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The chitlins were making Alex Dennis sick. Dennis, a 20-year-old with dreadlocks that graze his shoulders, found himself getting nauseous in his apartment while his uncle and aunt cooked soul food for Thanksgiving.
Dennis walked outside to get some air, but ended up right in the grasp of the Metropolitan Police Department.
Stepping outside an apartment for fresh air doesn’t draw police attention in, say, Georgetown. But Dennis doesn’t live there. Instead, he lives on Buena Vista Terrace SE, a grim stretch of low-rise apartments pushed up against the Maryland border. And on Buena Vista Terrace, just standing outside can get you in trouble.
Dennis was standing on a ramp to his apartment building around 8:30 p.m., looking for relief from the chitlins’ aroma, when a police officer approached and told him and another man that they were blocking the ramp. The officer, according to a police report, told Dennis to move.
The request was an odd one for Dennis. In his telling, no one was trying to come up the ramp. If someone had come by, he says, he would have moved. The police report doesn’t mention anyone who couldn’t get past him.
“How can you tell me to move from the place where I live at?” Dennis says.
When Dennis refused to move, police arrested him and put him into a van. As the cop took him away, Dennis asked him why he was being arrested.
“Blocking a passage,” the officer said, in Dennis’ telling. “You’re going with me.”
Dennis had run afoul of a District law that forbids “incommoding,” which means blocking a sidewalk. The law is meant to fight disorderly conduct, but some lawyers and the people arrested for the “crime” say it’s routinely used to harass people seen as undesirable: protesters, the homeless, and black men.
While Dennis’ time in police custody lasted only a few hours, its effects lasted for months. Dennis, who works at a Dulles International Airport pizzeria, worried that his arrest could affect his security clearance at the airport, and thus, leave him without a job. Only when his case was dropped in April could he stop worrying about it.
Still, Dennis says the police officer who arrested him still comes by and tells him over the squad car loudspeaker to “get the fuck in the house.”
Now Dennis plans to join a lawsuit against the city with other people who say they’ve been unjustly arrested for “incommoding.” He spends more and more time inside, afraid of angering a police officer and getting again arrested for incommoding.
“He made me paranoid to be in my own yard,” Dennis says.
It’s difficult to know how widespread abusive incommoding arrests are in the District. That’s in part because a vast majority of incommoding charges are resolved through the “post-and-forfeit” process. The accused party pays a fine and goes on his way, with no defense attorneys, prosecutors, or judges involved to determine whether the arrest was legitimate.
No description of the incident is filed with the court, making it hard to judge whether someone really was blocking the sidewalk, or was just in the wrong place at the wrong time.
Prosecutors drop most of the cases that do reach the D.C. Office of the Attorney General from MPD. In 2014, prosecutors received a combined 16 incommoding cases from the Federal Protective Service, the U.S. Capitol Police, and the Secret Service, and prosecuted 15 of them. That same year, MPD sent OAG 45 incommoding cases, and only 15 of them were prosecuted. The number of actual incommoding cases is likely much larger, since OAG never sees cases that are resolved by a paid fine.
The incommoding statute isn’t just about the number of people who are arrested or fined for it. According to attorney Fritz Mulhauser, a former lawyer for the ACLU’s District chapter, incommoding provides a perfect excuse for cops to frisk people they suspect of breaking other laws when police see them on the sidewalk.
“The police may have originally arrested a person for incommoding, and then they search them, and there’s some contraband,” Mulhauser says.
He says that the District’s incommoding statute is so vague that anyone on a sidewalk who isn’t moving is violating it. You don’t have to be sitting, you don’t have to be lying down. You just have to be there. Indeed, MPD’s general order to officers on incommoding and disorderly conduct notes that the people arrested for breaking the law might not even know they’re breaking it—which will make them even angrier.
“You could incommode the sidewalk just by standing in one place,” Mulhauser says.
Attorney Jeffrey Light has sued the District on behalf of Occupy protesters who say they were unjustly arrested for incommoding while protesting Bank of America downtown. Light says the incommoding statute’s vagueness offers police the perfect reason to arrest bothersome protesters.
“Any time you’re stationary on a sidewalk, no matter how little space you’re taking up, and no matter how big the sidewalk is, that is incommoding because nobody can be on the same part of the sidewalk that you’re sitting on,” Light says.
OAG spokesman Robert Marus disputes that the incommoding statute should be interpreted this broadly.
“While it is true that one person can ‘block’ a sidewalk or an entrance to a building, simply standing still is not illegal,” Marus says in an email.
Of course, whether standing still amounts to blocking the sidewalk is up to the officer’s discretion. Attorneys involved in incommoding cases can cite a long list of “incommoding” events that, somehow, don’t merit police attention: lines outside stores for the latest Apple product, or downtown businessmen talking on the street. In the incommoding lawsuit that Dennis plans to join, attorney William Claiborne uses a picture of a woman with a baby stroller taking up a sidewalk in a tony District neighborhood as an example of the kind of clear incommoding that goes unpunished.
“Human nature here is against the law,” Claiborne says. “Unless the police decide not to arrest you.”
As I interviewed former incommoding defendants for this story, people noted several times that, under the law’s strictest application, I was just as guilty of incommoding as they were.
“You can bet MPD is not standing in the middle of K Street,” Mulhauser says.
Ironically, the current version of the District’s incommoding statute was put in place to prevent police abuses. In 2010, civil liberties groups complained that the District’s century-old disorderly conduct statute was so vague that it provided police officers with a blank check to arrest anyone they didn’t like.
In a 2010 report, the District’s Council for Court Excellence found that the statute’s ambiguity was “facilitating improper arrests for ‘contempt of cop.’” In other words, if an MPD officer didn’t like you, he could arrest you for disorderly conduct even if you weren’t deliberately breaking any law.
What’s more, the fine process, according to the report, “forestalls any prosecutorial or judicial oversight of these arrests”: Many of the disorderly conduct arrests were resolved when the supposed offender was offered the chance to pay a $35 fine. Faced with more time under arrest or a fine the size of a small grocery bill, many opted to pay up. It was a better deal for them, but it also kept scrutiny of the law’s application away from prosecutors, defense attorneys, and judges.
In late 2010, the D.C. Council passed sweeping revisions to the District’s disorderly conduct law, including changes to the incommoding rules. Police officers had to give a warning to move now, and the number of would-be sidewalk blockers could now be just one, instead of three. The law went into effect in January 2011.
No one thinks that protesters, with their linked arms and “sleeping dragon” devices, should be able to block sidewalks to their hearts’ content. But just months after the new disorderly conduct rules took effect, Ward 3 Councilmember Mary Cheh (who moonlights as a law professor at George Washington University) noted that police weren’t always using it correctly. Instead of limiting themselves to people who were actually trying to disrupt sidewalk traffic—the original targets of the law—police were using it to deal with sidewalk musicians and homeless people who had no intention of incommoding.
The reforms meant to curb police misuse of disorderly conduct laws had become just another vehicle for it.
In a letter to then-Attorney General Irv Nathan, Cheh complained that police were using the incommoding statute incorrectly. The requirement that police officers offer alleged incommoders a warning to move didn’t satisfy Cheh, since that meant giving police the ability to banish anyone from a public space whenever they wanted.
“The purpose of this amendment was not to subject to punishment any person on a sidewalk who chooses not to move,” Cheh wrote. “Rather, the statute was altered so that should any one person block the entirety of a public right-of-way, that person could be removed.”
Rashad Bugg Bey says he had no intention of blocking the sidewalk on May 9, 2014. Three years after Cheh warned the District’s attorney general about how the incommoding law was being misapplied, Bugg Bey was standing outside with friends on a Trinidad sidewalk. If someone had come by, Bugg Bey says, he would happily have stepped aside for them to pass.
That wasn’t enough for a police officers who told Bugg Bey and his friends to move along. But Bugg Bey, 24, refused to go. He didn’t see why he should be forced to leave a public sidewalk when, he says, he wasn’t doing anything wrong.
“I felt basically that they was harassing,” Bugg Bey says.
And just like Dennis, Bugg Bey’s refusal to move landed him in MPD custody: He spent the night in jail. Whatever supposed incommoding Bugg Bey was doing, though, it apparently wasn’t worth prosecutors’ time—they dropped his case the next morning.
Now Bugg Bey, like Dennis, is suing the District for false arrest and illegal prosecution. Bugg Bey says he wants “peace of mind” from the lawsuit, the ability to move about the city without fear of being arrested just for being on a sidewalk. Standing on a sidewalk on L Street NW downtown, he marvels at how we’re able to stand in the middle of the sidewalk without repercussions.
“In Northeast, it’s different,” Bugg Bey says.
While OAG insists that just being on the sidewalk doesn’t risk an incommoding charge, Bugg Bey knows how he interprets it after experiencing the law firsthand.
“That’s basically what they’re saying,” Bugg Bey says. “You cannot stand outside.”
While his criminal case was dropped, Bugg Bey says he’s still living through the consequences of his arrest. For one thing, he stays away from Trinidad for fear of getting arrested again for incommoding.
“I don’t want to go through the hassle,” Bugg Bey says.
A hassle is exactly what minority groups are getting in the District, claims activist and former at-large Council candidate Eugene Puryear. Canvassing the District’s poorest wards, Puryear says he frequently hears complaints that officers are harassing people just for standing around in public. Puryear lives in Congress Heights near Martin Luther King Jr. Avenue SE, where he says he regularly sees police telling groups of people standing around to move along for no reason.
“It’s completely arbitrary,” Puryear says.
Rev. Graylan Hagler, another former Council candidate and activist, says the incommoding statute is one of many tactics police use in poor District communities.
“That’s another little tactic in their toolbox,” Hagler says.
Claiborne says incommoding arrests can be used more often in poorer neighborhoods because the people there are more likely to pass the time on the sidewalk, unable to afford the pricey bars where wealthier Washingtonians socialize.
“If you can’t afford a Cosmos Club, you hang out on the street,” he says.
MPD won’t comment on individual incommoding cases because of the pending lawsuit against the city. MPD spokeswoman Gwendolyn Crump points out, though, that MPD’s instructions to officers about incommoding and disorderly conduct specifically prohibit the kind of “contempt of cop” arrests that civil liberties groups worry about. Officers are also told to arrest someone blocking the sidewalk only after other methods, including issuing the warning, have failed.
In its general order to officers about the updated disorderly conduct statute, MPD tells officers that “arrests based merely on a person’s language, gestures, or attitude toward law enforcement are not lawful arrests.” But Claiborne says he hasn’t seen that warning play out in incommoding arrests.
“They arrest the guy that talks back,” he says.
The video of Daryl Agnew’s arrest looks like so many others in a genre that’s become sadly prevalent lately: an agitated crowd, similarly agitated officers, and a claim of false arrest.
“They just think we monkeys!” yells one onlooker.
On Dec. 24, 2014, Agnew became the latest District resident introduced to the little-known incommoding law.
Agnew was celebrating Christmas Eve with his family on Buena Vista Terrace last year, just a few apartment buildings down from where Dennis was arrested a few weeks earlier. Agnew and his children’s mother went outside to smoke to avoid triggering their daughter’s asthma. That’s when, in Agnew’s telling, his trouble with incommoding started.
Court records lay out the police version of events: Around 5:45 p.m., officers found Agnew standing on the apartment building’s brick pathway with a woman and another man. The officers weren’t happy with the way they were positioned in front of the entrance.
“Both 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,” the report reads.
Comparing the police version of what happened with Agnew’s, there seems to be no obvious explanation for why Agnew, 43, would decide to block a sidewalk on Christmas Eve. He was with his family and, he says, “in the holiday spirit.” He had just gotten off probation and says he had no desire for another run-in with police.
But when an officer told him to move, according to the report, Agnew refused. Agnew says he didn’t want to smoke inside and aggravate his daughter’s asthma.
Agnew’s refusal to move gave the officers a reason to arrest him, and they did, setting off a neighborhood scene that brought more people out to yell at the cops. After three hours in MPD custody, Agnew was released and found his case dropped a few months later.
Now he’s another party, along with Dennis and Bugg Bey, to Claiborne’s lawsuit against the District for false arrest and illegal prosecution. It’s not clear when that suit will get resolved, though, if it ever does. Attorney Jeffrey Light’s own incommoding lawsuit, filed nearly three years ago on behalf of Occupy protesters, is still waiting on a judge’s opinion.
Standing in the exact spot where his smoking earned him a few hours in custody, Agnew marvels at his arrest. He understands that the street draws police attention, but incommoding arrests aren’t going to solve anything. Judging by the video of his arrest and neighbors’ reactions to it, if anything, Agnew’s experience further frayed MPD’s relationship with the community.
“You can’t clean up the streets by just locking up innocent people,” Agnew says.