UNITED STATES OF AMERICA,                   Appellant,

      versus             (D.C. App. No. 87-3091)

SCOTT M. GALLINDEZ,                         Appellee,

UNITED STATES OF AMERICA,                   Appellant,

      versus             (D.C. App. No. 87-3042)

STEPHEN SEMPLE,                             Appellee,

UNITED STATES OF AMERICA,                   Appellant,

      versus             (D.C. App. No. 87-3043)

WILLIAM THOMAS,                             Appellee,

UNITED STATES OF AMERICA,                   Appellant,

      versus             (D.C. App. No. 87-3044)

PHILLIP JOSEPH,                             Appellee,

UNITED STATES OF AMERICA,                   Appellant,

      versus             (D.C. App. No. 87-3045)

ELLEN THOMAS,                               Appellee.



Appellant, through Assistant United States Attorney John D. Bates, has petitioned this Court for summary reversal of District Court Judge Charles Richey's Order of April 23, 1987, dismissing camping charges against the appellees in this case. The District Court dismissed the charges because it found that the defendants' activities in LaFayette Park, including intermittent sleeping, were protected by the free


exercise clause of the First Amendment, and because the government failed to demonstrate a compelling interest in enforcing the anti-camping regulations. Appellee, Ellen Thomas, submits that budge Richey's decision is adequately supported by the record and is analytically sound, and she respectfully requests this Court to deny the government's Motion for Summary Reversal.

In order to be entitled to summary reversal of an appeal, the moving party "must demonstrate that the merits of his claim are so clear as to justify expedited action," Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1982). The government has clearly failed to meet this burden; therefore, the government's motion must be denied.

In addition, the government's motion must be denied because it waived its opportunity to challenge the sincerity of the defendant's religious beliefs at the hearing, conceding that the defendant's actions were compelled by her deeply held religious beliefs. Having waived the opportunity to contest the sincerity of Ms. Thomas' religious beliefs before the District Court, the government is precluded from raising this issue on appeal. Mckissick v. United States, 379 F.2d 754, 759 (1967) (stating that "[t]he general rule... is that in criminal and civil cases the appellate court will not consider matters which were not raised... in the court below") (citing Hormel v. Helvering, 312 U.S. 552 91941); see also United States v. Weed, 689 F.2d 752, 756 (1982) (ruling that


"[s]ilence can only be seen as [a] waiver of objection [to evidence] which cannot be resurrected on appeal unless it is plain error within Fed.R.Crim.P. 52(b)); Dart Drug Corporation v. Parke Davis and Company, 344 F.2d 173, 183 (1965) (stating that Court of Appeals "should [be] slow to find reversible error by reason of new and different contentions made here for the first time"); American Air Expert & Import Co. v. O'Neill, 95 U.S. App. D.C. 274, 276 (stating that issues raised for the first time on appeal will not be considered by the reviewing court).

Furthermore, at the hearing, the government failed to proffer any compelling or substantial interest in enforcing the park regulations at issue in this case. Ms. Linda Chapman, the Assistant United States Attorney representing the government at the hearing, merely stated that "the Government has no interest per se in prohibiting any of the particular defendants from sleeping in the Park. The Government's interest is in enforcing the regulations which are designed to protect the national park lands" (Tr. 4). Ms. Chapman's superficial declaration regarding the government's interest in seeing that the anti-camping regulations are enforced, falls woefully short of the requirement that, in order to override a legitimate free exercise claim, the government's interest must be a compelling or substantial one. Wisconsin v. Yoder, 406 U.S. 205 213 (1972) (stating that "only those [governmental] interests of the highest order . . . can overbalance


legitimate claims to the free exercise of religion).

Given the fact that the defendant's assertion that her actions were predicated upon her religious beliefs was uncontroverted by the governments, and that the government failed to articulate a compelling interest in enforcing the anti-camping regulations, the government's claim that Judge Richey's ruling is "unsupported by the record [and] is analytically flawed" is totally without merit. Therefore, Ms. Thomas contends that this Court must affirm Judge Richey's well-reasoned order and deny the government's Motion for Summary Reversal.


The District Court's Decision Dismissing Camping
Charges Against Ms. Thomas On Free Exercise
Grounds Is Clearly Supported By The Record And
Is Analytically Sound.

A. The District Court's Decision Is Clearly Supported BY The Record.

The free exercise clause of the First Amendment prohibits government action that impermissably impinges upon an individual's religious freedom. Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). This constitutional proscription against government regulations that unduly burden religious freedom applies to religious practices as well as religious beliefs. Thomas v. Review Board, 450 U.S. 707, 713 (1981) (stating that the free exercise clause affords "special protection to the exercise of religion"). Moreover, it is clear that religiously grounded


conduct is also entitled to the protection of the free exercise clause. Wisconsin v. Yoder, 406 U.S. 205, 220 (1972).

The applicable case law in the free exercise area suggests that two threshold requirements must be met before particular beliefs, alleged to have a religious basis, are entitled to First Amendment protection. The beliefs must be "(1) sincerely held, and (2) religious in nature, in the claimant's scheme of things." Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1029 (1981) quoting United States v. Seeger, 380 U.S. 163, 185 (1965)). In the case before this Court, both of these criteria are clearly satisfied. Regarding the first prong of the test, there is absolutely no question that Ms. Thomas' religious beliefs are sincerely held. This conclusion is poignantly demonstrated by the fact that over the three and one-half years of her vigil, Ms. Thomas has endured immeasurable hardships and has forsaken the conveniences and comforts afforded by modern day technology in order to proclaim the message of God's love and the incompatibility of nuclear weapons with His love. It is also buttressed by the response Ms. Thomas gave to Judge Richey's query regarding the motivation for her actions. During a colloquy with William Thomas, Judge Richey specifically asked him: "Does your act of demonstrating and protesting with these signs and whatever else you do or are alleged to have done at or near Lafayette park at the time of


your arrest in this case form a central part of your religious belief?" (Tr. 44). Mr. Thomas stated "I believe that it is my religious belief." Id. Later in the proceeding, Judge Richey asked undersigned counsel: "Does Ms. Ellen Thomas adopt the same answers and position that William Thomas has proffered to the Court on this discrete motion?" (Tr. 50). After conferring with counsel, Ms. Thomas responded in the affirmative (Tr. 50). Moreover, it is absolutely clear from the record that the government conceded that Ms. Thomas' beliefs are sincerely held (Tr. 48).

Ms. Thomas' beliefs also meet the second prong of the test articulated by the Supreme Court in Seeger, requiring that the individual's belief be religious in nature. In Mr. Thomas' Motion to Dismiss by Reason of an Act of God, which Ms. Thomas joined at the motions hearing,1/ he unambiguously stated that "[t]he contested activity . . . was executed by Thomas in an effort to perform his individual duties honestly, faithfully, and to the best of his ability, [and that these duties] directly and proximately accrue from an Act of God which . . . preclude[s] him from acting in any other manner . . ." (Motion at 3). By joining Mr. Thomas' motion, Ms. Thomas clearly and unequivocally embraced the arguments he raised and

1/ The government states in its motion that Judge Richey invited each of the defendants to join in William Thomas' motion. To the contrary, after counsel requested that Ms. Thomas' Motion for a Jury Trial be granted, he specifically requested that Ms. Thomas be allowed to join Mr. Thomas' motions (Tr. 21).

- 6 -

the sentiments he expressed. And, as noted above, Ms. Thomas, at the hearing, confirmed that her actions, specifically demonstrating and protesting, emanate from and form "a central part of [her] religious belief" (Tr. 44, 50). Given the fact that Ms. Thomas' beliefs meet the two-pronged Seeger test, her religious beliefs and actions warrant protection under the free exercise clause from government interference.

In the government's motion, it argues, inter alia, that the District Court's decision "lacks adequate support in the record . . ." (Motion at 12). It is rather disingenuous of the government to argue that the record before Judge RIchey is inadequate to support his findings and ruling dismissing the camping charge, when the primary reason that the record does not contain a fuller exposition of Ms. Thomas' religious beliefs is because government counsel, for whatever tactical reason, specifically chose not to challenge the sincerity of Ms. Thomas' beliefs or to cross-examine her on the nexus between her beliefs and actions. Thus, as Judge Richey noted in his April 23, 1987 Order, he was presented with a record in which the government failed to rebut the sincerity of the defendant's religious beliefs or to "proffer a single reason sufficient in law to support a claim of a compelling interest" (Order at 2-3). Given the record before him, Judge Richey reached the only conclusion consistent with precedent establishing the protection afforded to religious beliefs and practices under the free exercise clause. See Founding Church


of Scientology v. United States, 409 F.2d 1146 (1969) (ruling that "[s]ince the government chose not to contest appellants' claim to religious status, and since in our view appellants have made a prima facie claim for such status, we conclude that for purposes of the judgment before us they are entitled to protection of the free exercise clause).

B. The District Court's Decision Is Analytically Sound

In its motion, the government claims that Judge Richey's analysis is fundamentally flawed. In support of its argument, the government states, inter alia, that "the Court was plainly wrong in equating religious motivated speech with religious practice or observance" (Motion at 21). A review of Judge Richey's April 23, 1987 Order dismissing the camping charges and his May 26, 1987 Order denying the government's Motion to Reconsider clearly shows that Judge Richey did no such thing. What the two orders do reflect, however, is the indisputable fact that Judge Richey concluded, based on the evidence adduced at the hearing, that Ms. Thomas established a prima facie case that her actions were compelled by deeply held religious beliefs, and that the government did not offer any evidence to rebut or challenge that presumption. Moreover, the record before this Court further reveals that Judge Richey correctly concluded that the government failed to proffer any interest in enforcing the anti-camping regulation that could be characterized as compelling or substantial. At the hearing, Ms. Chapman only stated that "[t]he Government's


interest is in enforcing the regulations which are designed to protect the national park lands" (Tr. 49). Because Ms. Thomas posited a prima facie case, which was uncontroverted by the
government, that her actions were predicated upon her religious beliefs, and because the government did not enunciate a substantial interest in the enforcement of the anti-camping regulations, Judge Richey had no alternative but to dismiss the charges.2/ See Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (stating that "only those interests of the highest order can overbalance legitimate claims to free exercise of religion") Cantwell v. Connecticut, 310 U.S. 296, 304 (1940) (ruling that "legal restrictions cannot be applied to religious practices, as they can in the secular realm, merely on a showing of a rational relationship between the regulation imposed and the legitimate end sought"); Thomas v. Review Board, 450 U.S. 707 (1981) (stating that "[t]he state may justify an inroad on religious liberty [only] by showing it is the least restrictive means of achieving some compelling state interest").

The government, in its motion, also argued that "[m]any of the major issues of the day can be viewed as having a religious base or motivation" and that, without more, such beliefs are not entitled to protection under the free exercise clause. Without disputing the government's point that many

2/ Under Fed.R.Civ.P. 52, unless this Court discerns clear error in the District Court's findings of fact, reversal is not warranted.


individuals involved in protesting or debating current issues are influenced by their religious beliefs, it is abundantly clear that Ms. Thomas' motivation goes far beyond the sphere of religious influence and into the realm of core religious beliefs, Ms.Thomas has engaged in her anti-nuclear vigil not merely because it is consistent with her religious beliefs, but because these beliefs compel her to act as an earthly messenger proclaiming the danger of the threat posed by nuclear weapons and the incongruity of such weapons with the teachings of Jesus Christ. Inasmuch as Ms. Thomas' activities fin Lafayette Park are inextricably linked to her religious beliefs, her actions are entitled to protection under the free exercise clause.

Another argument put forth by the government challenges the District Court's conclusion that enforcement of the anticamping regulation impermissably burdens appellee's religious beliefs. According to the government, the District Court's conclusion is flawed because, in the context of Ms. Thomas' vigil, sleeping is not a part of her religious practices, but merely an exercise that facilitates her ability to conduct her vigil.

Notwithstanding the government's assertion, Judge Richey did not err in concluding that enforcement of the anticamping regulation would infringe upon Ms. Thomas' religious beliefs. To the contrary, it is the government that has failed to appreciate the religious significance of Ms. Thomas'


around-the-clock vigil and the pivotal role periodic sleep plays in enabling her to sustain her vigil. Ms. Thomas does not, as the government suggests, engage in her vigil twenty four hours a day because it makes her activities easier or less onerous than they would be otherwise. Nor, as the government erroneously states, does Ms. Thomas believe that the First Amendment requires the government to "furnish her with facilities and support services" to maximize the effectiveness of her vigil. Rather, Ms. Thomas believes that her religious beliefs compel her to conduct an around-the-clock vigil and that, without the aid of intermittent sleep, she would be unable to remain faithful to her religious beliefs. Clearly, under these circumstances, the government's enforcement of the anti-camping regulation directly interferes with "facilitative activity" that allows Ms. Thomas to exercise her religious beliefs. See White House Vigil For the ERA Committee v. Clark, 746 F.2d 1518, 1540 (D.C. 1984) (holding that "[t]he first amendment protects facilitative activity only insofar as its restriction imposes burdens on expression itself").

The government also claims that Ms. Thomas "cannot communicate [her] religious views or practice [her] religion while asleep" (Tr. 22). This argument is clearly without merit. Even while engaging in momentary periods of sleep, Ms. Thomas' commitment to maintaining her vigil around-the-clock, which would be humanly impossible without periodic sleep, is a


moving testament to the depth and power of her religious beliefs. Moreover, even while asleep, Ms. Thomas' message, which is communicated by her signs and her presence in the park, resonates throughout our nation's capital just as a pebble tossed into a lake sends ripples out over the water. Finally, the government argues that the District Court's analysis is deficient because it inexplicably ignored the Supreme Court's decision in Clark v. Center for Creative Non-Violence, [CCNV] 468 U.S. 288 (1984). Although Judge Richey did not cite CCNV in either of his orders, it is evident that CCNV is clearly distinguishable from the case at bar. There, demonstrators seeking to dramatize the plight of the homeless sought to set up symbolic tent cities in Lafayette Park and the Mall, and to have sympathetic supporters sleep in the tents. Pursuant to their scheme, the demonstrators planned to set up "20 tents in Lafayette Park that would accommodate 50 people and 40 tents in the Mall with a capacity of up to 100." CCNV, 468 U.S. at 242. The National Park Service granted CCNV permission to erect the tent cities, but rejected their request that demonstrators be allowed to sleep in the tents, citing the Park Service's anticamping regulations. CCNV, 468 U.S. at 291-92. CCNV and other individuals challenged the anti-camping regulations, but the Supreme Court upheld the regulations as a lawful time, place and manner restriction. Id. at 294-299. In reaching its decision, the Supreme Court emphasized the fact "[d]amage


to the parks as well as their inaccessibility to other members of the public can as easily result from camping by demonstrators as by nondemonstrators." Id. at 298. Moreover, the Court noted that "'there is a substantial Government interested in . . . limiting the wear and tear on park properties." Id. at 299.

Unlike the demonstrators in CCNV, Ms. Thomas has not requested permission to set up and sleep in a tent in Lafayette Park, nor has she done so on her own. On those occasions when Ms. Thomas engages in intermittent sleep, she reclines peacefully beside her signs, which conform to the park regulations regarding stationary signs, without the benefit of any type of temporary or permanent structure. Moreover, in CCNV, the potential for consequential damage to Lafayette Park and the Mall from permitting approximately one hundred and fifty demonstrators to camp in those areas is self-evident. In the present case, however, the potential for even minor wear and tear on Lafayette Park from Ms. Thomas' solitary vigil is -negligible. In fact, at the motions hearing, the government did not proffer one shred of evidence that Ms. Thomas, during the course of her three and one-half year vigil, has caused any damage whatsoever to the park.


The District Court's order dismissing the camping charge against Ms. Thomas is supported by the record before this Court and is consistent with precedent establishing


protection for religious freedom under the free exercise clause. Ms. Thomas has clearly established a legitimate free exercise claim and the government has failed to rebut it. Moreover, CCNV is not dispositive in this case because the threat of damage posed by the activities contemplated by the demonstrators in CCNV does not exist in the context of the solitary vigil maintained by Ms. Thomas. Therefore, Ms. Thomas respectfully submits that the government's Motion For Summary Reversal must be denied.

Respectfully submitted,

/s/john m. copacino
Attorney for Ellen Thomas
25 E Street, N.W.
Second Floor
Washington, DC 20001




This is to certify that a copy of the foregoing Defendant's Supplemental Motion to Declaration of Defendant Ellen Thomas in Support of an Act of God was personally served upon Assistant United States Attorney Linda S. Chapman, 555 Fourth Street N.W., Room 5915, Washington, DC 20001, on this day of May 1987 .

/s/ Robert M hurley