Watt v. CCNV

I. BACKGROUND

A. The Regulatory Framework

This case presents the second occasion in which the government has sought to apply anti-camping regulations to demonstrations proposed by this appellant. In 1981, the Park Service allowed CCNV to erect nine tents in Lafayette Park to symbolize the desperation of homeless persons, but denied the demonstrators permission to dramatize this concern by actually sleeping in the tents. Under the regulations then in effect, 36 C.F.R.50.19 (e)(8)(1981) (use of temporary structures); id.50.27(a) (camping), the Park Service reasoned that overnight sleeping would carry the demonstration beyond the permissible "use of symbolic camp sites reasonably related to First Amendment activit[y]" and into the impermissible realm of "camping primarily for living accommodation," see 46 Fed.Reg. 55,961 (1981). CCNV appealed that ruling.

In Community for Creative Non-Violence v. Watt (CCNV 1) 670 F.2d 1213 (D.C.Cir. 1982), this court held that the Park Service had misapplied those regulations to CCNV's proposed activity. Because the regulations precluded only camping "primarily for living accommodation," and the act of sleeping in CCNV's demonstration was not to be done for that purpose, the court found that such conduct well outside of the Park Service's proscription:


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[T]here is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended "primarily for living accommodation." The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is "primarily" to express the protestors' message and not to serve as a temporary solution to the problems of homeless persons. Thus the only activity at issue here -- sleeping in already erected symbolic tents-cannot be considered "camping" Id. at 1217. As a result of the court's decision, CCNV staged its demonstration, including sleeping, for approximately seven weeks last winter.

The Park Service has since revised its camping regulations for the National Capital Region through a formal rulemaking. 47 Fed.Reg. 24 299-306 (1982) (codified at 36 C.F.R. 50.19, 50.27 (1982)). The new regulations, set out in the margin,[1] specifically include within the definition of prohibited camping the act of sleeping "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." 47 Fed.Reg. at 24,302. Although the amended regulation admittedly permits some leeway for administrative discretion, the Park Service has determined that the regulation prohibits the sleeping that would be done at CCNV's demonstration this winter.

To understand fully the government's current policy on sleeping in the capital's parks, it is important to note that sleeping is not, per se, illegal. Visitors to the capital, or workers on their lunch breaks, may safely catnap for short periods of time without running afoul of the law. Sleeping, in these circumstances, conjures up no threats to peace and public order. Although the Park Service's anti-loitering regulation prohibits sleeping with intent to remain for more than four hours, it contains an exception for those with the proper authorization of the Superintendent of the National Capital Parks. See 36 C.F.R. 50.25k) (1982). And, as mentioned,the government's camping regulation also allows for "sleeping activities" that are not deemed to constitute use of the area for living accommodation. An example of the


[1 As revised, section 50.27(a) prohibits camping in park areas not designated as public camping grounds, and defines the term as follows:

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 belongings, 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.

36 C.F.R. 50.27(a) (1982). Section 50. 19(e)(8), as amended, prohibits the use of temporary structures for camping outside of designated camping areas. It reads as follows:
In connection with permitted demonstrations or special events, temporary structures may be erected for the purpose of symbolizing a message or meeting logistical needs such as first aid facilities, lost children areas or the provision of shelter for electrical and other sensitive equipment and displays. Temporary structures may not be used outside des- ignated camping areas for living accommodation activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping),or storing personal belongings, or making any fire, 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.

Id. 150.19(e)(8).]


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discretion inherent in this latter determination is evidenced by the Park Service"s authorization, for participants in a Vietnam veterans' demonstration on the Mall in May 1982, [2] of all-night sleep at a mock Vietnam War-era "firebase" where some of the demonstration were periodically roused to stand symbolic "guard duty."[3] See Park Service Permit to Vietnam Veterans Against the War dated April 20, 1982 and accompanying letter, reprinted in Record Document (RD) 5. The only apparent distinction between the sleeping in the veterans' demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. According to the Park Service's interpretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible "camping" when it is done within any temporary structure erected as part of the demonstration.

The Park Service nonetheless allows the erection of temporary structures, including tents, in connection with permitted demonstrations under 36 C.F.R. 50.19(e)(8) (1982)[4]. Originally worded to allow any "temporary structures ... reasonably necessary for the conduct of the demonstration," 41 Fed.Reg. 12,879, 12,883 (1976), this regulation was amended in 1982 to state specifically that temporary structures "may be erected for the purpose of symbolizing a message," 47 Fed.Reg. at 24,305. Since that amendment, the Park Service has, on at least two occasions besides this one, granted permits to groups of demonstrators to erect symbolic tents. See Park Service Permit to ACORN dated June 18, 1982, reprinted in RD 5 (50 tents dramatizing housing crisis); Park Service Permit to Palestine Congress of North America dated September 8, 1982, reprinted in RD 5 (107 tents symbolizing Palestinian refugee camp). Tents were also allowed prior to the amendment to symbolize conditions in Vietnam, the plight of American Indians, and the plight of the homeless. 47 Fed. Reg. at 24,301.

B. The Case Law

The dispute in this case over the Park Service's camping regulations bears similarities to numerous other disputes that this court has heard within the last fifteen years, each concerning the proper use of public park lands within the nation's capital. Eg., CCNV 1, 670 F.2d 1213 (D.C.Cir. 1982) (sleeping in Lafayette Park); United States v. Abney, 534 F.2d 984 (D.C.Cir.1976) (sleeping in Lafayette Park); Vietnam Veterans Against the War v. Morton (VVAW 506 F.2d 53 (D.C.Cir.1974) (camping on Mall); A Quaker Action Group v. Morton (Quaker Action No. 71-1276 (D.C.Cir. Apr. 19, 1971), vacated mem., 402 U.S. 926, 91 S.Ct 1398, 28 L.Ed.2d 665 (1971) (camping On Mall); see also O'Hair v. Andrus, 613 F.2d 931 (D.C.Cir.1979) (papal mass on Mall); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C.Cir.1975) (public gather-


[2 Although the veterans' application to demonstrate was filed prior to the effective date of the amended regulations, the Park Service applied the new regulatians. See Letter from Park Service to Vietnam Veterans Against the War dated April 22, 1982, reprinted in Record Document (RD)]

[3 Despite conflicting evidence in the record as to whether some of the veterans slept all night,it is clear that the Park Service authorized at least some participants in the demonstration to"be asleep in the area at all times during the night" Id]

[4 Section 50.19(e)(8) was promulgated in response to the decision of this court in Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir.1972) (per curiam). See 47 Fed.Reg.24.304 (1982). In that case, the court held that Women Strike for Peace, an anti-war organization, could erect a temporary display on the Ellipse. Although the per curiam opinion was followed by three separate statements, the reasoning of the judges was clear: "the Park Service is required to allow the erection of structures by demonstrators to the same extent that it participates in or sponsors the erection of structures itself." Id. at 24,300. The assumption that lies behind this proposition is also clear: "[a structure] is a vehicle for expression of views ... and [to the extent that it acts as such is] entitled to a degree of First Amendment protection." 472 F.2d at 1288 (Wright, J., concurring); see also id. at 1295 (Leventhal, J.. concurring) ("Structures on park land, even though temporary, are within the reach of freedom of communications..."). With our opinion today, we reaffirm the result reached in that decision.]]


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ing in Lafayette Park); Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.Cir. 1972) (display on Ellipse); Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090 (D.C.Cir.1969) (assembly on Capitol grounds). It should not be surprising, therefore, to learn that from this considerable history of decisionmaking the court has on several occasions addressed the propriety vel non of sleeping, in connection with public demonstrations, on the Mall and in Lafayette Park.

In 1971, in Quaker Action, No. 71-1276 (D.C.Cir. Apr. 19, 1971), this court modified a district court order limiting an anti-war demonstration on the Mall to the hours of 9:00 am to 4:30 pm. As a matter of summary reversal, the court lifted the district court's nighttime curfew and allowed the demonstrators to use a section of the Mall "as part of their public demonstrations ... for the purpose of sleeping in their own equipment, such as sleeping bags ...." Id., cited in WAW, 506 F.2d at 56 n.9.

The Supreme Court vacated our summary reversal in that case by a decree without opinion in Morton v. Quaker Action Group, 402 U.S. 986, 91 S.Ct 1398, 28 L.Ed.2d 665 (1971), an action which a motions panel of this court recognized as controlling in a dispute between the same litigants and involving similar sleeping on the Mall three years later. See VVAW, 506 F.2d at 56. Despite the very specific nature of its holding, the VVAW panel expressed its view that camping overnight is an activity "whose unfettered exercise is not crucial to the survival of democracy and ... thus beyond the pale of First Amendment protection." Id at 5758. In United States v. Abney, 534 F.2d 984 (D.C.Cir.1976), this court characterized the gratuitous statements in VVAW as non-binding dicta [5] and held that, in the unusual circumstances of an individual protestor's round-the-clock vigil in Lafayette Park, unavoidable sleeping "must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance." Id. at 985. The Abney court then held the Park Service's anti-loitering regulation unconstitutional as applied, but stated in dicta that, "[i]t may well be that [a] non-discretionary across-the-board ban on sleeping outside official campgrounds would be constitutionally acceptable if duly promulgated and even-handedly enforced." Id. at 986.

The question left open by Abney was not squarely before us last term in CCNV I; the Park Service's anti-camping regulation was construed to avoid the constitutional issue. As part of the court's decision, however, it was necessary to categorize the sleeping activities of the protestors as falling within one of two administrative classifications: (1) the use of symbolic campsites reasonably related to first amendment activities or (2) camping primarily for living accommodations. The CCNV I court concluded: We have no doubt as to which category encompasses the activities in question here. First, the appellees are engaged in a political protest and a petition for redress of grievances. As part of their protest, the appellees desire permission to sleep in their tents in Lafayette Park. This appears to be no more than "the use


[5 See also CCNV 1, 670 F.2d at 1217 n. 26 (confirming this distinction). The motions panel in WAW was correct in holding that the action taken by the district court "directly contravened the controlling precedent." WAW. 506 F.2d at 55 n. 6. We refuse, however, to read the precedent as broadly as that panel. The Supreme Court's decision on which that panel grounded its argument,Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971), was issued without an opinion. Absent any supporting reasoning, it should not, and indeed cannot, be cited as precedent for the proposition that sleep can never be protected by the first amendment. The Supreme Court has held consistently that summary disposition extends "only to 'the precise issues presented and necessarily decided by those actions.' " Metromedia, Inc v. City of San Diego, 453 U.S. 490. 499, 101 S.Ct. 2882, 2888, 69 L.Ed.2d 800 (1981) (quoting Mandel v. Bradley, 432 U.S. 173, 176. 97 S.Ct. 2238. 2240, 53 Led.ad 199 (1977) (per curiam~. As Chief Judge Bazelon observed in his statement concurring in the denial of rehearing en banc in the WAW case itself, it is very difficult to ascertain what issues the Supreme Court determined in its 1971 decision. WAW, 506 F.2d at 61.]


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of [a] symbolic campsite[]." Moreover, as the District Court found, in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go. 670 F.2d at 1216-17 (footnote omitted) (emphasis in original). When the CCNV I decision is added to the decisions of this court in Abney and Quaker Action, it is quite clear that on several occasions this court has acknowledged that sleep can be "expressive," or part of a political protest, for the purposes of either administrative or constitutional classifications.

Discussion
Case Listing --- Proposition One ---- Peace Park