U.S. v THOMAS AND PICCIOTTO
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Holding a Criminal Term
UNITED STATES OF AMERICA,
MAGISTRATE NO. 84-0051, 84-0072
GOVERNMENT'S RESPONSE TO DEFENDANTS'
MOTION TO DISMISS THE INFORMATION
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
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  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
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  another personal items indicating the defendants
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
[2 see Appendix A attached to this pleading for a list of the
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. 
[ 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
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  case is not to the
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").]
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
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).
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