Criminal Law Blog

To be punishable under D.C. Code § 22-1321(a)(1), "disorderly conduct" must cause actual, subjective fear of harm.

 Edvard Munch, The Scream, 1893, National Gallery Oslo

Solon v. United States (decided Nov. 29, 2018)

Players: Associate Judges Fisher, Thompson, and Beckwith. Opinion by Judge Thompson. Thomas C. Paynter for Ms. Solon. Trial Judge: Juliet J. McKenna.


Facts: A judge found Ms. Solon guilty of disorderly conduct in violation of D.C. Code § 22-1321(a)(1), which makes it a crime “to intentionally or recklessly act in such a manner to cause another person to be in reasonable fear that a person or property in a person’s immediate possession is likely to be harmed or taken.” Ms. Solon’s charges arose out of her interaction with climate march participants in April 2017. Holding a “TRUMP: Make America Great Again” sign, Ms. Solon tried to push her way between marchers, who were standing arm-in-arm. When she was not pushing, Ms. Solon walked from side to side, while the marchers looked on impassively. Others laughed or took photos of Solon. At one point, someone appeared to bump into her on purpose. March staff testified that her behavior was “scary” and “aggressive” but could not identify any objective on her part beyond getting between the marchers. Ms. Solon told an officer at the scene that her aim was to impede the march.


The trial court found Ms. Solon guilty of violating D.C. Code § 22-1321(a)(1) by “ramming her body into individuals who . . . were standing peacefully, expressing their views[.]” In so doing, the court rejected Ms. Solon’s argument that § 22-1321(a)(1) required the victim’s actual, subjective fear of injury. The court found that although the government had not proven actual, subjective fear, conduct sufficient to create objectively reasonable fear of immediate bodily harm would suffice for conviction. In the court’s view, Ms. Solon’s “demeanor,” “agitation,” and “volatility” met this standard.


Issue 1: Whether a conviction for disorderly conduct under D.C. Code § 22-1321(a)(1) requires proof that the charged conduct caused actual, subjective fear of harm?


Holding: Yes. On its face, D.C. Code § 22-1321(a)(1) appears to require proof that the perpetrator’s conduct “cause[d] [someone] to be in . . . fear.” Legislative history confirms this interpretation. When a subcommittee proposed that § 22-1321(a)(1)’s general prohibition on intentional or reckless conduct made a separate anti-jostling provision of the statute redundant, the Judiciary Committee disagreed, noting § 22-1321(a)(1)’s distinct requirement for the victim’s actual, subjective fear of harm. “In light of th[is] legislative history, . . . § 22-1321(a)(1) requires proof that the defendant’s charged conduct placed another person in fear of harm to his or her person.”


Issue 2: Whether Ms. Solon’s conviction may stand?


Holding: No. The trial court’s verdict relied solely on its erroneous determination that the government did not have to prove that Ms. Solon’s conduct caused actual fear among the demonstrators. Although, ordinarily, the Court would remand for a correct application of the statute, the Court will not do so here because the trial court already found that Ms. Solon’s behavior did not place anyone in fear of harm. This finding was neither plainly wrong nor without evidence to support it— none of the marchers manifested any fear of Ms. Solon, who by herself; rather, some were laughing; police were nearby; and witnesses confirmed that she appeared to lack any objective beyond getting in between the marchers. WC


Read the full opinion here.