The "tourist standard" restricts the scope of statutes by penalizing only conduct that is more disruptive or more substantial (in degree or number) than that normally engaged in and routinely permitted by tourists and others. Berg v. United States, 631 A.2d 394, 398-400 (D.C. 1993). Thus, if the demonstrator's arrest was lawful under the tourist standard, the arrest also would be lawful under a content-neutral statute or regulation at issue.

We have previously recognized that the Rotunda of the Capitol is a " 'unique situs for demonstration activity' and is a place traditionally open to the public . . . to which access cannot be denied broadly or absolutely." Wheelock v. United States, 552 A.2d 503, 506 (D.C. 1988) (quoting Kroll v. United States Capitol Police, 590 F. Supp. 1282, 1289-90 (D.D.C. 1983)); see also Berg v. United States, 631 A.2d 394, 397-98 (D.C. 1993); Abney v. United States, 616 A.2d 856, 859 n. 8 (D.C. 1992). Content neutral restrictions on time, place, and manner of expression in a public forum are permissible. Berg, 631 A.2d at 399. However, statutes which curtail expressive conduct in such forums must be " 'narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.

The court also addressed, in a footnote, the trial court's assertion, in dicta, that application of a so-called “tourist standard” may be appropriate for section 13k, although the D.C. Court of Appeals had not yet applied that standard—employed in rulings brought pursuant to a D.C. Code regulation “dealing with buildings associated with the legislative branch”—in rulings related to section 13k. See Bonowitz, 741 A.2d at 23 n. 4 (citing Berg v. United States, 631 A.2d 394, 398 (D.C.1993)). The D.C. Court of Appeals has imposed the “tourist standard” in cases involving the U.S. Capitol Rotunda in order “to save content-neutral statutes regulating the time, place, and manner of expression from unconstitutionality in their application.”

Appellants cite no authority for deeming the interior of Senate or House Office Buildings equivalent to the Rotunda of the Capitol Building itself, which we have termed a "unique situs for demonstration activity." Berg v. United States, 631 A.2d 394, 398 (D.C. 1993) (quoting Wheelock v. United States, 552 A.2d 503, 506 (D.C. 1988)). The former are buildings where, quintessentially, congressional members "carry out the duties of office" and are entitled to "transact . . . business in an orderly manner without interference."

In a last effort to establish that some portion of the Capitol buildings is a public forum, Nassif cites a decision of the D.C. Court of Appeals for the proposition that "the United States Capitol Rotunda, which is at the very heart of the United States Capitol Building, is a 'unique situs for demonstration activity' and 'a place traditionally open to the public.' " Berg v. United States, 631 A.2d 394, 397-98 (D.C. 1993) (quoting Wheelock v. United States, 552 A.2d 503, 506 (D.C. 1988)). The Court of Appeals in Berg conducted a time, place, and manner analysis before rejecting a First Amendment challenge to misdemeanor laws as applied to individuals arrested for engaging in a "die-in" demonstration inside the Capitol Rotunda.

Even if the tourist standard represents "clearly established" law, however, two factors convince us that the standard does not bar qualified immunity for the officers in this case. First, although the District of Columbia Court of Appeals has stated that it "impose[s] the `tourist standard' to save content-neutral statutes regulating the time, place, and manner of expression from unconstitutionality in their application," Berg v. United States, 631 A.2d 394, 398 (D.C. 1993), we have found no case in which the court has applied the standard to any federal law or regulation. Even assuming that the appeals court would apply the standard to the demonstration ban and other federal laws if given the opportunity, we see no basis for requiring reasonable police officers to foresee that possibility.

See District of Columbia v. Lederman, slip. op. at 36-37. See, e.g., Hasty v. United States, 669 A.2d 127, 130-31 (D.C. 1995); Berg v. United States, 631 A.2d 394, 398-99 (D.C. 1993); Markowitz v. United States, 598 A.2d 398, 406 n. 7 (D.C. 1991); Farina v. United States, 622 A.2d 50, 59 (D.C. 1991); Reale v. United States, 573 A.2d 13, 15 (D.C. 1990) (per curiam);Wheelock v. United States, 552 A.2d 503, 508 (1989). The tourist standard, as first enunciated over 30 years ago, restricts the scope of content-neutral regulations that affect speech at the Capitol by permitting those regulations to apply only to conduct that would be "more disruptive or more substantial (in degree or number) than that normally engaged in by tourists and others routinely permitted on the Grounds."

Thus, construed in accordance with the legislative history (i.e., construed to include as an element of the offense a requirement that the defendant know or be charged with knowledge that the firearm is being carried unlawfully), the PMVCF statute would not offend due process. Because we have “a duty to construe statutes in a way which avoids declaring them unconstitutional,” Berg v. United States, 631 A.2d 394, 398 (D.C.1993), that is the constructionwe should apply. With it, there is no reason why we should rest on the example of the uninformed visitor to conclude that § 22–2511 is unconstitutional.

Because appellant did not raise this claim prior to oral argument, we do not consider it. See Berg v. United States, 631 A.2d 394, 396 n. 8 (D.C. 1993) (noting that points not raised in briefs are treated as abandoned) (citation omitted); RDP Dev. Corp. v. Schwartz, 657 A.2d 301, 304 n. 3 (D.C. 1995) (refusing to consider point raised for the first time at oral argument). In any event, the law is settled that an indictment on a greater offense puts the indictee on notice that the prosecution might also press a lesser-included charge.

The trial court went on to note that this court had not "expressly incorporated the so-called `tourist' standard" in its previous rulings on § 13k as it had in cases brought pursuant to D.C. Code § 9-112(b)(7) dealing with buildings associated with the legislative branch. See, e.g., Berg v. United States, 631 A.2d 394, 398 (D.C. 1993). The trial court did not, as appellants argue, hold that the tourist standard was applicable in this case, although it stated in dicta that its application seems "appropriate."