THOMAS v. REAGAN

USDC Cr. No. 84-3552

Defendant Robbins, Assistant Solicitor for National Capital Parks, Department of the Interior, communicated a similar definition in May of 1986 to plaintiff Picciotto in response to her letter of April 28, 1986 requesting a

statement about "precisely what is meant by the term 'storage of personal property.'" Robbins replied:

[T]he storage of property regulations do not prohibit the storage of a modest quantity of ... items .... Specifically, It Is my position that you are permitted to have a limited quantity of literature, writing material, rainwear, an umbrella, and a couple of thermoses containing coffee and lunch, and a camera and a tape recorder, if you choose. Also I do not believe that it is unreasonable to have small quantities of plastic to cover those items in inclement weather. Id. at Exhibit 4. This letter appears to summarize the Department of Interior's position with respect to the nature of personal property acceptable under the "storage" regulations. Moreover, Interior officials made clear that "personal property and literature that is actually in use or that will be reasonably required during any one 24-hour period is not considered to violate the storage violations." Id. at Exhibit 6 (letter dated May 15, 1986, from Interior Solicitor to Arthur B. Spitzer, Legal Director, ACLU). This position is repeated in letters from the Department to various plaintiffs and to interested parties throughout May of 1986. See id. at Exhibits 5-7. This correspondence suggests that, at least as between plaintiffs and policymakers within the Department of the Interior, an understanding has been attempted concerning which items of personal property demonstrators may possess.

Yet, a crucial area of uncertainty remains. Resolving

which items may accompany a demonstrator does not clarify the quantity of possessions a demonstrator may maintain in Lafayette Park. Responding to a letter from the ACLU to the Chief of the United States Park Police questioning plaintiffs' repeated arrests, an Assistant Solicitor, National Capital Parks, asserted that

[plaintiff] Picciotto frequently has in her possession a large quantity of bags and boxes containing numerous personal belongings. The problem is not so much the nature of the items Ms. Picciotto has in her possession but the quantity of items, a quantity that could not realistically be used in the space of one day. When Ms. Picciotto has a quantity of these items in her possession in the Park, she is in violation of the storage regulations and is subject to appropriate enforcement action. 29. at Exhibit 6. The Solicitor could be no more explicit in defining the precise "quantity" of permitted items that would render a demonstrator vulnerable to criminal sanctions than t~ suggest that Picciotto "limit the quantity of materials she keeps in Lafayette Park." Id. Nonetheless, he maintained, the position that literature or personal property "reasonably required during any one 24-hour period is not considered to violate the storage regulations has been communicated to Park Police and forms the touchstone for their enforcement of the storage regulations." Id.

A similar problem persists with respect to the element of the regulation which bars use of the park "for living accommodation purposes such as sleeping activities, ar making preparations to sleep." Several bench trials of

plaintiffs charged with illegal camping have featured swearing matches between police testifying that one of the plaintiffs was observed to be sleeping and the alleged camper testifying that he or she was not asleep. The sleeping-therefore-camping issue is troubling because, if a person is in the park 24 hours per day, for days on end, it is judicially noticeable that some of that time must be consumed by sleeping. It is also judicially noticeable that casual dozing in a park is a generally accepted American tradition but for the regulation which forbids use of a national park for living accommodations. An alleged camper's claim to living accommodations elsewhere does not yield a clean cut issue for decision because, for example, it is entirely possible for a person to maintain more than one living accommodation. As the regulation is drawn and administered, a decision by a plaintiff, the police, or a court as to whether one of the plaintiffs is maintaining an impermissible living accommodation in the park is seldom free from reasonable doubt.

Thus, like the identification regulation at issue in Kolender, supra, the camping and storage regulation presently in dispute vests significant discretion in the police to determine whether an individual demonstrator's conduct conforms to the law being enforced. According to the California Court of Appeals, "credible and reliable" identification was " identification 'carrying reasonable

assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself." Kolender, 461 U.S. at 357 (quoting People v. Solomon, 33 Cal. App. 3d 429, 108 Cal. Rptr. 867 (1973)). It was left to the California police to decide whether a suspect had provided "credible and reliable" identification, just as the Lafayette Park regulations delegate to the U.S. Park Police the decisions as to how much personal property one "reasonably require[s] during one 24 hour period" or what constitutes a living accommodation. Kolender held that this delegation "necessarily 'entrust[s] lawmaking "to the moment-to-moment judgment of the policeman on his beat,'" Id. at 361 (quoting Smith, 415 U.S. at 575, quoting Gregory v. Chicago, 394 U.S. 111, 120 (1969) (Black, J,, concurring)).

The same flaw threatens to render the camping and storage regulations unconstitutionally vague. As was true of the Kolender statute, the Park regulations

"furnish[] a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure'" ... and "confers on police a virtually unrestrained power to arrest and charge persons with a violation." Id. at 360 (quoting, inter alia, Papachristou, 405 U.S at 130, and Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring in the result)). Even absent

a finding that the Park Police officers have taken advantage of such opportunity in dealing with plaintiffs, the Department of the Interior, like the State of California, must "establish standards by which the officers may determine whether the suspect has complied with the .... [regulations]." Id, at 361.

Plaintiffs' experience proves that violation of the Lafayette Park regulations results in repeated deprivation of liberty through arrest, seizure of property, and, perhaps mast seriously, deprivation of access to an important public forum for the exercise of First Amendment rights. Were the camping regulation to stand only on its own terms, the regulation's enforcement might well be enjoined on the grounds that its proscription is to vague to serve the interest, emphasized in Kolender, of restraining the prosecutorial discretion exercised by the individual Park Police officer on his or her own beat.

Memorandum Continued

Contents

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