United States v. DeMott

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
PETER JOHN DEMOTT,
Defendant-Appellant,
 No. 01-4569
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, INCORPORATED,
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Affirmed by unpublished opinion.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
2 UNITED STATES v. DEMOTT
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Unpublished opinions are not binding precedent in this circuit.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.
UNITED STATES v. DEMOTT 3
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
8:20 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
4 UNITED STATES v. DEMOTT
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-
UNITED STATES v. DEMOTT 5
lic movement and activities is necessary to maintain order
and public health or safety.
32 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
6 UNITED STATES v. DEMOTT
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
868 (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-
UNITED STATES v. DEMOTT 7
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-
8 UNITED STATES v. DEMOTT
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,
689 (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
UNITED STATES v. DEMOTT 9
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
10 UNITED STATES v. DEMOTT
[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
800. 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