SCOTT M. GALINDEZ,               Criminal No.  87-60               
STEPHEN SEMPLE,                  Criminal No.  87-61          
WILLIAM THOMAS,                  Criminal No.  87-62                   
PHILLIP JOSEPH,                  Criminal No.  87-63
ELLEN B. THOMAS,                 Criminal No.  87-64


Comes now the United States, by and through its attorney, the United States Attorney for the District of Columbia, and respectfully requests the Court to reconsider its ruling of April 23, 1987, dismissing the above-entitled cases, and to hold a hearing on this request. As grounds therefor, the United States states as follows.

1. All of the defendants in this case were charged with camping in Lafayette Park on December 22, 1986, in violation of 36 C.F.R. 7.96(i). On April 23, 1987, this Court held a pretrial hearing, among other things, to resolve motions filed by the defendants. Accordingly, the Court ruled on a number of motions that had been timely filed by defendants William Thomas and Ellen Thomas (and in which the other defendants joined upon invitation by the Court), and to which the government had had an opportunity to respond in writing. The Court denied those motions after hearing from defendant William Thomas. [1]

[1 Apparently, the Court did grant the motion for a jury trial. We respectfully submit that there is no entitlement to a jury trial in these cases. On one occasion, defendant Thomas was permitted a jury trial for a camping offense by Judge Oberdorfer, and the jury then convicted defendant Thomas. See United States v. Thomas, 574 F. Supp. 197 (D.D.C. 1983) . Thereafter Judge Oberdorfer concluded in subsequent camping prosecutions of Mr. Thomas that there was no jury trial entitlement, as all other courts have also concluded. Clearly, that is correct. It is well-established that petty offenses may be tried without a jury. See, e.g., Bloom v. Illinois, 391 U.S. 194 (1968). The maximum penalty for violation of the regulation against camping in Lafayette Park -- six months imprisonment and/or a $500 fine -- makes this a petty offense within the meaning of 18 U.S.C § 1(3). Nor are there any collateral effects sufficient to warrant a jury trial. Compare, United States v. Cramer, 652 F.2d 23 (9th Cir. 1981) Finally, the offense involves malum prohibitum, not malum in se; hence, no jury trial is required. See Baldwin v, New York, 399 U.S. 66, 69 (1970); District of Columbia v. Colts, 282 U.S. 63, 73 (1930).]


However, a final motion considered by the Court was a motion filed by William Thomas on April 21, entitled "Motion to Dismiss by Reason of An Act of God," which was apparently received by the Court the next day (April 22), but which was not received by government counsel until just shortly before the hearing. Again, at the invitation of the Court, the other defendants orally joined in the motion during the course of the hearing.

2. This last-minute motion can best be characterized as a claim that, in committing the act with which they are charged, camping in Lafayette Park, the defendants acted under duress; that is, that they are not responsible for their act because God forced them to do it. Nevertheless, at the hearing, the Court, interpreting the motion as a First Amendment challenge to the application of the regulation, questioned each defendant in turn as to whether his or her action in camping in Lafayette Park was motivated by a "sincerely held religious belief." All


of the defendants responded affirmatively. [2] Defendants presented no testimony or evidence that provided any information as to the structure and beliefs of their "religion," how the particular act in question (camping in Lafayette Park) related to the exercise of that "religion," establishing that camping in Lafayette Park was a ritual or act involving a central tenet of defendants' "religion," or that the enforcement of the regulation against camping in Lafayette Park unduly burdened the defendants' exercise of their Religion." The only information before the Court was defendant William Thomas' bald claim, made in response to the Court's question and then adopted by the other defendants, that he acted on the basis of sincerely held religious beliefs. On that record, the Court dismissed the charges, stating that the government was required to show a compelling interest in enforcement of the regulation in order to overcome the protection afforded defendants' acts by the Free Exercise Clause of the First Amendment. The Court relied on the Supreme Court's decision in Wisconsin v. Yoder, 406 U.S. 205 (1972)

3. In that setting, the Assistant United States Attorney representing the government never had the opportunity to examine the relevant authorities this Court ultimately relied upon in dismissing the charges. Absent the opportunity to research the

[2 None of the defendants was sworn. Only defendant William Thomas was actually questioned by the Court. The others, through counsel in all but one instance, simply adopted his answers as to the sincerity of their religious beliefs. One, defendant Galindez, was not present and had not seen or spoken to his counsel for some time. Nevertheless, the Court permitted his counsel to adopt for Mr. Galindez the answers of Mr. Thomas on the sincerity of his religious beliefs.]


proper legal standard, the government was unable to respond to the Court or, if appropriate, to examine Mr. Thomas. Indeed, Mr. Thomas' motion, filed out of time and received by the government just before the hearing, was not even framed in terms of the camping regulation encroaching upon a central tenet of a sincere religious belief in violation of the Free Exercise Clause of the First Amendment, but rather in terms of a necessity defense. Accordingly, the government submits that it has not been permitted a fair opportunity to respond to the motion, and respectfully asks the Court now to permit it to do so.

4. The government asks that the Court reconsider its ruling on the grounds that, under the proper legal standard, the record does not support a finding that the regulation against camping in Lafayette Park was unconstitutionally applied to these defendants.

5. The facts in this case, as reflected by the record, do not begin to resemble the factual showing made by the defendants in Wisconsin v. Yoder, supra, that triggered the Court's review of the governmental interests in the statute at issue. In Wisconsin v. Yoder, the Supreme Court was presented with a challenge to the constitutionality of Wisconsin's compulsory school attendance law as applied to members of the Amish religion. The defendants had been convicted of violating this law, which required children to attend school until the age of 16, by refusing to send their children to school beyond the eighth grade. The defendants claimed that application of the compulsory school-attendance law to them violated their rights under the Free Exercise Clause of the First Amendment.


6. The Supreme Court, in considering defendants' claim, first reviewed the extensive evidence that had been presented regarding the Amish religion, and the central role that the educational process played in that religion. This evidence included detailed testimony about the history of the Amish religion, dating back to the 16th century, their mode of life as regulated by the rules of the church community, and the Amish objection to formal education beyond the eighth grade, which is firmly grounded in their central religious concepts, as well as testimony that compulsory high school attendance would ultimately result in the destruction of the Amish church community.

7. As the first step in its analysis, the Court evaluated the quality of the defendants' claim that the statute encroached on their rights to the free exercise of their religious beliefs. The Court stated that:

Id. at 216.

8. The Court found that the record abundantly supported defendants' claim that their traditional way of life was not merely a matter of personal preference, but one of deep religious


conviction, shared by an organized group, in response to Biblical commands that were fundamental to their faith. The record also strongly showed that the values and programs of modern secondary school were in sharp conflict with the mode of life mandated by the Amish religion, and that secondary schooling "contravenes the basic religious tenets and practice of the Amish faith. Wisconsin v. Yoder, supra, 406 U.S. at 218. The impact of the compulsory school-attendance law on the defendants' practice of their religion was not only severe, but inescapable, because the law compelled them, under threat of criminal sanction, to "perform acts undeniably at odds with fundamental tenets of their religious beliefs." Id. at 218. The Court stated:

Id. at 219.

9. The Court then considered the state's claim that its interest in universal compulsory formal secondary education was so great that it outweighed defendants' interests in the exercise of their religious belief. The Court found the defendants had convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of their beliefs with their mode of conduct, and the hazards to the exercise of their religion presented by enforcement of the statute. Defendants also demonstrated the adequacy of their alternative mode of education in


terms of the interest advanced by the state. In light of this showing, the Court found that the state had not shown with sufficient particularity how its concededly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.

10. The Supreme Court's decision in Wisconsin v. Yoder, supra, makes it clear that courts should engage in a two-step analysis when considering a First Amendment Free Exercise claim. It must first be determined whether the governmental action in question in fact creates a burden on a defendant's exercise of his religion. If a burden is found, it must then be balanced against the governmental interest, with the government being required to show an overriding or compelling reason for its action. See Sherbert v. Verner, 374 U.S. 398, 402-03 (1963); Wisconsin v. Yoder, supra, 406 U.S. at 214-215; Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159, 1163 (6th Cir. 1980); Church of God v. Amarillo Independent School District, 511 F. Supp. 613, 615 (N.D. Tex. 1981). In order to satisfy the threshold requirement to demonstrate an infringement of his First Amendment Free Exercise rights, an individual must show "the coercive effect of the [state] enactment as it operates against him in the practice of his religion." Brandon v. Board of Ed. of Guilderland Central School District, 635 F.2d 971, 976 (2nd Cir. 1980), quoting School District of Abington Township v. Schempp, 374 U.S. 203, 223 (1963). This analysis need not involve a court in determining the sincerity of an individual's religious beliefs,



Brandon, supra, 635 F.2d at 976, citing Wisconsin v. Yoder, supra; Sherbert v. Verner, supra.

Thus, before the constitutionality of a statute or regulation as applied to a particular act can be placed in question, an individual must show that application of the statute to the particular act will unduly burden his exercise of a legitimate religious belief. It is not enough that a defendant claims that his actions were motivated by religious beliefs. Indeed, "the Supreme Court has emphasized on numerous occasions that actions and practices are not absolutely protected from governmental regulation merely because the actor classifies these actions as 'religious'." United States v. Middleton, 690 F.2d 820, 824 (Ilth Cir. 1982), citing United States v. Lee, 455 U.S. 252 (1982); Davis v. Beason, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1878).

11. The record in this case does not begin to establish the first step of the analysis employed by the Supreme Court in Wisconsin v. Yoder, supra, that is, that enforcement of the regulation against camping in Lafayette Park infringes the defendants' free exercise of their religious beliefs. There is absolutely no evidence as to the nature of defendants' religious beliefs or the relationship of the act in question--camping in Lafayette Park--to those religious beliefs. The most generous interpretation that can be gleaned from defendant William Thomas'


declaration in support of his motion is that he has sincere religious beliefs that require him to live a life of poverty and to protest governmental and societal actions and norms that he views as evil. The other defendants have now joined in that claim. Even granting that defendants have such sincere religious beliefs, a point we do not concede, [3] there is not even a suggestion that in order to exercise these religious beliefs, defendants must camp in Lafayette Park, that camping in Lafayette Part is the cornerstone of a religious ritual central to the exercise of their religion, or a fundamental tenet of their religious beliefs.

12. It is important to remember that the act at issue is camping in Lafayette Park; enforcement of the regulation does not bring into issue the defendants' exercise of their religious beliefs, if such they are, by protesting in other ways, such as erecting or carrying signs, or conducting all night vigils in Lafayette Park, or conducting demonstrations in Lafayette Park or other areas of the city, or camping in other areas of the city. The Court elicited from defendant Thomas testimony that his demonstrating and protesting with these signs and whatever else you do or are alleged to have done at or near the Lafayette Park at the time of your arrest" was a "central part" of his religious belief. Tr. at 44. That hardly rises to the level of convincing

[3 In its April 23,1987 Order, the Court states that the government does not contest the sincerity of defendants' beliefs. In fact, however, the transcript of the hearing reveals that the government took the position that the sincerity of defendants' beliefs was not determinative, but did not concede that their beliefs were sincere. Tr. at 48-49.


avidence that Thomas' camping activities in Lafayette Park form a fundamental tenet of his religious belief which is seriously burdened by the camping regulation. In other words, there is simply no evidence to show that the act of camping in Lafayette Park itself has any particular theological or religious significance in the practice of defendants' alleged religion. For example, there is no indication that the site -- Lafayette Park itself has any religious significance; nor is there any suggestion that the act -- camping -- is a fundamental ritual or practice necessary for the defendants to carry out their religious obligations. Defendants have not proffered one iota of evidence that the particular act of lying prone in sleeping bags in Lafayette Park is a fundamental tenet, a cardinal principle, or a cornerstone of a ritual central to their religion.

13. It follows that application of the regulation against camping in Lafayette Park will not unduly burden the defendants' exercise of their religion. Even granting that defendants' "sincerely held religious beliefs" require them to live a life of poverty and to protest the evils they perceive in society, enforcement of the ban on camping will not prevent them from carrying out those beliefs. Enforcement of the regulation will certainly not prevent defendants from living a life of poverty. nor will it prevent defendants from protesting the evils of society, even in Lafayette Park. Because defendants have not made a threshold showing that enforcement of the regulation against camping in Lafayette Park unduly burdens their exercise of legitimate religious beliefs by preventing them from participating in an act that is a central tenet of those religious


beliefs, there is no need for further inquiry: because no infringement of deiendants' First Amendment rights has been demonstrated, there is nothing to balance against the government's interest in the regulation.

14. In any event, the Supreme Court in Clark v. Community For Creative Non-Violence [CCNV], 468 U.S. 288 (1984), has determined that the government has a substantial interest in maintaining the national parks in the Capital "in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence," an interest that is plainly served by the regulation against camping in the parks. Id. at 296, 299. In CCNV, the Court noted that the defendants, who claimed that enforcement of the regulation infringed their First Amendment freedom of speech rights, were not precluded from alternative modes of expression. The Court found the regulation to be narrowly tailored to serve a significant governmental interest, and upheld its application against First Amendment challenge. The regulation at issue in CCNV, of course, is the same regulation in guestion in this case. Even if it were assumed, by a very imaginative reading of the record in this case, that camping in Lafayette Park is in some manner related to defendants' exercise of their religious beliefs, the government clearly has a substantial interest in enforcing the regulation prohibiting camping in Lafayette Park that outweighs any incidental effect on defendants practice of their "religion."

15. Finally, we are constrained to observe that defendant William Thomas, whose purported religious beliefs form the basis


of this Court's dismissal of the charges against all five defendants, has on at least five prior occasions been convicted under the camping regulation without interposing the defense he has now raised, with several of those convictions affirmed by the Court of Appeals. E.g., United States v. Thomas, et al., Nos. 83-1769, etc. (D.C. Cir. December 21, 1984). For Thomas suddenly now to assert that, based on a 1974 "revelation" in his life, he has for five years been violating the law as a fundamental tenet of a sincere religious belief is indeed to strain credulity.

WHEREFORE, the government respectfully requests that the Court reconsider its order dismissing the above-entitled cases, grant the government a hearing on this issue, and then deny defendants' motion.

Respectfully submitted,

JOSEPH E. DIGENOVA, D.C. Bar #073320
United States Attorney

Assistant United States Attorney


I HEREBY CERTIFY that a copy of the foregoing has been mailed to William Thomas, 1440 N Street, N.W. #410, Washington, D.C.; Phillip Joseph, P.O. Box 27217, Washington, D.C.; Stephen Semple, P.O. Box 2717, Washington, D.C.; counsel for Ellen Thomas, Robert M. Hurley, Esquire, 25 E Street, N.W., Washington, D.C. 20001, and counsel for Scott Galindez, Mona Asiner. 1717 K Street, N.W. #1200, Washington, D.C. 20036, this 1st day of May, 1987.

Assistant United States Attorney
Judiciary Center Bldg.
555 Fourth Street, N.W.
Washington, D.C. 20001


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