Your Diminishing Liberties

Okay, all you law school people out there. Finals are coming up soon. Here’s the law, District of Columbia Statute 22-1321:

Whoever, with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregates with others on a public street and refuses to move on when ordered by the police; (3) shouts or makes a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interferes with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook, or handbag; or (5) causes a disturbance in any streetcar, railroad car, omnibus, or other public conveyance, by running through it, climbing through windows or upon the seats, or otherwise annoying passengers or employees, shall be fined not more than $250 or imprisoned not more than 90 days, or both.

Now, here’s the hypothetical. Or, as you may have already guessed, the not-so-hypothetical-because-it-really-just-happened:

About a dozen “flash-mobbers” arrange to gather at the Jefferson Memorial, all wearing their iPods. They congregate inside the cupola, next to the colossal statue of the third President. Most activate their iPods at 11:55 p.m., and silently dance around the statute. Two videotape the goings-on. There are six people present, who were unaware of what the flash-mobbers had planned, and who silently observed both the statue and the dancers. At 12:01 a.m., National Park Police enter the premises within a few minutes and order the crowd to disperse. One of the dancers asks, “Why?” and is then grabbed, pressed against a wall, handcuffed, and arrested. The others then disperse. After being held for five hours, the woman who was arrested is charged with an infraction-level violation of D.C. Stat. 22-1321, and released on her own recognizance.

Look carefully at the fact pattern — note that only one arrest was made. If you’re like me, and like a lot of other people writing about this, you have to wonder: was the woman arrested for dancing or for questioning the reason for the dispersal order?

Second, and here’s where all you law students, police officers, and attorneys who practice criminal law can offer your knowledge which must surely be superior to mine — what standard applies to the police here? Can they act on reasonable suspicion, or do they need probable cause, and what facts in this pattern would constitute either reasonable suspicion or probable cause?

Third, has the defendant actually violated D.C. Stat. 22-1321?

Fourth, if she has actually violated the law, is there an applicable defense that can be raised to the prosecution, or can the government impose a $250 fine on her? (Having charged her with an infraction rather than a misdemeanor, the authorities have taken jail time off the table.)

My preliminary answers are: 1) she was arrested for questioning the officer; 2) it does not appear that a crime had been committed at all; 3) no (there is no evidence that the six onlookers had their experience at the memorial disturbed in any substantial fashion); and 4) yes, the activists were engaged in activity that could be described as protected First Amendment expression of political speech, in the form of expressing admiration for Jefferson or exercising the freedoms that he helped sculpt in the nation’s early years.

One could argue that the “flash-mobbers” were not really engaged in expressing political speech so much as they were engaged in an idle frolic, an amusement for amusement’s sake. But even if so, they should nevertheless enjoy a presumption of being engaged in some kind of expressive activity. The stimulus to the event, it seems, was a celebration of Jefferson’s birthday. More importantly, the mere act of questioning authority should not be considered a crime. At the end of the day, these cops were out of line and so is the government if the prosecution is not dismissed Monday morning in the interests of justice.