In light of 36 CFR 50.27(a)(l) [2] in which the Government clearly
defines "holding vigils" as a form of conduct which (involves) the
communication of expression of views or grievances, [3] it would
appear to be obvious that a vigil in and of itself is recognized by
the Government as symbolic speech.
[1. An examination of the context in which these words were used
might appear to indicate that the Park Service deals with
demonstrators like Abney in an underhanded manner.
"Abney, through his attorney, applied for a permit under Sec.
50.25(k). three days before the first arrest at issue here. Not
until 19 days later did he receive a reply denying the permit
(Footnote: This 19-day delay runs afoul of principles announced in A
QUAKER ACTION GROUP v MORTON, 170 U.S. App D.C. 124, 142 516 F2d
717, 735 1975), in a letter from the Director of the National
Capital Parks....not from the Superintendent, who is the official
designated in the regulation to pass on such requests. The letter
indicated that such permission is never granted under Sec 50.25(k),
since it is Park Service policy to confine sleeping to designated
camping areas. It may well be that such an across-the-board Ban
on sleeping outside official campgrounds would be Constitutionally
acceptable if duly promulgated and even-handedly enforced. But
the post hoc rationalization belatedly supplied by the Director
cannot be thought to provide necessary binding standards where the
regulation has none." UNITED STATES v ABNEY, U.S. App D.C. May 11,
1976 at 4-5.]
[2. "Short-time, casual sleeping which does not occur in the context
of using the park for living accommodations will not be affected by
these regulations." Fed Reg Vol 47 No. 108 June 4, 1982 pg 24301,]
[3. "Definitions: "Demonstration" includes demonstrations, picketing,
speech-making, marching, holding vigils, or religious services, and
all other like forms of conduct whlch involve the communication, or
expression of views or grievances engaged in by one or more persons,
the conduct of which has the effect, intent, or propensity to draw a
crowd, or on-lookers." 36 CFR 50.19(a)(1).]
11
C) Therefore, whereas UNITED STATES v ABNEY, 534 F.2d 984 (D.C. Cir.
1976) at 9851 states: In the unusual circumstances of an individual
protestor's round-the-clock vigil unavoidable sleeping "must be
taken sufficiently expressive in nature to implicate First Amendment
scrutiny in the first instance." And the Supreme Court stated,
in BROWN v LOUISIANA, 383 u.s. 181, 141-42 (1966) (plurality):
"(First Amendment) rights are not confined to verbal expression.
They embrace appropriate types of action which certainly include
the right in a peaceable and orderly manner to protest by silent
and reproachful presence...."), the Defense maintains that the
activities charged in the instant matter enjoy the protection of
the First Amendment's freedom of speech.
A. The Defense also contends that defendant's activities come
under the protection of the guarantee of freedom of religion in
that,
1) As a basic tenet Defendant's religion demands that he protest
against intolerable situations, and that he refuse to cooperate with
individuals or groups who bear responsibility for the existence of
intolerable situations, or the oppression of others. (See Attachment
V)
12
2) Defendant maintains that a) the existence of a weapons
system which has the potential of eliminating every living creature
from the Earth, while that system is incremented by new components
every day, is an intolerable situation, and b) that the economic
policies of the United States cause the oppression of people not
only within this country, but also abroad.
3) Therefore, because the defendant's refusal to cooperate
poses no more "substantial government interest" that would be posed
were the defendant to decide to stay drunk most of the time, and
because (assuming that the defendant is wrong with respect to
nuclear weapons and oppression) within a democracy the only acceptable
method of dealing with peaceful dissent is through dialogue, the
Defense maintains that it is inappropriate, as well as
unconstitutional, for the Government to seek regulatory remedy for
activities of the defendant which have been motivated by his religious
beliefs, but rather the Government's proper course would be to
convince the defendant that he is wrong.
B. Parenthetically the defendant's vigil conveys an unmistakeable,
symbolic, "particularized message." Thereby satisfying CCNV V. WATT
1) When a person, homeless by reason of moral responsibility,
spends nearly all his life...summer, fall, winter, spring, rain,
snow, sleet, hail, dark of night, heat of day, at the mercy of the
elements, harassment, intimidation, imprisonment, and physical
assault, at the mercy of the Government and/or "patriotic
citizens".,.on a sidewalk, passing out literature which states his
opinions, tending signs, and placards upon which are posted his
ideas, and engaging passerby, both hostile, and friendly, in
conversation intended to express his views, and this activity
continues for thirty-two months during which time the opinions,
ideas, and views expressed remain constant, then it must be
reasonably granted that;
2) the "purpose," "effect, intent, or propensity" of that
person is to "express, or communicate" "something." Should an
individual "give his life" in an attempt to "express, or communicate"
"something, even if the "something" which the individual attempts to
"express; or communicate" is a bit too abstract for the average mind
to readily comprehend (which by no means establishes that the
"something" communicated is other than the Absolute Truth), if nothing
else it must be granted that:
3) The lndividual has clearly symbolized, expressed,
communicated, demonstrated, and/or illustrated that he has a firm
conviction in, and dedication to "SOMETHING" (and certainly there
is implicit in this argument on indication the "something" to which
the individual illustrates conviction and dedication is
Absolutely Wrong.)
C. Whereby Defense argues:
?............... ABNEY IS STILL "GOOD LAW" THE IDEALS OF THE FIRST
AMENDMENT ... FREEDOM OF RELIGION/FREEDOM OF EXPRESSION ...ARE STILL
(theoretically) IN EFFECT.
??............ DEFENDANT THOMAS' ACTIVITIES CONSTITUTE EXERCISE 0F
RELIGIOUS PRINCIPLE, AND DEMONSTRATE THE EXPRESSION, OR
COMMUNICATION OF VIEWS, AND GRIEVANCES.
???.........., THEREFORE, , UNLESS DEFENDANT THOMAS' ACTIVITIES ARE
RECOGNIZED BY THIS COURT AS AN EXPRESSION OF THE IDEALS OF THE
FIRST AMENDMENT (and, incidently, this Court sees that 50.27 is...at
least...unconstitutionally applied) THEN THE PROTECTION OF THE FIRST
AMENDMENT (practically) HAS CEASED TO EXIST, WHEN ONE INDIVIDUAL IS
DENlED; ALL INDIVIDUALS ARE DENIED
36 CFR 50.27(a) IS UNCONSTITUTIONAL
FOR VAGUNESS
13
A. 36 CFR 50.27(a) [4] is unconstitutionally vague. As a matter of
due process, a law or regulation is void on its face if persons "of
common intelligence must necessarily guess at its meaning and differ
as to its application." CONALLY v GENERAL CONSTRUCTION CO, 269 U.S.
385, 391 (1926). Vagueness occurs when what is permitted and what
is proscribed conduct becomes a matter of guesswork. Due process
is violated when persons are not given fair notice of what to avoid
(See Attachment VI) and the discretion of law enforcement
officials,with the attendant dangers of arbitrary and discriminatory
enforcenent, is not limited by explicit legislative standards. See
PAPACHRISTOU v CITY OF JACKSONVILLE, 405 U.S. 156 (1971), and cases
collected in GRAYNED v CITY OF ROCKFORD, 408 U.S. 104, 108 n3
(1972). In this regulation law enforcement officers are given
impermissible discretion.
B. After listing certain activities which may be indicia of
"camping," the regulation provides:
".....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."
1) The regulation states that "activities (plural)
constitute camping," but fails to specify, or even to give some hint
as to what conbination of activities constitute camping.
2) "Camping" is then described by the regulation as a situation
in which "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.... ." (Emphasis added).
3) Therefore it becomes apparent that the focal point of this
regulation is the term "living accommodations."
[4 As revised on June 4, 1982 36 CFR 50.27(a) defines "camping"
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 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.]
14
Herein lies the Constitutional deficiency of this regulation.
"Living accommodation" is not a word, but a term composed of two
words: a) "Living"..which in this context cannot be satisfactorily
defined as other than: "the state, or condition of being alive," and
b) "Accommodation" ... which, unfortunately (defies any such universal
definition. One clear word, plus one vague word, equals one vague
term. The Government may argue that the term "living accommodation" is
not vague, that it is commonly used, and understood, although
undefined by any standard dictionary. The Defense concedes that the
term is in common usage, and that there is a widely accepted "common
sense" definition of the term, however, the Defense maintains that
that "common-sense" definition is understood to be at least shelter
from the elements, and, in most minds, with some attendant comforts
or conveniences relating to the convenient proparation of food, and
perhaps, convenient toilet facilities. Further, if a law enforcement
officer, as in the instant matter, is permitted to determine whether
or not an individual is "sleeping," [2] a determination which need
not
necessarily be correct, and the officer is then permitted to reduce
"living accommodations" to "sleeping", it must be seen that the
officer is permitted sweeping discretion, and it is hard to imagine
how the final arbiter of what is prohibited conduct can be other
than the law enforcement officer.
C. "Free, convenient living space" is twice cited in the analysis
of the regulation, "Federal Register June 4, 1982 Vol 47 No 108 pgs
24300, and 24332, as justification for the amendment of Sec
50.27(a). These observations lend greater credence to the argument
that "living accommodations" defines "convenient living space."
1) Barring a number of interruptions owing, the Defense would
contend, to a misunderstanding on the part of the Government as to
the meaning and value of the First Amendment, both defendants have
[2 The analysis given in the Federal Register of this
regulation compounds the vagueness even further by stating:
"Short-term casual sleeping which does not occur in
the context of using the park for living accommodations will
not be affected these regulations." Fed Reg Vol 47 No 108
June 4, 1982 pg 24301]
15
continued their demonstration activities, on a regular basis, for
one year prior to, AND for twenty months since the amendment of 36
CFR 50.27(a). (See Attachment VII),
2) The Government may well try to convince this Court, by virtue
of the fact that the defendants spend most of their "lives" in
Lafayette Park, that therefore, the defendants are "living" in
Lafayette Park. Neither defendant can deny that, during the past
thirty-two months, most of the time they have been "alive" in
Lafayette Park, but, they maintain, solely for the purpose of
utilizing a public forum, and that their very "existence" or
"survival" clearly illustrates that Lafayette Park provides neither
"free",nor "convenient living space." It must be remembered that a
Presidential staff member eating his lunch, or strolling though
the park,or a tourist feeding the squirrels in the park are also
"living" in the park, albeit for shorter periods, as well as different
reasons. Certainly, in that context, this Court's room must also be
considered the defendants' "living accommodations," while the
defendants are within it, because it undoubtedly is more convenient
than the park, it is sheltered, and defendants are certainly "living"
in it. However, defendant Thomas imagines that, were he alleged to be
sleeping in this Court's room, with say, an extra jacket, a briefcase,
and a sack lunch , upon his arrest he would probably be charged with
something other than "camping." However, perhaps understandably Sec
50.27(a) does not prohibit "living" in undesignated areas, but merely
prohibits "living accommodations." Neither defendant feels the
slightest remorse for having devoted most of their "living" to an
attempt to communicate their heartfelt convictions that society is in
desperate need of solutions to extremely pressing problems. Further,
both defendants allege that to punish an individual who is "living"
primarily to communicate heartfelt convictions, is to toll the death
knell of Democracy.
3) Therefore, assuming all of the Government's allegations with
respect to the particulars in this matter to be accurate, the Defense
maintains that, at best, what the defendants were doing was liviing an
uncomfortable existence, without accommodations, and that only the
vagueness of this regulation permitted a law enforcement officer to
decide that a sidewalk was indeed "living accommodations."
16
4) Further, not only is the language of the regulations insufficently
precise to provide demonstrators with fair notice of which activities
they should avoid, but the regulation also provides unfettered
discretion in the enforcement of the regulations. Park Service
personel are provided no guidelines as to which activities constitute
"camping." Attachment XIII) Furthermore, enforcement personnel
are not likely to know whether any one of the individually listed
activities by itself merits arrest, as is suggested by the second
sentence of the amendments, or whether they must consider "all the
circumstances," as the next sentence instructs. Finally, although
the regulations instruct enforcement personal to consider "all the
circumstances," in determining whether camping is taking place, they
are also instructsd to ignore "any other activities in which (the
participants) may be engaging," which, of course, would include any
legitimate First Amendment activity. [5]
So unless:
X.............. "living accommodations means: "a piece of cardboard,
some clothing, and material used to "express, or communicate views,
opinions, or grievances,
XX.............. and unless "even-handed enforcement in a content
neutral manner means: "the arbitrary judgment of a law enforcement
officer as to whether or not an individual is 'sleeping', then
XXX..........36CS Sec. 53.Z7(a) must be unconstitutionally value.
[5 "An example of the 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 of all-night sleep at
a mock Vietnam War-era "firebase" where some of the
participants were periodically roused to stand symbolic
"guard duty". See Park Service permit to Vietnam Veterans
Against the War, dated April 20, 1982 and accompanying letter
reprinted in Record Document (RL) 5; the only apparent
distinction between the sleeping in the Veterns' demonstration
and thee sleeping proposed by the Community for Creative
Non-Violence is that the veterans slept on the ground without
any shelter. According to the Park Service interpretation of the
new regulations ONE'S PARTICIPATION lN A DEMONSTRATION AS A
SLEEPER BECOMES IMPERMISSIBLE "CAMPING" WHEN IT IS DONE WITHIN ANY
TEMPORARY STRUCTURE ...." (Emphasis added). CCNV v WATT D.C.
Civil Action No. 82-02501 Decided March 19, 1983 at pg. 5
Judge Mikva wrote in the majority decision which found for the
Plaintiff in this civil action which contested the constitutional
validity of 36 CFR 50.27(a).]
Defendants Facts Continued
Case Listing --- Proposition One ---- Peace Park