U.S. v THOMAS

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FILED
NOV 2 1983
JAMES F. DAVEY,
Clerk, U.S. DISTRICT COURT

UNITED STATES OF AMERICA
     V.                           Criminal Action No. 82-0295
ARTHUR LEE HARRIS

UNITED STATES OF AMERICA
     V.                           Criminal Action No. 82-0296
WILLIAM THOMAS

MEMORANDUM

These consolidated criminal cases are before the Court on appeal from findings rendered by United States Magistrate Arthur Burnett. On September 20, 1982, Magistrate Burnett found Arthur Lee Harris and William Thomas guilty of violating United States Government Regulations which prohibit camping on parkland, 36 C.F.R. 50.51 50.27. Appellants raise factual and constitutional challenges to their convictions.

The essential details concerning the arrest of Harris and Thomas are undisputed. Two park police officers found both men sleeping on the sidewalk directly in front of the White House at approximately 4:00 a.m. on June 17, 1982. One of the officers stated at trial that he had seen the men sleeping in front of the White House on prior occasions. The officers read three separate warnings to Harris and Thomas over a half-hour period on the morning of June 17th, indicating that they were violating anti-camping regulations and would be arrested unless they left the


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parkland. The two men refused to leave and the officers made the promised arrest.

The scope of appeal from a Magistrate's verdict is the same as on appeal from a judgment of a district court to a court of appeals. Rules of Procedure for the Trial of Minor Offenses before United States Magistrates, Rule 8(d), 18 U.S.C. (1970). Thus, the Court's function is not to retry the case, weigh the evidence or adjudge the credibility of witnesses. It is instead, to determine whether there is substantial evidence on the record to support the Magistrate's verdict. See United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974)1 cert. denied, 420 U.S. 991 (1974).

The anti-camping regulation at issue in this case states:

(a) Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongingsr or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. Camping is permitted only in areas designated by the Superintendent who may establish limitations of time allowed for camping in any public camping ground, Upon the posting of such limitations in the campground no person shall camp for a period longer than specified for the particular campground.

36 C.F.R. 50.27(a).

Appellanes argue that they did not violate this regulation because they were not using the parkland for "living accommodation purposes." The evidence adduced at trial, however, indicates


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that both men had been maintaining a constant presence on the parkland for many days, including sleeping overnight on the White House sidewalk. They were using bedding materials, had personal belongings in the area, and were using plyboard signs and other objects to protect them from the elements. The Magistrate's finding that the men were using the parkland for living accommodations is supported by substantial evidence and will be upheld.

Harris and Thomas also raise several constitutional challenges to the anti-camping regulation and their convictions pursuant to the regulation. The majority of appellants' arguments must be rejected. Appellants claim that the relevant regulation is unconstitutionally vague and overbroad has been previously addressed and dismissed by the Court of Appeals for this Circuit. See Commnunity for Creative Non-Violence v. Watt, 703F.2d 586, 591 n.6 (D.C. Cir. 1983), cert. granted, 52 U.S.L.W. 3262 (Oct. 3r 1983). In addition, the Magistrate's factual finding that the regulation has not been improperly selectively enforced is supported by the record, and, thus, will not be overturned. See United States v. Mangierir, 694 F.Zd 1270 (D.C. Cir. 1982); see also Community for Creative Non-Violence v. Watt, 703 F.2d at 611. Appellants' final challenge to their convictions, based on the First Amendment, however, presents a more difficult issue.

At the time of their arrest, Harris and Thomas were conducting constant vigils to protest certain government activities. Such protests have historically been given First Amendment protection regardless of content. See, e.g., Consolidated Edison Co. v.


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Public Service Commission, 447 U.S. 530,536 (1980). To maintain their constant vigils in front of the white House, the men necessarily slept on parkland. Since sleeping on parkland vas necessary to continue their protests, they argue that the regulation prohibiting them from "camping" on parkland violates their First Amendment rights.

Appellants rely heavily on the recent decision by the Court of Appeals for this Circuit in Community for Creative Non-Violence v. Watt, supra. In CCNV, the Court of Appeals stated that the anti-camping regulations could not be applied to prevent protesters from sleeping in tents which the government had allowed them to erect as symbols of the plight of the homeless. By a 6-5 majority, the CCNV court found that under those circumstances sleeping was communicative conduct protected by the First Amendment.

The Court of Appeals noted in the CCNV opinion that under the circumstances of that case sleeping was used as expressive conduct. The importance of the communicative nature of the sleeping to the majority decision is illustrated by the caveat in the concurring opinion of Judges Wright and Robinson, which states: (w)e intimate no view as to whether sleeping would implicate the First Amendment were it not to add its own communicative value to the demonstration." 703 F.2d at 600.

Harris and Thomas do not claim that their sleeping added its own "communicative value" to their protests. Rather, they claim that sleeping facilitated their "inescapable night-and-day" presence. Appellants' brief at 21. The expressive nature of the sleeping, therefore, is absent in this case.

The Supreme Court in Spence v. Washington, 418 U.S. 405 (1974)


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(per curiam), established the guidelines for determining whether conduct qualifies as protected speech under the First Amendment. The Court stated that conduct will merit First Amendment protection when it is intended to convey a "particularized message" and under the circumstances it is likely the message will be understood. 418 U.S. at 410-411. By sleeping, Harris and Thomas did not intend to convey a particularized message. Sleeping on parkland was for the men simply necessary to maintain the stamina to sustain a constant vigil. In view of the lack of a "particularized message" in the conduct of sleeping which led to the appellants' arrest, the Court finds that the First Amendment is not implicated in this case.

For the foregoing reasons, the Magistrate's decision in these consolidated cases is affirmed.

An appropriate Order follows.

(signed) John Lewis Smith Jr.
United States District Judge


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