Watt v. CCNV

The COMMUNITY FOR CREATIVE NON-VIOLENCE,

et al., Appellants,

James G. WATT, Secretary of the Interior, et al.

Nos. 82-2445, 82-2411.

United States Court of Appeals,
District of Columbia Circuit
.

Argued Jan. 14, 1983.
Decided March 9, 1983.

Demonstrators permitted to participate in round-the-clock demonstration on the Mall and in Lafayette Park in Washington D.C. brought action challenging the United States Park Service's denial of permission to sleep in temporary structures permitted to be erected as part of the demonstration. The United State District Court for the District of Columbia, John H. Pratt, J., granted the government's motion for summary judgment, and demonstrators appealed. The Court of Appeals held that regulation against sleeping in public parks was unconstitutionally applied to demonstrators where sleeping was part of demonstrators' expressive conduct.

Reversed.

Mikva, Circuit Judge, filed opinion in support of reversal in which Wald, Circuit Judge, concurred.

Spottswood W. Robinson, III, Chief Judge, and J. Skelly Wright, Circuit Judge, filed concurring statement.

Harry T. Edwards, Circuit Judge, concurred and filed opinion.

Ginsburg, Circuit Judge, concurred in the judgment and filed opinion.

Wilkey, Circuit Judge, dissented and filed opinion in which Tamm, MacKinnon, Bork, and Scalia, Circuit Judges, joined.

Scalia, Circuit Judge, dissented and filed opinion in which MacKinnon and Bork, Circuit Judges, concurred.

Constitutional Law -90.1(4)

United States Park Service regulation prohibiting sleeping as part of camping in certain areas in national capital region was unconstitutional as applied to demonstrators participating in round-the-clock demonstration on the Mall and in Lafayette Park in Washington D.C. to call attention to the plight of the poor and the homeless where the Park Service allowed protestors to erect symbolic tents and where sleeping was part of demonstrators' expressive conduct protected by First Amendment. U.S.C.A. Const.Amend. 1.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No.82-02501).

Burt Neuborne, New York City, of the bar of the State of N.Y., by special leave of Court, pro hac vice, with whom were associated Arlene S. Kanter, Laura Macklin, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., argued the case on behalf of appellants. John D. Bates, Asst. U.S. Atty., with whom were associated Stanley S. Hanis, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., argued the case on behalf of appellees.

Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WILKEY, WALD, MIKVA,EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges.

ON REHEARING EN BANC PER CURIAM:

Circuit Judge Mikva files an opinion, in which Circuit Judge Wald concurs, in support of a judgment reversing. Chief Judge Robinson and Circuit Judge Wright file a statement joining in the judgment and concurring in Circuit Judge Mikva's opinion

586

with a caveat. Circuit Judge Edwards file an opinion joining in the judgment and concurring partially in Circuit Judge Mikva's opinion. Circuit Judge Ginsburg files an opinion joining in the judgment Circuit Judge Wilkey files a dissenting opinion, in which Circuit Judges Tamm MacKinnon, Bork and Scalia concur. Circuit Judge Scalia files a dissenting opinion in which Circuit Judges MacKinnon anc Bork concur. The judgment appealed fron is reversed, and the case is remanded to the District Court with instructions to enjoir appellees from prohibiting sleeping by dem onstrators in tents on sites authorized for appellants' demonstration.

MIKVA, Circuit Judge:

The Community for Creative Non-Violence (CCNV) applied for and was granted a renewable seven-day permit to conduct a round-the-clock demonstration, commencing on the first day of winter, on the Mall and in Lafayette Park in Washington, D.C. The declared purpose of the demonstration was to impress upon the Reagan Administration, the Congress, and the public the plight of the poor and the homeless. The National Park Service (Park Service) granted CCNV a permit to set up two symbolic campsites, one on the Mall with a maximum of one hundred participants and forty tents, and one in Lafayette Park with approximately fifty participants and twenty tents.

Although the permit allowed the demonstration participants to maintain a twenty-four hour-presence at their symbolic camp sites, the Park Service denied the participants a permit to sleep. According to the government, such conduct would violate the Park Service's recently revised anti-camping regulations, see 36 C.F.R. 50.19, 50. 27 (1982). CCNV claims that this prohibition strikes at the core message the demonstrators wish to convey --that homeless people have no permanent place to sleep. Accordingly, CCNV and seven individuals who wish to participate in the demonstration seek a court order invalidating the permit's limitation on sleeping as an unconstitutional restriction on their freedom of expression. Following cross-motions for summary judgment, the district court decided in favor of the Park Service and the case arose on expedited appeal. After briefing and oral argument before a motions panel, but before that panel issued a decision, the case was heard en banc.

Because we conclude that the government has failed to show how the prohibition of sleep, in the context of round-the-clock demonstrations for which permits have already been granted, furthers any of its legitimate interests, we reverse the district court's decision and grant CCNV's request for injunctive relief.

Background


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