UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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.
APPELLEE ELLEN THOMAS' OPPOSITION TO
APPELLANT'S MOTION FOR SUMMARY REVERSAL
INTRODUCTION
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
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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
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"[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
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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.
ARGUMENT
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
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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
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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).
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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
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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
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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.
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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'
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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
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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
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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.
CONCLUSION
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
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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
ROBERT M HURLEY #
Attorney for Ellen Thomas
GEORGETOWN CRIMINAL JUSTICE CLINIC
25 E Street, N.W.
Second Floor
Washington, DC 20001
(202)662-9575
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CERTIFICATE OF SERVICE
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
ROBERT M. HURLEY
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