided a governmental interest sufficient to
outweigh appellants' rights to express a form of protest. See
Leiss, supra, 364 A.2d 808.
It is arguable that appellant Smith's conduct, by itself, did
not provide an adequate ground for invocation of the unlawful
entry statute, inasmuch as she stood to the side of the line
and directed political remarks to tourists as they passed.
However, there is no doubt that she acted in concert with
appellant Reiley and the three other women who were lying on
the patio in puddles of ashes and water. Their collective
efforts resulted in an activity which clearly was out of the
ordinary for the tour area, and which quite conceivably could
have led to disruptive reactions by tourists with opposing
views. Thus, while we by no means wish to imply that a person
leaves all First Amendment protections behind when he passes
through the White House gates, we nevertheless conclude that
the Secret Service did not act impermissibly with respect to
appellants.
Our conclusion on this issue is bolstered by the fact that
appellants had at their ready disposal equally effective
alternative means of communicating their message. Appellants
easily could have conveyed their opinions to other tourists
from the sidewalk outside the East Gate of the White House. If
their objective was to reach the President with their thoughts,
there were considerably more legitimate avenues of petition
available through which they would be more likely to gain his
attention.
Finally, appellants urge a void-for-vagueness argument based
on a January 1978 Secret Service internal memorandum concerning
procedures for handling demonstrators at the White House.[fn7] That
memorandum, issued by the Chief of the Secret Service Uniformed
Division, instructs members of that force to arrest any persons
involved in a demonstration or "sit-in" who refuse to leave
after being requested to do so. Appellants' complaint is that
the meaning of the word "demonstration" is nowhere defined.[fn8]
This they contend, means that enforcement of the unlawful entry
statute is left to the "standardless, discretionary decision of
an officer on the scene."
Appellants' vagueness argument is a specious one, for it is
raised inappropriately.[fn9] It is not within the province of this
court to declare facially unconstitutional an internal agency
memorandum that has no force or effect of law and which has not
been made available to the general public. We properly may
decide only whether application of
Page 968
the unlawful entry statute to appellants under the facts of
this case was consistent with the First Amendment. See
Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908,
2914-15, 37 L.Ed.2d 830 (1973) (improper to challenge statute
on the ground that it may be applied unconstitutionally to
someone else); see also Parker v. Levy, 417 U.S. 733, 756, 94
S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974). As the government
points out in one of its briefs, this court "need not speculate
as to whether a wholly different set of circumstances might
have resulted in a different response from the Secret Service
officers, merely because they could not articulate a
universally applicable definition of 'demonstration.'" See
Leiss, supra, 364 A.2d at 807 & n.4.
We conclude that appellants' arrests and convictions did not
constitute unreasonable restraints on the exercise of their
First Amendment rights. The judgments of the trial court
accordingly are affirmed.
Affirmed.
[fn1] The statute, D.C.Code 1973, § 22-3102, provides in pertinent
part:
Any person, who, without lawful authority, shall enter, or
attempt to enter, any public or private dwelling, building or
other property, or part of such dwelling, building or other
property, against the will of the lawful occupant or of the
person lawfully in charge thereof, or being therein or
thereon, without lawful authority to remain therein or
thereon shall refuse to quit the same on the demand of the
lawful occupant, or of the person lawfully in charge thereof,
shall be deemed guilty of a misdemeanor . . . .
[fn2] The informations originally listed Lieutenant Campbell as the
person "lawfully in charge" of the White House whose order to
leave was disregarded by appellants. At the beginning of the
trial, the informations were amended to substitute Officer
Brady for Lieutenant Campbell as the person lawfully in charge.
Appellants do not contend that they were prejudiced by the
amendment of the informations. See Super.Ct.Cr.R. 7(e).
[fn3] Captain Elgin of the Secret Service testified that tourists
are allowed to move through the tour at their own paces; they
may move faster or more slowly than other tourists in the line,
and they may stop and rest during the tour if they wish to do
so.
[fn4] Captain Elgin stated that based on his experience over the
years, he would recommend halting the tour line whenever any
demonstration occurs at the White House, because "[y]ou don't
know the potentiality of the people." He also felt that in the
past, there had been too many instances in which the Secret
Service had underreacted, rather than overreacted, to
situations involving demonstrators.
[fn5] Captain Elgin testified that although there is no precise
definition of the word "demonstration," "I don't think you
would have any problem in deciding from the officers what a
demonstration is . . . . [A]nything out of the normal of the
tourists coming here to see the White House, we would
investigate."
The Secret Service formerly tolerated limited peaceful
demonstrations inside the White House grounds during visiting
hours. The practice was abandoned in January 1978, when the
Chief of the Uniformed Division announced a new policy
prohibiting all demonstrations within the grounds.
[See Defendants' Exh. 2, R. 10]
[fn6] We have not held in Leiss, supra, and Carson v. United States,
D.C.App., 419 A.2d 996 (1980), that "in order to justify a
conviction . . . due process requires notice of specific,
prohibited conduct . . . ." (Ferren, J., dissent at p. 972).
Leiss was an after-hours request to leave situation and Carson
simply noted that absence of legal authority to engage in
conduct — "lack of right to be there," id. at 998 — may be
noted in a number of different ways, at least one of which was
evident from the record. We did not hold that due process
requires "notice of specific, prohibited conduct" in the sense
that Judge Ferren envisions.
[fn7] Appellants do not challenge the unlawful entry statute as
vague on its face. They concede that the statute's
constitutionality was settled conclusively in Leiss v. United
States, supra, at 806-08.
[fn8] See note 5, supra.
[fn9] Even if we appropriately could rule on this issue, it is
doubtful that we would find the term "demonstration"
unconstitutionally vague. A similar challenge has been rejected
by the United States District Court for the District of
Columbia. See Culver v. Secretary of the Air Force,
389 F. Supp. 331, 332-34 (D.D.C. 1975), aff'd, 182 U.S.App.D.C. 1,
559 F.2d 622 (1977) (Air Force regulation stating that "Members of
the Air Force are prohibited from participating in
demonstrations when . . . [i]n a foreign country" is not
constitutionally vague). Judge Ferren would go further, finding
the term sufficiently understandable to be precise. Thus, we
seem inescapably to have forecast a holding that a simple
proscription of "demonstrations" within the White House grounds
could solve the problems presented to us in these cases.
NEWMAN, Chief Judge, with whom MACK, Associate Judge, joins,
dissenting:
This case presents the issue of whether the unlawful entry
statute is void for vagueness as applied to appellants.[fn1] I agree
with Judge Ferren that the appellants were not provided with
fair notice of the prohibition against "demonstrations" as
required by the due process clause. I dissent separately
because, even if a posted sign had announced this
"demonstration" ban, it permits a greater degree of police
discretion than is constitutionally allowable.
I
The unlawful entry statute prohibits the act of remaining on
White House property only when such conduct is both without
lawful authority and against the expressed will of the person
lawfully in charge of the premises. Leiss v. United States,
D.C.App., 364 A.2d 803, 806 (1976), cert. denied, 430 U.S. 970,
97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). Persons may not be
lawfully ejected from the White House grounds "on the order of
the person lawfully in charge absent some additional, specific
factor establishing their lack of a legal right to be there."
Carson v. United States, D.C.App., 419 A.2d 996, 998 (1980)
(emphasis added).
This "additional specific factor" requirement serves an
important purpose. It guarantees that a valid arrest and
conviction does not rest solely on the refusal of a person to
comply with a police officer's order to leave under the general
authority of the unlawful entry statute. Rather, an individual
must violate a known, independent, and objective standard of
conduct to be subject to lawful expulsion from the White House
grounds. Were it otherwise, the statute might well constitute
an unconstitutional delegation of unbridled discretion to law
enforcement officials. See Smith v. Goguen, 415 U.S. 566, 573,
575-76, 94 S.Ct. 1242, 1247, 1248, 39 L.Ed.2d 605 (1974);
Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686,
1688, 29 L.Ed.2d 214 (1971); Gregory v. City of Chicago,
394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (1969) (Black,
J., concurring); Shuttlesworth v. City of Birmingham,
382 U.S. 87, 90, 93, 86 S.Ct. 211, 213, 214, 15 L.Ed.2d 176 (1965).
The presence of an "additional specific factor" served as a
basis for our upholding the constitutionality of arrests and
convictions for unlawful entry in other cases involving
political expression on the White House grounds. In Leiss v.
United States, supra, Leiss was lawfully arrested and convicted
because he remained on the grounds past the noon closing hour.
Not only was this in violation of an officer's request to leave
the premises, but Leiss' conduct was prohibited by the
"additional specific factor" of posted regulations restricting
visiting hours. In Carson v. United States, supra, the
"additional specific factor" was a
Page 969
chain which clearly marked off that portion of the lawn allowed
for tourist use from unauthorized portions. Carson was lawfully
arrested and convicted because, independent of the officer's
request for Carson to leave the unauthorized area, he remained
on the unauthorized portion of the lawn. In each case, not only
was the "additional specific factor" clearly posted and marked,
thereby providing adequate notice of prohibited conduct, but
the factor was so objective in nature so as not to force
private persons or police officers to guess as to its meaning.
II
In this case, the additional specific factor which deprived
appellants of a legal right to remain on the White House
grounds is an unpublished internal agency memorandum
prohibiting any form of demonstration. The unlawful entry
statute's application is predicated upon the application of
this memorandum. Contrary to the majority's comment that we
cannot review the validity of this memorandum, we cannot uphold
the application of the unlawful entry statute unless the
memorandum itself can avoid the vices of vagueness. See, e.g.,
United States v. Nicholson, D.C.Ct.Gen.Sess., 97 Wn.D.L.Rep.
1213 (1969), aff'd, D.C.App., 263 A.2d 56 (1970), reprinted in
Dellums v. Powell, 184 U.S.App.D.C. 275, 305-13, 566 F.2d 167,
197-205 (1977).
Yet, the terms of this memorandum are so indefinite and
subjective as to invite the very caprice in official
enforcement that the vagueness doctrine is designed to protect
against. "Demonstrations" are prohibited,[fn2] but nowhere are any
standards provided for an officer's interpretive discretion. As
the record makes clear, whether or not a particular activity
constitutes a demonstration is entirely dependent upon the
idiosyncratic predelictions of the officer in charge. Indeed,
Captain Elgin, a member of the Secret Service Force who
enforces the unpublished demonstration memorandum, was
questioned at length concerning his understanding of the
standards governing enforcement. He testified that there are no
written rules; that the determination of whether persons
represent a potential threat to protective responsibilities is
"a judgment call by the official on the scene there." To the
extent there is a governing standard, it appears to be whether
or not the officer in charge is annoyed by the conduct of a
person in the tour line.[fn3]
Page 970
The fact that a demonstration memorandum exists distinguishes
this case from the situation in which the mere whim of the
officer in charge is the sole measure of a lawful arrest.[fn4]
Reliance on this ambiguous ban on "demonstrations" does little,
however, to bridle whimsical and purely discretionary decision
making. The memorandum's lack of specificity leaves appellants
subject to the vagaries of official interpretation. It is
impossible of evenhanded, impartial application. Thus, the memo
cannot save the unlawful entry statute from being
unconstitutionally vague as applied to appellants.
III
While I am mindful of the need for official discretion in
order to guarantee the security of the White House grounds, I
cannot accept that the Constitution permits enforcement
officials to suppress political speech simply on the basis of
their various interpretations of what constitutes a
"demonstration." I dissent.
[fn1] The majority avoids reaching the vagueness challenge by
falsely characterizing appellants' case as a facial challenge
to the unlawful entry statute. Yet, appellants clearly contend
that the statute is void for vagueness as applied to their
conduct. Appellants' Supplemental Brief pp. 10-22.
[fn2] The majority indicates that on the authority of Culver v.
Secretary of the Air Force, 389 F. Supp. 331, 332-34
(D.D.C. 1975), aff'd, 182 U.S.App.D.C. 1, 559 F.2d 622 (1977),
the term "demonstration" is not unconstitutionally vague.
Culver, however, involved Air Force regulations prohibiting
members from participating in demonstrations in a foreign
country. Thus, the court's standard of review was controlled by
principles announced in Greer v. Spock, 424 U.S. 828, 96 S.Ct.
1211, 47 L.Ed.2d 505 (1976), and Parker v. Levy, 417 U.S. 733,
94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), which permit Congress to
legislate with more breadth and flexibility when proscribing
rules for the military than when other bodies legislate
civilian criminal law. Thus, the standard of review applied in
Culver was a relaxed standard normally associated with the
review of economic regulations. Where, as in this case, the
demonstration memorandum is neither the act of Congress nor
governs military affairs, the strict standard of review
normally applied to regulations that inhibit expression or
conduct sheltered by the First Amendment would apply. See
Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294,
2299, 33 L.Ed.2d 222 (1972) (city ordinance); Washington
Mobilization Committee v. Cullinane, 184 U.S.App.D.C. 215,
225-26, 566 F.2d 107, 117-18 (1977) (narrow specificity
required of District of Columbia police line ordinance applied
to civilian demonstration activities). It is well accepted that
the degree of vagueness the Constitution tolerates depends in
part on the nature of the enactment. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., ___ U.S. ___, ___
___, 102 S.Ct. 1186, 1191-95, 71 L.Ed.2d 362 (1982).
[fn3] I cannot accept the majority's inference that the need for
security allows the officers to lawfully arrest any person
engaged in any activity which is out of the ordinary for the
tour area, and which "quite conceivably could have led to
disruptive reactions by tourists with opposing views." See p.
967 supra. A person does not leave all First Amendment
protections behind when he passes through the White House
gates. Yet, the majority implies that the demonstration memo
makes it legitimate to bar from the White House tour line a
lone protestor wearing a political button that might offend
some persons, a person reciting the Lord's Prayer, or a person
passing out a handbill that contains the text of the First
Amendment, any of which would be out of the ordinary tour line
behavior. See Grace v. Burger, 665 F.2d 1193 (D.C. Cir. 1981)
(upholding the lawfulness of passing out handbills containing
the text of the First Amendment on the sidewalk in front of the
Supreme Court building). To the extent that this construction
of the word "demonstration" cures vagueness, it makes the
regulation unconstitutionally overbroad.
[fn4] As Judge Ferren notes, the day has passed when the government
could argue convincingly that appellants were obliged to leave
the grounds simply on the request of the officer in charge.
FERREN, Associate Judge, dissenting:
I have no quarrel with "the policy of the Secret Service to
prohibit any form of demonstration within the interior grounds
of the White House, regardless of the nature of the message
sought to be conveyed." Ante at 966. Indeed, I assume the
government could ban tourist traffic altogether at the White
House, if that appeared necessary for any reason. My problem
with the majority view, therefore, is not with proscribing the
conduct at issue here.
My concern, rather, is premised on the fact that, as
presently administered, the White House is to some extent a
public place. Customarily, the public is welcome on White House
grounds at prescribed times and in specified areas. Until
recently, in fact, the government permitted peaceful speech
activities there. Ante at 966 n.5. It follows, and our cases so
hold,[fn1] that if "the person lawfully in charge"[fn2] of the White
House grounds asks a public invitee to leave — at the risk of
otherwise violating a criminal, unlawful entry statute —
elementary due process requires notice (forewarning) of a
specific reason why that visitor has no "lawful authority to
remain." D.C.Code 1973, § 22-3102. Without such notice, arrests
and prosecutions for unlawful entry on public property could be
arbitrary — at the whim of enforcers — for the statute itself
provides no standard regulating conduct. Appellants had no
proper notice that what they were doing was unlawful. As a
consequence, their convictions should be reversed.
To repeat: no one challenges the government's right to impose
"more stringent regulation of conduct within the White House
complex than would be tolerated on most other government
properties." Ante at 965. But the majority invokes this right
without dealing with the government's corresponding obligation
to notify the public with sufficient clarity what the limits of
permissible conduct on White House property are, so that they
can conform their conduct accordingly. Under the theory of the
majority, a member of the public who is welcome on White House
grounds can be
Page 971
asked to leave — under threat of criminal prosecution — on
the basis of "an internal agency memorandum that has no force
or effect of law and which has not been made available to the
general public." Ante at 967. As elaborated below, I suggest
that the majority's application of the unlawful entry statute,
on the basis of criteria in a secret memo, is unconstitutional.
It violates due process.
I.
In Leiss v. United States, D.C.App., 364 A.2d 803 (1976),
cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362
(1977), the defendant Leiss entered the White House grounds
during public tour hours and began reading a statement
protesting American policy in Southeast Asia. He refused to
leave at closing time, and, after warnings by officers on the
scene, he was arrested and charged with unlawful entry. Leiss
contended that § 22-3102 was void for vagueness on its face in
that it provided no ascertainable standards for law enforcement
and thus failed to provide notice of the prohibited conduct.
Leiss, supra at 805 & n.1.
We rejected the vagueness challenge, reasoning that the
statute is "aimed at certain limited conduct which is
constitutionally subject to restraint. It prohibits the act of
entering or remaining upon any property when such conduct is
both without legal authority and against the expressed will of
the person lawfully in charge of the premises." Id. at 806
(emphasis added). More specifically, as to the first criterion,
"to be subject to the statute's sanctions, one must be without
legal right to trespass upon the property in question." Id.
(emphasis added). We held, accordingly, that the statute was
not unconstitutional on its face precisely because it did not
permit law enforcement officers upon "mere whim," id., to order
persons off White House property. To the contrary, Leiss was
lawfully arrested and convicted because there constitutionally
had to be — and there was — an objective, discernible basis
for asking him to leave separate from the general language of
the statute itself:
It is incontrovertible that appellant was aware
that the statute prohibited his particular
conduct. He could have had no doubt that his
presence on the White House grounds past the noon
closing hour would be against the will of the
persons in lawful charge of the premises. That will
was expressed by the sign on the gate restricting
visiting hours, and by Captain Manthos' plain
advice that appellant was forbidden to remain upon
the premises after the closing hour. [Id. at 807
(emphasis added).][fn3]
Four years later in Carson v. United States, D.C.App.,
419 A.2d 996 (1980) — a
Page 972
case the majority virtually ignores — we reaffirmed and
elaborated the point:
Thus, under the statute as construed in
Leiss, individual citizens may not be ejected from
public property on the order of the person lawfully
in charge absent some additional, specific factor
establishing their lack of a legal right to be
there. See United States v. Nicholson,
D.C.Ct.Gen.Sess., [9]7 Wn.D.L.Rep. 1213, 1216
(July 17, 1969), aff'd, D.C.App., 263 A.2d 56
(1970). Such factors may consist of posted
regulations, signs or fences and barricades
regulating the public's use of government property,
or other reasonable restrictions. [Id. at 998
(emphasis added).]
In Carson, the "specific factor," known to the defendant, that
justified the arrest was "a chain suspended from stanchions at
a height of from eighteen inches to three and one-half feet,
over which appellants had to step or jump to reach the area in
which they were arrested." Id. Just as the defendant in Leiss
knew he was present unlawfully because he had stayed past
posted White House visiting hours, the defendant in Carson knew
he was vulnerable to arrest because he had gone into an area
that was clearly marked off limits.
Accordingly, we have recognized in both Leiss and Carson
that, in order to justify a conviction for unlawful entry on
the White House grounds, due process requires notice of
specific, prohibited conduct in addition to the bare, official
warning to leave under the general authority of the statute
itself. Leiss at 806; Carson at 998.[fn4] Absent such notice, the
unlawful entry statute, though not void on its face, will be
void for vagueness as applied. See Parker v. Levy,
417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); Palmer v.
City of Euclid, 402 U.S. 544, 54546, 91 S.Ct. 1563, 1564, 29
L.Ed.2d 98 (1971) (per curiam); Cox v. Louisiana, 379 U.S. 536,
559, 568, 85 S.Ct. 476, 482, 13 L.Ed.2d 487 (1965); Leiss,
supra at 807; Whittlesey v. United States, D.C.App.,
221 A.2d 86, 89 (1966).
II.
The notice requirement under the unlawful entry statute may
be satisfied by constructive, as well as actual, notice of the
"specific factor establishing their lack of a legal right to be
there." Carson, supra at 998. But that is the rub, for there is
no evidence that appellants knew or could have known of any
restriction applicable to their conduct.
Page 973
In the first place, the record contains no reference to any
statute (other than § 22-3102 itself) or to any published rule
or regulation relevant to appellants' conduct. Compare Parker
v. Levy, supra, 417 U.S. at 757, 94 S.Ct. at 2562 (court
martial conviction under the military code not a denial of due
process where the conduct prohibited was within the definitions
and examples contained in manual available to members of the
military); Booker v. United States, D.C.App., 283 A.2d 446, 447
& n.1 (1971) (conviction under unlawful entry statute upheld
where City Council chairman ordered boisterous protestors to
leave Council chamber in accordance with published Council
rules of procedure requiring decorum during session); United
States v. Approximately 633.79 Tons of Yellowfin Tuna,
383 F. Supp. 659, 662 (S.D.Cal. 1974) (statute governing taking of tuna
not void for vagueness; although required regulations are
subject to change, "it can hardly be held that anyone is
subject to forfeiture without proper notice. The regulations
are clear and are readily available to the public.").
Second, although unpublished policies also may serve to
withdraw "lawful authority" to remain on public property, due
process requires meaningful notice of such restrictions, such
as "posted regulations" or "signs". Carson, supra at 998; see
Leiss, supra at 808-09; Whittlesey, supra at 89.[fn5] In this case,
appellants did not have access to the unpublished memorandum of
January 18, 1978 regulating "demonstrations" on White House
property. Ante at 967. No posting or other warning gave advance
notice of a Secret Service policy to prohibit "demonstrations"
on the White House grounds. Captain Elgin testified that a sign
at the outside perimeter post where visitors entered the
grounds specified the visiting hours and prohibited smoking and
picture-taking. Appellants acted within the limits of the
posted rules.
Third, even assuming verbal warnings based on unpublished
policies can provide adequate notice, the officers never told
appellants that a "no demonstrations" policy was in effect. In
asking appellants to leave, the officers only invoked the
unlawful entry statute itself.[fn6]
Finally, absent a published regulation, a posted notice, or
a verbal explanation of internal policy, appellants' particular
use of White House property did not in itself suggest a
self-evident prohibition against their activity, for a limited
area of the White House grounds is open to the public and,
until recently, peaceful speech activities had been permitted
there. Ante at 966 n.5. Appellants entered lawfully through the
tour line and attempted to communicate their message in an area
open to the public during regular tour hours. Neither the
government nor the trial court suggested that their
demonstration, including their use of an undisclosed amount of
ashes and water, resulted in destruction or defacement of
property. Nor did appellants interfere with any surrounding
activity. In the words of the trial judge:
They didn't obstruct the normal course of the line
flowing into the White House. The objection to
their presence, if any, was aesthetic. They
weren't supposed to be lying down and making a
display, but they were not obstructing anybody.
Page 974
The circumstances here contrast with a situation, for
example, in which members of the public disturb the peace,
disrupt government operations, or deface or despoil public
property — and thus should be aware of the illegality of their
acts. Compare Hurley v. Hinckley, 304 F. Supp. 704, 709-12
(D.Mass. 1969) (dicta treating disrupters of welfare office
differently from peaceful protester under unlawful entry
statute), aff'd mem. sub nom. Doyle v. O'Brien, 396 U.S. 277,
90 S.Ct. 603, 24 L.Ed.2d 469 (1970). Nor is this a case in
which individuals have refused to leave a roped-off area or a
room blocked off to tourist traffic — and thus should perceive
themselves as trespassers. In Carson, supra, for example, we
upheld the conviction of protesters because they crossed over a
chain separating the tourist roadway from the White House lawn,
a barrier that warned the defendants that their presence on the
lawn was unauthorized. See id. at 998. In contrast, the
circumstances here — especially given the history of
permissible demonstrations on White House grounds — did not
put appellants on notice that they were not permitted to lie on
the ground in the public area in a mixture of ashes and water,
or to talk to tourists in a non-obstructive manner at the side
of the tourist line.
III.
In summary, even if the Secret Service lawfully can establish
a policy barring demonstrations from the White House grounds
— and clearly it can — the government cannot predicate
criminal liability on that policy unless it gives the public
reasonable notice of the conduct prohibited. See note 4 supra.
In the present case, appellants had no notice that White House
officials, as a matter of policy, would permit no
demonstrations in the public area. Thus, the unlawful entry
statute, as applied to appellants, violated due process.
The government obviously is concerned that appellants did not
receive the kind of notice required for evictions from public
property, for it has pressed the argument that the White House,
as the President's home, is better characterized as private not
public property.[fn7] It would follow that in order to convict for
unlawful entry, the government only would have to prove that a
person lawfully in charge had ordered appellants to leave;
convictions for trespass on private property do not require an
additional, independent showing of no "lawful authority to
remain." D.C.Code 1973, § 22-3102; see note 3 supra.
We rejected that argument in Carson, supra at 998. The en
banc court apparently does so again today; my colleagues in the
majority do not purport to change the Leiss-Carson test for
unlawful entry at the White House. Actually, however, my
colleagues straddle the issue. They neither recharacterize the
White House as "private" property nor explain, if it is
"public," how appellants are to know that their conduct is
criminal — aside from the word of the police.[fn8] The majority
prefers to rely solely on the assertion, with which I agree,
that it is not "unreasonable for the Secret Service to limit
the public's access to the White House solely to the purpose of
touring through portions of the Executive Mansion." Ante at
966. This begs the question, however, for it says only that the
Secret Service had the power to limit access while ignoring the
requirement that the power be exercised in accordance with due
process.
Page 975
Given a history of permissible, peaceful demonstrations on
the public area of the White House grounds, ante at 966 n.5, my
colleagues advance an unsatisfactory basis for affirming
appellants' convictions. I respectfully dissent.[fn9]
[fn1] Carson v. United States, D.C.App., 419 A.2d 996 (1980); Leiss
v. United States,D.C.App., 364 A.2d 803 (1976), cert. denied,
430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977).
[fn2] I agree with my colleagues in the majority that for purposes
of enforcing the unlawful entry statute, Officer Brady, the
senior Secret Service officer on the scene, was "the person
lawfully in charge." D.C.Code 1973, § 22-3102.
[fn3] Although D.C.Code 1973, § 22-3102, governs criminal trespass
on both private and public property, Leiss has the practical
effect of making an important distinction between the two
situations. To establish a criminal trespass on private
property, the government has to make only a single showing:
that the defendant entered or remained on the property against
the expressed will of the lawful occupant. Because a person's
presence on private property generally is at the pleasure of
the lawful occupant, the demand of that occupant to leave in
itself deprives the other party of "lawful authority" to remain
on the premises, Feldt v. Marriott Corp., D.C.App.,
322 A.2d 913, 915-16 (1974) — subject, however, to the defense of a
good faith, reasonable belief in the right to remain on someone
else's property. Gaetano v. United States, D.C.App.,
406 A.2d 1291, 1294 (1979).
In contrast, Leiss establishes, as to public property, that
the government affirmatively must make two showings: (1) that a
person in charge of the premises expressly ordered him or her
to leave, and (2) that the alleged trespasser otherwise had no
lawful authority to remain, i.e., a showing based on a ground
independent of the evictor's wishes. For example, an individual
walking on the Capital Mall in a quiet and peaceful manner
could not be held criminally liable solely for failure to obey
a police officer's order to leave that public property; there
would have to be a legitimate, additional basis for the order.
The trial court thus incorrectly stated the rule applicable
here:
THE COURT: If Brady has the authority under the statute
because he is the lawful occupant, and he tells them he wants
them to leave, they are obligated to leave.
* * * * * *
He is in the same position as I am in my house. If I tell
you to leave my house, you may be there lawfully and at any
invitation, but when I revoke the invitation and tell you to
leave you are obligated to leave.
[fn4] Due process precludes the state from punishing behavior deemed
criminal unless the state gives fair warning to the public so
that (1) individuals may assuredly conform their conduct to the
law, see Papachriston v. City of Jacksonville, 405 U.S. 156,
162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Bouie v. City of
Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d
894 (1964); (2) law enforcement officials will be able to act
evenhandedly, see Smith v. Goguen, 415 U.S. 566, 573, 575-76,
94 S.Ct. 1242, 1247, 1248-49, 39 L.Ed.2d 605 (1974); Grayned
v. City of Rockford, 408 U.S. 104, 113-14, 92 S.Ct. 2294,
2301-02, 33 L.Ed.2d 222 (1972); Papachristou, supra, 405 U.S.
at 162, 92 S.Ct. at 843; Coates v. City of Cincinnati,
402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971);
Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 93
(1965); Cox v. Louisiana, 379 U.S. 559, 568-69 (1965); and (3)
triers of fact will have adequate guidance for determining
guilt or innocence. See Bouie, supra 378 U.S. at 353, 84 S.Ct.
at 1702. See generally 1 C. Antieau, Modern Constitutional Law
§ 5.1, at 288 (1969). In short, as the Supreme Court stated in
Smith, supra, 415 U.S. at 574, 94 S.Ct. at 1248: due process
requires that all persons "'be informed as to what the State
commands or forbids,' Lanzetta v. New Jersey, 306 U.S. 451,
453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1930), and that 'men of
common intelligence' not be forced to guess at the meaning of
the criminal law. Connally v. General Construction Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)."
Akin to this requirement of advance warning of the content of
the criminal law is the constitutional principle that the state
cannot convict a person for engaging in conduct that it has
only since made criminal. See, e.g., Marks v. United States,
430 U.S. 188, 196, 97 S.Ct. 990, 995, 51 L.Ed.2d 260 (1977);
Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 2200, 37
L.Ed.2d 52 (1973) (per curiam); Rabe v. Washington,
405 U.S. 313, 315-16, 92 S.Ct. 993, 994-95, 31 L.Ed.2d 258 (1972) (per
curiam); Bouie, supra 378 U.S. at 355, 84 S.Ct. at 1703; Bowyer
v. United States, D.C.App., 422 A.2d 973, 980-81 (1980).
[fn5] Cf. Niemotko v. Maryland, 340 U.S. 268,271, 71 S.Ct. 325, 327,
95 L.Ed. 267 (1951) (convictions for disorderly conduct
violated rights to free speech and equal protection when Park
Commissioner and City Council denied Jehovah's Witnesses
permission to use park; no statute or ordinance required
permit, and custom of requesting permission provided no
standards).
[fn6] Officer Brady testified:
I advised Miss Smith that she was in violation of the
Unlawful Entry Act and that if she didn't leave that she
would be arrested.
Again I repeated myself that you were in violation of the
Unlawful Entry Act, and if you didn't leave you would be
arrested.
[Sergeant Elexia] said that you are in violation of the
Unlawful Entry Act, and if you don't leave you will be
arrested.
Lieutenant Jenkins came on the scene, and he informed them
that they were in violation of the Unlawful Entry Act, and if
they didn't leave they would be arrested.
Captain Elgin testified that the Secret Service informed any
visitor carrying a placard to leave it at the gate. The record
contains no evidence that appellants brought in any sign that
would have triggered this warning.
[fn7] The government states in its brief: "Although the White House
belongs to the United States, it is truly misleading to call it
'public property.' The White House is the private residence of
the President of the United States, not a public park. The
President and his designees have the same authority over the
White House grounds that a private citizen has over his
residence. The interior grounds of the White House are not a
public forum and appellants were obliged to leave when
requested to do so."
[fn8] The majority therefore must agree with the government's
alarming assertion in its supplemental brief that appellants
"were not entitled to know the basis of the officer's action so
that they could debate with him whether they had 'lawful
authority' to remain." (Emphasis added.)
[fn9] Contrary to Chief Judge Newman's view, I agree with the
majority, see ante at 966 n.5, that if appellants had received
proper notice of the ban on "demonstrations," their arrest and
conviction would have been lawful. I find that term
sufficiently understandable to withstand challenge on the
ground it is unconstitutionally vague. See generally Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., ___ U.S.
___, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
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