UNITED STATES OF AMERICA,                     Appellant,

          v.            (D.C. App. No. 87-3041)
                            (Cr. No. 87-60)
SCOTT M. GALINDEZ,                            Appellee,

UNITED STATES OF AMERICA,                     Appellant,

          v.            (D.C. App. No. 87-3042) 
                            (Cr. No. 87-61)
STEPHEN SEMPLE,                               Appellee,

UNITED STATES OF AMERICA,                     Appellant,

         v.             (D.C. App. No. 87-3043)
                            (Cr. No. 87-62)
WILLIAM THOMAS,                               Appellee,

UNITED STATES OF AMERICA,                     Appellant,

         v.             (D.C. App. No. 87-3044) 
                            (Cr. No. 87-63)
PHILLIP JOSEPH,                               Appellee,

UNITED STATES OF AMERICA,                     Appellant,

         v.             (D.C. App. No. 87-3044) 
                            (Cr. No. 87-64)
ELLEN THOMAS,                                 Appellee.


Appellant hereby submits this reply to Appellee Ellen Thomas' Opposition to Appellant's Motion for Summary Reversal ("Opposition"). In her Opposition, appellee argues that the
District Court's decision was adequately supported by the


record. Alternatively, appellee claims that the government "conceded" at the hearing that appellee's activities in Lafayette Park were compelled by her religious beliefs. Appellee also contends that she satisfied any burden that she had of establishing a free exercise claim simply by showing that her religious beliefs were sincere. Furthermore, although apparently acknowledging that camping is at most "facilitative activity", appellee nonetheless claims that it is protected by the free exercise clause. Finally, appellee asserts that the government did not demonstrate a "substantial" interest in enforcing the camping prohibition, and that Clark v. Community for Creative Non-Violence (CCNV), 468 U.S. 288 (1984), is "distinguishable" because the government has not shown that appellee's "solitary vigil" presents a danger to Lafayette Park comparable to that posed by the demonstrators in Clark v. CCNV. These contentions are all meritless.

Contrary to appellee's Opposition, there is no factual basis in the record for the District Court's conclusion that appellee, in camping in Lafayette Park, was engaged in a religious exercise or practice. Ellen Thomas, like the other appellees, proffered nothing at the hearing concerning her "religion." She did not explain what her beliefs were, or why they were religious in nature. Nor did she in any way demonstrate a link between her beliefs and her activities in Lafayette Park. Rather, like Stephen Semple, Phillip Joseph,


and the absent Scott Galindez through his attorney 1/, Ellen Thomas merely adopted William Thomas' "testimony" -- which amounted only to a conclusory assertion that his activities were inspired by his sincere religious beliefs -- as her own. As explained in Appellant's Motion for Summary Reversal ("Motion"), this does not constitute a sufficient showing of an exercise of a religion. (See Motion at 13-20).

Appellee now seeks to fill this void in the record by asserting for the first time in her Opposition that she has been engaged in a three and one-half year old vigil "in order to proclaim the message of God's love and the incompatibility of nuclear weapons with his love." (Opposition at 5). Appellee further states in her Opposition that her religious beliefs "compel her to act as an earthly messenger proclaiming the danger of the threat posed by nuclear weapons," (Opposition at 10), and "compel her to conduct an around-the-clock-vigil" which requires the "aid of intermittent sleep." (Opposition at 11). Notably, none of these claims were presented to the District Court, and the record fails to support these assertions. Although it is not surprising that appellee now seeks to supply in her Opposition the factual showing missing below, the District Court's decision cannot be upheld based on unsupported allegations that the District Court never heard.

1/ Scott Galindez was not even present at the hearing, yet the Court, incredibly, allowed Galindez to join in Thomas' motion and answers and affirm his sincerity through his attorney.


Recognizing the inadequacy of the record, appellee claims that little or no showing of an exercise of a religion was required because the government "conced[ed]" at the hearing that appellee's "actions were compelled by her deeply held religious beliefs." (Opposition at 2). Appellee is wrong. The government never conceded that appellee's beliefs were religious, and never conceded that appellee was "compelled" by her beliefs to camp in Lafayette Park. Although the prosecutor did not vigorously contest the religious nature of appellees' activities in the park, instead arguing that appellees' beliefs were not a defense to the camping prohibition even if religious and sincere, 2/ that was because the prosecutor was caught off-guard by the last minute filing of William Thomas' motion and surprised by the Court's reading of it as raising a free exercise claim. 3/ In any event, this Court's decision in Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir.), cert. denied, 396 U.S. 963 (1969), makes clear that even when the government does not contest a party's assertion that its activities are religious, the claimant must still establish a prima facie case

2/ Of course, the prosecutor was correct; the government's substantial interest in maintaining Lafayette Park in "an attractive and intact condition," Clark v. CCNV, 468 U.S. 288, 296 (1984), does in fact override even a legitimate free exercise claim. (See Motion at 23-27).

3/ As noted in our Motion, the government immediately sought to correct any error on its part by moving for rehearing and reconsideration. The Court denied the government such an opportunity, erroneously stating that the government had affirmatively indicated at the hearing that it was prepared to respond. (See Motion at 10-12, 17).


that it is engaged in the exercise of a religion in order to be accorded First Amendment protection. Id at 1160. Ellen Thomas, like the other appellees, has plainly failed to make such a showing. (See Motion at 13-20).

Also missing from appellee's Opposition is any explanation whatsoever of the significance of Lafayette Park to appellee's religion. This omission, in itself, is fatal to appellee's case. Contrary to appellee's Opposition, a party seeking to invoke the free exercise clause as a defense to a regulation of general applicability must show not only that his beliefs are religious and sincere, but that the regulation burdens him in the exercise of his religion. See, e.g., Abington School District v. Schempp, 374 U.S. 203, 233 (1963) (claimant must demonstrate the "coercive effect of the enactment as it operates against him in the practice of his religion"); Wilson v. Block, 708 F.2d 735, 740 (D.C. Cir.) (party asserting free exercise claim has "initial burden" of proving that the regulation infringes upon a religious belief or practice), cert. denied, 464 U.S. 956 (1983).

Here, even assuming that appellee's religion compels her to conduct an around-the-clock vigil in opposition to nuclear weapons --a somewhat unusual religious practice to be sure -appellee has not explained in her Opposition, and never showed at the hearing, why her religion requires her to conduct this vigil in Lafayette Park. Unlike the Indian tribes in Wilson v. Block, appellee's religion does not appear to be "site specific," and it defies imagination that appellee views


Lafayette Park as a "sacred" spot. See Wilson v. Block, 708 F.2d at 740. Having failed to demonstrate any connection between her beliefs, even if religious, and Lafayette Park itself, appellee has not shown that the anti-camping regulation burdens her "religion." (See Motion at 19-20).

Nor has appellee explained why camping in Lafayette Park, as opposed to conducting her anti-nuclear protest there, is entitled to First Amendment protection. Sleeping on the ground is not, in and of itself, a religious act. Moreover, unlike the demonstrators in Clark v. CCNV, who sought to sleep in the park to demonstrate the plight of the homeless, camping has no antinuclear significance. Nor can appellee seriously claim that she can communicate her anti-nuclear views while asleep. Indeed, appellee appears to recognize that camping, in this case, is at most "facilitative activity", and as such is protected by the First Amendment "only insofar as its restriction imposes burdens on expression itself." White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1540 (D.C. Cir. 1984); (see Opposition at 11). Yet appellee fails to explain why she cannot sleep some place other than Lafayette Park, and return to the park to conduct her protest once awake. Consequently, she has failed to show that the prohibition on camping restricts the expression of her religious views. Camping in the park is simply a
"convenience" for appellee, which the First Amendment does not require the government to furnish. See Heffron v. International Society for Krishna Consciousness, Inc. 452 U.S. 640, 647 (1981); (see Motion at 22-23).


Finally, appellee asserts that the government has not demonstrated a "substantial" interest in enforcing the anti-camping regulation (Opposition at 3, 9), and that Clark v. CCNV is "distinguishable" from this case because the large number of demonstrators in Clark v. CCNV posed a "self-evident" threat to Lafayette Park, whereas the government has not show that appellee's "solitary vigil" has caused or will cause any damage. (Opposition at 12-13). 4/ These contentions are frivolous. The prosecutor specifically stated at the hearing that the government's interest in enforcing the camping prohibition was to protect Lafayette Park from the damage that camping would necessarily cause. The Supreme Court, as the government pointed out to the District Court, has expressly recognized that this interest -- "maintaining the parks in the heart of our Capital in an attractive and intact condition" -- is a "substantial" one, 5/ which overrides even a legitimate First Amendment claim. Clark v. CCNV, 468 U.S. at 296, 299.

Nor must the government show that appellee poses a danger to Lafayette Park comparable to the demonstrators in Clark v. CCNV in order to prevent her from camping there. Lafayette Park

4/ Appellee does not quarrel with the proposition that appellees' activities in the park, like those of the demonstrators in Clark v. CCNV, were subject to legitimate time, place, and manner restrictions. (See Motion at 24-26).

5/ Because appellees were engaged, at most, in religiously motivated expression, it is unnecessary to determine whether the anti-camping regulation satisfies a higher, "compelling" interest standard of review. The government submits, however, that the Supreme Court's decision in Clark v. CCNV indicates that the regulation satisfies even this higher standard. (See Motion at 25-26, n. 15).


is not a campground. It is a "garden park with a . . . formal landscaping of flowers and trees, with fountains, walks and benches." Clark v. CCNV, 468 U.S. at 290 (quotations and citations omitted). Any camping in Lafayette Park damages it, renders it less attractive, and unfairly interferes with its use by the "millions of people who wish to see and enjoy" it. Id. at 296.

Furthermore, this is not a "solitary" vigil, as appellee claims. This case alone involves five individuals camping in the park, and appellee, by her own admission, has been camping there for over three years. Moreover, as this Court is aware, and as Clark v. CCNV shows, appellees are not alone in their desire to sleep in the park in connection with the exercise of their First Amendment rights. Park officials plainly cannot be required to estimate the amount of damage any particular "camper" or group of "campers" will cause. Nor may they be called upon to somehow distinguish between the various groups who seek to camp in the park. Indeed, the Supreme Court, in Clark v. CCNV, expressly recognized that the validity of the anti-camping regulation "need not be judged solely by reference to the demonstration at hand." Id. at 296-297. (See Opposition at 26-27). The First Amendment thus does not require granting appellee an exemption to the camping prohibition -- even assuming that she poses less of a danger to the park than the protesters in Clark v. CCNV --


nor could any intelligent exception be carved out. Hence, appellee's claims are totally meritless. 6/

WHEREFORE, appellant respectfully submits that its motion for summary reversal should be granted.

United States Attorney

Assistant United States Attorney

Assistant United States Attorney

Assistant United States Attorney

Assistant United States Attorney

6/ On August 3, 1987, appellee William Thomas filed an Opposition To Appellant's Motion For Summary Reversal and Motion For Summary Affirmance. The following day, August 4, 1987, Thomas filed a Motion For Leave To File A Petition For Writ of Mandamus and a Petition For Writ of Mandamus, in which Thomas indicated that he had not intended to file an Opposition to the government's motion, and instead wished the Court to consider, in its place, his mandamus petition. Regardless of Which pleading is properly before this Court, William Thomas' claims are groundless and do not warrant a response.



I, Curtis E. Hall, hereby certify that on August 17th , 1987, I served a copy of the foregoing Appellant's Reply To Appellee Ellen Thomas' Opposition To Appellant's Motion For Summary Reversal by causing a true copy thereof to be mailed, by first-class mail, postage prepaid, to William Thomas, 1440 N. Street, N.W., #410, Washington, D.C.; Phillip Joseph, P.O. Box 27217, Washington, D.C.; John M. Copacino, Esquire, attorney for Ellen Thomas, 25 E. Street, N.W., Washington, D.C. 20001; Mona Asiner, Esquire, attorney for Scott Galindez, 1717 K. Street, N.W., #1200, Washington, D.C. 20036; and Stephen Semple, P.O. Box 2717, Washington, D.C.

(signed Curtis E. Hall)
Assistant United States Attorney
Civil Division
Judiciary Center Building
555 4th Street, N.W. - 4th Floor
Washington, D.C. 20001
(202) 272-9224