Ochs v. District of Columbia ( 2021 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 19-CT-625 and 19-CT-648
RICHARD OCHS and JESSE P. SCHULTZ III, APPELLANTS,
v.
DISTRICT OF COLUMBIA, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CDC-5243-19 and CDC-5402-19)
(Hon. Carol A. Dalton, Trial Judge)
(Argued April 27, 2021 Decided September 2, 2021)
Mark L. Goldstone for appellants.
Andrew J. Delaplane, Assistant Attorney General for the District of Columbia
at the time of argument, for appellee. Karl A. Racine, Attorney General for the
District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile,
Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and
Sonya L. Lebsack, Assistant Attorney General, were on the brief for appellee.
Before EASTERLY, MCLEESE, and DEAHL, Associate Judges.
MCLEESE, Associate Judge: Appellants Richard Ochs and Jesse P. Schultz III
appeal from their convictions for crowding, obstructing, or incommoding a street
2
after being warned to cease, in violation of D.C. Code § 22-1307(a) (2012 Repl.).
We affirm.
I.
The evidence at trial was as follows. At about 8 a.m. on a work day, Capitol
Police Officer Patrick Redding was directed to respond to 300 First Street, SE.
When he arrived, he saw about twenty pedestrians dressed in costumes and chanting
in the street as part of a protest. Officers had placed vehicles at the nearest cross
streets, blocking vehicles and preventing traffic from entering the block, for the
safety of the protestors. After creating a perimeter around the protestors, the officers
decided to order the protestors out of the street, in order to get commuter traffic
moving again. Officers warned the protestors three times to leave the middle of the
street or they would be arrested. The warnings were given a few minutes apart.
Most of the protestors left the street, but Mr. Ochs, Mr. Schultz, and others remained
in the street, sitting with locked arms. Officers arrested the remaining protestors,
including Mr. Ochs and Mr. Schultz. The arrests occurred about ten minutes after
Officer Redding arrived on the scene. The block at issue ordinarily has traffic
travelling in both directions and is usually busy on workdays.
3
A witness who attended the demonstration testified for Mr. Ochs and Mr.
Schultz. According to the witness, the protest concerned climate change and was
directed at the Republican National Committee, which is located nearby.
II.
Mr. Ochs and Mr. Schultz argue that their convictions should be overturned
because the Capitol Police failed to comply with the requirements of the First
Amendment Assemblies Act, D.C. Code § 5-331.01 et seq. (2019 Repl.) (FAAA).
We hold that the specific provisions of the FAAA upon which Mr. Ochs and Mr.
Schultz rely do not apply to the Capitol Police.
The FAAA was enacted by the District of Columbia Council. D.C. Law
15-352, 52 D.C. Reg. 5417 (June 10, 2005). The FAAA declares the policy of the
District to be that
persons and groups have a right to organize and participate
in peaceful First Amendment assemblies on the streets,
sidewalks, and other public ways . . . of the District of
Columbia, and to engage in First Amendment assembly
near the object of their protest . . . , subject to reasonable
restrictions designed to protect public safety, persons, and
property, and to accommodate the interest of persons not
participating in the assemblies to use the streets,
4
sidewalks, and other public ways to travel to their intended
destinations.
D.C. Code § 5-331.03. The FAAA generally directs the Metropolitan Police
Department (MPD) to recognize and implement that policy. D.C. Code
§§ 5-331.02(2), -331.04(a), -331.07(a).
Mr. Ochs and Mr. Schultz rely on two specific provisions of the FAAA:
§ 5-331.07(b)(1) (requiring MPD to seek voluntary compliance when enforcing
time, place, and manner restrictions) and § 5-331.07(d)(1) (limiting circumstances
in which MPD can issue general orders to disperse). The District of Columbia argues
broadly that none of the provisions of the FAAA apply to the Capitol Police and that
the Council lacks authority to enact legislation regulating the Capitol Police. We
need not reach those arguments, because it suffices for current purposes to hold more
narrowly that the two specific provisions at issue do not apply to the Capitol Police.
As noted, the two provisions at issue by their terms are directed solely to
MPD. D.C. Code § 5-331.07(b)(1), (d)(1). Mr. Ochs and Mr. Schultz have not
identified any reason for interpreting those provisions to extend beyond their literal
scope, and we are not aware of any basis for doing so. See, e.g., Sharps v. United
States, 246 A.3d 1141, 1149 (D.C. 2021) (“We will give effect to the plain meaning
of a statute when the language is unambiguous and does not produce an absurd
5
result.”) (internal quotation marks omitted). We therefore hold that those provisions
do not apply to the Capitol Police.
Mr. Ochs and Mr. Schultz also argue that Congress has made the FAAA
applicable to the Capitol Police through 2 U.S.C. § 1967. We disagree.
Section 1967 gives the Capitol Police the authority “to make arrests and otherwise
enforce the laws of the United States, including the laws of the District of
Columbia,” in various circumstances. 2 U.S.C. § 1967(a). That provision is a grant
of authority to the Capitol Police and does not by its terms subject the Capitol Police
to provisions of the D.C. Code that regulate MPD as a matter of local law. Here too
Mr. Ochs and Mr. Schultz have not identified any basis for interpreting the provision
beyond its literal terms, and we see no basis for doing so. We therefore hold that
§ 1967 did not require the Capitol Police to comply with the requirements of the
FAAA at issue in this case.
The District argues in the alternative that the Capitol Police did comply with
the requirements of the FAAA at issue. Because we have held those requirements
inapplicable, we do not reach the District’s alternative argument.
6
III.
Mr. Ochs and Mr. Schultz argue that the evidence was insufficient to support
their convictions. We conclude to the contrary.
We review de novo whether the evidence was sufficient,
viewing the evidence in the light most favorable to
sustaining the judgment, and making no distinction
between direct and circumstantial evidence. Judicial
review is deferential, giving full play to the responsibility
of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. The evidence
need not compel a finding of guilt beyond a reasonable
doubt, and it need not negate every possible inference of
innocence. Rather, proof of guilt is sufficient if any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
Fitzgerald v. United States, 228 A.3d 429, 436-37 (D.C. 2020) (brackets, citations,
ellipses, and internal quotation marks omitted).
Mr. Ochs and Mr. Schultz first challenge the sufficiency of the evidence that
they crowded, obstructed, or incommoded the street, as required for a conviction
under D.C. Code § 22-1307(a)(1)(A). Specifically, they point out that the street was
already blocked by police vehicles when Officer Redding arrived and that there was
no evidence as to when exactly the police blocked the street. Thus, they argue, there
7
was no evidence that Mr. Ochs and Mr. Schultz -- rather than preemptive actions of
the police -- were responsible for the blockage of the street.
We need not decide who bore responsibility for the initial blockage of the
street. In finding Mr. Ochs and Mr. Schultz guilty, the trial court found that Mr.
Ochs and Mr. Schultz continued the blockage of the street by remaining in the street
after the warnings to leave. We hold that the evidence supported the trial court’s
conclusion on that point. There was evidence that the protest was on a work day;
the street usually was busy on work days; the police had blocked the street,
preventing traffic from entering the block and keeping vehicles away from the
protestors; the police warned the protestors to leave, in order to get commuter traffic
moving again; and Mr. Ochs and Mr. Schultz refused to leave despite those
warnings. That evidence was sufficient to support a finding that Mr. Ochs and Mr.
Schultz prolonged the blockage of traffic and actually obstructed drivers from using
the street.
Mr. Ochs and Mr. Schultz also argue that there was insufficient evidence that
they were given warnings consistent with the requirements of the FAAA. That
argument fails, however, in light of our holding that the provisions of the FAAA on
which Mr. Ochs and Mr. Schultz rely were not applicable in this case.
8
IV.
Mr. Ochs and Mr. Schultz ask this court to hold that convictions under
§ 22-1307 require proof of a breach of the peace. They acknowledge that this court
held otherwise in Duffee v. District of Columbia, 93 A.3d 1273, 1274-77 (D.C. 2014)
(explaining that § 22-1307’s text did not require proof of breach of peace and that
legislative history of 2011 enactment demonstrated that Council did not intend to
impose such requirement). Pointing out that § 22-1307 was amended in 2013,
however, they argue that the provision should now be interpreted to require proof of
a breach of the peace. We are not persuaded by that argument.
The 2013 amendments made various changes to § 22-1307, including adding
language applicable to the blocking of passage in a park and to certain
demonstrations that did not block passage at all. D.C. Law 19-320, § 102, 60 D.C.
Reg. 11101 (Aug. 2, 2013). None of the amendments either refer to breach of the
peace or suggest any reason to interpret § 22-1307 to require proof of a breach of the
peace. Id. Mr. Ochs and Mr. Schultz suggest that the committee report relating to
the 2013 amendments does not explicitly state that § 22-1307 lacks a breach-of-the-
peace requirement. Omnibus Criminal Code Amendments Act of 2012, Report on
Bill 19-645 at 4-6 (Nov. 29, 2012). That omission is quite natural, however, given
9
that the 2011 enactment contained no breach-of-the-peace requirement and the 2013
amendments related to other issues. We see no basis to infer that the Council
intended in the 2013 amendments to silently impose a requirement it had rejected
only two years earlier. See, e.g., Newell-Brinkley v. Walton, 84 A.3d 53, 58 (D.C.
2014) (noting “it is highly unlikely that the Council would have altered preexisting
law in so fundamental a way implicitly rather than explicitly”); cf., e.g., United
States v. O’Brien, 560 U.S. 218, 231 (2010) (“[T]he applicable principle is that
Congress does not enact substantive changes sub silentio.”).
V.
Finally, Mr. Ochs and Mr. Schultz make various arguments based on MPD
and Capitol Police Department policies, as reflected, for example, in general orders
issued by the two departments. Such policies and general orders, however, generally
create no rights enforceable by the public. See, e.g., In re Walker, 856 A.2d 579,
586 (D.C. 2004) (per curiam) (“[W]e have held, in a variety of factual settings, that
internal policy manuals and similar documents generally do not give rise to judicially
enforceable rights, for they are not statutes or regulations and have no legal force or
effect.”) (citing, inter alia, Morgan v. District of Columbia, 468 A.2d 1306, 1317-18
10
(D.C. 1983) (en banc) (police department general orders)). We therefore see no basis
for relief based on claimed violations of General Orders or policies.
VI.
For the foregoing reasons, we affirm the judgments of the Superior Court.
So ordered.