Smith v. United States

445 A.2d 961, 1982 D.C. App. LEXIS 348

• Court: District of Columbia Court of Appeals
• Decided: May 3, 1982
• Docket: 13790, 13791
• Status: Published

Opinions

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 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 “[njuclear 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.¹ 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.[²]

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 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 in-formations 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 properly charged appellants with violations of § 22-3102.

Ill

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 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.³ 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.⁴ The officers of the Secret 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.⁵ 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 proscriptive 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.⁶

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 Wash.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.⁷ 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.⁸ 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.⁹ 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 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.

1 . 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 ....

2 . 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).

3 . 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.

4 . 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.

5 . 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]

6 . 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.

7 . 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.

8 . See note 5, supra.

9 . 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.