Credit: Darrow Montgomery

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A new class-action lawsuit filed on Thursday challenges the constitutionality of a D.C. law that prohibits “incommoding,” or blocking a sidewalk. The suit claims the law disproportionately affects men of color and that police enforce it “in an arbitrary and discriminatory manner.”

The plaintiff in the case, Northeast resident Joseph Alexander, was arrested in August 2015 for simply being in an area where a police officer didn’t want him, says William Claiborne, one of Alexander’s three attorneys.

The civil lawsuit says Alexander, who is African American, was standing in an alley next to a convenience store in the 1000 block of Bladensburg Road NE late one afternoon. Alexander was not bothering anyone and there was enough space for pedestrians to pass him, according to the suit.

But a D.C police officer who arrived on a bike told Alexander to “leave the area,” the complaint says. The officer allegedly arrested Alexander after Alexander walked up and down the block a few times over the next five minutes.

“[The law] gives the police the power to just make anybody they don’t like leave the area,” says Claiborne. “People are just absolutely gobsmacked that a policeman can tell them to move from the sidewalk where they’re just standing taking [in] the air.”

Along with attorneys Lynn E. Cunningham and Michael Bruckheim, Claiborne is arguing that D.C.’s incommoding law violates the Fourth and Fifth Amendments of the U.S. Constitution, which bar false and unlawful arrests.

Spokespeople for the Metropolitan Police Department and the D.C. Attorney General’s Office, which represents the city government in cases where the District is a defendant, declined to comment because the litigation is pending.

The lawsuit asks the U.S. District Court for D.C. to declare the District’s incommoding law “unconstitutionally vague.” It also asks the court to award legal damages to Alexander and others arrested under the law, and to seal their arrest records for any incommoding.

The D.C. Council originally passed the statute as part of a broader effort to prevent disorderly conduct. But in 2010, lawmakers modified the underlying law by reducing the number of alleged sidewalk-blockers necessary for police enforcement from three to one. Additionally, the changes established that officers must first give a warning to move.

As of January, D.C.’s independent Office of Police Complaints had received 14 complaints that police “improperly issued” move-along orders or citations since the law was passed, according to a statutorily mandated report released in May by the Police Complaints Board. Of the nine complainants who identified their race, seven were African American, one was of another minority race, and one was Caucasian. An unspecified number of the complainants were homeless.

The report included recommendations for clarifying the law, like requiring officers to document incidents where they enforced it and providing officers “cultural and sensitivity training” to “promote cooperation and decrease animosity.”

“The Council of the District of Columbia should review the current statute and weigh the legislative intent against its effects on community trust,” the report further recommended. (The council returns from its summer recess next week. A spokesperson for D.C. Councilmember Charles Allen, who chairs the council’s committee on the judiciary, didn’t immediately respond to a request for comment.)

The federal court has yet to set a hearing on Alexander’s lawsuit, which describes situations where white people in richer neighborhoods could arguably be found in violation of the statute.

With a photo included, one example Alexander’s attorneys give is a long line of people waiting outside popular bakeshop Georgetown Cupcake. But “no one has ever been arrested for crowding, obstructing, or incommoding in Georgetown while waiting to buy cupcakes at Georgetown Cupcake,” the attorneys write.

A long line outside Georgetown Cupcake at 3301 M St. NW. Credit: via lawsuit

Says Claiborne: “The police do arrest black people in that situation if they’re standing still on the sidewalk, even if there’s nobody else around.”

This is not the first lawsuit Claiborne has filed over D.C.’s incommoding statute. A 2015 case involving the 2014 Christmas Eve arrest of Daryl Agnew, also an African American man, resulted in a decision favorable to the city. Claiborne and his co-counsel have appealed that decision, and the appeal is pending.

This time around, though, Claiborne says his team is making it clear that the statute is hard for normal citizens to understand—both in terms of how they may be in violation of the law and how they can comply with an officer when issued a warning.

“Human beings take up space,” the attorney says. “Think about popular songs. Louis Armstrong said in that song ‘What A Wonderful World’ ‘I see friends shaking hands.’ They stop and chat. Otis Redding, ‘Sittin’ on the Dock of the Bay.’”

“But the problem is only African Americans get arrested for this,” Claiborne contends. “So Louis Armstrong and Otis Redding would get arrested.”