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Local Law Against Obstructing Sidewalks Survives Another Round in Federal Court

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The District of Columbia statute has been criticized for how it has been enforced against black residents in the city.

A Washington, D.C. law that prohibits people from blocking sidewalks and building entrances after a police officer tells them to move has withstood a challenge in federal appeals court.

The law has been criticized as racially discriminatory when it comes to how police have enforced it. In this case, lawyers for three people arrested for violating the statute argued it is unconstitutionally vague and leaves police too much discretion in how it is applied.

But a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit, in line with a lower court decision, ruled this was not so. The law's terms, wrote Judge Cornelia Pillard in a 22-page ruling issued on Friday, “are clear enough to shield against arbitrary deployment.”

Under the D.C. law, it’s a misdemeanor to “crowd, obstruct, or incommode,” streets, sidewalks, building entrances and other types of thoroughfares after a police officer instructs a person to stop doing so. The law’s origins trace back to 1892. It was updated in 2011.

The word “incommode” means to cause inconvenience or distress.

“Because it is readily apparent that the terms ‘to crowd, obstruct, or incommode’ the use of public ways mean to block or hinder other people’s ability to pass through or use a common space, we hold that the anti-obstructing statute is not unconstitutionally vague,” the court ruled. “Further, a person is not subject to arrest unless he refuses to move out of the way when an officer directs him to do so,” it added.

The three people who sued over the law were arrested in unrelated incidents during 2014 and 2015, the year the lawsuit originated.

One man, Daryl Agnew, was arrested on Christmas Eve near the entrance of a building where the mother of his child lived.

Vincent Norris, one of the D.C. police officers officers involved in Agnew’s arrest, about a month earlier, on Thanksgiving, arrested one of the other plaintiffs, Alex Dennis, who was standing on a ramp in the yard outside of his apartment building, according to court filings.

“He made me paranoid to be in my own yard,” Dennis told Washington City Paper in the months following his arrest.

The third plaintiff, Rayneka Williamson, was arrested on a February afternoon after an officer deemed her to be “disrupting the smooth flow of pedestrian traffic” and told her to move from a commercial stretch of sidewalk along Martin Luther King, Jr. Avenue Southeast.

Agnew, Dennis and Williamson are all African American. They each appeared for trial, but their cases were dismissed, with prosecutors declining to follow through with them.

An amended complaint that their lawyers filed in 2016 says that an informal survey of civil rights lawyers and other attorneys practicing law in the District suggests that, other than protests, most arrests for violations of the incommoding law involved people who are black.

They also found that the arrests typically took place in eastern sections of the city that are “in the process of gentrification,” like the Trinidad neighborhood, or along the Bladensburg Road corridor.

The appeals court decision says that the facts of the plaintiffs’ arrests as described in their lawsuit are “troubling” and that their conduct “would appear to fall outside the scope of the statute,” but adds that they did not bring a claim of racially discriminatory prosecution.

The District’s law, Pillard wrote, passes muster under a standard that the Supreme Court set in 1971 in the case of Coates v. City of Cincinnati.

In that case, the high court held that a Cincinnati ordinance that made it a criminal offense for three or more people to gather on sidewalks, who “there conduct themselves in a manner annoying to persons passing by,” was overly vague and unconstitutional.

“The fact that the law hinged on the term ‘annoying’ made it defective,” Pillard notes. “The Court specified, however, that Cincinnati could ‘prevent people from blocking sidewalks [or] obstructing traffic,’ provided it did so ‘through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited,’” the judge goes on to write.

The appeals court opinion then adds: “That is exactly what the District’s anti-obstructing statute does: it constrains a specific, objectively defined and observable behavior.”

Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.

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