D.C. Court of Appeals rules against convicted peace protestors
On July 30, 2009, the District of Columbia Court of Appeals ruled against convicted peace protestors in Tataz, et al. v. D.C. My brother civil liberties lawyer Mark Goldstone wrote the non-pro-se defendants’-appellants’ brief in the appeal.
The three—judge appellate panel in Tataz —- with Judge Ruiz partially dissenting, in favor of reversing the conviction for unlawful assembly at the Rayburn Building —- affirmed all convictions of multiple defendants for unlawful assembly in the Capitol Building, at the Hart Senate Office Building and the Rayburn House Office Building, and for crossing police lines after leaving permit-issued protest space outside the Capitol Building.
Judge Ruiz —- partially dissenting only as to the following count — found that the D.C. COA’s en banc Adams decision required reversal of the unlawful assembly conviction at the Rayburn building, finding that Adams requires that those assembled breach or threaten a breach of the peace, and that no charge was made concerning breach of the peace, no such evidence was submitted, and that no judicial finding of breach of the peace was entered at the bench trial. Judge Ruiz wrote that only an en banc panel can decide not to follow the en banc Adams precedent.
Unfortunately, the Tataz majority approves of the constitutionality of the Capitol Police permitting process, even though it apparently was not challenged in any of the appellants’ briefs. Such a critical First Amendment issue should not be decided without first inviting the parties to fully brief the issue, thusly letting potential amicus parties to decide whether to get on board. In that regard, the majority said:
“Although it was not the subject of much testimony at trial, the Capitol Police have adopted a content-neutral permit process allowing demonstration activity on the Capitol grounds subject to time, place and manner limitations. See U.S. CAPITOL POLICE, CONDUCTING AN EVENT ON UNITED STATES CAPITOL GROUNDS, https://www.uscapitolpolice.gov/special_events/guidelines_app_page.pdf (revised June 2009). Appellants availed themselves of this process initially; they did not, that is to say, challenge ex ante as an unconstitutional prior restraint the geographical limitations placed on their permission to assemble. Indeed, considering the testimony of one defendant at trial that all the protesters wished to do outside the Capitol Building was lay a coffin on the west front steps as a symbolic gesture, it is not apparent that they would have been denied a permit for that activity had they applied for it in advance.”
As an aside and arising from the federal colonialism that continues through today over the District of Columbia, prosecutions for demonstrations at the Capitol, the Supreme Court, and at other federal property repeatedly are handled by the D.C. Attorney General’s Office in the Superior Court, rather than by the United States Attorney’s Office at the United States District Court. As a final aside, I know at least one of the appellants, a very likable, colorful and interesting lifelong peace activist.