District of Columbia

Court of Appeals

Nos. 14-CT-956 to 14-CT-967

ANTOINETTE BOLZ, et al.,

Appellants, 

v. CDC-2624-12; CDC-2625-12;

 CDC-2626-12; CDC-2642-12;

DISTRICT OF COLUMBIA, CDC-2643-12; CDC-2648-12;

 Appellee. CDC-2651-12; CDC-2652-12;

 CDC-2654-12; CDC-2656-12;

 CDC-2659-12; CDC-2661-12 

 

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: BLACKBURNE-RIGSBY and EASTERLY, Associate Judges; and 

STEADMAN, Senior Judge.

J U D G M E N T

 

 This case came to be heard on the transcript of record and the briefs filed, and 

was argued by counsel. On consideration whereof, and as set forth in the opinion filed

this date, it is now hereby 

 ORDERED and ADJUDGED that the protesters’ convictions under the 

Crowd and Traffic Control Regulation are reversed, and protester David Givens’s

conviction for indecent exposure is affirmed.

For the Court:

 

Dated: December 8, 2016.

Opinion by Associate Judge Catharine Easterly.

Opinion by Senior Judge John Steadman, concurring in judgment.

DEC - 8 2016
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

14-CT-956 to 14-CT-967 

ANTOINETTE BOLZ, ET AL., APPELLANTS

 V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(Nos. CDC-2624-12, CDC-2625-12, CDC-2626-12, CDC-2642-12, CDC-2643-12, 

CDC-2648-12, CDC-2651-12, CDC-2652-12, CDC-2654-12, CDC-2656-12, 

CDC-2659-12, CDC-2661-12)

(Hon. Elizabeth Carroll Wingo, Magistrate Judge)

(Hon. Heidi M. Pasichow, Associate Judge)

(Argued December 3, 2015 Decided December 8, 2016)

Jeffrey L. Light for appellants. 

John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, 

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General,

Rosalyn Calbert Groce, Deputy Solicitor General, and John J. Woykovsky, 

Assistant Attorney General, were on the brief, for appellee. 

Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and

STEADMAN, Senior Judge.

Opinion by Senior Judge STEADMAN, concurring in the judgment, at page 

30.

12/8/16
2

EASTERLY, Associate Judge: In the fall of 2011, Occupy D.C. protesters 

began demonstrating in McPherson Square, a federal park. For weeks, they

remained there with the tacit, if not express, permission of the federal authorities. 

Then, one morning in early December, they assembled a wooden structure in the 

park, the “Occubarn.” The United States Park Police told the protesters to take it 

down. The protesters did not. After an all-day standoff, the police cleared the 

area of the Occubarn and tore it down. In the course of these events, the police

arrested a number of protesters for failing to obey an order to vacate a structure

presumptively deemed unsafe under the District’s building regulations. These 

regulations do not apply to federal land, however, and the District of Columbia 

prosecuted these protesters under a different regulation—the Crowd and Traffic 

Control regulation—which makes it a crime to fail to obey a crowd and traffic

clearing order. The District also prosecuted one protester, David Givens, for

indecent exposure and disorderly conduct.

As a group, the protesters challenge their Crowd and Traffic Control 

convictions on grounds that the evidence was legally insufficient to establish that 

that they disobeyed a legitimate crowd and traffic clearing order. We agree. The 

Crowd and Traffic Control regulation does not authorize or require compliance 

with police orders to clear people from any public space at any time. Rather, the 
3

regulation only applies “[w]hen fires, accidents, wrecks, explosions, parades, or 

other occasions cause or may cause persons to collect” in the District’s public 

thoroughfares; and these “emergency occasion[s]” only empower police to issue,

and demand compliance with, orders “necessary for the purpose of affording a 

clearing” of those thoroughfares to advance one of the listed objectives of the 

regulation. 24 DCMR §§ 2100.1–.2 (1983). Although these objectives broadly 

include the “protection of persons and property,” § 2100.1 (e), the purpose asserted 

by the District for the clearing order in this case, there must be a nexus between 

this objective and clearing crowds on the District’s public thoroughfares. 

Moreover, the safety concerns at issue must be substantiated. 

We conclude that, although the construction of the Occubarn constituted an 

“emergency occasion,” the protesters did not fail to comply with a “necessary 

order.” The order was not “necessary for the purpose of affording a clearing” of a 

public thoroughfare because it cleared people from a public park. And, it was not 

“necessary . . . for the protection of persons and property,” in the absence of 

evidence that the police had reason to believe the Occubarn posed a danger to 

anyone, in particular vis-à-vis crowds on public thoroughfares. As no reasonable 

factfinder could conclude that the protesters had an obligation to obey the order 
4

issued under the Crowd and Traffic Control regulation, we reverse their 

convictions thereunder.

1

Mr. Givens separately challenges his conviction for indecent exposure, 

arguing that D.C. Code § 22-1312 (2016 Supp.) is unconstitutionally overbroad. 

Concluding that the statute is not substantially overbroad in relation to its plainly 

legitimate sweep, we affirm his conviction.

I. Facts and Procedural History

In the fall of 2011, protesters across the country “occupied” public spaces

“to bring awareness to the[ir] concerns about United States economic policy, 

wealth disparity and the political process.”

2

 At the beginning of October, the

Occupy D.C. movement established its base of operations in McPherson Square, a 

 

1

 Because we conclude that the protesters’ convictions must be reversed on 

sufficiency grounds, we need not address their arguments that the District’s Crowd 

and Traffic Control regulation is unconstitutionally overbroad or that the trial court 

committed reversible error by not sanctioning the government under Rule 16 for 

failing to preserve the Occubarn as evidence. 

2

 Henke v. Dep’t of the Interior, 842 F. Supp. 2d 54, 56 (D.D.C. 2012)

(alteration in original).
5

federal park close to the District’s corporate lobbying corridor on K Street NW.

3

The record does not establish whether the protesters had a permit to occupy the 

park,

4

but it appears that federal authorities did not challenge their presence in the 

park until December 4, 2011, when the events leading to the convictions now on 

appeal took place.

5

Before sunrise that morning, Occupy protesters began to assemble a wooden 

structure in the park. Resembling a barn, and thus earning the moniker “the 

Occubarn,” the approximately 16 by 24 by 30 foot structure consisted of four 

modular framing pieces. The Occubarn was meant to be both functional, to protect 

the protesters from winter weather, and symbolic, to represent the foreclosure 

crisis, a central concern of their movement. Although the protesters planned to add 

walls and a roof, the framed space was largely open. 

Later that morning, the U.S. Park Police arrived in McPherson Square and

informed the protesters that the Occubarn had to be taken down. Apparently aware 

 

3

 See id. at 57.

4

 It is possible that they did not need one. See 36 C.F.R. § 7.96 (g)(2)(ii)(B) 

(2011) (exempting from the permit requirement, under certain circumstances, 

demonstrations in McPherson Square of no more than five hundred people). 

5

 See Henke, 842 F. Supp. 2d at 57–58.
6

that federal regulations allow the use of temporary structures during 

demonstrations,6the protesters offered to show the police that the Occubarn was 

not permanent and could be taken apart; but according to one protester, the police 

“didn’t seem interested in that at all.” The police gave the protesters one hour to 

discuss the removal of the structure. The protesters held a meeting within the 

Occubarn but could not reach a consensus about how to proceed. About midday, 

ten to fifteen U.S. Park Police officers, some on horses, partially surrounded the 

structure. The mounted officers then rode into it, causing some protesters to climb

into the rafters to get out of their way. Other protesters left the area of the 

Occubarn. 

In the meantime, an inspector from the District’s Department of Consumer 

and Regulatory Affairs (DCRA), received a request for assistance at McPherson 

Square. Arriving around 12:30 p.m., the inspector examined the Occubarn and 

saw no signs of imminent danger; instead he noted that “the building appeared 

pretty solid.” Nevertheless, because it seemed to have been erected without a 

building permit, he determined, pursuant to the District’s building regulations, that 

it “should not be occupied.” He came to this conclusion even though (as he later 

 

6

 See 36 C.F.R. § 7.96 (g)(5)(vi) (authorizing under certain circumstances 

“temporary structures [to] be erected for the purpose of symbolizing a message or 

meeting logistical needs”). 
7

acknowledged at trial) the District’s building regulations do not apply to federal 

property. See 12A DCMR § 101.5 (2008) (exempting federal property from the 

District’s building regulations). He informed the on-site U.S. Park Police

commander that the Occubarn should be “posted,” i.e., a “standard danger placard” 

should be affixed to the structure “indicating that it’s not safe.”

7 But the 

commander asked him to wait until the police had “done some more crowd control 

activities.”

Lieutenant Robert Lachance of the U.S. Park Police arrived at McPherson 

Square and assumed command of the scene late that afternoon. At that point, there 

were still about two dozen people inside the Occubarn. The lieutenant told them

that “an inspector was going to come and look at the structure to see if it was safe.” 

He also told them that if the remaining protesters were required to leave the 

Occubarn, he would give them multiple warnings and anyone who left before he 

gave the final warning would not be arrested. 

 

7

 At trial, the inspector indicated it was his understanding that under 12A 

DCMR § 115.1 of the District’s building regulations, the failure to complete the 

permitting process and obtain a certificate of occupancy rendered a structure 

unsafe as a matter of law. 
8

Approximately four hours after the inspector arrived at McPherson Square, 

he posted the Occubarn. At this point, the police put tape around the Occubarn,

leaving the doorway on the south side open so that people could exit if they chose. 

Lieutenant Lachance then ordered the protesters to ”vacate the area,” issuing the 

same warning three times: “Attention. This is Lieutenant Lachance of the United 

States Park Police. This structure has been deemed unsafe by DC[RA]. You must 

vacate the area or be arrested.”8 None of the protesters left the structure and the 

police eventually arrested them all. 

One of the protesters, Mr. Givens, had climbed up into the rafters of the 

Occubarn and resisted multiple attempts by the police to remove him. While there, 

he developed an urgent need to urinate and relieved himself off the top of the 

structure in full view of the people on site. Some time later, Mr. Givens complied 

with the police requests, came down from the rafters, and was arrested. After the 

police completed the arrests, they bulldozed the Occubarn and discarded the debris. 

 

8

 This was the lieutenant’s best recollection at trial of the warning he issued.

Before trial, the District had represented that he specifically cited 12 DCMR § 

115.1 in his warning to the protesters. 
9

The District charged all twelve of the protesters involved in this appeal9 with

failing to obey a crowd and traffic clearing order under the District’s Crowd and 

Traffic Control regulation, 24 DCMR § 2100.2. Mr. Givens was additionally

charged with indecent exposure10 and disorderly conduct.

11

The protesters moved to dismiss the Crowd and Traffic Control charges, 

arguing that 24 DCMR § 2100.2 is unconstitutionally vague and overbroad. The 

magistrate judge presiding over the case denied the motion, reasoning that

§ 2100.2 must be read in conjunction with § 2100.1

12 and “applies only in very 

 

9 Antoinette Bolz, David Givens, Richard Lehner, Nathaniel Gorecki, Sariel 

Lehyani, Georgia Pearce, Caitlin McClure, Emm Talarico (named Marc Smith at 

the time of trial), Andrew Veysey, Kelly Mears, Sophie Vick, and George Parsons. 

10 D.C. Code § 22-1312 (2016 Supp.).

11 D.C. Code § 22-1321 (e) (2016 Supp.) (“It is unlawful for a person to 

urinate . . . in public, other than in a urinal or toilet.”). 

12

 24 DCMR § 2100.1 first provides:

When fires, accidents, wrecks, explosions, parades, or 

other occasions cause or may cause persons to collect on 

the public streets, alleys, highways, or parkings, the 

Chief of Police, an inspector or captain of the police, or 

an officer acting for him or her may establish an area or 

zone that he or she considers necessary for the purpose of 

affording a clearing for the following:

(a) The operation of firemen or policemen;

(b) The passage of a parade;

(c) The movement of traffic;

(continued...)
10

specific circumstances.” The trial court also rejected the protesters’ argument that 

the Crowd and Traffic Control regulation did not authorize the police to clear a 

public park, like McPherson Square. Defense counsel had argued that the 

regulation applied only to “public streets, alleys, highways, or parkings,”

13 not to 

parks. But the magistrate judge concluded that the “explicit language” of the 

regulation did not require “the failure to obey the order . . . to occur . . . on those 

areas.” In the same pretrial motion, Mr. Givens challenged the indecent exposure

statute as unconstitutionally overbroad; the magistrate judge denied that challenge 

as well. 

After a five-day bench trial, the magistrate judge announced her verdict. 

Acknowledging that there was no dispute that the protesters had failed to obey 

Lieutenant Lachance’s order to clear the area of the Occubarn, she explained that 

the protesters’ duty to comply with the order turned on whether the order itself was 

 

(...continued)

(d) The exclusion of the public from the vicinity of a riot, 

disorderly gathering, accident, wreck, explosion, or other 

emergency; and

(e) The protection of persons and property.

24 DCMR § 2100.2 then provides: “Each person present at the scene of an 

emergency occasion shall comply with any necessary order or instruction of any 

police officer.”

13

 See infra note 18 (discussing the definition of “parking”). 
11

lawful. Referencing 24 DCMR § 2100.1, the magistrate judge concluded that this 

had been “an emergency occasion” and the police had issued a “necessary order”

under § 2100.2. Accordingly, the magistrate judge found the protesters guilty 

beyond a reasonable doubt of failing to obey a clearing order under the Crowd and 

Traffic Control regulation. The magistrate judge also found Mr. Givens guilty of 

both disorderly conduct and indecent exposure because he had made an 

unnecessary “display” of himself while urinating. An associate judge of the 

Superior Court reviewed this verdict14 and affirmed the protesters’ convictions.

This appeal followed. 

II. Analysis

A. Failure To Obey a Crowd and Traffic Control Order 

The protesters argue that their convictions for failure to obey an order under 

the District’s Crowd and Traffic Control regulation are unsupported by sufficient 

evidence and must be reversed. In bench trials and jury trials alike, we review 

 

14

 See D.C. Code § 11-1732 (k) (2013 Repl.); Super. Ct. Crim. R. 117 

(g)(1).
12

challenges to the sufficiency of evidence de novo.

15

 High v. United States, 128 

A.3d 1017, 1020 (D.C. 2015). We examine the evidence in the light most 

favorable to the government, “with due regard for the right of the . . . trier of fact[] 

to weigh the evidence, to determine the credibility of witnesses, and to draw 

reasonable inferences.” Nero v. United States, 73 A.3d 153, 157 (D.C. 2013). But 

if the evidence so viewed “is such that a reasonable [factfinder] must have a

reasonable doubt as to the existence of any of the essential elements of the crime,” 

it is insufficient and we must reverse. Rivas v. United States, 783 A.2d 125, 134 

(D.C. 2001) (en banc). 

The protesters were convicted under 24 DCMR § 2100.2, which states that 

any “person present at the scene of an emergency occasion shall comply with any 

necessary order or instruction of any police officer.” Restated, there are three 

elements to this offense: (1) the defendant must be present at the scene of an 

emergency occasion; (2) the police must issue a necessary order; and (3) the 

defendant must fail to comply. In this case, the third element—the protesters’

noncompliance with the U.S. Park Police order to vacate the Occubarn—is

 

15

 We owe no deference to the associate judge’s affirmance of the 

magistrate judge’s order. Bradley v. District of Columbia, 107 A.3d 586, 594 

(D.C. 2015) (citing Super. Ct. Crim. R. 117). 
13

undisputed.

16 The viability of the protesters’ convictions thus turns on whether the 

District presented sufficient evidence regarding the first two elements: that the 

protesters were present at the scene of an emergency occasion and that the crowd 

and traffic clearing order was necessary to address it. Cf. Streit v. District of 

Columbia, 26 A.3d 315, 319 (D.C. 2011) (reversing appellants’ convictions for 

failure to obey a “lawful order” under 18 DCMR § 2000.2 because the government 

did not present sufficient evidence that the police order was lawful).

This court has not previously considered what constitutes “an emergency 

occasion” or a “necessary order” under § 2100.2, neither of which is expressly 

defined in the Crowd and Traffic Control regulation. As the parties have 

acknowledged throughout this litigation, however, the regulation must be read as a 

whole. Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 118 (D.C. Cir. 

1977) (noting that interpretation of the Crowd and Traffic Control regulation “must 

be based upon reading the entire regulation rather than ‘a part or word thereof’”)

 

16

 We note, however, that the police did not tell the protesters that the 

clearing order was issued under the District’s Crowd and Traffic Control 

regulation. Instead, the police directed the protesters to vacate the structure 

pursuant to 12A DCMR § 115 of the D.C. building regulations. The protesters 

have not argued that this discrepancy had any impact on the adequacy of the notice 

they received or the legitimacy of their arrest. Thus, we do not address this issue.
14

(quoting Siegman v. District of Columbia, 48 A.2d 764, 766 (D.C. 1946)).17 Doing

so conforms to basic principles of statutory and regulatory construction. See

Washington v. District of Columbia, 137 A.3d 170, 174 (D.C. 2016)

(acknowledging that this court must “look to the provisions of the whole law”). 

Reading this particular regulation as a whole is all the more appropriate because 

what is now a regulation with subparts, 24 DCMR § 2100.1–.4, was an undivided 

paragraph in its original version, D.C. Police Reg., art. 6, § 5a (1963). 

We first examine the requirement under § 2100.2 that the defendant be 

“present at the scene of an emergency occasion.” We find guidance as to the 

meaning of “emergency occasion” from the original version of the regulation,

which indicated at the outset (as it still does in § 2100.1) that it applied “[w]hen 

fires, accidents, wrecks, explosions, parades, or other occasions cause or may 

 

17

 In Cullinane, the United States Court of Appeals for the District of 

Columbia Circuit considered vagueness and overbreadth challenges to D.C. Police 

Reg., art. 6, § 5a (1963), the Crowd and Traffic Control regulation’s predecessor. 

Cullinane, 566 F.2d at 117–19. Although we conclude that we need not address 

the constitutional claims in this case, we find some of the statutory construction in 

Cullinane persuasive authority for our analysis of what must be proved to support a 

conviction for failure to obey a crowd and traffic clearing order. See M.A.P. v. 

Ryan, 285 A.2d 310, 312–13 (D.C. 1971) (holding that this court is not bound by 

decisions of the D.C. Circuit issued after December 29, 1971). 
15

cause persons to collect on the public streets, alleys, highways, or parkings.”

18

D.C. Police Reg., art. 6, § 5 (a). It then demanded compliance with clearing orders 

from “every person at such an occasion,” id. (emphasis added), clearly referring 

back to that opening clause.19 When the regulation was divided into its current 

 

18

 The antiquated term “parking” refers to interstitial areas of the public 

thoroughfares and is not to be confused with a park. Black’s Law Dictionary 

defines the term as a “strip of land, lying either in the middle of the street or in the 

space between the building line and the sidewalk . . . intended to be kept as a parklike space.” Black’s Law Dictionary (4th ed. 1951). The regulation governing the 

“upkeep” of “public parking[s],” 24 DCMR § 102 (1981), defines the term, for the 

purposes of that section, slightly differently as “that area of public space devoted 

to open space, greenery, parks, or parking that lies between the property line, 

which may or may not coincide with the building restriction line, and the edge of 

the actual or planned sidewalk that is nearer to the property line,” § 102.8 

(emphases added). The regulation further requires owners or occupants of 

property abutting such “parkings” to maintain them. § 102.1. The government 

cites both these authorities in its brief without reconciling their meaning. But 

however a parking under § 2100.1 is precisely delimited, it does not extend to a 

public park like McPherson Square. 

19

 Thus the regulation read in relevant part: 

When fires, accidents, wrecks, explosions, parades, or 

other occasions cause or may cause persons to collect on 

the public streets, alleys, highways, or parkings . . . [a 

police officer] may establish such area or zone as he 

considered necessary for the purpose of affording a 

clearing for: (1) the operation of fireman or policemen; 

(2) the passage of a parade; (3) the movement of traffic; 

(4) the exclusion of the public from the vicinity of a riot, 

disorderly gathering, accident, wreck, explosion, or other 

emergency; and (5) the protection of persons and 

property. Every person present at the scene of such an 

occasion shall comply with any necessary order or 

instruction of any police officer.” Id. (emphases added).
16

subparts—§ 2100.1 (addressing the authority of the police to clear public 

thoroughfares in certain circumstances) and § 2100.2 (addressing the obligation to 

obey clearing orders)—the opening clause of § 2100.2 was amended to refer to

“[e]ach person at the scene of an emergency occasion.” Compare D.C. Police 

Reg., art. 6, § 2 (a) (1981) (amending prior version), with 24 DCMR § 2100 (1983) 

(emphasis added). We have no indication that this alteration was intended to 

change the meaning of the regulation; instead it appears that the intent was to 

provide a clear referent for the “occasions” in § 2100.1 that define the regulation’s 

scope. Moreover, reading “emergency occasion” this way makes practical sense:

to be effective, the situational authority of the police to “afford[] a clearing” of 

thoroughfares under § 2100.1 must be coextensive with police power under 

§ 2100.2 to demand compliance with orders issued to effect such clearings.

20

Thus, we conclude that “an emergency occasion” in § 2100.2 refers to “fires, 

 

20

 By the same token, we see no indication that the situational authority of 

the police should be interpreted more broadly under § 2100.2 than under § 2100.1 

to give the police the authority to issue crowd and traffic clearing orders in any 

event deemed by the police to be an “emergency.” This would raise the specter of 

martial law powers, not to mention potential vagueness and overbreadth problems. 

See Mack v. United States, 6 A.3d 1224, 1233–34 (D.C. 2010) (courts must 

construe ambiguous language so as “to avoid serious constitutional doubts” 

(quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009))). 
17

accidents, wrecks, explosions, parades, or other occasions [that] cause or may 

cause persons to collect” in specified public areas, under § 2100.1.

21

Having clarified that “emergency occasion” refers to the opening clause of

§ 2100.1, we examine that language. It contains a subject, which consists of a list 

of situations (“fires, accidents, wrecks, explosions, parades”) and a catchall (“other 

occasions”). It also includes a modifying verb phrase that identifies the 

consequential impact of the subject occasions: that they “cause or may cause 

persons to collect on the public streets, alleys, highways, or parkings.” All of the 

occasions specifically enumerated in § 2100.1, “fires, accidents, wrecks, 

explosions, [and] parades,” will presumptively have that impact; we assume that is

why they are enumerated. The question then is what are the “other occasions” that 

“cause or may cause” people to collect in the public thoroughfares? The canon of 

 

21

 We acknowledge that describing such occasions as “emergencies,” as 

§ 2100.2 does, might, at first blush, seem inapt. While “fires, accidents, wrecks, 

[and] explosions” qualify, “parades” are less obviously so categorized. As noted 

above, however, “emergency occasion” references the entire predicate clause of the 

regulation, including “cause or may cause persons to collect” in the public 

thoroughfares of the District (“public streets, alleys, highways, or parkings”).

Thus, the occasions that trigger the regulation (including parades) are fittingly 

designated “emergenc[ies]” in the context of crowd and traffic control because of 

their sudden and unpredictable impact on transportation and public safety. Cf. 

Cullinane, 566 F.2d at 119 (noting that “the regulation deals only with 

extraordinary or emergency ‘occasions’ in which substantial factors of 

unpredictability exist”). 
18

ejusdem generis counsels that the meaning of a catchall term is informed by the list 

of words preceding it.

22

 Accordingly, the catchall term “other occasions” 

incorporates the commonality of “fires, accidents, wrecks, explosions, [and] 

parades.” Particularly when interpreted with the modifying verb phrase, these 

terms reference nonroutine incidents with elements of unpredictability and 

potential disturbance vis-à-vis transportation and public safety. See supra note 22. 

Turning to the facts of this case, we must consider whether the police were 

confronted with “an emergency occasion,” and because the construction of a barnlike structure is not one of the enumerated occasions in § 2100.1, we examine 

whether it falls within the “other occasions” catchall. The assembly of the 

Occubarn, a 16 by 24 by 30 foot structure, in McPherson Square was clearly a 

nonroutine event with unpredictable consequences. Whether this spectacle created

a potential disturbance such that it may have caused people to collect in public 

thoroughfares is a closer question. The government argues that the presence of the 

 

22

 See, e.g., Paroline v. United States, 134 S. Ct. 1710, 1721 (2014) (“[I]t is 

. . . a familiar canon of statutory construction that [catchall] clauses are to be read 

as bringing within a statute categories similar in type to those specifically 

enumerated.”) (second alteration in original); Markowitz v. United States, 598 A.2d 

398, 408 (D.C. 1991) (holding that the catchall term “other activities” in a police 

regulation defining “demonstration activity” must “refer[] to actions in the same 

class” as the preceding list of words, so as “not [to] broaden the definition to 

include activities of every type”).
19

Occubarn was a spectacle that drew a “very noisy and kind of chaotic” crowd and 

that, “absent police activity, an even larger crowd may have gathered and spilled 

into the streets.” The protesters argue that it is unreasonable to think that a crowd 

of “a couple hundred people would have spilled over into the streets,” particularly 

given that McPherson Square is so large that special events do not require a permit 

unless attendance exceeds five hundred people.23 The flaw in the protesters’

analysis, however, is that the regulation does not require the police to have 

predictive powers and assess with any particular probability that an event will 

cause people to collect in the public thoroughfares. Assuming other aspects of the 

regulation are complied with, it allows police to act prophylactically and broadly 

defines an emergency occasion as certain events that may cause people to collect in 

the public thoroughfares. With this construction, we conclude that the police were 

confronted with an emergency occasion. 

We next consider whether the order to clear the area of the Occubarn was 

“necessary” under the Crowd and Traffic Control regulation. Like “emergency 

occasion,” “necessary order” in § 2100.2 references specific language in § 2100.1. 

Cullinane, 566 F.2d 118 (holding that “[t]he word ‘necessary’ in this sentence of 

the regulation,” now § 2100.2, “has the same meaning that it does in the preceding 

 

23

 See supra note 4. 
20

sentence,” now § 2100.1). Section 2100.1 gives the police a particular tool to use 

in emergency occasions: “an officer . . . may establish an area or zone that he or 

she considers necessary for the purpose of affording a clearing for” the regulation’s 

listed objectives. For two reasons, we conclude that the order to vacate the 

Occubarn was not a “necessary order” under § 2100.2.

To begin with, an order can only be “necessary for the purpose of affording 

a clearing” if it clears the areas that actually need clearing: the specifically 

identified areas in which people may “collect,” i.e., “public streets, alleys, 

highways or parkings.” The expressio unius canon “informs us that when a list is 

enumerated it may be presumed to be exhaustive unless otherwise provided,” as, 

for example, through clear evidence of legislative intent. District of Columbia v. 

Brookstowne Cmty. Dev. Co., 987 A.2d 442, 447–48 (D.C. 2010). We lack any 

evidence suggesting that the list is not exhaustive or that the Crowd and Traffic 

Control regulation was meant to apply to public parks.

24

 Indeed, although 

iterations of this regulation have been in place for decades, we are aware of no 

 

24

 Because we conclude that the regulation does not apply to parks, we need 

not address whether it applies to federal parks in particular or whether the U.S. 

Park Police can rely on this regulation to make arrests on federal property. See

D.C. Code § 5-207 (2013 Repl.) (authorizing park police to make arrests on federal 

property for violations of federal laws and regulations); § 5-201 (giving the park 

police “the same powers and duties” as the Metropolitan Police Department in the 

District of Columbia). 
21

court decision examining, much less upholding, the application of this regulation to 

parks.25 

Our disinclination to read this regulation to extend to parks is further 

buttressed by the fact that parks are traditional fora for the exercise of First 

Amendment activity. See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 

515 (1939) (noting that parks, as well as streets, “have immemorially been held in 

trust for the use of the public and, time out of mind, have been used for purposes of 

assembly, communicating thoughts between citizens, and discussing public 

questions”). Such activity is protected both by the First Amendment to the U.S.

Constitution and by local statute.

26 Given this protected status, we are confident 

 

25

 In the seven demonstrations at issue in Cullinane, the police used the 

Crowd and Traffic Control regulation to disperse large groups of people that 

“block[ed] traffic,” filled “heavily-travelled thoroughfares” from “building line to 

building line,” or otherwise attempted “to block access to the city.” 566 F.2d at 

112–15. Similarly, in Streit, 26 A.3d at 316, the defendants were demonstrating on 

the sidewalk in front of the White House, not in a park. Although sidewalks are 

not included in the thoroughfares listed in § 2100.1, they are generally considered 

to be part of the streets. See, e.g., Alvarez v. United States, 576 A.2d 713, 715 

(D.C. 1990) (citing various authorities for the proposition that “[t]he ‘street’

includes both the roadway and the sidewalk”). In any event, Streit did not 

foreclose a challenge to the application of the Crowd and Traffic Control 

regulation outside public thoroughfares because it did not address the issue. 

26

 D.C. Code § 5-331.03 (2013 Repl.) (recognizing that the “right to 

organize and participate in peaceful First Amendment assemblies” is “subject 

[only] to reasonable restrictions designed to protect public safety, persons and 

property, and to accommodate the interest of persons not participating in the 

(continued...)
22

that if the Crowd and Traffic Control regulation were intended to authorize the 

police to clear public parks, it would say so explicitly, as it does with public 

streets. Cf. Alvarez v. United States, 576 A.2d 713, 715–16 (D.C. 1990) 

(explaining that the Council meant to prohibit the possession of open containers of 

alcohol in all public spaces where the statute prohibited such possession on “any 

street, alley, park or parking”) (emphasis added). As the police had no authority 

under § 2100.1 to clear an area inside McPherson Square, they did not issue a 

“necessary order” under § 2100.2.

In addition to being limited to clearing thoroughfares, a “necessary order” 

under § 2100.2 must be issued to advance one of the enumerated objectives of 

§ 2100.1: “(a) [t]he operation of firemen or policemen; (b) [t]he passage of a 

parade; (c) [t]he movement of traffic; (d) [t]he exclusion of the public from the 

vicinity of a riot, disorderly gathering, accident, wreck, explosion or other 

 

(...continued)

assemblies . . . to use the parks for recreational purposes”); § 5-331.08 (prohibiting 

the police from establishing an “emergency area or zone . . . by using a police line 

to encircle, or substantially encircle, a demonstration, rally, parade, march, picket 

line, or other similar assembly (or subpart thereof) conducted for the purpose of 

persons expressing their political, social, or religious views,” except in limited 

circumstances “where there is probable cause to believe that a significant number 

or percentage of the persons located in the area or zone have committed unlawful 

acts (other than failure to have an approved assembly plan) and the police have the 

ability to identify those individuals and have decided to arrest them”).
23

emergency; [or] (e) [t]he protection of persons and property.” § 2100.1 (a)–(e). 

On appeal, as at trial, the District argues that the police were acting to protect

persons and property. But while the police are authorized to issue clearing orders

they “consider necessary” for the enumerated purposes, those purposes may not be 

entirely hypothetical or conjectural. The police may not clear an area they 

consider necessary for the “passage of a parade” when there is no parade, or for the 

“exclusion of the public from the vicinity of a riot” when there is no riot. See

§§ 2100.1(b), (d). And the police may not clear an area they consider necessary 

for the “protection of persons and property” without demonstrating that persons or 

property are in possible danger and thus in need of special protection.

27

The District does not dispute this; it argues, however, that it proved that the 

police had reason to believe persons and property were in actual danger because 

there was evidence that that the unpermitted Occubarn might collapse and hurt 

both the protesters and any bystanders. 

 

27 Without such a limitation, the police would have largely unconstrained 

authority to issue crowd and traffic clearing orders: Having discerned an 

emergency occasion (which, as discussed above, requires only some possibility 

that people may gather in public thoroughfares) and invoking their ever-present 

general obligation to promote public safety, they could issue clearing orders simply 

because empty streets are safe streets.
24

Preliminarily, regardless of whether the police had reasonable grounds to 

believe that the Occubarn was unsafe, this safety concern was unrelated to clearing

the adjoining thoroughfares. The regulation designed to clear the thoroughfares

does not give the police carte blanche to address any perceived public safety 

concern unrelated to that fundamental purpose. However much other statutes or 

regulations, present or future, may bear upon police power to act in such a 

situation, it would warp the language of the particular regulation to uphold 

appellants’ convictions thereunder.

But even as to the safety concerns asserted by the District, the record fails to 

support the conclusion that the police reasonably believed that the Occubarn was a 

safety hazard. The magistrate judge found that when Lieutenant Lachance issued 

his order to vacate the Occubarn on the evening of December 4, 2011, “he had no 

idea about its [st]ability,” but he “did not think” it presented an “immediate 

danger.” Moreover, by the time Lieutenant Lachance issued his order, the 

structure had been in place all day and the police had had full access to it. The 

District presented no evidence that anyone discerned any structural defect in the 

Occubarn during this time. The DCRA building inspector who was summoned to 

inspect the structure testified that the structure showed no signs of instability. And 

he only determined that the structure should be posted as unsafe because it 
25

appeared to be unpermitted, in violation of District of Columbia building 

regulations that have no application on federal land. This fact prompted the 

magistrate judge to conclude that the danger signs he affixed had little “force” 

under the circumstances. As a further indication that the protesters were not in any 

actual danger, the police asked the inspector to delay posting the structure for 

hours, until they conducted more “crowd control activities.” Indeed, the District 

effectively conceded this issue at trial by arguing in closing: “This is not a case 

about the structural integrity of [the Occubarn].” 

In sum, while the District established that the police were confronted by an 

emergency occasion, it failed to prove beyond a reasonable doubt that the 

protesters disobeyed a “necessary order.” The District failed to present sufficient 

evidence both that the order was necessary to “afford[] a clearing” in the areas the 

police were authorized to clear and that the order was necessary to achieve one of 

the objectives of the Crowd and Traffic Control regulation, namely the protection 

of persons and property. This is not to say that the police had no power to address 

what appears to have been their goal—not crowd or traffic control, but getting rid 

of the Occubarn. It is only to say that they could not do so under the auspices of 

24 DCMR § 2100.2. Accordingly, we conclude that the protesters’ convictions for 

failing to obey an order issued under § 2100.2 must be reversed.
26

B. Mr. Givens’s Indecent Exposure Conviction 

The only remaining issue to address is Mr. Givens’s overbreadth challenge 

to the indecent exposure statute, which in relevant part makes it “unlawful for a 

person, in public, to make an obscene or indecent exposure of his or her genitalia

or anus.”

28 D.C. Code § 22-1312. Mr. Givens argues that this provision is 

unconstitutionally overbroad because it facially prohibits “indecent”—not just 

“obscene”—exposure and thus covers some theatrical and artistic displays of 

nudity that are protected by the First Amendment.

29 See Reno v. ACLU, 521 U.S. 

844, 874 (1997) (“In evaluating the free speech rights of adults, we have made it 

perfectly clear that ‘[s]exual expression which is indecent but not obscene is 

protected by the First Amendment.’” (quoting Sable Commc’ns of Cal., Inc. v. 

FCC, 492 U.S. 115, 126 (1989))). “Facial overbreadth claims have . . . been 

 

28

 As Mr. Givens’s challenge is directed only to the portion of the statute

under which he was convicted, we do not address its other provisions.

29

 The District argues that Mr. Givens lacks standing to raise an overbreadth 

challenge because the statute does not implicate the First Amendment and our 

exception to prudential third-party standing rules only applies “in limited 

circumstances.” Gamble v. United States, 30 A.3d 161, 166 (D.C. 2011). 

Although “the absence of First Amendment concerns renders an overbreadth claim 

non-justiciable under notions of prudential third party standing,” McNeely v. 

United States, 874 A.2d 371, 381 (D.C. 2005), the indecent exposure statute 

facially prohibits some expressive conduct, thereby implicating the First 

Amendment and affording Mr. Givens standing to raise this challenge. See 

Broadrick v. Oklahoma, 413 U.S. 601, 611–12 (1973). 
27

entertained where statutes, by their terms, purport to regulate . . . expressive or 

communicative conduct.” Broadrick v. Oklahoma, 413 U.S. 601, 612–13 (1973). 

Although we agree that the challenged provision of § 22-1312 could be interpreted 

to cover some forms of expressive conduct and thus implicates the First 

Amendment, this fact is not dispositive of the constitutional inquiry. Rather, “the

overbreadth of [the] statute must not only be real, but substantial as well, judged in 

relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615.

Examining the reach of the challenged provision, we observe that it applies 

to a wide range of nonexpressive conduct, which is not protected by the First 

Amendment. See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) 

(noting that “[b]eing in a state of nudity is not an inherently expressive condition”). 

At the same time, certain kinds of expressive conduct that fall within the facial 

reach of the statute are affirmatively authorized elsewhere in the District’s Code. 

See D.C. Code § 25-372 (2013 Repl.) (permitting expressive nudity in certain 

establishments licensed to sell alcohol).30 

 

30

 To the extent that two statutes conflict, “the more specific statute governs 

the more general one.” District of Columbia v. Gould, 852 A.2d 50, 55 (D.C. 

2004).
28

Even as to expressive nudity, the provision’s imposition on First 

Amendment rights is limited. It applies only “in public,” a phrase that the 

legislative history defines as “in open view; before the people at large,” D.C. 

Council, Report on Bill 18-425 at 7 (Nov. 19, 2010). Thus, the challenged 

provision does not encompass a number of the settings cited by Mr. Givens, for 

example, an in-studio display of nudity for a painting class or an indoor theatrical 

performance that requires the purchase of a ticket. Instead, the revised statute 

confines this provision’s reach to settings wherein expressive nudity can be 

constitutionally regulated because minors might be present or nonconsenting adults 

are not easily shielded from displays of nudity.31 Cf. Parnigoni v. District of 

Columbia, 933 A.2d 823 (D.C. 2007) (upholding, under an earlier form of § 22-

1312 that lacked an express “in public” element, a conviction for conduct that 

 

31 Mr. Givens argues that the Supreme Court has “held that the sexual 

expression of adults that is ‘indecent’ but not ‘obscene’ is constitutionally 

protected.” But although courts have been willing to protect the rights of 

consenting adults to transmit and receive indecent materials, they have also 

permitted states to regulate the dissemination of some indecent materials to minors 

and nonconsenting adults. See Ginsberg v. New York, 390 U.S. 629, 636 (1968)

(“[M]aterial which is protected for distribution to adults is not necessarily 

constitutionally protected from restriction upon its dissemination to children. In 

other words, the concept of obscenity or of unprotected matter may vary according 

to the group to whom the questionable material is directed or from whom it is 

quarantined.”); see also Reno, 521 U.S. at 875 (acknowledging that the Supreme 

Court has “repeatedly recognized the governmental interest in protecting children 

from harmful materials” but qualifying that “that interest does not justify an 

unnecessarily broad suppression of speech addressed to adults” via the internet). 
29

occurred in a private home). Moreover, the challenged provision does not prohibit 

all nudity in public. It prohibits the exposure only of one’s genitals or anus, 

thereby directing the prohibition at certain kinds of nudity that tend to be sexually 

evocative even if not “obscene.” See Miller v. California, 413 U.S. 15, 24, 27 

(1973) (defining obscene materials as “works which depict or describe [hard core] 

sexual conduct, . . . appeal to the prurient interest,” and lack “serious literary, 

artistic, political, or scientific value”).

On the whole, the reach of the indecent exposure provision into 

constitutionally protected territory is limited and thus not “substantial . . . in 

relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. 

Accordingly, we conclude that the indecent exposure statute is not substantially 

overbroad. To the extent that constitutionally protected conduct is prosecuted

under § 22-1312, plaintiffs can follow the “traditional rules of practice,” 

Broadrick, 413 U.S. at 615, by bringing as-applied challenges that seek to 

invalidate applications of the statute to their particular expressive conduct. Mr. 

Givens does not challenge the indecent exposure statute as applied, nor does he 

challenge the sufficiency of the evidence used to convict him. Thus we affirm his 

conviction for indecent exposure. 
30

III. Conclusion

For the reasons set forth above, we reverse the protesters’ convictions under 

the Crowd and Traffic Control regulation, and affirm Mr. Givens’s conviction for 

indecent exposure. 

So ordered.

STEADMAN, Senior Judge, concurring in the judgment: I agree with the 

majority that the evidence does not establish the necessary nexus between the 

cordoning off of the Occubarn for safety reasons and crowd control on the public 

thoroughfares. To my mind, this alone is sufficient to dispose of the appeal in

favor of the appellants charged under §2100.2. I go no further in that analysis.