Independent justification requirement for unlawful entry

According to the “independent justification” requirement, an order to leave public property must be given by a person with authority based on some established policy, rule or regulation. Otherwise, the government cannot prove the elements of the criminal offense of unlawful entry.

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Dr. Derek J. Morris was attempting to file a pro se petition for a writ of certiorari with the U.S. Supreme Court.

After the clerk’s office rejected his submission by mail as untimely, Morris flew multiple times from California to D.C. to deliver the filing in person.

On one occasion, Morris was told that, for security purposes, he was required to deliver the filing to the police booth outside of the building. He did so.

On other occasions, Morris refused to leave the clerk’s office until somebody – a Supreme Court police office on one occasion and a clerk office employee on another – took the filing from him and delivered the filing to the police booth for him.

Finally, on the occasion in question in January 2020, Morris again caused a scene in the clerk’s office. This led to the summoning of the Chief of the Supreme Court police. The Chief ultimately told Morris that he no longer had any lawful business before the Court and, when Morris still refused to leave, the Chief had him arrested.

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Morris was tried before a jury on one count of Unlawful Entry (Remaining on Public Premises Without Authority) in violation of D.C. Code § 22-3302(b).

Morris argued on appeal that the trial court had failed to properly instruct the jury about the offense of Unlawful Entry (Remaining on Public Premises Without Authority). Specifically, he argued that the jury should have been informed that Morris could not be found guilty of the offense unless the government proved that the police directive to leave had an independent justification.

In Derek J. Morris v. United States, __ A.3d __ (D.C. 2025), the D.C. Court of Appeals agreed:

An order to leave public property by a person lawfully in charge of that property cannot alone establish a lack of lawful authority to remain. People generally have a right to be in public spaces, and they may use those spaces to exercise their rights to free speech, to assembly, and to petition the government, subject to pre-established, reasonable restrictions . . . Thus, ejecting a person from public property can have both Due Process and First Amendment implications . . . An order to leave must therefore be supported by a pre-established rule that survives First Amendment scrutiny to ensure that an individual’s otherwise lawful presence [on public property] is not conditioned on the mere whim of a public official. (Internal citations and quotations omitted.)

For cases dealing with unlawful entry onto public property, courts must now provide juries with an additional instruction:

In addition to an express order to leave the premises, there must exist some independent justification establishing the legal right to remain, such as posted regulations, signs, fences, barricades, or some other pre-established policy, rule, or regulation.

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D.C. Superior Court judge Errol Arthur presided at trial. Morris was represented by Mark Rollins at trial and by Thomas Burgess on appeal.