Comes now the United States, by and through its attorney, the United States Attorney for the District of Columbia, and hereby opposes defendant's Motion to Dismiss for Lack of Offense and states the following in support thereof:

1. On or about December 22, 1986, within the District of Columbia, the defendant and six others were cited for camping in Lafayette Park, an undesignated camping area, in violation of 36 C.F.R. S7.96(i)(1986).

2. On February 18, 1987, an Information was filed charging William Thomas with camping in Lafayette Park in violation of 36 C.F.R. S7.96(i)(1986).

3. On March 3, 1987, the United States filed a Motion to Consolidate for Trial,


4. On December 22, 1986, at approximately 2:26 a.m., United States Park Police Officer Peter J. Ward issued citations to seven persons, including the defendant, for camping in Lafayette Park in violation of 36 C.F.R. S7.96(i) (1986). Officer Wa rd first observed these seven people at approximately 10:00 p.m. on December 21st lying in or under sleeping bags and blankets on or near the south sidewalk in Lafayette Park. Five of the persons


appeared to be asleep the entire time; Officer Ward observed that one of them was even snoring. The defendant and the person lying next to him, later identified as Ellen Benjamin Thomas, were also lying on the ground as though sleeping, but they appeared to be conscious at times of goings-on around then. For most of the four and one-half hours Officer Ward observed these people, however, they did not stir or respond to the sounds of passing traffic or pedestrians or even to the sound of Officer Ward's police radio.

5. In addition to the blankets and sleeping baqs previously mentioned, the following items were observed in the area around the seven defendants:

red frisbee
a flag
1 pair sneakers
two 2" stacks of newspapers
1 blue backpack
1 pair snow boots
1 plastic jug
1 rolled up piece of plastic 1 folding chair
1 banjo case
2 boxes
six signs
2 containers covered by an orange tarp
2 bicycles
1 milk crate
plastic bags
a small red bag

II. Defendant's Contentions
6. In his Motion to Dismiss For Lack of Offense, defendant makes the following assertions:
a. That "sleeping" does not constitute camping and does not violate 36 C.F.R. S7.96(i)(1986).
b. "'Sleeping'' does not constitute any offense against the United States because [sic] the Government has not, and cannot, illustrate that the Government has suffered any injury as a result of that action. " [1]

[1 Defendant's Motion to Dismiss For Lack of Offense, at page 2.]

c. Sleeping in the context of a demonstration is expressive activity worthy of First Amendment protection.
7. Defendant's claims are without merit and his Motion to Dismiss should be denied.

8. The defendant's first two assertions are clearly meritless. Camping in Lafayette Park is expressly prohibited under 36 C.F.R. § 7.96(i)(1986). If the defendant violated that regulation, sanctions can be imposed regardless of whether the United States can show it was injured. It is clear from the facts of this case that the defendant, indeed, violated the regulation. Camping is defined in the regulation as:

36 C.F.R. § 7.96(i)(1)(1986). The defendant's laying down of bedding for the purpose of sleeping, actual sleeping, storing of personal belonqings, and using the park for living accommodations clearly constitute camping in violation of the regulation.

9. The defendant also claims, however, that even if he was "camping", his conduct constituted expressive activity which is worthy of First Amendment Protection. No case before this court


or before the United States Supreme Court has ever resulted in a holding that "sleeping" constitutes protected speech in any context. In a recent case, Clark v. Community for Creative Non-Violence (CCNV), 468 U.S. 288 (1984), the Supreme Court declined an opportunity to decide the issue of whether sleeping was free speech. The Court, did, however, assume for the purposes of its analysis that sleep could constitute free speech in some instances, and analyzed the case accordingly. In that case, the Court upheld the National Park Service regulation prohibiting sleeping and camping in undesignated areas.

10. Clark v. CCNV, supra, involved a civil action brought by protestors who were granted a permit to set up tents on the Mall and in Lafayette Park as a symbolic method of informing the public of the plight of the nation's homeless. The protestors were denied the right to sleep in the tents, however, because to do so would have violated 36 C.F.R. S50.27(a)(1983) (now 36 C.F.R. § 7.96(i) (1986)) which prohibited camping in National Parks except in designated areas.
11. In upholding the Park Service's denial of CCNV's request to sleep in the Parks, the Court held that the regulation prohibiting camping in the National parks (36 C.F.R. S50.26(a)(1983)) was constitutional as a valid time, place and manner regulation of CCNV's conduct, because it restricted only the manner in which the message could be conveyed. For the purposes of its analysis, the Court assumed that sleeping in connection with the demonstration would constitute expressive conduct worthy of First Amendment protection. The Court applied a time, place and manner analysis to determine whether the government's regulation of the conduct was justified and without reference to the content of the speech, and whether the regulation was narrowly tailored to serve a significant governmental interest. Such an analysis has been deemed appropriate in several cases, all of which were relied on by the Court in CCNV. See, City Counsel of Los Angeles v. Tax- payers for Vincent, 466 U.S. 789 (1984) (involving the constitutionality of the Los Angeles Municipal Code prohibiting the posting of signs on public property); United States v. Grace, 461 U.S. 171 (1983) (federal statute prohibiting distribution of leaflets on public sidewalk surrounding the U.S. Supreme Court building deemed unconstitutional); Perry Education Assocation v. Perry Local Educator's Assocation, 460 U.S. 37 (1983) (preferential access to interschool mail system deemed constitutional) ; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (confining distribution of information to a fixed location at state fair deemed constitutional ); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (Virginia statute declaring it unprofessional for a licensed pharmacist to advertise prescription drug prices deemed unconstitutional as exceeding the bounds of reasonable time, place and manner restrictions on commercial speech); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980) (order prohibiting inclusion of inserts discussing controversial issues of public policy in monthly utility bills deemed unconstitutional). Simply stated, the Court found that even if


the "sleeping" was part of the message delivered via the demonstation, limitations on that conduct would be valid if such limitations were reasonable time, place or manner restrictions which were not directed at the content of the speech. Clark v. CCNV, supra, 468 U.S. at 294.

12. The first step taken by the Court in its analysis of the regulation was the determination that the regulation was content neutral--it was "not being applied because of disagreement with the message presented." Id. at 295 (footnote omitted). The Court also found that the regulation did not remove all methods of communicating the message: the regulation prevented sleeping in the tents but it did not otherwise prohibit conveyance of the message to the public.
13. The Court then determined that the qovernment's interest was substantial in that case--substantial enough to justify the restriction on campinq. The Court defined the governmental interest as a "substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence." Id. at 296. The Court adamantly stated that to permit camping would be "totally inmical to these purposes." Id. Thus the Court found that the restriction on camping in Lafayette Park and on the Mall was a valid method of maintaining those parks in an attractive condition available to all the public.
14. Applying this time, place and manner analysis to the defendant's situation in this case results in a similar outcome.


36 C.F.R. § 7.96(i)(1986) is identical to former regulation 36 C.F.R. § 50.27(a)(1983) in that it prohibits camping in Lafayette Partk and other "undesignated" areas. Such a regulation restricts only the manner in which one can demonstrate: it qualifies as a valid time, place, or manner regulation. The regulation prohibits all camping in those areas, regardless of reason, but also leaves available alternative methods of demonstration. Applying the same analysis used by the Supreme Court in CCNV, if the regulation furthers a legitimate and substantial governmental interest, it is a valid restriction on defendant's conduct. The governmental interest here is substantial: it is the same as that at stake in the CCNV case. [2]

15. The Supreme Court, in United States v. O'Brien, U.S. 367 (1967) established a similar standard for measuring the constitutionallty of regulations of conduct involving elements of speech and non-speech. To pass constitutional muster, the regulation in question must meet all four of the following requirements: 1) the regulation must be within the constitutional power of the Government; 2) the regulation must further an important or substantial governmental interest; 3) the governmenta1 interest must be unrelated to the suppression of free expression; and 4) the incidental restriction on First Amendment freedoms must be greater than is essential to the furtherance of that interest. United States v. O'Brien, supra, 391 U.S. at 377.

[2 Ie., "Maintaininq the parks in the heart of our Capital in an attractive and intact condition readily available to the millions of people who wish to see and enjoy them by their presence. " CCNV, 468 U.S. at 296.]

16. The National Park Service regulation at issue in this case meets all four requirements. That the requlation is constitutional has been determined by the Court in Clark v. CCNV, supra, The Court in that case also found the qovernment's interest in maintaining the National Parks to be a substantial interest. The governmental interest is unrelated to free expression, and the regulation only restricts overnight sleeping and camping, but does not otherwise interfere with free expression· Thus, 36 C.F.R. S7.96(i)(1986) properly restricts defendant's conduct only to the extent that he cannot make Lafayette Park a living accommodation

WHEREFORE, the Government respectfully submits that defendant's Motion to Dismiss for Lack of Offense should be denied. Respectfully submitted,


Assistant United States Attorney


I HEREBY certify that a true and correct copy of the foregoing has been mailed to William Thomas, 1440 N Street, N.W., Apartment 410, Washington, D.C. 20005, this 23rd day of March, 1987.


Assistant United States Attorney
555 4th Street, N.W. Room 5915
Washington, D.C. 20001
(202) 272-9078


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