US v. DeMott, (4th Cir. 2002)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee,

v. P ETER J OHN D E M OTT , No. 01-4569 Defendant-Appellant, A MERICAN C IVIL L IBERTIES U NION OF

V IRGINIA , I NCORPORATED , Amicus Curiae. Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge. (CR-00-404-A)

Argued: April 5, 2002

Decided: August 30, 2002 Before WIDENER and WILLIAMS, Circuit Judges, and

Walter K. STAPLETON, Senior Circuit Judge of the

United States Court of Appeals for the Third Circuit, sitting by designation. Affirmed by unpublished opinion. Senior Judge Stapleton wrote the

opinion, in which Judge Widener and Judge Williams joined. COUNSEL ARGUED: Sebastian Kenneth David Graber, Wolftown, Virginia, for

Appellant. Charles John Dlabik, Jr., OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON

BRIEF: Paul J. McNulty, United States Attorney, William C. Hen-

derson, Special Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Amicus

Curiae.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). OPINION STAPLETON, Senior Circuit Judge:

Appellant Peter DeMott was convicted of failing to obey a lawful

order to move from one location to another while participating in a

demonstration at the Pentagon Reservation. On appeal, he attacks on

numerous grounds the regulation he was convicted of violating and

a regulation requiring demonstrators at the Pentagon to obtain a per-

mit. We will affirm his conviction. I. Approximately forty demonstrators, including DeMott, gathered on

the steps of the River Entrance at the Pentagon around 4:30 a.m. on

August 6, 1999, to mark the anniversary of the bombing of Hiro-

shima. The River Entrance faces the Potomac River and is part of the

River Plaza area, which also includes a parking lot, sidewalk, and

steps leading to the River Entrance. The River Entrance is regarded

by those responsible for security as a "very sensitive area." JA 84. It

is "commonly referred to as the `VIP entrance'" because it is the point

of ingress and egress for most "dignitaries and other top level offi-

cials." Id. Immediately inside the River Entrance are the offices of the

Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and

all of the undersecretaries who report directly to the Secretary and the

Chairman.

A group of demonstrators has gathered at this entrance every year

on August 6 for some time to mark this anniversary and to communi-

cate their views regarding nuclear weapons. On the day of DeMott's

arrest, the demonstrators positioned themselves on the steps immedi-

ately adjacent to the River Entrance. They were peaceful, did not

directly block ingress to or egress from the building, and were ini-

tially allowed to remain on the steps even though they had not secured

the required permit. Captain McGriff, a uniformed shift commander

in the Defense Protective Service ("DPS"), was placed in command

of the area sometime between 6:30 and 7:00 a.m. He was responsible

for "responding to [the River Entrance] and tak[ing] appropriate

action based upon the circumstances." JA 77. Upon his arrival at the

scene, the demonstrators were relocated on the steps and a police line

was established to facilitate easier access for personnel entering the

building. Security personnel were diverted from other responsibilities

for this purpose.

Around 8:00 a.m., Captain McGriff ordered the demonstrators to

move from the steps to a sidewalk area on the other side of a small

parking lot in front of the steps. This area was ninety-five feet from

the steps of the River Entrance. His initial order was followed minutes

later by a second and third directive to the same effect. On the third

occasion, the demonstrators were advised that anyone remaining on

the steps would be arrested. Some demonstrators moved to the desig-

nated area; others, including DeMott, did not. DeMott was arrested by

:20 a.m. Captain McGriff testified that the removal order was issued

because the Secretary of Defense was expected to arrive soon at the

River Entrance, because there was an outstanding "Threatcon Alpha"

security alert, and because relocation "would remove the immediate

threat of someone . . . associated with the group or not even associ-

ated with the group . . . gaining access to the facility . . . or possibly

placing a device against" it. JA 84, 90. McGriff explained that a

Threatcon Alpha is issued when "a general threat of possible terrorist

activity exists, the extent and nature of which is unknown." JA 293.

After a bench trial, the District Court concluded, in part, as follows:

[T]he presence of numerous protesters on the steps of the River Entrance at a time when the Secretary of Defense was approaching that entrance presented a threat to his safety. As

the head of the agency, a security threat to his person consti-

tutes a threat to the normal functioning of the agency's oper-

ations, generally. In addition, the concentration of security

forces at the River Entrance necessarily reduced their ability

to deal with any threat that might arise elsewhere on the

Pentagon Reservation.

JA 375-76. . . . [T]he arresting officer perceived that DeMott's behavior

posed a threat to Pentagon security. The demonstration, con-

sisting of more than 40 people, required the stationing at the

River Entrance of security officers normally on duty else-

where in the facility. This concentrated the security forces

at the River Entrance while reducing the overall level of

security elsewhere at the Pentagon. . . . [T]he arresting offi-

cer reasonably perceived that the demonstration undermined

DPS's ability to ensure that the entire facility was protected.

Further, relocating the demonstration to a sidewalk some

distance from the entrance was a reasonable means of reduc-

ing the number of officers required to maintain security in

the vicinity.

JA 383-84.

Although DeMott was arrested for demonstrating without a permit

and for failing to obey a lawful order, he was only prosecuted and

convicted of the latter. The regulation under which he was prosecuted

prohibits:

[v]iolating the lawful order of a government employee or

agent authorized to maintain order and control public access

and movement during firefighting operations, search and

rescue operations, law enforcement actions, and emergency

operations that involve a threat to public safety or govern-

ment resources, or other activities where the control of pub- lic movement and activities is necessary to maintain order

and public health or safety.

C.F.R. § 234.6(b).

Specifically, DeMott was charged and convicted of "knowingly,

willfully and unlawfully violat[ing] the lawful order of a government

employee and agent who was authorized to maintain order and control

public access and movement in circumstances in which the control of

public movement and activities was necessary to maintain order and

public health and safety." JA 11.

DeMott challenges his conviction under 32 C.F.R. § 234.6(b) on

various grounds. He asserts that this regulation is vague and over-

broad, that when applied to his refusal to comply with the removal

order, it violated the First Amendment, and that there was insufficient

evidence to support his conviction. We discuss each of these argu-

ments in turn.

We will not address DeMott's challenges to the permit regulation.

This a criminal case and the sole matter before us is the validity of

DeMott's conviction for failing to obey the order of a Protective Ser-

vice officer under circumstances in which the control of public move-

ment and activities was necessary to maintain order and public safety.

In our view, that conviction is valid without regard to the constitu-

tional validity of the regulation requiring a permit to demonstrate at

the Pentagon. II. DeMott contends that the regulation is vague and overbroad

because it "fails to define `law enforcement actions,' [and does not]

delineate what is meant by `other activities where the control of pub-

lic movement and activities is necessary to maintain order and public

health and safety.'" Brief of Appellant at 51. In order to survive a

vagueness challenge, a statute or regulation need only give fair warn-

ing such that people of common intelligence will know whether their

contemplated conduct is forbidden. United States v. Cassiagnol , 420 F.2d 868, 873 (4th Cir. 1970). With respect to overbreadth, "the issue

is whether the scope of the challenged statute or regulation on its face

impermissibly intrudes on areas protected by the First Amendment.

Where, as here, "conduct and not merely speech is involved . . . the

overbreadth of a [regulation] must not only be real, but substantial as

well, judged in relation to [its] plainly legitimate sweep." Broadrick

v. Oklahoma , 413 U.S. 601, 615 (1973).

The first step in analyzing any vagueness or overbreath challenge

is to determine the scope of the statute or regulation. If a reasonable

construction of it will result in a finding of constitutionality, that con-

struction must be adopted. Cassiagnol , 420 F.2d at 873; see also

United States v. Harriss , 347 U.S. 612, 618 (1954) ("[I]f [the] general

class of offense can be made constitutionally definite by a reasonable

construction of the statute, this Court is under a duty to give the stat-

ute that construction.").

We find our prior decision in United States v. Cassiagnol , 420 F.2d

(4th Cir. 1970), particularly helpful in resolving DeMott's vague-

ness and overbreath challenges. That case also involved a demonstra-

tion at the Pentagon. During the demonstration Cassiagnol crossed

over and through an established line of United States Marshals into

a restricted area and then refused to leave that area. He was arrested

and convicted of violating a General Services Administration regula-

tion prohibiting, among other things, "unseemly and disorderly con-

duct on property" under the care of the GSA. In response to

Cassiagnol's vagueness and overbreadth challenges, we acknowl-

edged that the phrase "`unseemly or disorderly conduct' . . . on its

face without limiting construction might appear to raise constitutional

issues." Id. at 873. However, noting our "duty to interpret legislation

in a manner not inconsistent with the demands of the Constitution,"

we found "highly significant" the fact that the regulation was "appli-

cable to acts and conduct on government property only." Id. This fact

gave "rise to a natural and normal construction of . . . `unseemly and

disorderly conduct'" as prohibiting conduct on federal property which

interferes with or impedes normal and orderly government business

on that property. Id. Viewing the regulation as so limited, we concluded with respect to

Cassiagnol's vagueness challenge that it "would not require a high

degree of intelligence or understanding for one to reasonably con-

clude that breaking through a line of United States Marshals who

were lined up between the demonstrators and the Pentagon, a govern-

ment building of high strategic importance to the defense of the

United States, [and remaining in a restricted area] could subject him

to charges for disorderly conduct." Id. at 873-74.

With respect to the overbreadth challenge, we noted that the GSA

had "not only the right, but also the duty, to see that government prop-

erty under its charge and control is in proper condition for normal use,

so that government business may continue." Id. at 874. We held as

follows:

Even where government property is generally open to the

public, reasonable nondiscriminatory regulation is appropri-

ate to prevent interference with the designated and intended

governmental use thereof. [Citations omitted]. The right of

peaceful protest does not mean that anyone wishing to

express an opinion or belief may do so at any time or at any

place. [Citations omitted]. We conclude that the GSA regu-

lation in question is neither vague nor overly broad.

Id. at 875.

The regulation here challenged applies only to activity on the Pen-

tagon site and is directed even more clearly than the one in Cas-

siagnol to avoiding conduct that may delay or impede legitimate

government operations. Accordingly, consistent with Cassiagnol , its

references to orders issued in the context of "law enforcement

actions" and "other activities where the control of public movement

and activities is necessary to maintain order and public health or

safety" must be construed as limited to orders in furtherance of the

government's mission there. Moreover, from the standpoint of fair

warning, the regulation here holds far less potential for innocent mis-

understanding given that a violation requires an express order from a

responsible official under specified, reasonably detailed circum-

stances. We thus perceive no vagueness problem.

Nor do we find an overbreadth problem. Clearly, the government

has a very substantial interest in having persons on Pentagon property obey orders issued by responsible officials in the stipulated circum-

stances and, if there are any circumstances in which its existence

would chill First Amendment rights, that potential, as in Cassiagnol ,

is clearly not substantial when "judged in relation to [its] plainly legit-

imate sweep." Broadrick , at 615. III. DeMott further insists that the application of 32 C.F.R. § 234.6(b)

to his conduct on August 6, 1999, violates the First Amendment. We

are unpersuaded.

It makes no difference in our view whether the River Entrance of

the Pentagon be considered a public forum, a limited, designated

forum, or a non-public one. "[E]ven in a public forum the government

may impose reasonable restrictions on the time, place, and manner of

protected speech, provided the restrictions `are justified without refer-

ence to the content of the regulated speech, . . . they are narrowly tai-

lored to serve a significant government interest, and . . . they leave

open ample alternative channels for communication of the informa-

tion.'" Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989).

Moreover, while such restrictions must be narrowly tailored to serve

the government's legitimate, content-neutral interests, they "need not

be the least restrictive or least intrusive means of doing so. Rather, the

requirement of narrow tailoring is satisfied `so long as the . . . regula-

tion promotes a substantial government interest that would be

achieved less effectively absent the regulation.' . . . [Thus, so] long

as the means chosen are not substantially broader than necessary to

achieve the government's interest, . . . the regulation will not be

invalid simply because a court concludes that the government's inter-

est could be adequately served by some less-speech-restrictive alter-

native." Id. at 800 (quoting United States v. Albertine , 472 U.S. 675,

  (1985)).

There is no evidence to suggest that the decisions to order the dem-

onstrators to move some thirty yards from the steps of the River

Entrance was in any way related to the content of their speech. The

restriction imposed by that order was a content-neutral one. Similarly, there can be no debate about the government's substan-

tial interest in protecting the personal security of the Secretary of

Defense and the institutional security of the Pentagon or about the

fact that the relocation of the demonstrators from the steps adjacent

to the building entrance served those security interests.

DeMott insists, however, that the order was not narrowly tailored

and that alternative measures were available to provide security with-

out cutting off his access to his intended audience. His argument is

factually and legally flawed, however. DeMott began his demonstra-

tion on the steps at 4:30 a.m. and it continued there until 8:20 a.m. During that time security measures were taken that did not involve

relocation. It was only after news of the impending arrival of the Sec-

retary was received that relocation was required. Moreover, the

ordered relocation would not have deprived DeMott of the ability to

continue communicating his protest against his country's nuclear pol-

icy. Permission to demonstrate at the River Entrance on the desig-

nated sidewalk area provided DeMott with immediate face-to-face

access to most of those who would ultimately use the steps to the

River Entrance. It deprived him of immediate face-to-face access only

to those like the Secretary who were driven by others to the entrance

and to the few who parked in the small, restricted lot. With respect

to the latter group, relocation would have placed him less than thirty

yards away. Even with respect to the Secretary and others dropped off

at the steps, the thirty yard separation did not foreclose communica-

tion of the protest through signs and shouts.

As DeMott stresses, quoting from Heffron v. International Society

for Krishna Consciousness, Inc. , 452 U.S. 640, 655 (1981), "[t]he

First Amendment protects the right of every citizen to reach the minds

of willing listeners and [that right requires that] there must be oppor-

tunity to win their attention." This does not mean, however, that the

First Amendment guarantees immediate face-to-face access to the

President, the Secretary of Defense, and any other official whom one

might like to personally address.

DeMott's argument is also legally flawed because it is predicated

on the notion that the relocation order was invalid if less restrictive

alternatives could be suggested. As we have earlier noted, "when a

content-neutral regulation does not entirely foreclose any means of

communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the

[regulatory] goal." Hill v. Colorado , 530 U.S. 703, 726 (2000). The

relocation order "promote[d] a substantial government interest that

would be achieved less effectively" in its absence. Ward , 491 U.S. at

. That is sufficient. IV. Finally, DeMott contends that there was insufficient evidence to

establish two essential elements of the offense of conviction: (1) that

the removal order was a lawful order, and (2) that it was issued during

"activities when the control of public movement and activities is nec-

essary to maintain order and public health or safety." We have already

rejected the argument that the removal order was unlawful because it

violated DeMott's First Amendment rights. It is also implicit in the

foregoing that we find ample evidence to support the other element.

A large group demonstrating in close proximity to a sensitive location

in which a Cabinet level official was soon to pass through poses a

threat to order and to the safety of not only the Cabinet official but

also others in the area. While DeMott correctly stresses that his group

was peaceful, there was no assurance that this would continue or that

others would not take advantage of the demonstrators' drain on secur-

ity resources. Clearly, the circumstances were such that control of the

public movement and activity in the River Plaza area was necessary

to assure the maintenance of order and the security of Pentagon per-

sonnel.

While it is true, as DeMott stresses, that Captain McGriff did not

advise the demonstrators of the impending arrival of the Secretary of

Defense, such specific knowledge is clearly not an essential element

of the offense of conviction. The demonstrators were aware that high

officials would regularly seek access to the Pentagon through the

River Entrance and thus knew that security would regularly require

measures like the removal order. V. The judgment of the District Court will be affirmed. AFFIRMED

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