UNITED STATES OF AMERICA CRIMINAL NO. 86-0060 V. WILLIAM THOMAS : CHIEF JUDGE ROBINSON
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.
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
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 or 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 to the participants or the nature of any other activities in which they may also be engaged.
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.
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.
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.
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]
WHEREFORE,
the Government respectfully submits that defendant's Motion to
Dismiss for Lack of Offense should be denied.
Respectfully submitted,
JOSEPH E. DIGENOVA
UNITED STATES ATTORNEY
LINDA S. CHAPMAN
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.
LINDA S. CHAPMAN
Assistant United States Attorney
555 4th Street, N.W. Room 5915
Washington, D.C. 20001
(202) 272-9078