THOMAS v. REAGAN

USDC Cr. No. 84-3552

III.

Plaintiffs' claim for injunctive and declaratory relief raises closer questions. Plaintiffs claim that the regulation codified at 36 C.F.R. Sec. 7.96(g)(5)(x)(B), which prohibits the placement of unattended signs in Lafayette Park, "plac[es] arbitrary, capricious, and unwarranted restrictions" on those who "wish[] to demonstrate" there. 1987 Complaint at para. 64. Plaintiffs imply that abusive and selective enforcement of this regulation, id. at 19 65, has resulted in an unconstitutional infringement of their First Amendment rights, id. at para. 107. Similarly, plaintiffs cite numerous arrests by Park Police officers for violations of the "camping" and "storage of property" regulations, codified at 36 C.F.R. Sec. 7.96(i), to support a general allegation that these regulations are being enforced in a manner that violates the First Amendment. It is beyond question that

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all three regulations constitute valid time, place, and manner restrictions on the exercise of First Amendment rights in Lafayette Park. The constitutionality of the "camping" regulations has been explicitly upheld by the Supreme Court. See Clark v. Community for Creative Non-Violence, 468 U.S 288 (1984) ("CCNV"). Plaintiffs acknowledge the Supreme Court's ruling on this question. See Plaintiffs [sic] Opposition to Federal Defendants' Motion to Dismiss or for Summary Judgment (hereinafter Plaintiffs' opposition [2]) at 26 p.10.

The challenged three-foot sign attendance requirement, codified at 36 C.F.R. section 7.96(g)(5)(x)(B)(2), was upheld against constitutional challenge in this Court in litigation brought by several of these same plaintiffs in United States v. Musser, Cr. No. 87-157 (D.D,C. June 17, 1987) (Richey, J.) See Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and a Temporary Restraining Order at 4. Plaintiffs advance no argument compelling a contrary ruling in this action. It is important to note, in this regard, that the CCNV Court made it clear that the judiciary is not to substitute its own judgment for that of the Department of the Interior by evaluating the wisdom and necessity of protective parkland regulation such as the unattended structure" proscription plaintiffs now challenge. CCNV, 468 U.S. at 299.

Plaintiffs' challenge to the Park Police's enforcement of

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these indisputably valid regulations against them raises more difficult questions. Plaintiffs allege a pattern of arrests and seizures of property that exceed, in their view, the appropriate scope of enforcement of the regulations. See. Complaint (1) at paras/ 64-71. Relying on that pattern, plaintiffs claim that defendant Hodel and two Assistant Solicitors for the Department of Interior, as the ultimate supervisors of the Park Police, have pursued a policy intended to prohibit demonstrations and protests altogether in Lafayette Park "on an incremental basis." at paras. 84-86. Yet, central to plaintiffs' claims, as expressed in both actions, lies their contention that

[t]he [Lafayette Park] regulations have had the propensity or effect to be enforced in such a manner as to effectively disrupt or terminate every form of legitimate communication in which plaintiffs were engaged . . ., as well as subjecting plaintiffs to unend[ing] mental anguish , and a judicial system whose patience for "repeat offenders" might be wearing a bit thin.
Plaintiffs' Statement of Material Facts in Dispute, filed with Plaintiffs Opposition to Federal Defendants' Motion to Dismiss, or for Summary Judgment (No. 87-1820) (filed Oct. 28, 1987) [hereinafter Plaintiffs' 2d Statement of Facts] at para. 22.

Plaintiffs thus raise a serious vagueness challenge to the regulations. Regulations of the sort at issue here are criminal laws. "'No one may be required at peril of life,

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liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids."' Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (quoting Lanzetta v. New Jersev, 306 U.S. 451, 453 11939)). In order to confona to the due process component of the Fifth Amendment, a criminal provision must

define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citing, inter alia, Grayned v. City of Rockford, 408 U,S. 104 (1972) and Papachristau v. City of Jacksonville, 405 U.S. 156 (1972)). Accordingly, under the void-for-vagueness doctrine, criminal statutes, as well as administrative regulations`carrying penal sanctions, must be held unconstitutional when they fall short of this standard. See Grayned, 408 U.S, at 108. vagueness is an especial evil where the criminal provision "abut[s] upon sensitive areas of basic First Amendment freedoms' [because] it 'operates to inhibit the exercise of [those] freedoms.'" Id. at 109 (quoting Baggett v. Bullitt, 377 U.S, 360, 372 (1964), and Cramer v. Board of Public Instruction, 368 U.S. 278, 287 (1961)). Vague time, place, and manner regulations cause citizens to steer wider of the unlawful zone than they would if the boundaries of the

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forbidden areas were clearly marked. See United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 577-81 (1973) (hereinafter Letter Carriers) (subjecting Civil Service regulation that prohibits participation in partisan politics to scrutiny under vagueness doctrine and concluding that regulation is constitutional); Keeffe v. Library of Congress, 777 F.2d 1573, 1581 (D.C. Cir. 1985) (applying "the degree of precision required by Letters Carriers" to all regulations *validly promulgated under an enabling statute*).

In Kolender v. Lawson, supra, the Supreme Court observed that, although the vagueness doctrine "focuses both on actual notice to citizens and arbitrary enforcement," its most important aspect "'is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement."' 461 U.S. at 357-58 (quoting Smith v. Groguen, 415 U.S. 566, 574 (1974)). Kolender held unconstitutionally vague a California penal statute that required persons who loitered or wandered an the streets to provide a "credible and reliable" identification and to account for their presence when detained by a police officer. Finding that the "credible and reliable" standard provided insufficient particularity "for determining what a suspect has to do in order to satisfy the requirement," the Court ruled the statute "unconstitutionally vague on its face because it encourages arbitrary enforcement . . ." Id. at

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358, 361.

Plaintiffs here report a series of incidents over the past six years in which one, some, or all of them were arrested, threatened with arrest, or otherwise confronted by Park Police officers regarding alleged violations of the Lafayette Park regulations, See Memorandum Opinion, Report & Recommendation of Magistrate Burnett (No. 84-3552, filed Jan. 23, 1983) at 8-14 (summarizing factual allegations contained in 1984 complaint); Plaintiffs ' Motion for Additional Discovery and for Leave to Perfect Service of Process, Statement of Claims and Issues for Trial, and Response to Magistrate's Report and Recommendations (filed in 84-3552 on March 6, 1987 by counsel Mark Venuti) at 17-20 (characterizing defendants' reaction over time to plaintiffs' persistent demonstration as a "campaign of harassment and unlawful arrest"); Plaintiffs' 2d Statement of Material Facts at pp 2-12 (narrating incidents in 1986 and 1987). Defendants do not contest the claim that plaintiffs have been repeatedly arrested for violations of the "camping" and other regulations and have had property seized by Park Police in conjunction with their expressive activities in Lafayette Park, See Federal Defendants' Statement of Material Facts Not in Dispute (filed August 29, 1986, in C.A. No, 84-3552) [hereinafter Defendants' 1st Statement of Facts] at para 2; Federal Defendants' Statement of Material Facts Not in Dispute (filed in C.A. No. 87-1820) (hereinafter Defendants'

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2d Statement of Facts] at paras. 1-10. Defendants do, however, deny that the regulations, as written or as enforced against plaintiffs, are unconstitutionally vague. See Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and Temporary Restraining Order at 23.

Plaintiffs maintain that they sincerely want to conduct their demonstration within the boundaries of legitimate time, place, and manner restrictions. They contend that they have attempted to clarify with the Secretary of Interior or his delegates the terms and conditions which would have enabled a law abiding person to accommodate a protest like [plaintiffs'] with the valid laws regulating the use of public parks." Memorandum in Support of Plaintiff's [sic] Notice of Filing [hereinafter Notice of Filing] at 3. Indeed, plaintiffs proffer evidence of persistent correspondence to this end with, among others, the Assistant Secretary for Fish and Wildlife and Parks, id. at Exhibit 6 (letter from plaintiffs dated July 21, 1984), defendant Secretary of the Interior, id. at Exhibit 10 (letter from plaintiffs dated April 28, 1986), the Director of Public Affairs for the National Park Service, id. at Exhibit 13 (letter from plaintiffs dated May 17, 1986), and defendants' counsel, id. at Exhibit 19 (letter from plaintiffs' counsel dated March 26, 1987). These letters reveal a sustained effort by plaintiffs to ascertain the precise meaning and

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scope of the Lafayette Park regulations in order to avoid both criminal sanctions and the concomitant interruption of their expressive demonstration.

Plaintiffs' uncertainty centers on two particular elements of the Park regulations: the ban on "camping" codified at 36 C.F.R. section 7.96(i) and the ban on the storage of personal property, contained within the ban on camping. See Plaintiffs' Response to Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and Temporary Restraining Order [filed in 87-1820, July 27, 1987 at 2-3). The regulation provides:
Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep or storing personal belongings
36 C.F.R. 1 7.96(i).

Defendants and others associated with the Department of the interior have made a considerable effort to specify the acts that, in their view, fall within the area of legitimate expressive activity untouched by these regulations. Although they have refused to meet with plaintiffs to discuss the restrictions in person, defendants have engaged in extensive correspondence with plaintiffs and their representatives regarding the precise requirements imposed by the "camping" and "storage of property" rules. See Federal Defendants' Opposition to Motion for Preliminary Injunction at Exhibits 3-9. For example, towards the end of March 1987, the

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Department of the Interior issued a memorandum entitled "Permit Conditions" to demonstrators in Lafayette Park, which memorandum plaintiffs acknowledge having received. Id. at Exhibit 3; See Plaintiffs' Notice of Filing at Exhibit 15 (letter dated March 27, 1987 from plaintiffs to official who signed memorandum and referring to contents). The memorandum reminds all demonstrators that their activities are subject to, among other things, the proscription of "camping or using park land for living accommodations purposes." Further, the memorandum gives notice that the Regional Director of National Capital Parks had imposed additional conditions on all demonstrations, including the following:

Property may not be stored in the Park, including, but not limited to construction materials, lumber, paint, tools, household items, food, tarps, bedding, blankets, sleeping bags, luggage, and other personal property. (In this regard, certain personal property that is reasonably required by a demonstration participant during any one 24-hour period will not be considered to violate this permit condition. Such property may include items such as a coat, a thermos, and a small quantity of literature. however, the quantity of these items may not exceed that which is reasonably necessary in a 24-hour period)
Defendants' Opposition, Exhibit 3 at 2.


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