UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

v. :

Criminal No. 84-00255
[Judge Joyce Hens Green]

WILLIAM THOMAS
CONCEPCION PICCIOTTO
ELLEN BENJAMIN, also known :
as ELLEN THOMAS
DAVID B. MANNING :
ANTHONY T. NELSON
WAYNE THOMAS, also known :
as WILLIAM THOMAS
ROBERT DORROUGH

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.

FACTS

At approximately 5:30 a.m., on June 6, 1984, Officer David Haynes of the United States Park Police was in Lafayette Park and the area surrounding the park. Officer Haynes and others observed seven persons asleep in the midst of a large quantity of signs, bedding, and other personal property on the southside of Lafayette Park.

Haynes observed each of the defendants sleeping or lying down under bedding articles or items of clothing used to cover them and lying on top of other articles that separated them from the bare ground underneath them. For example, he saw Messrs. Manning, Nelson and Wayne Thomas with their heads resting on one duffle bag under a blanket. Nearby were William Thomas and Ellen Thomas. The couple was sleeping under a common blanket. Robert Dorrough was sleeping behind one of the signs. Concepcion Picciotto was sleeping a short distance away from the others and was also covered at the time of the initial observations. She was later observed to be nude from the waist down when she arose and her blanket fell away.The defendants were advised they were under arrest for camping and storage. 1/

The defendants were transported to United States Park Police headquarters where they were booked and processed. In addition, a large quantity of property was seized from the scene of the arrest including clothes and other personal items indicating the defendants were camping and storing personal property in violation of 36 C.F.R. 50.27 and 50.5.

36 C.F.R. 50.27(a) 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-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. 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 particular campground.

ARGUMENT

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 of their location, 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 Lincoln Memorial? When hundreds of thousands came to protest against 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 common 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 crowed and too sacred to be taken over as anyone's living quarters; nobody may sleep over in Lafayette Park or the Mall. Clark v. CCNV, No. 82-1998, U.S. June 29, 1984, slip op. at 1-3.

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.2/

The Supreme Court has recently stated that the regulation at issue here does not interere with defendants' First Amendment right to free speech but is merely a reasonable restriction on the time, place, and manner of its exercise. Clark v. CCNV, supra, slip op. at 6. The regulation and its enforcement by the police do 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.2/ Defendants' argument that Section 50.27(a) is unconstitutionally vague and overbroad is totally frivolous. See Clark v. CCNV, No.82-1998, U.S. , June 29, 1984, slip op. at 9.

Those defendants who participate in a vigil do not even argue that their sleeping and living activities convey any real message. They argue only that these activities facilitate their vigil. The camping and storage activities by themselves do not rise anywhere near the level of constitutionally protected conduct. Other defendants claim that they were not regular participants in the vigil and were wrongfully arrested along with the others. They argue in essence that it is the other defendants who were regularly violating the law and therefore the police should have ignored their solitary or intermittent violations, and in any event, their violations were in furtherance of their exercise of First Amendment rights. This argument is equally meritless under the Supreme Court's recent decision. Clark v. CCNV, supra.

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 the defendants that the Supreme Court has held a wide range of expressive conduct to be entitled to First Amendment protection, but 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, Clark v. CCNV, supra.

The United States contends that sleeping or camping by these defendants was primarily intended to serve the personal needs of the defendants. 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 made clear in its finding that camping overnight has no relevance to freedom of speech. In 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 convince 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 excercise 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 Clark v. CCNV, supra, case is not to the contrary. There the Court simply concluded that the regulation (50.27) met the test for a reasonable time, manner, and place restriction on the activities engaged in by these defendants.

Rather than arguing that their camping activities in themselves constitute protected conduct, some of the defendants argue that their actions deserve First Amendment protection because they facilitate the type of demonstration the they wish to hold, i.e., a 24-hour vigil. However, the Supreme Court has regularly observed (most recently in Clark v. CCNV, supra) 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 (as in Clark v. CCNV, supra) 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 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 " 14 [emphasis supplied, citations omitted].

The Supreme court in Adderly, in considering an argument by petitioners that they ahd 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.

This language is especially applicable to the case at hand. Defendants argue that they should be allowed to set up living accommodations in the area of the White House to facilitate their protest. As indicated by the Supreme Court, the First Amendment does not bind the government to provide living accomodations for demonstrators or other citizens in the area of the White House with no regard for the effect such a provision would have on park resources, visitors or increased costs. Clark v. CCNV, supra. Defendants' reliance on United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976), to support their argument that the regulations at issue somehow infringe upon their right of free speech is misplaced. At issue in Abney was a federal regulation prohibiting sleeping for more than four hours in park areas not designated for camping. The regulation further authorized park superintendents in the National Capital Region to issue permits for such sleeping. The court invalidated the regulation because it contained no "narrow, objective and definite standards to guide the licensing authority." Dicta in the case can perhaps be read to say that in the unusual circumstances in Abney, sleep alone must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance. Id. at 985. However, the Court went on to indicate that had the relevant regulation been properly promulated and evenhandedly enforced "[i]t may well be that such across-the-board ban on sleeping outside official campgrounds would be constitutionally acceptable." Abney, supra, at 986.

The regulation at issue here suffers from none of the infirmities present in Abney. The regulation contains explicit across-the-board prohibitions. Further, the regulation does not prohibit sleeping per se, but only sleeping that is a part of other activities that amount to using the park as a temporary place of abode.

Clearly, defendants may, under the regulations, demonstrate 24 hours a day if they choose. What they cannot do, and the regulations prohibit, is use the White House area as a living accommodation. When they choose to use the park areas for living accommodation purposes, their activities fall under those proscribed by the regulation and outside the scope of the First Amendment.

Even if the defendants' camping in Park and on the sidewalk amounted to protected conduct under the First Amendment, their challenge to the regulation as unconstitutionally abridging their freedom of speech fails. Looking to the tests set out in United States v. O'Brien, 391 U.S. 367 (1968) for judging the constitutionality of government regulations, the present regulation would be sufficiently justified: [1] if it is within the constitutional power of the government; [2] if it furthers an important or substantial governmental interest; 13] is unrelated to the suppression of free expression; [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The instant regulation satisfies the O'Brien test. Clark v. CCNV, supra. First, the government has the constitutional authority to regulate the use of parks. See Hague v. CIO, 307 Uj.S. 515-16 (1939) (Roberts, J., concurring). Second, the regulation meets an important governmental interest. Camping in the memorial core area would deprive other park visitors including demonstrating park visitors, . . . of use of this nationally significant space." Administrative Policy Statements, 47 F.R. 24301, 24302 and 47 F.R. 24304, 24305 (June 4, 1982). Park resources would be seriously damaged. Sanitation problems would be exacerbated, and law enforcement resources would be taxed. Id. The purpose of the regulation is to protect the park land for the use of the many while satisfying, if possible, the needs of the few. Even if the Court viewed as a form of expression the use of the park area as a living accommodation (which the government does not accept) "[t]he privilege of a citizen of the United States to use the streets and parks for communication of views on the national questions may be regulated in the interest of all.. Hague, supra, at 516.

The regulation also satisfies the third position of the O'Brien test. The governmental interest in promulgating the regulation is unrelated to the suppression of free expression. The governmental interest is to protect the park grounds for the benefit of all the people. As the Policy Statement points out, camping in such grounds would interfere with otheres who may wish to use the grounds. Policy Statements, supra, at 24302-24305. The regulations do not suppress free expression. Only the use of the land as an actual living accommodation is prohibited.

In addition, the regulation does not prohibit the use of tents and similar structures to provide support or logistical services to demonstrators. The regulation would also allow the use of tents or even the erection of symbolic cities as a means by which a group can convey its message.

Finally, the regulation satisfies the fourth requirement. The incidental restriction alleged here is the inability of demonstrators to use park areas for their living accommodation purposes. Even if it is argued that defendants are attempting to convey a message by their camping, the National Park Service allows symbolic displays that would allow expression of a message. These symbolic displays effectively communicate a message without taxing the park areas to the same extent that the actual use of the park land as a living accomodation does. Assuming arguendo, the use of park land as a living accommodation expresses something, the same message can be communicated by symbolic displays, thus satisfying the needs of individuals to express their views while protecting the park areas for the common good.

Certain Defendants are not being Selectively Prosecuted

Certain of the defendants urge this Court to dismiss the information alleging that they have been singled out for prosecution because of their protest activities and cite instances of allegedly similar protest participants who have not been so arrested. Defendants Wayne Thomas (also known as William Thomas), David Manning, and Anthony Nelson complain of their arrest because they are, at most, infrequent participants in the vigil or just happened to be there at the wrong time.

In support of this selective prosecution argument, the defendants have referred the Court to record excerpts from other cases and events going back to 1982. In an attempt to bolster their argument, the defendants, through Ms. Picciotto, claim (in footnote 3 of her motion to dismiss the information) to have submitted discovery requests for vast numbers of U.S. Park Police records and those of other federal agencies which in fact were never made in this case. Such requests have been made in other similar cases but not in this one. Just as the arguments made in response to the motions to dismiss have been litigated time and time again, this selective prosecution argument has been frequently raised in these cases. It has no more merit with respect to the events of June 6, 1984 than before.

The propriety of the defendants' "discovery" requests (which were not presented to this Government counsel until the motion was received) is founded upon their materiality to a legitimate defense. In Attorney General of U.S. v. Irish People, Inc., U.S. App.D.C.__, 684 F.2d 928 (1982), the Court of Appeals made it clear that:

a defendant alleging or invoking the selective prosecution defense, even at the discovery stage, must offer at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place. Attorney General of the U.S. v. Irish People, Inc., supra, 684 F.2d at 932. See also United States v. Diggs, 198 U.S.App.D.C. 255, 613 F.2d 988 (1979), cert. denied, 446 U.S. 982 (1980).

In an attempt to meet their burden, the defendants cite this Court to transcripts from other prosecutions in which some of the defendants were involved. Even if we assume but do not concede the validity of remarks in the cited testimony, the defendants established only that the Government has been selective.3/ The defendants have the clear burden of establishing that the selective process is based on an impermissible motivation.4/ In that regard, the defendants submitted nothing other than speculative assertions that the Government has an improper motive. Such a conclusion flies in the face of the fact that these defendants and others have been arrested only when they sleep in or otherwise use Lafayette Park as a place to live and store personal property.

Rule 16(a)(1)(C) provides for the discovery of documents and tangible objects "which are material to the preparation of [defendants'] defense or are intended for use by the government as evidence in its case in chief at the trial, or were obtained from or belong to the defendant." Rule 16(a)(1)(C), Federal Rules of Crominal Procedure. None of the items sought by Ms. Picciotto in her footnote 3 are intended to be used by the Government in its case-in-chief. These items were not obtained from the defendants nor do they belong to the defendants. The sole justification for their discovery lies in their alleged materiality to the preparation of a defense which cannot be sustained even assuming the truth of the defendants' allegations.3/ We do not concede that the cited testimony accurately established a "Colorable case. that any selective prosecution is occurring here.4/ Selectivity alone does not render prosecution ulawful. Oyler v. Boles, 368 U.S. 448, 455-56 (1962); Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963); rather, to be unlawful, the decision to prosecute must be predicated on some unjustifiable standard, Oyler, supra, 469 UK.S. at 456 [82 S.Ct. at 505]; Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220] (1886); United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) (prosecution ulawful if it is an act of discrimination against those who exercise their First Amendment rights).

The standard for a successful claim of selective prosecution is a heavy burden on the defendants "to prove that (1) [they were] singled out for prosecution from among others similarly situated and (2) that [their] prosecution was improperly motivated, i.e., based on race, religion or another arbitrary classification." United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983). United States v. Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982) (the standard for proving selective prosecution is "vigorous''). Assuming, arguendo, that the defendants were selectively prosecuted, several Courts have said that limited selectivity can be reasonable and proper. [T]he conscious exercise of some selectivity is not in itself a federal constitutional violation. " Oyler v. Boles, 368 U.S. 448, 456 (1962). "Selectivity in prosecutorial decisions in general is permissible and even necessary.. Id.; United States v. Napper, 553 F.Supp. 231, 232 (E.D.N.Y. 1982) (cited in United States v. Napper, 574 F.Supp. 1521, 1523 (D.D.C. 1983). Additionally, the Government is entitled to the presumption that it acted in good faith and in a non-discriminatory fashion. Attorney General v. Irish People, Inc., supra, 684 F.2d 928, 947 (D.C. Cir. 1982). Only when the defense has established a prima facie case of improperly selective prosecution does the burden shift to the government. Even on the facts of the June 6th arrest alone, the defendants cannot make the necessary showing.

The United States Park Police have been consulted concerning the defendant's discovery requests. They have reported that it would take theem many hours to complete the task of accumulating the material requested. Hundreds of case incident reports would have to be individually reviewed in order to obtain notes of observations of Ms. Picciotto and the others as they are not filed by subject defendants' names. They are not available to the public normally because of Privacy Act considerations. The names of persons arrested for camping and the disposition of their cases are available to the public. Defense counsel may examine Park Police arrest books and court records. We have previously provided the substance of oral instructions to the arresting officer (to enforce the regulations) to counsel.

In summary, the arguments of the "non-vigiling" defendants demonstrate that the regulations are not selectively enforce merely against demonstrators but are enforced against those who use Lafayette Park as a hotel, a campsite, an attic, a display window, a hardware store, an office, closet, and as a place to lay down bedding and sleep.

The Information Should Not Be Dismissed Due To The Unintentional Loss Of "Evidence"

Finally, some of the defendants complains of the loss of a camera seized by the Park Police as part of the evidence in this case. An intensive investigation has revealed that the camera was stolen by a National Park Service employee who had access . . . the seized property. The camera itself has been recover . . . the film inside it was apparently discarded by the employee's daughter who, of course, had no knowledge of its significance. While the loss of the camera was regrettable, it was not due to any improper motive on the part of the Government.

WHEREFORE, the Government submits that the defendants' motions to dismiss the information should be denied.

Respectfully submitted,
JOSEPH E. DIGENOVA
United States Attorney

By: /s/Pamela B. Stuart
PAMELA B. STUART
Assistant United States Attorney

CERTIFICATE OF SERVICE .

I HEREBY CERTIFY that copies of the Government's Opposition to the defendants' motions to sever, for a bill of particulars, to dismiss the information, and to suppress evidence have been served by first class mail with postage pre-paid upon counsel for the defendants,

Stephen Milliken, Esquire, 511
E Street, N.W., Washington, D.C. 20001 (for Ellen Thomas),
Robert Debaradinis, Esquire, 1534 16th Street, N.W.,
Washington, D.C. (for William Thomas), Phyllis B. Tatik, Esquire, Georgetown Law Center, 605 G Street, N.W., Third Floor, Washington, D.C. 20001 (for Concepcion Picciotto), Mark Venuti, Esquire, 2001 S Street, N.W., Suite 630, Washington, D.C. 20009 (for Anthony Nelson and Wayne Thomas, also known as William Thomas), Richard Seligman, Esquire, 2001 S Street, N.W., Washington, D.C. 20009 (for David Manning), and Melvin Dildine, Esquire, 419 7th Street, N.W., Suite 200, Washington, D.C. 20004 (for Robert Dorrough) this 28th day of August, 1984.

By, /s/Pamela B. Stuart

PAMELA B. STUART
Assistant United States Attorney
Room 3836 U.S. Courthouse
Washington, D.C. 20001

Listing of Cases

Proposition One

Peace Park | People