AGNEW et al v. GOVERNMENT OF THE DISTRICT OF COLUMBIA et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 6/26/2017. (lcabj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DARYL THOMAS AGNEW, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 15-0340 (ABJ)
)
GOVERNMENT OF THE
)
DISTRICT OF COLUMBIA,
)
)
Defendant.
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____________________________________)
MEMORANDUM OPINION
Plaintiffs Daryl Thomas Agnew, Alex Dennis, and Rayneka Williamson have brought this
lawsuit against the District of Columbia to challenge their arrests and subsequent prosecutions. 3d
Am. Compl. [Dkt. # 35]. Plaintiffs challenge the legality of D.C. Code § 22-1307(a), known as
the “incommoding statute,” arguing that the statute is unconstitutionally vague because it allows
and encourages arbitrary and discriminatory enforcement. Id. ¶¶ 1, 2. The statute makes it
unlawful for a person or group of people:
(1)

To crowd, obstruct, or incommode:
(A)
(B)

The entrance of any public or private building or enclosure;

(C)

The use of or passage through any public building or public
conveyance; or

(D)
(2)

The use of any street, avenue, alley, road, highway, or
sidewalk;

The passage through or within any park or reservation; and

To continue or resume the crowding, obstructing, or incommoding
after being instructed by a law enforcement officer to cease the
crowding, obstructing, or incommoding.

D.C. Code § 22-1307(a).

Plaintiffs argue that the statute is both unconstitutional and unwise as a matter of policy.
At one time, plaintiffs argued, with some force, that the language of the statute does not provide
members of the community with adequate notice of what conduct it prohibits. See Pls.’ Opp. to
Def.’s Mot. to Dismiss [Dkt. # 21] at 19–24. But with the third amended complaint and the briefing
on the instant motion, plaintiffs have made clear that they are not bringing a notice case. 3d Am.
Compl. ¶ 2. Plaintiffs are only alleging that the statute is unconstitutionally vague because it is
subject to arbitrary and discriminatory enforcement. Id. A review of Supreme Court precedent
makes it clear that a statute is invalid on that basis if it contains a term that defines what is
prohibited in terms of the officer’s subjective judgment. Here, no such term appears in the statute,
so this limited challenge to the statute will be dismissed.
BACKGROUND
I.

Procedural History
Plaintiffs Daryl Thomas Agnew and Rashad Bugg Bey originally filed this action on

March 9, 2015 against the District of Columbia and the former Chief of Police, Cathy Lanier.
Compl. [Dkt. # 1]. After defendants moved to dismiss that complaint, plaintiffs filed an amended
complaint, adding Dennis and Williamson as plaintiffs to the action. See Mot. to Dismiss [Dkt.
# 12]; Am. Compl. [Dkt. # 15]; see also Min. Order (Aug. 17, 2015). Defendants moved to
dismiss the amended complaint. Mot. to Dismiss [Dkt. # 16]. In response to the motion to dismiss,
plaintiffs filed an unopposed motion to amend the complaint again, to “strip away” claims that
plaintiffs decided not to pursue, and to allege certain facts with “greater precision.” Unopposed
Mot. for Leave to Am. First Am. Compl. & to File 2d Am. Compl. [Dkt. # 18] at 1–2. The Court
granted the motion, and the second amended complaint was docketed on August 31, 2015. Min.
Order (Aug. 31, 2015); 2d Am. Compl. [Dkt. # 19].

2

Defendants moved to dismiss the second amended complaint in part, and they also
requested a stay of plaintiff Bey’s claims while similar claims were pursued in Superior Court.
Defs.’ Mot. to Dismiss Pls.’ 2d Am. Compl. or, in the Alternative, Stay and Dismiss [Dkt. # 20].
Plaintiffs opposed the motion in part, and they also filed a consent motion to dismiss certain claims;
they dismissed all claims brought by plaintiff Bey and all claims brought against the Chief of
Police. See Order (Oct. 5, 2015) [Dkt. # 23].
On August 11, 2016, the Court held a hearing on the motion to dismiss the second amended
complaint. Min. Entry (Aug. 11, 2016). After the hearing, plaintiffs moved to amend their
complaint again. Pls.’ Mot. for Leave to Am. 2d Am. Compl. & File 3d Am. Compl. [Dkt. # 32].
According to plaintiffs, the proposed third amended complaint once again “strips away”
allegations relating to claims and parties that had previously been dismissed, states the factual
allegations “with greater precision,” and it “clarifies that [plaintiffs] only claim is that the District’s
‘incommoding’ statute is facially unconstitutional under the second prong of the vagueness
doctrine, the arbitrary and discriminatory enforcement prong.” Id. at 3. The Court granted the
motion in part; it allowed plaintiffs to make the changes described in the motion, but it did not
permit plaintiffs to add allegations related to two other people who were not previously named as
plaintiffs in the matter. Order (Sept. 6, 2016) [Dkt. # 34].
In the third amended complaint, plaintiffs bring claims against the District of Columbia
under 42 U.S.C. § 1983 for violating their constitutional rights by arresting them under the
incommoding statute (Count I), and for prosecuting them under the incommoding statute (Count
II). 3d Am. Compl. ¶¶ 130–40. The third amended complaint also purports to bring class action
allegations under section 1983 on behalf of all persons arrested for violating the incommoding
statute, and all persons prosecuted under that provision. Id. ¶¶ 141–54. On behalf of the putative

3

classes, plaintiffs demand a declaratory judgment that the incommoding statute is
unconstitutionally vague under the Fifth Amendment. Id. at 24.
The District moved to dismiss the third amended complaint under Rule 12(b)(6). Def.’s
Mot. to Dismiss Pls.’ 3d Am. Compl. [Dkt. # 37] (“Def’s. Mot.”); Def.’s Mem. in Supp. of Def.’s
Mot. [Dkt. # 37] (“Def.’s Mem.”). Plaintiffs oppose the motion, Pls.’ Opp. to Def.’s Mot. [Dkt.
# 40] (“Pls.’ Opp.”), and the District has replied in support of its motion. Def.’s Reply in Supp.
of Def.’s Mot. [Dkt. # 41] (“Def.’s Reply”).
II.

Factual Background
The third amended complaint includes the following facts, accepted as true for purposes of

this motion, related only to the alleged vagueness of the incommoding statute:
A.

The arrest and prosecution of plaintiff Agnew

Plaintiff Agnew’s “contact with [the Metropolitan Police Department] began [at] about
6:00 pm on Christmas Eve when he and the mother of his child and a friend were enjoying the
evening air on the stoop of the child’s mother’s building at 3146 Buena Vista Terrace, SE in
Washington, DC.” 3d Am. Compl. ¶ 61. Agnew asserts that “the way was clear for pedestrians
to come and go around them, and many people were in fact coming and going around them because
it was Christmas Eve.” Id. ¶¶ 68–69.
A police officer “shattered” the “pleasant scene” when he “rolled up” in his police vehicle
and yelled in a “furious manner . . . at Mr. Agnew and the others to leave.” 3d Am. Compl. ¶ 65.
After Agnew protested that he “had every right to be there,” he was arrested for violating the
incommoding statute. Id. ¶¶ 69, 73. The police report in Agnew’s case claimed that “[b]oth of the
males were standing in a manner that would cause a citizen or citizens trying to utilize the walkway
to deviate from their path of walking.” Id. ¶ 63. When Agnew appeared for trial, the case was
dismissed for want of prosecution. Id. ¶ 80.
4

B.

The arrest and prosecution of plaintiff Dennis

According to the complaint, plaintiff Alex Dennis stepped outside of his apartment building
located at 3130 Buena Vista Terrace, SE in the midst of preparing a Thanksgiving celebration on
November 26, 2014. 3d Am. Compl. ¶ 81. Plaintiffs allege that Dennis “was standing in the yard
on a ramp a few feet in front of the porch to his apartment building” where “the way was clear for
pedestrians to come and go,” “[n]o one was trying to come up the ramp;” and “[i]f someone had
come by, Mr. Dennis would have moved.” Id. ¶¶ 81–85. But Dennis’s “holiday spirit vanished”
when an MPD officer “rolled up in his police cruiser and in a furious manner yelled at Mr. Dennis
and another man to leave.” Id. ¶ 87. Dennis refused to move, and asked the officer, “[h]ow can
you tell me to move from the place where I live at [sic]?” Id. ¶ 93. Dennis was arrested for
incommoding, but the charges were later dismissed for want of prosecution. Id. ¶¶ 95, 104.
Plaintiffs allege that it was the same police officer who arrested Dennis and Agnew. 3d
Am. Compl. ¶¶ 67, 90. The complaint states that the particular officer “is known for having a
quick temper that seems to control him,” and that the officer “is known to have arrested several
other young black men in the area for incommoding.” Id. ¶¶ 88–89.
C.

The arrest and prosecution of plaintiff Williamson

On February 4, 2015, at approximately 3:50 in the afternoon, a police officer asked plaintiff
“Williamson to move from where she was standing on the sidewalk at 2403 Martin Luther King,
Jr. Ave., S.E. because, as his police report reads, he observed her standing in front of the location
‘disrupting the smooth flow of pedestrian traffic.’” 3d Am. Compl. ¶ 106. About a half an hour
later, the officer arrested Williamson for incommoding after “he observed pedestrians having to
maneuver around her to get by on the sidewalk, and because merchants were complaining about
her in the area.” Id. ¶ 117. The charges against Williamson were also ultimately dismissed for
want of prosecution. Id. ¶ 129.
5

STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,
the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 678–79.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing
Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting
Twombly, 550 U.S. at 556. A pleading must offer more than “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555,
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe
a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the
plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court
accept plaintiff’s legal conclusions. See id.; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily

6

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated
by reference in the complaint, and matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
Plaintiffs’ claims are brought under 42 U.S.C. § 1983, which creates a cause of action
against “[e]very person who, under color of any statute, ordinance, regulation, custom or usage
. . . subjects . . . any citizen . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws.” 42 U.S.C. § 1983; see Pitt v. District of Columbia, 491 F.3d
494, 510 (D.C. Cir. 2007). The term “person” in section 1983 includes municipalities, such as the
District of Columbia, but a municipality cannot be held liable under section 1983 “solely because
it employs a tortfeasor – in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To
maintain a section 1983 action against the District of Columbia, then, plaintiffs must allege a
predicate violation of some constitutional right, and allege facts that would show that a custom or
policy of the District of Columbia was the “moving force” behind the alleged constitutional

7

violation. Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003), citing City of
Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). 1
So the first question to be resolved is whether plaintiffs have alleged a predicate
constitutional violation.2 Because the Court finds that the statute is not impermissibly vague
because it gives rise to arbitrary and discriminatory enforcement, it need not consider whether a

1

As the D.C. Circuit has explained:
This circuit has identified several ways in which a plaintiff may allege a
municipal policy or custom. Specifically, she may point to (1) “the explicit
setting of a policy by the government that violates the Constitution,” (2)
“the action of a policy maker within the government,” (3) “the adoption
through a knowing failure to act by a policy maker of actions by his
subordinates that are so consistent that they have become ‘custom,’” or (4)
“the failure of the government to respond to a need (for example, training
of employees) in such a manner as to show ‘deliberate indifference’ to the
risk that not addressing the need will result in constitutional violations.”

Blue v. District of Columbia, 811 F.3d 14, 18–19 (D.C. Cir. 2015), quoting Baker, 326 F.3d at
1306.
2
Because none of the plaintiffs were ultimately prosecuted, it is unclear how, even if
plaintiffs could allege a section 1983 violation based on their arrests, defendant could be liable for
unlawfully prosecuting the plaintiffs. See 3d Am. Compl. ¶¶ 131–37; Amobi v. District of
Columbia Dep’t of Corr., 755 F.3d 980, 992 (D.C. Cir. 2014) (to state a claim for malicious
prosecution, a plaintiff must show that a criminal proceeding was instituted, that the proceeding
terminated in plaintiff’s favor, that there was no probable cause for the prosecution, and that the
government acted with malice, or with a primary purpose other than that of bringing an offender
to justice), quoting DeWitt v. District of Columbia, 43 A.3d 291, 296 (D.C. 2012). So Count II
could be dismissed on that basis alone.
8

District of Columbia custom or policy was the “moving force” behind any alleged constitutional
violation. 3
I.

Plaintiffs do not need to show that the statute is unconstitutional as applied to their
conduct.
Traditionally, to succeed on a facial vagueness challenge, a plaintiff had to show that “the

enactment [was] impermissibly vague in all of its applications.” U.S. Telecom Ass’n v. FCC, 825
F.3d 674, 735 (D.C. Cir. 2016), quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 495 (1982). That rule was grounded in the notion that a “plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to
the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18–19 (2010), quoting
Hoffman, 455 U.S. at 495. The Supreme Court, however, recently expressed some skepticism
about that framework, noting that its prior holdings “squarely contradict the theory that a vague
provision is constitutional merely because there is some conduct that clearly falls within the
provision’s grasp.” Johnson v. United States, 135 S. Ct. 2551, 2561 (2015).
More important, after the instant motion had been briefed, the D.C. Circuit held that the
guidance set forth in Humanitarian Law Project does not apply to a vagueness challenge to a
statute premised on the argument that the statute encourages arbitrary and discriminatory
enforcement. See Act Now to Stop War & End Racism Coal. (ANSWER) v. District of Columbia,
846 F.3d 391, 410 (D.C. Cir. 2017). The plaintiffs in ANSWER brought a facial First Amendment

3
Because the Court concludes that there has been no constitutional violation, it need not
address whether a custom or practice of the municipality caused the alleged violation. But
plaintiffs Agnew and Dennis specifically allege that they were arrested by a particular officer, who
has “a quick temper that seems to control him,” and who “is known to have arrested several other
young black men in the area for incommoding.” See 3d Am. Compl. ¶¶ 66–67, 70, 88–90. So,
while the Court need not reach the issue, it questions whether plaintiffs have adequately alleged
that it was a District of Columbia policy or custom that was the “moving force” behind their arrests,
or whether it was a particular officer’s alleged racial animus or uncontrolled temper.
9

challenge to a restriction on the amount of time that “a sign relating to an event” may remain on a
public lamppost. Id. at 396. The Court of Appeals rejected the District’s argument that the
plaintiffs’ facial challenge must fail because they had not established that as as-applied challenge
would be successful. Id. at 409–10. The Court noted: “it is not apparent how the Humanitarian
Law Project rule – barring a person to whom a legal provision clearly applies from challenging its
facial failure to give sufficient notice to others – could apply to a claim that a law is so vague as to
fail to guide the government’s enforcement discretion.” Id. at 410. So the Court need not address
whether the incommoding statute is unconstitutional as applied to plaintiffs; it need only address
whether the incommoding statute is facially unconstitutional.
II.

The incommoding statute is not facially unconstitutional, so plaintiffs have not alleged
a predicate constitutional violation.
The Due Process Clause “prohibits the Government from taking away someone’s life,

liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Beckles v. United
States, 137 S. Ct. 886, 892 (2017), quoting Johnson, 135 S. Ct. at 2556; see also Skilling v. United
States, 561 U.S. 358, 402–03 (2000), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983). The
Supreme Court has explained that “the void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender, 461 U.S. at 357. Plaintiffs’ third amended complaint focuses on the
second prong of that doctrine.
“What renders a statute vague is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been proved; but rather the
indeterminacy of precisely what that fact is.” United States v. Williams, 553 U.S. 285, 306 (2008).
10

The Supreme Court has explained that if a statute requires “wholly subjective judgments without
statutory definitions, narrowing context, or settled legal meanings,” courts may find the statute to
be unconstitutionally vague on the grounds that it encourages arbitrary and discriminatory
enforcement. Id.
Plaintiffs argue that the incommoding statute vests unfettered discretion in the hands of
police officers, and they point to City of Chicago v. Morales, 527 U.S. 41 (1999) to support their
theory. See Pls.’ Opp. at 9–15 (summarizing and commenting on Morales). In that case, the
Supreme Court struck down a “Gang Congregation Ordinance” which prohibited “‘criminal street
gang members’ from ‘loitering’ with one another or with other persons in any public place.”
Morales, 527 U.S. at 45–46. As the Supreme Court observed, to charge someone with a violation
of that ordinance:
First, the police officer must reasonably believe that at least one of the two
or more persons present in a “public place” is a “criminal street gang
membe[r].” Second, the persons must be “loitering,” which the ordinance
defines as “remain[ing] in any one place with no apparent purpose.” Third,
the officer must then order “all” of the persons to disperse and remove
themselves “from the area.” Fourth, a person must disobey the officer’s
order.

11

Id. at 47. A plurality of the Supreme Court found that the Chicago ordinance was subject to a
facial challenge because it had “no mens rea requirement, [it] infringe[d] on constitutionally
protected rights,” and because “vagueness permeate[d] the text.” Morales, 527 U.S. at 55. 4
In particular, a plurality of the Court found the definition of the term “loiter” in the Chicago
ordinance to be impermissibly vague: “[T]he vagueness that dooms this ordinance is not the
product of uncertainty about the normal meaning of ‘loitering,’ but rather about what loitering is
covered by the ordinance and what is not,” because “loiter” was defined as remaining in one place
“with no apparent purpose.” Morales, 527 U.S. at 53, 57.
Similarly, in Kolender v. Lawson, the Supreme Court struck down a California statute that
required those who “loiter or wander on the streets” to present, when asked, a “credible and
reliable” identification to a police officer. 461 U.S. at 353. The Court found that the law
“contain[ed] no standard for determining what a suspect has to do in order to satisfy the
requirement to provide a ‘credible and reliable’ identification.” Id. at 358. Since the statute
“vest[ed] virtually complete discretion in the hands of the police to determine whether the suspect
ha[d] satisfied the statute” by producing an identification that was “credible and reliable,” the

4
Plaintiffs argue that an “additional, independent, reason for denying the defendant’s motion
to dismiss” is the fact “that the incommoding statute violates due process because it lacks an
appropriate mens rea requirement on each element.” Pls.’ Opp. at 1, 41–42, citing Elonis v. United
States, 135 S. Ct. 2001, 2011 (2015). But Elonis does not stand for the proposition that a plaintiff’s
due process rights are violated whenever a criminal statute is silent on a mens rea requirement. To
the contrary, the Supreme Court in Elonis found that a court can read a mens rea requirement into
a statute to “separate wrongful conduct from otherwise innocent conduct.” Elonis, 135 S. Ct. at
2010, quoting Carter v. United States, 530 U.S. 255, 269 (2000). The Court in Elonis was faced
with a statute prohibiting threats communicated over the internet. While the statute did not specify
a mens rea requirement, the Supreme Court held that, in order to be convicted of violating the
statute, the defendant must have had the mental state to know that his communication contained a
threat. Id. at 2011.
12

Court concluded that the loitering statute was unconstitutionally vague under the arbitrary and
discriminatory enforcement prong. Id.
The lesson to be drawn from this precedent is that the critical factor in a facial challenge
based on a risk of arbitrary and discriminatory enforcement is whether the statute is drafted in such
a manner that it necessarily vests the determination of whether the law has been violated upon a
purely subjective judgment. See Coates v. Cincinnati, 402 U.S. 611, 614 (1971) (striking down a
Cincinnati ordinance that proscribed “three or more persons” from “assembling . . . on any of the
sidewalks . . . and there conduct themselves in a manner annoying to persons passing by,” because
“[c]onduct that annoys some people does not annoy others,” so “no standard of conduct is specified
at all”); Armstrong v. D.C. Pub. Library, 154 F. Supp. 2d 67, 77–78 (D.D.C. 2001) (striking down
the District of Columbia Public Library’s appearance regulation, which allowed library personnel
to refuse entry to patrons with an “objectionable appearance,” because the regulation depended
“only upon subjective interpretation of the term ‘objectionable’”).
But that concern is not present in this case, because a violation of the D.C. Code provision
does not depend upon an element that can vary with the eye of the beholder such as “with no
apparent purpose.” The problem in Morales was that the city of Chicago had added a subjective
gloss to the normal meaning of the word “loiter” when it drafted the ordinance. But here, the
statute does not specifically define the words “crowd,” “obstruct,” and “incommode;” the
applicability of the statute turns on whether an individual is in fact crowding, obstructing, or
incommoding the use of a sidewalk or entryway as those terms are ordinarily understood, and
whether that individual in fact ignores a police officer’s instruction to stop. Thus, the statutory
terms are not subject to “subjective judgments,” see Williams, 553 U.S. at 306, Morales, 527 U.S.

13

at 62, and therefore, the statute does not on its face (which is the sole challenge here) specifically
authorize or encourage discriminatory enforcement. 5
It is true that an individual officer’s enforcement discretion may be unlawfully tainted by
racial animus in a particular case, but the fact that police officers have enforcement discretion – as
they do under all provisions – does not render the statute itself to be unconstitutionally vague. See
ANSWER, 846 F.3d at 412 (“Ostensible vagueness about ‘whether the incriminating fact . . . has

5
Perusing the dictionary would not change the outcome of this decision. “Crowd” is defined
as “to press towards a common center, to gather or congregate closely so as to press upon one
another; to come or assemble in large numbers or crowds; to flock; throng.” Oxford English
Dictionary,
http://www.oxforddictionaries.com/us/definition/american_english/crowd.
“Obstruct” is defined as “to block or impede passage along or through (an opening, thoroughfare,
waterway, etc.); to place or be an obstacle in; to render impassable or difficult of passage.” Oxford
English Dictionary, http:// www.oed.com/view/Entry/129983. “Incommode” is defined to mean,
among other things, obstruct or impede. Oxford English Dictionary, http:// www.oed.com/view/
Entry/93672. All of these refer to objective, observable actions.
It could be argued that the use of the somewhat dated word, “incommode,” which appeared
in the predecessor statute, would be problematical if it stood alone, because the definition also
includes more subjective alternatives, such as to “subject to inconvenience or discomfort” or to
“annoy.” Id. But its presence in the series, “to crowd, obstruct, or incommode” adds clarification.
As the Supreme Court explained in McDonnell v. United States, when choosing between
competing definitions, “we look to the context in which the words appear.” 136 S. Ct. 2355, 2368
(2016). “Under the familiar interpretive canon noscitur a sociis, ‘a word is known for the company
it keeps.’” Id., quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). The D.C. Circuit
applied the same “longstanding principle” when confronted with a federal law that made it
unlawful to “make a harangue or oration” at the Supreme Court: “we are interpreting a statute,
not restating a dictionary. Our search here is not for every facet of ‘harangue’ or ‘oration,’ but
their meaning within the statute at issue.” United States v. Bronstein, 849 F.3d 1101, 1108 (D.C.
Cir. 2017), citing Jarecki, 367 U.S. at 307; see also Valdes v. United States, 475 F. 3d 1319, 1323
(D.C. Cir 2007) (relying on the canon of noscitur a sociis).
14

been proved’ is not vagueness at all.”), quoting Williams, 553 U.S. at 306. 6 The legal test is
whether license to discriminate has been baked into the statute.
Because the Court concludes that the incommoding statute does not contain the subjective
element that would invalidate it on the grounds that it invites arbitrary enforcement on its face
– which is the sole challenge being presented here – plaintiffs have not alleged the predicate
constitutional violation necessary to give rise to section 1983 liability. Therefore, their most recent
complaint must be dismissed for failure to state a claim.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss the complaint for failure to state
a claim will be granted. 7
A separate order will issue.

AMY BERMAN JACKSON
United States District Judge
DATE: June 26, 2017

6
Plaintiffs argue in their opposition that the statute is impermissibly vague because it lacks
a mens rea requirement. See Pls.’ Opp. at 28–30. It is true that the concern that a statute “fails to
provide people of ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits” can be “ameliorated” when the statute contains a mens rea standard. Hill v. Colorado,
530 U.S. 703, 732 (2000). But the concern raised by the Court in Hill is not present in this case
because plaintiffs have only claimed that the statute leads to arbitrary and discriminatory
enforcement; they have abandoned their claim that the statute fails to provide fair notice. See 3d
Am. Compl. ¶ 2.
7
Plaintiffs’ class action claim is therefore also dismissed, because named plaintiffs in a class
action “‘must allege and show that they have personally been injured, not that injury has been
suffered by other, unidentified members of the class to which they belong’” to have standing to
bring a claim on behalf of a class. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 n.6 (2016), quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40, n.20 (1976).
15