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
No. 19-CM-1030
RIVES MILLER GROGAN, APPELLANT,
V.
UNITED STATES OF AMERICA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2018-CMD-18979)
(Hon. Robert Salerno, Trial Judge)
(Argued Sept. 17, 2021 Decided March 17, 2022)
Mark L. Goldstone for appellant.
Elizabeth Gabriel, Assistant United States Attorney, with whom Michael R.
Sherwin, Acting United States Attorney, and Elizabeth Trosman, Suzanne Grealy
Curt, Andy Wang, and Joshua Gold, Assistant United States Attorneys, were on the
brief, for appellee.
Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges.
DEAHL, Associate Judge: Seconds after the fall of the gavel to end the
Senate’s session on November 27, 2018, Rives Grogan stood up from his seat in the
Senate gallery and began to preach loudly about the evils of abortion. He was
promptly arrested and escorted, still shouting, into a nearby corridor. There, a
2
plainclothes Capitol Police officer instructed him to “stop” and to “knock it off.”
Contrary to the officer’s instructions, Grogan continued to shout as he was led down
the hall. Grogan was tried before a jury for demonstrating within a United States
Capitol building, D.C. Code § 10-503.16(b)(7) (2019 Repl.), and unlawful
demonstration, D.C. Code § 22-1307(b) (2021 Supp.). The jury found him guilty on
both counts, and Grogan was sentenced to two seven-day terms of imprisonment, to
be served concurrently.
On appeal, Grogan makes the following five arguments: (1) that his dual
punishment under § 10-503.16(b)(7) and § 22-1307(b) violates the Double Jeopardy
Clause; (2) that the government substantially burdened his religious exercise in
violation of the Religious Freedom Restoration Act (RFRA); (3) that both § 10-
503.16(b)(7) and § 22-1307(b) are facially overbroad; (4) that the government failed
to produce sufficient evidence to support a finding under § 22-1307(b) that Grogan
continued to demonstrate after being instructed to cease by a law enforcement
officer; and (5) that § 10-503.16(b)(7) is unconstitutional as applied to Grogan
because the Senate gallery is a public forum.
Because we conclude that the legislature did not intend to authorize
duplicative punishment for violations of § 22-1307(b) and § 10-503.16(b)(7), those
3
offenses should merge and we remand with instructions to vacate Grogan’s
conviction for unlawful demonstration under § 22-1307(b). Accordingly, we do not
reach Grogan’s argument that § 22-1307(b) is overbroad or his argument that the
government failed to produce sufficient evidence to sustain his conviction under §
22-1307(b). Because we are unpersuaded by Grogan’s other arguments, we affirm
his conviction for demonstrating within a United States Capitol building under § 10-
503.16(b)(7).
I.
On the afternoon of November 27, 2018, Rives Grogan—a preacher at New
Beginnings Christian discipleship—obtained a visitor pass and was escorted to the
public Senate gallery inside the United States Capitol. For the rest of the afternoon,
while the Senate was in session, he sat quietly and created no disturbance. However,
“within seconds” of the fall of the gavel at the close of the day’s session—while
Senators and staff were still on the floor—Grogan stood up from his seat and began
to preach loudly about his beliefs that abortion is “wrong.” Doorkeeper Thomas
Ford testified that in his eight years working in the Senate he had never heard
anybody yell so loudly. Doorkeeper Todd Trautman agreed that Grogan’s
“outburst” was “as loud as [he] ha[d] heard” in his twenty years working in the
4
Senate. Capitol Police Officer Gene Aversano described Grogan’s volume as “a
shock to your system,” and “like jumping in a cold pool of water.”
“Almost immediate[ly]” after Grogan began to shout, Officer Governor
Latson restrained Grogan and escorted him into an adjacent hallway. Grogan
continued to yell as he was led from the gallery. In the hallway, Officer Aversano,
a plainclothes Capitol Police officer who arrived to assist Latson, instructed Grogan
to “stop” and to “knock it off.” Grogan continued to yell, in defiance of Aversano’s
instructions, later testifying he did so because “I don’t surrender my First
Amendment right, even when I am detained.” Grogan kept shouting as he was
escorted away down the corridor.
This was not Grogan’s first encounter with the Capitol Police. Grogan
testified that he had been arrested “multiple times” for his conduct outside the
Capitol building, including “twice outside on the steps” and once on a nearby
sidewalk. Additionally, Grogan had previously been convicted of disorderly
conduct for preaching about abortion within the Capitol Rotunda, and for disrupting
the Senate while in session. Grogan testified that he and Latson were familiar with
each other from previous encounters in the Senate: “[H]e knows how I react. I know
how he reacts. I speak, he escorts me out.” Aversano testified that, on the day in
5
question, he had recognized Grogan from their “previous interactions” and
anticipated Grogan might “pop off” and disturb proceedings on the floor.
Grogan was no stranger to Senate gallery itself. Grogan testified he had
visited the Senate multiple times before the day in question, and each time obtained
a visitor pass. Printed on the back of each pass are the “rules” for spectators in the
Senate gallery, including the following: “No one in the gallery is permitted to
applaud or can commit any other type of demonstration either by sound or sign.”
Additionally, each pass warns that “[a]ny disturbance or infraction of these rules is
justification for expulsion and/or arrest.” While Grogan testified that he did not read
the rules on the back of his visitor pass on this particular occasion, he was generally
familiar with them. He expected to be removed from the gallery as a result of his
actions, even though he did not believe he was breaking the law when he waited
until after the Senate adjourned to speak.
The government initially charged Grogan with disorderly and disruptive
conduct on United States Capitol Grounds, in violation of D.C. Code § 10-
503.16(b)(4) (Count 1). It eventually dropped that charge and, in its place, charged
Grogan with two other offenses: demonstration within a United States Capitol
6
building, in violation of § 10-503.16(b)(7) 1 (Count 2); and unlawful demonstration,
in violation of § 22-1307(b) 2 (Count 3). On October 3, 2019, Grogan went to trial
on Counts 2 and 3. After a two-day jury trial before the Honorable Robert Salerno,
Grogan was found guilty of both counts. On October 24, 2019, Judge Salerno
sentenced Grogan to seven days’ incarceration for each count, to run concurrently.
On appeal, Grogan argues: (1) that his dual punishment under § 10-
503.16(b)(7) and § 22-1307(b) violates the Double Jeopardy Clause; (2) that the
government substantially burdened his religious exercise in violation of the
Religious Freedom Restoration Act (RFRA); (3) that both § 10-503.16(b)(7) and §
22-1307(b) are facially overbroad; (4) that the evidence was insufficient to support
a finding under § 22-1307(b) that Grogan continued to demonstrate after being
instructed to cease by a law enforcement officer, and (5) that § 10-503.16(b)(7) is
unconstitutional as applied to Grogan because the Senate gallery is a public forum.
1
“It shall be unlawful for any person or group of persons willfully and
knowingly . . . [t]o parade, demonstrate, or picket within any of the Capitol
Buildings.” D.C. Code § 10-503.16(b)(7).
2
“It is unlawful for a person, alone or in concert with others, to engage in a
demonstration in an area where it is otherwise unlawful to demonstrate and to
continue or resume engaging in a demonstration after being instructed by a law
enforcement officer to cease engaging in a demonstration.” D.C. Code § 22-1307(b).
7
Grogan raised only the first three arguments before the trial court. 3 We address his
arguments in turn, though because we conclude his § 22-1307(b) conviction merges
into his § 10-503.16(b)(7) conviction, we ultimately do not resolve his overbreadth
and sufficiency challenges to the former conviction.
II.
“The Fifth Amendment guarantee against double jeopardy protects not only
against a second trial for the same offense, but also against multiple punishments for
the same offense.” Whalen v. United States, 445 U.S. 684, 688 (1980) (internal
quotation marks omitted). “Because the substantive power to prescribe crimes and
determine punishments is vested with the legislature, the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative
intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (citations omitted); see also
Byrd v. United States, 598 A.2d 386, 388-89 (D.C.1991) (en banc) (“The role of the
constitutional guarantee against double jeopardy is limited to assuring that the court
does not exceed its legislative authorization by imposing multiple punishments for
3
Grogan raised his Double Jeopardy challenge in a pre-trial motion to dismiss.
He raised his RFRA defense twice: in a motion to admit evidence of a video
depicting the end of Senate proceedings on the day of his arrest, and as part of a
motion for judgment of acquittal at the end of the government’s case. He raised his
overbreadth challenge as part of that same motion for judgment of acquittal.
8
the same offense.”). When a defendant, in a single trial, is convicted under multiple
provisions the legislature intended to punish as a single offense, Double Jeopardy
requires that those convictions “merge” for the purpose of sentencing. Mooney v.
United States, 938 A.2d 710, 724 (D.C. 2007) (requiring the trial court to vacate one
of two merged convictions); see also Robinson v. United States, 946 A.2d 334, 340
(D.C. 2008) (applying Blockburger to concurrent sentences); Doepel v. United
States, 434 A.2d 449, 459 (D.C. 1981) (merger is required even where, as here,
duplicative punishments run concurrently).
To determine whether the legislature intended to impose multiple
punishments, we begin with the default rule articulated by the Supreme Court in
Blockburger v. United States: “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” 284 U.S. 299, 304 (1932); see also D.C. Code
§ 23-112 (2012 Repl.) (codifying Blockburger as an “express declaration of
legislative intent,” Thomas v. United States, 602 A.2d 647, 649 (D.C. 1992)). But
the Blockburger test is not dispositive. If “the legislature has clearly indicated a
contrary intent with respect to the particular offense at issue,” then that legislative
intent—rather than the Blockburger analysis—controls. In re M.S., 171 A.3d 155,
9
158 (D.C. 2017). Therefore, our merger inquiry consists of two steps. We first apply
Blockburger and ask whether each offense requires proof of an element the other
does not, and then ask whether there was a clear legislative intent sufficient to
override the presumptive answer yielded in step one.
A.
Under Blockburger, “the proper question is whether each offense contains
distinct statutory elements, not whether the same evidentiary fact was used to prove
an element of more than one offense.” Hanna v. United States, 666 A.2d 845, 853
(D.C. 1995) (citing Grady v. Corbin, 495 U.S. 508, 521 n.12 (1990), overruled on
other grounds, United States v. Dixon, 509 U.S. 688, 704 (1993)). The prototypical
application of Blockburger is the merger of a lesser-included offense into a more
serious offense—where “the elements of the lesser offense are a subset of the greater
one” such that the elements of the greater offense can never be proven without also
proving the elements of the lesser-included offense. Nkop v. United States, 945 A.2d
617, 621 (D.C. 2008) (merging simple assault into attempted misdemeanor sexual
abuse); Gathy v. United States, 754 A.2d 912, 919 (D.C. 2000) (merging assault with
a deadly weapon into aggravated assault while armed). Under a strict application of
Blockburger, the offenses here would presumptively not merge because each
10
requires proof of a fact the other does not: § 10-503.16(b)(7) requires proof that the
demonstration occurred “within any of the Capitol Buildings,” while § 22-
1307(b)(1) does not; and § 22-1307(b)(1) requires proof that the demonstrator
persisted “after being instructed by a law enforcement officer to cease,” while § 10-
503.16(b)(7) does not.
The first part of our inquiry is not quite so straightforward, however, because
in Whalen, the Supreme Court added some nuance to the Blockburger analysis. See
445 U.S. at 693-94. In Whalen, the Court considered whether, under D.C. law, a
defendant could be punished for both rape and “killing the same victim in the
perpetration of” certain felony offenses (i.e., felony murder), when the felony
murder statute included as one of its elements “the commission or attempted
commission of rape or of one of five other specified felonies, in the course of which
the killing occurred.” Id. at 685-86 (emphasis added). A straightforward application
of Blockburger would indicate that the legislature did not intend rape and felony
murder to merge; the former does not require proof of killing, and the latter does not
require proof of carnal knowledge (because rape is only one of a list of potential
felony-murder predicates). See id. at 709 (Rehnquist, J., dissenting).
11
The Whalen Court determined otherwise, holding that “the Blockburger rule
leads to the conclusion that Congress did not authorize consecutive sentences . . .
since it is plainly not the case that ‘each provision requires proof of a fact which the
other does not.’” Id. at 693 (quoting Blockburger, 284 U.S. at 304). The Court
reasoned:
There would be no question [that two offenses would be
the same under Blockburger] if Congress, instead of listing
the six lesser included offenses in the alternative, had
separately proscribed the six different species of felony
murder under six statutory provisions. It is doubtful that
Congress could have imagined that so formal a difference
in drafting had any practical significance, and we ascribe
none to it.
Id. at 694. The Court, skeptical that Congress’s decision to codify felony murder as
a single provision was probative of its intent to authorize cumulative punishment,
considered the felony murder statute as if it were broken into six separate provisions,
one for each predicate offense. Id. Then, observing that each hypothetical provision
would merge under Blockburger, it determined that the unified provision should
produce the same result. See id. at 693-94 (“A conviction for killing in the course
of a rape cannot be had without proving all the elements of the offense of rape.”).
Whalen departs from the normal operation of Blockburger because it indicates that,
in a narrow subset of cases, two offenses should merge even when the elements of
12
each can be proven without proving the elements of the other. 4 See also Pelote v.
District of Columbia, 21 A.3d 599, 604-07 (D.C. 2011) (merging reckless driving
into felony flight where the latter offense was predicated on proof of violation of the
reckless driving statute, despite the existence of alternative predicates that were not
proven).5
Grogan urges us to employ a Whalen-type analysis here. He correctly points
out that unlawful demonstration under § 22-1307(b) requires proof that a
demonstration occurred “in an area where it is otherwise unlawful to demonstrate,”
and that the only predicate illegality for that offense was that Grogan protested
within a United States Capitol building in contravention of § 10-503.16(b)(7). 6 Or,
to put Grogan’s argument into Whalen’s language: “A conviction for [unlawful
4
It may have been more sound conceptually if Whalen concluded that the
District’s felony murder and rape statutes were distinct offenses under Blockburger’s
test, but that it was nonetheless apparent that the legislature did not intend to
authorize duplicative punishments for those offenses. But that was not the Court’s
reasoning, 445 U.S. at 693, and we are not at liberty impose our own conceptual
framework on the result it reached.
5
Cf. Lewis v. United States, 255 A.3d 966, 970-71 (D.C. 2021) (declining to
merge reckless driving into felony flight where the jury found the defendant culpable
for both reckless driving and the additional predicate offense of property damage).
6
The government points to no provision other than § 10-503.16(b)(7) that
would render Grogan’s demonstration “in an area where it is otherwise unlawful to
demonstrate.”
13
demonstrating in the Capitol] cannot be had without proving all the elements of
[demonstrating in the Capitol].” Whalen, 445 U.S. at 693-94.
The argument has some force, 7 though we disagree with its conclusion.
Whalen’s reasoning applies where the greater offense (e.g., felony murder)
incorporates a set of alternative lesser offenses (e.g., rape), and then tacks on an
aggravating factor (e.g., a killing). In that scenario, we might naturally say the
legislature intended to authorize punishment for either an aggravated or a lesser-
included form of the same offense, but not both. See, e.g., Whalen, 445 U.S. at 693-
94; Pelote, 21 A.3d at 607 (more serious offense of felony flight merges with lesser
predicate of reckless driving).
7
The government, at oral argument, suggested that one way in which the
unlawful demonstration statute does not resemble the felony murder statute is that
the felony murder statute enumerates an exhaustive list of six specific predicate
offenses, whereas the unlawful demonstration statute does not specifically identify
any predicate offenses. The unlawful demonstration statute instead refers to the
more generic predicate of demonstrating in any area “where it is otherwise unlawful
to demonstrate,” without enumerating the specific statutory provisions that proscribe
demonstrating in certain areas. We do not think the distinction is a meaningful one
because we doubt the legislature “could have imagined that so formal a difference
in drafting”—expressly listing each predicate code offense versus referring to a
limited set of offenses more generically—“had any practical significance.” Whalen,
445 U.S. at 694.
14
Here, we confront the inverse scenario, and the same reasoning does not
apply. In this case it is the less-serious offense of unlawful demonstration that (a)
depends on the more serious predicate of demonstrating in a Capitol building, and
(b) authorizes a less-severe penalty than the predicate itself upon proof of an
additional element. Compare § 22-1307(c) (punishable by ninety days’
imprisonment), with § 10-503.18(b) (punishable by six months’ imprisonment). In
this situation, we have consistently treated the offense with an additional element
but less-severe penalty as an “enhanced penalty provision,” rather than an
aggravated form of the predicate offense. See, e.g., Hanna, 666 A.2d at 856
(possession of a firearm during a crime of violence does not merge with kidnapping,
even though the latter served as a predicate for the former); see also Thomas, 602
A.2d at 650 (same). That is for good reason: it would be quite odd, and borderline
incoherent, to presume that the legislature intended a less-serious offense as an
aggravated form of a more serious one. Blockburger, and Whalen’s gloss thereon,
were crafted to be indicators of legislative intent; we decline to extend either to
presume merger in a scenario where the far more natural presumption is the opposite.
Because we conclude that Whalen’s gloss on the Blockburger analysis does
not apply to the scenario before us, we adhere to a straightforward application of
Blockburger. Under that analysis, § 22-1307(b) requires proof that a defendant
15
resumed demonstrating after being instructed to cease, while § 10-503.16(b)(7) does
not; and § 10-503.16(b)(7) requires proof that a demonstration occurred within one
of the Capitol buildings, while § 22-1307(b) does not. It makes no difference under
this typical Blockburger analysis that the evidence introduced to prove that Grogan’s
demonstration occurred “in an area where it is otherwise unlawful to demonstrate”
also proved the elements of demonstrating within a Capitol building. We therefore
find that the Blockburger inquiry creates a presumption that § 10-503.16(b)(7) and
§ 22-1307(b) are separate offenses that do not merge. 8
8
Grogan also points to Haye v. United States, 67 A.3d 1025, 1030 (D.C.
2013), in which we cited Blockburger to merge a conviction for unlawful entry into
a conviction for criminal contempt of a conditional-release order, which required the
defendant to stay away from a particular building. See also United States v. Dixon,
509 U.S. 688, 694, 699 (1993) (Scalia, J., plurality opinion) (concluding that Double
Jeopardy Clause precludes duplicative punishment for a substantive criminal offense
and contempt based on the same offense). Haye and Dixon are in some tension with
our reasoning here because the “relatively petty offense” of criminal contempt will
often carry a lighter sentence than the offense that triggered the violation of the
contempt order. See Dixon, 509 U.S. at 718 (Rehnquist, J., dissenting in part).
Mindful of this tension, we ultimately find our criminal contempt jurisprudence
inapposite. One animating purpose of the Double Jeopardy inquiry is to protect the
exclusive authority of the legislature to define and punish crimes. See Byrd, 598
A.2d at 388; cf. United States v. Wiltberger, 18 U.S. 76, 95 (1820) (invoking “the
plain principle that the power of punishment is vested in the legislative, not in the
judicial department”). But when a defendant is punished under both a criminal
statute and a court order that incorporates that statute by reference, the duplicative
punishment is authorized not by the legislature, but by a judge. Dixon, 509 U.S. at
697-98 (Scalia, J., plurality opinion) (“Dixon’s cocaine possession . . . was not an
offense under [D.C. Code] § 23–1329 until a judge incorporated the statutory drug
offense into his release order.”); Haye, 67 A.3d at 1028 (same). In that scenario, we
are required to look past the elements of the criminal contempt statute (the words of
16
B.
Our inquiry cannot stop there, however. Blockburger gives rise only to a
presumption, and that presumption can be overcome by evidence of a contrary
legislative intent, provided it is sufficiently clear. Whalen, 445 U.S. at 691-92.
Where the legislature expresses a clear intent not to authorize duplicative
punishments, the Double Jeopardy clause requires merger without regard to
Blockburger’s presumptive answer. See Parker v. United States, 692 A.2d 913, 916
(D.C. 1997) (“Blockburger’s presumptive rule that offenses do not merge if they
require proof of different facts, can be overcome by a clear indication of contrary
legislative intent.”) (cleaned up).
Here, there is clear evidence that when the D.C. Council enacted D.C. Code
§ 22-1307(b), it intended only to authorize a less-severe alternative to charging
somebody for demonstrating in a Capitol building under § 10-503.18, not an
additional punishment. Section 22-1307(b) is a relatively new provision passed as
the legislature) and scrutinize each provision of the court order (the judge’s words).
Otherwise, we would endorse the proposition that the legislature, by passing a
criminal contempt statute, intended to cede its exclusive authority to make criminal
law and allow judges to impose multiple punishments at their discretion.
17
part of the Omnibus Criminal Code Amendments Act of 2012. See 60 D.C. Reg.
3390 (Mar. 15, 2013). The preamble to that Act describes its purpose as follows:
[T]o return prosecutorial authority on certain matters to
the Office of the Attorney General, and to permit a
charge for a less serious offense where one or
more persons demonstrate in an area where it is
not permitted and remain or return to the area after
receiving a warning from law enforcement.
Id. (emphasis added). The stated intent of the Council in passing this provision was
to create a less serious offense that could be prosecuted by the Attorney General of
the District of Columbia in lieu of charges for more serious offenses, such as D.C.
Code § 10-503.16(b)(7), which are prosecuted by the United States Attorney for the
District of Columbia. 9 That intent would be undermined if, as occurred here, the
U.S. Attorney’s Office could bring both charges and secure separate punishments
for each of them. That was plainly not the Council’s intent. This preamble indicates
that the legislature intended to create a hierarchy of offenses, with the lesser offense
prosecutable by the District’s Attorney General, not to authorize cumulative
punishment.
9
In the District of Columbia, most prosecutions are “conducted in the name
of the United States by the United States attorney for the District of Columbia.” D.C.
Code § 23-101(c) (2012 Repl.). Prosecutions under § 22-1307 are an exception to
that rule, and “shall be conducted in the name of the District of Columbia” by the
Attorney General. D.C. Code § 23-101(b).
18
This conclusion is bolstered by the text of D.C. Code § 10-503.18. After
providing that a conviction for demonstrating in a Capitol building under § 10-
503.16(b) is punishable by no more than six months, it states as follows:
Whenever any person is convicted of a violation of this
part and of the general laws of the United States or the
laws of the District of Columbia, in a prosecution under
this subsection, the penalty which may be imposed for
such violation is the highest penalty authorized by any of
the laws for violation of which the defendant is convicted.
D.C. Code § 10-503.18(c) (emphasis added). We find this statutory text sufficiently
clear. Congress intended that the penalty under § 10-503.16(b)(7) should attach
only when it is “the highest penalty authorized” for the respective violations—as is
the case here—and to yield when any higher penalty is authorized for a more serious
offense brought in the same prosecution. 10 Because, in this case, § 10-503.16(b)(7)
has the “highest penalty authorized,” we conclude that both Congress (when it
enacted § 10-503.16(b)(7)) and the D.C. Council (when it subsequently
10
For instance, if a person is prosecuted for demonstrating in a Capitol
building in violation of § 10-503.16(b)(7), and at the same time is prosecuted for
discharging a firearm in a Capitol building in violation of § 10-503.16(a)(1)(B), it is
the latter’s more severe penalty alone (“imprisonment not exceeding 5 years”) which
applies. D.C. Code § 10-503.18(a), (c). Not both. Likewise, if § 22-1307(b) were
punishable by more than six-months imprisonment, that harsher penalty alone would
apply to the two convictions here per the terms of D.C. Code § 10-503.18(c).
19
enacted § 22-1307(b)) intended only that singular penalty to apply for the
convictions here.
We hold that Grogan’s dual punishment under § 22-1307(b) and
§ 10-503.16(b)(7) was not authorized by the legislature, and that only the more
serious penalty authorized by § 10-503.16(b)(7) applies. We therefore remand to
the trial court with instructions to merge the two offenses and vacate Grogan’s
conviction under § 22-1307(b).
III.
The Religious Freedom Restoration Act (RFRA) provides a “defense to
persons whose religious exercise is substantially burdened by government.” 42
U.S.C. § 2000bb(b)(2) (2018).
An individual asserting a . . . defense under RFRA must
show by a preponderance of the evidence that the
government action in question would substantially burden
the sincere exercise of his religion, whereupon the burden
of proof shifts to the government to show that the action
(1) would further a compelling governmental interest (2)
that cannot be effectuated by less restrictive means.
Nesbeth v. United States, 870 A.2d 1193, 1196 (D.C. 2005). “The government
substantially burdens religion when it puts substantial pressure on an adherent to
20
modify his behavior and to violate his beliefs, or requires an individual to choose
between abandoning his religious principle or facing criminal prosecution.” De
Béarn v. United States, 237 A.3d 105, 113 (D.C. 2020) (quotation marks and
citations omitted). Although a court may consider whether a religious belief is
sincerely held, “it is not for us to say” whether a religious belief is reasonable,
“mistaken or insubstantial.” Burwell v. Hobby Lobby, 573 U.S. 682, 724-25 (2014);
see also 42 U.S.C. § 2000cc-5(7)(A) (“The term ‘religious exercise’ includes any
exercise of religion, whether or not compelled by, or central to, a system of religious
belief.”). Therefore, where (as here) the sincerity of a party’s beliefs is not at issue,
“[w]hether a government action substantially burdens a [party’s] religious exercise
is a question of law for a court to decide.” Singh v. McHugh, 185 F. Supp. 3d 201,
210 (D.D.C. 2016). We therefore consider the issue de novo.
Grogan maintains that his conduct in the Senate gallery was “the result of an
honest conviction that he must personally spread the word of God about abortion in
the public square.” He argues the trial court erred by impermissibly questioning
whether his religious beliefs were reasonable, see Burwell, 573 U.S. at 724, and that
the trial court was instead required to find a substantial burden of his religious
exercise and shift the burden to the government to prove Grogan’s arrest was the
21
least restrictive means to further a compelling interest. 11 We disagree. Assuming
the reasonableness and sincerity of Grogan’s religious beliefs, we find that Grogan
failed to show by a preponderance of the evidence that the government substantially
burdened the exercise of his religion. See Nesbeth, 870 A.2d at 1196.
The government does not substantially burden the exercise of religion when
it restricts only “one of a multitude of means” to accomplish a religious end.
Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (no substantial burden
when a regulation prohibited the sale of t-shirts on the National Mall because a
religious organization could “still distribute t-shirts for free on the Mall, or sell them
on streets surrounding the Mall”); see De Béarn, 237 A.3d at 113-14 (no substantial
burden when a stay-away order barred a man from entering “the [Catholic] church
of his choice,” because the man remained free to “go to other churches”); Mahoney
v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (no substantial burden when a
11
Grogan further contends that the government would fail to carry its burden,
because its interest in maintaining order in the Senate ceased to be compelling at the
close of the day’s legislative session. Because we find that Grogan has not made a
prima facie case, we do not reach this argument. However, we note that Senators
and staff were still on the floor when Grogan started shouting, and that it is far from
clear that the government’s interest in “[p]reventing ‘disruption of the orderly
conduct of the legislature’s business,’” Tetaz v. District of Columbia, 976 A.2d 907,
915 (D.C. 2009) (quoting Smith-Caronia v. United States, 714 A.2d 764, 766 (D.C.
1998)) is strictly confined to the hours in which the Senate is officially in session.
22
regulation prohibited writing chalk messages on the sidewalk in front of the White
House, because a man who wanted to write a religious message remained free to
“spread his message through picketing, a public prayer vigil,” or even “chalking
elsewhere”).
Because Grogan’s removal from the Senate gallery was “at most a restriction
on one of a multitude of means” of accomplishing a religious end, Henderson, 253
F.3d at 17, it was not a substantial burden of his religious exercise. Notwithstanding
the prohibition against preaching in the Senate gallery, Grogan remained free to
“spread the word of God about abortion” elsewhere in the public square, including
within the Capitol Rotunda or just outside of the Capitol building. See Wheelock v.
United States, 552 A.2d 503, 506 (D.C. 1988) (recognizing the Capitol Rotunda as
“a unique situs for demonstration activity”); Markowitz v. United States, 598 A.2d
398, 407 (D.C. 1991) (noting “[n]umerous other alternatives to a demonstration in
the restricted area” of the Capitol, including “the grounds just outside of the Capitol
buildings”). 12 Even if we assume that Grogan’s beliefs required him to communicate
12
While the terms of § 10-503.16(b)(7)’s proscription would seem to apply
anywhere within the Capitol building—including its Rotunda—we have previously
provided narrowing interpretations of the statute to allow for more robust First
Amendment activity in the Capitol Rotunda, as discussed below in Part IV. Also,
while Grogan testified that he has previously been arrested for both preaching in the
Capitol Rotunda and for preaching just outside of the Capitol building, the situs of
23
directly with Senators, there are “other ways in which” concerned citizens “can make
their views known to Congress besides speaking from the House or Senate gallery.”
Armfield v. United States, 811 A.2d 792, 797 n.3 (D.C. 2002) (noting that citizens
can “write letters,” “make speeches,” or even “contact the media to convey their
message[]”). Although the government’s actions here undoubtedly restricted the
manner in which Grogan could lawfully pursue a religious end, it fell far short of
forcing him to “choose between abandoning his religious principle or facing criminal
prosecution.” De Béarn, 237 A.3d at 113 (internal quotation marks omitted).
Accordingly, we find that Grogan failed to raise a prima facie defense under RFRA.
IV.
We next consider Grogan’s overbreadth challenge to D.C. Code § 10-
503.16(b)(7). We have no occasion to address his separate overbreadth challenge to
§ 22-1307(b), as we have concluded that conviction must be vacated on other
grounds. See supra Part II.
those protests alone would not make them criminal offenses, though the nature of
them might. See infra Part IV.
24
“The First Amendment overbreadth doctrine permits an individual whose own
speech or conduct may be prohibited to challenge a statute on its face ‘because it
also threatens others not before the court—those who desire to engage in legally
protected expression but who may refrain from doing so rather than risk
prosecution.’” Pearson v. United States, 581 A.2d 347, 356 (D.C. 1990) (quoting
Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,
574 (1987)). “[A] law may be invalidated as overbroad if a ‘substantial number of
its applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)).
“Due to the severity of the only remedy for overbreadth, namely, complete
invalidation of the regulation or statute, courts have a ‘duty to avoid constitutional
difficulties’ by applying an appropriate narrowing construction where possible.”
Pearson, 581 A.2d at 356 (quoting Boos v. Barry, 485 U.S. 312, 331 (1988)); see
also Gomez v. United States, 490 U.S. 858, 864 (1989) (“It is our settled policy to
avoid an interpretation of a federal statute that engenders constitutional issues if a
reasonable alternative interpretation poses no constitutional question.”). Although
we will not “rewrite a law” to save it from unconstitutionality, Stevens, 559 U.S. at
481, “[t]here is no requirement that a [narrowing] construction must be derived from
the express language of the statute, merely that the statute itself be susceptible to the
25
narrowing construction.” Pearson, 581 A.2d at 358. Because overbreadth is a
question of law, we review the issue de novo. See City of Houston, Tex. v. Hill, 482
U.S. 451, 458 n.6 (1987).
Grogan argues that § 10-503.16(b)(7) is overbroad for three reasons. First, he
contends the word “demonstration” encompasses “a virtually unlimited array of
verbal or nonverbal evidence,” including commonplace activities like “silently
wearing an armband, [or] a nun bowing her head when she hears something she
disagrees with.” Second, Grogan contends § 10-503.16(b)(7) does not distinguish
between different areas of the Capitol, and thus applies an impermissibly
burdensome standard to, for instance, the Capitol Rotunda, which we have
acknowledged to be “a unique situs for demonstration activity.” Wheelock, 552 A.2d
at 506. Third, Grogan argues that § 10-503.16(b)(7) fails to distinguish between
different times of day, applying the same standard when Congress is in session as it
does after-hours, when the government no longer has a significant interest in
preventing disruption to legislative functions. We are not persuaded by any of these
arguments.
26
This is not the first time we have entertained an argument that § 10-
503.16(b)(7) criminalizes conduct protected by the First Amendment. 13 See, e.g.,
Markowitz, 598 A.2d at 400-01; Wheelock, 552 A.2d at 508. Nor have we failed to
respond. To “save [§ 10-503.16(b)(7)] from being unconstitutionally overbroad,”
we have adopted the “tourist standard”—a narrowing construction under which we
construe § 10-503.16(b)(7) to prohibit only “demonstrations that involve conduct
more disturbing than the actions of a tourist would normally be, while taking into
consideration the right of the people to freedom of expression.” Hasty v. United
States, 669 A.2d 127, 130-31 (D.C. 1995) (citing Markowitz, 598 A.2d at 409 n.16).
We have further clarified that this narrowing construction, “upon request and where
supported by the evidence, must be the subject of proof at trial.” 14 Id. at 133-34
(reversing a conviction for demonstrating within the Capitol buildings because the
jury instructions failed to incorporate the tourist standard).
13
This provision was previously codified at D.C. Code § 9-112(b)(7), which
is the citation referenced in most of our precedents. See, e.g., Markowitz, 598 A.2d
at 400 n.1. While the provision is now codified at § 10-503.16(b)(7), the statutory
text has not changed.
14
Although the question of overbreadth does not turn on the application of the
provision to Grogan, we note that the tourist standard was incorporated into the jury
instructions given to the jury at Grogan’s trial.
27
Taking the tourist standard into account here, all three of Grogan’s
overbreadth challenges fail. The benign activities Grogan suggests could be
prosecuted under § 10-503.16(b)(7)—such as a nun bowing her head or a spectator
wearing an armband to convey a political message—do not violate the statute
because they are not more disturbing than the behavior of a typical tourist. The
tourist standard also differentiates between different areas of the Capitol. Compare
Wheelock, 552 A.2d at 504-05, 506, 508 (finding that a demonstration in which fifty
people sat on the floor of the Capitol Rotunda, prayed, and chanted did not run afoul
of the tourist standard because the Rotunda is a “unique situs for demonstration
activity”), with Markowitz, 598 A.2d at 401, 409 (finding that a demonstration in
which ten to fifteen people sat on the floor in a restricted corridor and “began to
unfurl” a banner was not protected by the tourist standard because it occurred in a
location where tourists were normally not even allowed to enter). Finally, Grogan’s
third argument—that the statute’s prohibitions are constitutional only to the extent
that the prohibited activity actually impacts legislative functions—was explicitly
rejected in Markowitz. Compare 598 A.2d at 408 (“Although ample evidence
showed that appellants actually disturbed the conduct of the business of Congress,
the trial judge did not have to make such a finding under the statute and refrained
from so doing.”), with id. at 411 (Rogers, C.J., dissenting) (“[T]he statutory term
28
‘demonstrate’ is properly construed to apply only to expressive conduct which is
disruptive because it is incompatible with the orderly functioning of Congress.”).
Moreover, “it is basic law that even if there are marginal applications in which
a statute would infringe on First Amendment values, facial invalidation because of
overbreadth is inappropriate if the remainder of the statute covers a whole range of
easily identifiable and constitutionally proscribable conduct.” Smith-Caronia v.
United States, 714 A.2d 764, 767 (D.C. 1998) (cleaned up) (quoting Parker v. Levy,
417 U.S. 733, 760 (1974)). That is the case here. The government has a
“substantial” interest in “[p]reventing ‘disruption of the orderly conduct of the
legislature’s business,’” Tetaz v. District of Columbia, 976 A.2d 907, 915 (D.C.
2009) (quoting Smith-Caronia, 714 A.2d at 766), and may therefore regulate
demonstrations within the Capitol buildings that represent “potential interference
with or disturbance of the activities of Congress.” Markowitz, 598 A.2d at 401, 408
n.15. We find that the government’s substantial interest in preventing such
disruptions, combined with the additional protections of the tourist standard, makes
it unlikely that “a substantial number of [§ 10-503.16(b)(7)’s] applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
Stevens, 559 U.S. at 473. Accordingly, we reject Grogan’s contention that § 10-
29
503.16(b)(7)—as construed under the tourist standard—is unconstitutionally
overbroad. 15
V.
Finally, Grogan argues that § 10-503.16(b)(7) is unconstitutional as it was
applied to him because the Senate gallery is a traditional public forum (or, in the
alternative, a designated public forum), and the government cannot show that its
restriction of Grogan’s speech was “narrowly tailored to serve a significant public
interest.” Bloch v. District of Columbia, 863 A.2d 845, 849 (D.C. 2004). Grogan
did not raise this issue below, so our review is only for plain error. “Under plain
error review, [an] appellant must show that (1) there was an error, (2) the error was
15
Grogan also argues the tourist standard itself is improper because it rewrites
rather than reinterprets the statute. See Stevens, 559 U.S. at 481. Not so. The tourist
standard construes the word “demonstrate” in a manner borne by the text, Pearson,
581 A.2d at 358, and fully consistent with the purpose and legislative history of the
law. Markowitz, 598 A.2d at 413 & n.4 (Rogers, C.J., dissenting) (observing that §
10-503.16(b)(7) was enacted to balance two competing concerns: ensuring “that
Congress can transact its business in an orderly manner” and “that there is no
infringement on the rights of the people . . . to assemble peaceably and to petition
the Government for a redress of grievances.” (quoting Senate Hearings (Sept. 21,
1967) (statement of Sen. Jordan))). The tourist standard simply looks to legislative
purpose to firm up the contours of an ambiguous term. See Peoples Drug Stores,
Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) (en banc) (“[A] court
may refuse to adhere strictly to the plain wording of a statute in order to effectuate
the legislative purpose, as determined by a reading of the legislative history or by an
examination of the statute as a whole.” (cleaned up)).
30
plain, and (3) the error affected his substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Portillo v. United States, 62 A.3d 1243, 1258 n.17 (D.C. 2013)
(internal citations omitted). “To be ‘plain,’ an error should be ‘clear or obvious,
rather than subject to reasonable dispute.’” In re Taylor, 73 A.3d 85, 99 (D.C. 2013)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Here, it is neither clear nor obvious that § 10-503.16(b)(7) was
unconstitutional as applied to Grogan. We have explicitly declined to decide
whether the Senate gallery is a public forum. See Smith-Caronia, 714 A.2d at 766
(noting the “limited utility” of engaging in forum analysis when the “nature and
extent of government regulation at issue would withstand First Amendment
analysis” regardless). Moreover, even if we assume, for purposes of argument, that
the Senate gallery is a public forum, we do not think it is “clear or obvious,” Taylor,
73 A.3d at 99, that § 10-503.16(b)(7) is not a legitimate time, place, and manner
restriction, “narrowly tailored to serve a significant public interest.” Bloch, 863 A.2d
at 849. The government has a well-established interest in “preventing disruption of
the orderly conduct of the legislature’s business,” Tetaz, 976 A.2d at 915 (cleaned
up), and it is not clear that this interest evaporates when the gavel strikes, particularly
31
when Senators are still on the floor. We conclude that the trial court did not commit
plain error when it failed to deem § 10-503.16(b)(7) unconstitutionally overbroad as
applied to Grogan in this case.
VI.
Because we find that the legislature intended § 22-1307(b) to merge into § 10-
503.16(b)(7), we remand the case to the trial court with instructions to vacate
Grogan’s conviction under § 22-1307(b). Because we are not persuaded that the
government substantially burdened the exercise of Grogan’s religion under RFRA,
that § 10-503.16(b)(7) is facially overbroad, or that the trial court committed plain
error when it failed to deem § 10-503.16(b)(7) unconstitutionally overbroad as
applied to Grogan, we affirm Grogan’s conviction under § 10-503.16(b)(7).
So ordered.