UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
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
MOTION TO RECONSIDER
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
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 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.  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
[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
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:
[A]lthough a determination of what a 'religious' belief or
practice entitled to constitutional protection may present a
most delicate question, the very concept of ordered liberty precludes
allowing every person to make his own standards on matters of
conduct in which society as a whole has important interests.
Thus, if the Amish asserted their subjective evaluation and rejection
of the contemporary secular values accepted by the majority,
much as Thoreau rejected the social values of his time and isolated
himself at Walden Pond, their claims would not rest on a religious
basis. Thoreau's choice was philosophical and personal rather
than religious, and such belief does not rise to the demands
of the Religion Clauses.
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
In sum, the unchallenged testimony of acknowledged experts
in education and religious history , aImost 300 years of consistent
practice, and strong evidence of a sustained faith pervading
and regulating respondents' entire mode of life support the claim
that enforcement of the State's requirement of compulsory formal
education after the eighth grade would gravely endanger if not
destroy the free exercise of respondents' religious beliefs.
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,
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,  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
[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
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
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
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.
JOSEPH E. DIGENOVA, D.C. Bar #073320
United States Attorney
LINDA S. CHAPMAN
Assistant United States Attorney
CERTIFICATE OF SERVICE
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