United States v. John T. Shiel, 611 F.2d 526, 4th Cir. (1979)
United States v. John T. Shiel, 611 F.2d 526, 4th Cir. (1979)
United States v. John T. Shiel, 611 F.2d 526, 4th Cir. (1979)
2d 526
Upon orders from the captain one officer approached each demonstrator and
stated that arrests would be made in two minutes unless the demonstrator
removed himself from the floor. Upon appellant's refusal to get up, he was
arrested and issued a citation for violating a General Services Administration
regulation, 43 Fed.Reg. 29,001, 29,002 (1978) (to be codified in 41 C.F.R.
101-20.304).1 That regulation provides:
Persons in and on property shall at all times comply with official signs of a
prohibitory, regulatory, or directory nature and with the direction of Federal
protective officers and other authorized individuals.
Appellant was found guilty after his trial before a United States Magistrate,
who imposed a fifty dollar fine, suspended the same and placed appellant on
unsupervised probation for one year. The appeal is from the district court's
affirmance of the Magistrate's judgment of conviction. We affirm.
Appellant does not earnestly contend that the regulation for violation of which
he stands convicted is unconstitutional as applied to his actual course of
conduct. He concedes that his behavior in blocking the Concourse might
properly be prohibited and suggests that prosecution would have been proper
under 41 C.F.R. 101-20.311(b) (1978), which prohibits the "blocking of
entrances, driveways, walks, loading platforms or fire hydrants." However,
appellant argues that the regulation mandating compliance with an officer's
order is deficient on its face as overbroad and vague under established First
Amendment principles. On that predicate, appellant argues that the prosecution
should have been dismissed.
We, however, are not called upon to decide whether the regulation fails to pass
muster under the First Amendment in other imaginable sets of circumstances
not actually presented by this case. Broadrick v. Oklahoma, 413 U.S. 601, 61015, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (holding that overbreadth attacks on
statutes based on First Amendment grounds are not appropriate where conduct
other than "pure speech" is involved); Cf. United States v. Glenn, 562 F.2d
324, 325 (4th Cir. 1977). To the extent appellant's conduct, prior to his
simulated death in the Concourse, enjoyed First Amendment protection as
"symbolic speech", that protection dissipated when appellant went beyond
expression, and refused to obey a reasonable and legitimate order to cease
blocking the passage of others. Appellant's unjustified refusal was not protected
by the First Amendment,2 and he lacks standing to raise First Amendment facial
invalidity contentions not concerned with invocation of the regulation with
respect to his own behavior. None of the exceptional circumstances
10
AFFIRMED.
See Bachellar v. Maryland, 397 U.S. 564, 571, 90 S.Ct. 1312, 1316, 25 L.Ed.2d
570 (1970): "(I)f the jury believed the State's evidence, petitioners' convictions
could constitutionally have rested on a finding that they sat or lay across a
public sidewalk with the intent of fully blocking passage along it, or that they
refused to obey police commands to stop obstructing the sidewalk in this
manner and move on."
Appellant does contend that some officers have in some instances sought
compliance by others with orders under 41 C.F.R. 101-20.303 (1978) to cease
activities which appellant asserts are "obviously within the protection of the
First Amendment." Appellant cites Townsend v. Carmel, Civil No. 79-0746
(D.D.C. April 6, 1979). Bare assertions of occasional instances of Improper
orders having been issued under the regulation do not, however, bolster