Holding a Criminal Term


MAGISTRATE NO. 84-0051, 84-0072


The United States of America, by its attorney, the United States Attorney for the District of Columbia, respectfully opposes defendants' motion to dismiss the information in the above-captioned case. As grounds for its opposition the Government cites the following points and authorities.


At approximately 6:00 a.m., on Tuesday, January 31, 1984, Officer David Haynes of the United States Park Police assumed his post patrolling Lafayette Park and the area surrounding the park. Officer Haynes observed two persons lying on the ground asleep on the southside of the park across Pennsylvania Avenue from the White House.


Haynes approached the two people and closer inspection disclosed a man, whom Haynes knew as William Thomas, with his eyes closed a most of his face covered. Thomas' chest was contracting and expanding regularly and he was obviously asleep. The other person was a woman known to Haynes as Concepcion Picciotto. Ms. Picciotto was lying on the ground near Thomas with her whole face covered but she also appeared to be asleep. Haynes shook the defendants and called them by name in an effort to awaken them. He repeated this process three times. In addition, while Haynes was attempting to awaken the defendants, a police cruiser utilizing its lights and siren passed by on Pennsylvania Avenue. Neither defendant responded to these efforts.

Finally Haynes was able to wake Thomas and advised him that [1] he was being charged with camping in violation of 36 C.F.R. 50.27(a).

[1 The regulations states:
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-Iisted 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 acc ommod ation 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 that specified for the paricular campground.]


Haynes continued his efforts to arouse Ms. Picciotto and when she was finally awakened, she too was advised she was under arrest for camping.

Both defendants were transported to United States Park Police Headquarters where they were booked and processed. In addition a large quantity of property was seized , including clothes and [2] another personal items indicating the defendants were camping.


Lafayette Park is part of the Memorial-core area parks. The Memorial-core area parks-as the name itself implies-constitute a unique national resource. Established as part of the celebrated original design to create a noble capital city, they are a memorial to our nation's past and an evocation of our aspirations for beauty and community. They constitute a "core"-a heartland. They belong to us all. They are visited by millions, who come to wander and stroll, to play or jog, to stand in awe at the Washington Monument or in reverence at the Vietnam Memorial.

Just because these areas have a special place in the national consciousness and because they have such resonance, they also constitute a fitting and powerful forum for political expression and political protest. When Marian Anderson was excluded from Constitution Hall because her skin was black, what more moving place could there be for her great concert than the Lincoln Memorial? When hundreds of thousands came to protest against the

[2 see Appendix A attached to this pleading for a list of the items seized.]


war in Vietnam, it seemed fitting and natural that the march should proceed along the Mall.

The parks are, in sum, a special national treasure, subject to many different sorts of uses. That is why the question of what powers the government has to regulate them is, inevitably, a grave issue of public law. The Secretary of the Interior is under a special mandate from Congress to manage the competing uses of these parks and to maintain them so as to fulfill their manifold purposes. It is a task that requires both sensitivity and c ommo n sense; it raises some questions of genuine difficulty. But from the beginning of this regulatory enterprise, every Secretary of the Interior has, without any difficulty, concurred in one starting place: nobody should be allowed to live in these parks. The Memorial core area parks are not suitable for camping. They are too small, too fragile, too crowded and too sacred to be taken over as anyone's living quarters; nobody may sleep over in Lafayette Park or the Mall.

The Regulation Is Not Unconstitutional,
Either On Its Face Or As Applied To Defendants

Defendants argue that their specific activities are protected by the First Amendment. In other words, they contend that the enforcement of Section 50.27(a) as to them was unconstitutional. This argument is meritless. [3]

[ Defendants' argument that Section 50.27(a) is unconstitutionally vague and overboard is totally frivolous. See CCNV v. Watt, 703F.2d 556 (D.C.Cir. )(en banc), cert. granted, 52 U.S.L.W. 3262, Oct. 3, 1983 ("CCNV II").]


The regulation at issue here does not interfere with defendants' First Amendment right to free speech. It does not prohibit defendants from round-the-clock protest, nor from demonstrating in the area of the White House. The regulation only prohibits defendants from using certain park areas as living accomodation sites.

Defendants do not even argue that their sleeping and living activities convey any message. They argue only that these activities facilitate this vigil. They never argue that these activities by themselves rise to anywhere near the level of constitutionally protected conduct.

Even if defendants had argued that their sleeping and other living activities themselves constituted protected conduct, that argument must fail. We do not disagree with defendant that the Supreme Court has held a wide range of expressive conduct to be entitled to First Amendment protection. However, defendants fail to mention that the Supreme Court has not expanded that First Amendment protection to include a limitless variety of conduct. In United States v. O'Brien, 391 U.S. 367, 376, (1968), the Court stated that "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." For an activity to be within the scope of the First Amendment, it must be "sufficiently imbued with elements of communication." Spence v. Washington 418 U.S. 405, 409 (1974). According to Spence, an activity must be intended to convey a message and be reasonably expected to be understood by an observer. Defendants' activities


here fail both prongs of this test. Id. at 410-11.

The United States contends that sleeping or camping by these defendants was primarily intended to serve the personal needs of the defendants were primarily intended to serve the personal needs of the defendants and, therefore, is not sufficiently imbued with elements of communication to fall within the scope of the First Amendment. This contention was implicitly confirmed by the Supreme Court when it upheld an injunction issued by the District Court for this District forbidding the Vietnam Veterans Against the War from camping overnight on the Mall. Quaker Action Group v. Morton, 402 U.S. 926 (1971). The Court of Appeals for this Circuit relied upon that Supreme Court decision in its findings that camping overnight has no relevance to freedom of speech. ln Vietnam Veterans Against the War v. Morton, 506 F.2d 53, 58 (D.C. Cir. 1974) ("VVAW"), the Court stated:
all of the District Court's discussion of free speech this year fails to convice us that there is any connection between freedom of speech and what appellants were forbidden to do by the United States Park Service regulations, camp overnight in a public park-in contradistinction to their exercise of free speech rights by usual modes during the day, which the appellees were specifically permitted to do. Camping overnight in a public park has no more relevance to free speech than say, digging latrines in a public park, and we think the United States Park Service may regulate both.


The decision in the first CCNV v. Watt [4] case is not to the contrary.

There the Court simply concluded that the forerunner to the present regulation (50.27) did not specifically prohobit sleeping in park areas undesignated as camping grounds. The present regulation specifically proscribes sleeping when done in the context of camping.

Rather than arguing that their camping activities in themselves constitute protected conduct, defendant argues that the activities deserve First Amendment protection because they facilitate the type of demonstration that he wishes to hold, i.e., a twenty four hour vigil. However, it has continuously been held that the First Amendment does not guarantee demonstrators the right to demonstrate in the exact manner that they select.

The Court of Appeals in VVAW based its decision, in part, upon the government's authority to set reasonable restrictions on First Amendment activities. Citing Lloyd Corp. v. Tanner, 407 U.S. 551, 567 (1972) and Adderly v. Florida, 385 U.S. 39, 48 (1966), the Court concluded:
To the extent that these statements of the District Court imply that the Government is compelled by the first amendment to permit the most effective means of expression

[4 CCNV v. Watt, 670 F.2d 1213 (D.C. Cir. 1982) ("CCNV I").]


chosen by the citizen, they are disavowed. The Supreme Court has rejected the view that citizens have the unqualified right to determine the time, place and manner of their expression.
VVAW, supra, at 58 n. 14 (Emphasis supplied, citations omitted).

The Supreme Court in Adderly, in considering an argument by petitioners that they had a constitutional right to protest on the grounds of a jail, despite the objections of the jail custodian, held that:
Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.
That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on (citation omitted). We reject it again. The United States Constitution does not forbid a State to control its own property for its own lawful non discriminatory purpose.
Adderly, supra, at 47-48.

Government Response Continued

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