SCHEDULED FOR ORAL ARGUMENT ON DECEMBER 2, 1988

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 88-3015 and 88-3023, Consolidated

UNITED STATES OF AMERICA                        Appellee,

          v.

WILLIAM AND ELLEN B. THOMAS                     Appellants.

BRIEF OF APPELLANTS

Mark A. Venuti, Esquire
Suite 100
3600 M Street, N.W.
Washington, D.C. 20007
(202) 965-9700

Counsel, Appointed by the Court, for William and Ellen B. Thomas

Of Counsel:

Professor Burton D. Wecheler
Washington College of Law
American University
Washington, D.C. 20015

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici

The following parties, intervenors, and amici appeared below:

William Thomas
Ellen B. Thomas
Philip Joseph
Stephen Semple

B. Rulings Under Review

The ruling appealed from is the ruling of District Court Judge Charles R. Richey, given in open court on December 15, 1987. Trial Transcript, December 15, 1987, at 133-135, contained in the attached Record References.

C. Related Cases

This case was previously before this Court as United States of America v. Scott Michael Galindez, and consolidated cases, Appeal No. 87-3041. See unpublished Memorandum and Order dated September 22, 1987, granting the government's Motion for Summary Reversal and remanding the case to the district court.

These cases are related to the consolidated appeals entitled United States of America v. William and Ellen B. Thomas, Appeal Nos. 88-3034 and 88-3035, which are scheduled for oral argument before this Court on November 8, 1988.

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TABLE OF CONTENTS
TABLE OF AUTHORITIESv
STATEMENT OF ISSUES PRESENTED FOR REVIEWvii
STATUTES AND REGULATIONSix
JURISDICTIONix
STATEMENT OF THE CASEix
STATEMENT OF FACTS3
A The Vigil3
B. December 22, 19865
SUMMARY OF ARGUMENT9
ARGUMENT9
A. THE DEFENDANTS WERE NOT CAMPING, AND THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN CONVICTIONS FOR CAMPING9
1. What Is Camping?9
(a) Round One10
(b) Round Two11
(c) Round Three13
2. The Thomases Were Not Camping, And There Is Insufficient Evidence To Support Their Convictions15
(a) The Thomases Were Not Camping15
(b) The Evidence Elicited At The Trial-Is Insufficient To Support The Convictions17
B. IF THE DEFENDANTS WERE CAMPING WITHIN THE MEANING OF THE REGULATION, THE REGULATION IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO THEIR VIGIL22
CONCLUSION26

TABLE OF AUTHORITIES
Cases Cited
*Big Mama Rag, Inc. v. United States, 631 F.2d 1030 (D.C.Cir. 1980)24, 25
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)24
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)7, 9, 13
*Community for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C.Cir. 1983), rev'd, Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)12, 15
Community for Creative Non-Violence v. Watt, 670 F.2d 1213 (D.C.Cir. 1982)10, 11
Dunn v. United States, 442 U.S. 100 (1979)21
*Grayned v. City of Rockford, 408 U.S. 104 (1972)24
Jackson v. Virginia, 443 U.S. 307 (1979)18
*Keeffe v. Library of Congress, 777 F.2d 1573(D.C.Cir. 1985)25
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)10
Smith v. California, 361 U.S. 147 (1959)25
*Smith v. Goguen, 415 U.S. 566 (1974)9, 25
United States v. Abney, 534 F.2d 984 (D.C.Cir. 1976)10
United States v. Grace, 461 U.S. 171 (1983)17, 21
United States v. Lewis, 626 F.2d 940 (D.C.Cir. 1980)18
United States v. Marley, 549 F.2d 561 (8th Cir. 1977)18
Yates v. United States, 354 U.S. 298 (1957)21
Zaimi v. United States, 476 F.2d 511 (D.C.Cir. 1973)21
Regulations Cited
36 C.F.R. §7.96(i)(1)1, 9, 11
36 C.F.R. §50.25(k) (1975)10
36 C.F.R. §50.27(a) (1980)10
46 Fed. Reg. 55,961 (1981)11
*74 Fed. Reg. 24,304 (1982)9, 13, 17
Federal Rule Cited
Fed.R.Crim.P. 23(c)18
Higher Authority Cited
*John 17:14-193
*Authorities chiefly relied upon are marked with an asterisk.

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

A. Given that William and Ellen Thomas have been engaged in a round-the-clock vigil for several years on the sidewalk of Lafayette Park, calling attention to the dangers of materialism and nuclear war, and that their religiously motivated commitment compels their vigil through rain, snow, and all hours, and that at the vigil are only the approved signs, literature, clothing, and covering necessary to sustain them day-by-day, and that they store extra clothes, literature, and other property at an apartment, as well as use the apartment for bathing, washing clothes, and attending to other personal matters, and that any sleeping they do at the vigil is unplanned, intermittent, and for short periods, when they are not talking to others, reading, meditating or otherwise engaged, and that in this case the evidence of sleeping at the vigil shows no more than one or two hours of sleep on the one occasion observed, did the trial court err in concluding beyond a reasonable doubt that the defendants were camping in violation of 36 C.F.R. 7.96(i)(1)?

B. Given that William and Ellen Thomas have made concerted efforts to discover the reach of the camping regulation, including researching caselaw, reviewing Park Service regulation interpretations, and attempting to obtain the opinion of Park

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Service authorities and legal counsel, and that they have altered their behavior specifically to take into account their understanding of the regulation and to remain outside of its reach, and that, based on the above and their long-standing practice, they understood their vigil to be lawful, if the camping regulation is construed to cover the Thomas vigil, §is their conviction unlawful because the regulation is unconstitutionally vague as applied to them?

STATUTES AND REGULATIONS

The Defendants were convicted of violating 36 C.F.R. 7.96(i)(1):

(i) camping. (1) Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. . . .

(2) Further information on administering these regulations can be found in policy statements published at 47 FR 24302 (June 4, 1982). . . .

JURISDICTION

Appellants were criminal defendants in the District Court and appeal their convictions to this Court pursuant to 28 U.S.C. 1291.

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STATEMENT OF THE CASE

Defendants William and Ellen Thomas are engaged in a 24-hour vigil on the sidewalk of Lafayette Park. They are motivated by sincerely held religious beliefs and their vigil is intended to give witness to the dangers of materialism and nuclear war.

On December 22, 1986, a United States Park Police Officer issued a citation to each defendant for a violation of the camping regulation, 36 C.F.R. §7.96(i)(1).

On February 18, 1987, the government filed Informations against the defendants charging each with one count of violating the camping regulation.

Defendant Ellen Thomas was represented by counsel; defendant William Thomas at all times represented himself.

The defendants filed several pre-trial motions, including a Motion to Dismiss for Lack of an Offense (March 13, 1987), and a Motion to Dismiss by Reason of an Act of God (April 21, 1987).

After a hearing held on April 23, 1987, the district court granted defendants' motion to dismiss the Informations based on the Free Exercise Clause of the First Amendment. Order of District Judge Charles R. Richey, April 23, 1987.

On May 1, 1987, the government filed a Motion to Reconsider the court's Order of April 23, 1987, and the defendants opposed this motion.

On May 26, 1987, the court denied the government's Motion to

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Reconsider. Opinion of Charles R. Richey, United States District Judge, May 26, 1987.

On June 25, 1987, the government filed a Notice of Appeal to this Court, and on July 21, 1987, the government filed a Motion for Summary Reversal, which was opposed by the defendants.

By Order dated September 22, 1987, this Court granted the government's Motion for Summary Reversal. United States of America v. Scott Michael Galindez, and consolidated cases, Appeal No. 87-3041 (unpublished Memorandum). This Court limited its decision to the precise Free Exercise ruling of the district court, and remanded for further proceedings.

The case was then tried before District Judge Charles R. Richey, without a jury, on December 15, 1987, and, at the close of the trial, the court found the defendants guilty as charged.

On December 22, 1987, the defendants filed a motion to reconsider, which the government opposed, and on January 28, 1988, the court denied the motion.

On January 28, 1988, the court sentenced defendant William Thomas to 60 days in jail and a special assessment of $25.00, and defendant Ellen Thomas to 50 days in jail and a special assessment of $25.00.

Notice of Appeal to this Court was filed on January 28, 1988.

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STATEMENT OF FACTS

A. The Vigil

William and Ellen Thomas are engaged in a 24-hour vigil on the sidewalk of Lafayette Park. William Thomas became a constant witness in 1981; Ellen Thomas joined him in 1984. They and their signs, petitions, and leaflets call upon the superpower nations to end the threat of nuclear war. They seek to mobilize the governments to this end by informing and mobilizing the citizenry.

The Thomases are committed to a continuous presence across the street from the White House for two reasons. First, their simple existence, devoid of material goods and pursuits, is a testament to Jesus' call to be "in the world, but not of the world." John 17:14-19. Second, they must be available at all hours to communicate with visitors and passersby about the present danger to life on Earth. They have spoken to thousands of people about the threat of nuclear annihilation; they have garnered thousands of signatures on petitions for peace; thousands have seen their signs and received their leaflets - many, while most of us were sleeping in our beds.

It is not rare for the Thomases to speak to people and be actively engaged in the work of the vigil in the middle of the night. What sleeping they do is unplanned, intermittent, and for short periods; they have given up "a good night's rest" along with most other living accommodations because their cause is the

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future of life on Earth and they do their best to make their commitment worthy of this cause.

Religious conviction provides the Thomases the strength to give up the comforts of a house and living accommodations: They are prophets called by the teachings of Jesus, and they act without thought to themselves because the force that drives them is outside of them. This force compels their vigil. Trial Transcript, December 15, 1987, (hereinafter Tr.) 111, 130-131; Declaration of Defendant Ellen Thomas in Support of an Act of God, filed May 12, 1987; Second Declaration of Defendant William Thomas, filed April 21, 1987; Declaration of William Thomas Regarding the December 22, 1986, Camping Charge, filed March 25, 1987.

The Thomas vigil is on the sidewalk that borders Lafayette Park, across the street from and facing the White House; this sidewalk is technically part of the Park. Usually with the Thomases at the vigil are two four-feet by four-feet signs (these are permitted under a regulation not at issue here) and a number of different leaflets, petitions, books, and other papers that periodically change and are used to communicate with visitors and passersby. Tr. 20, 24-25, 65, 112.

The Thomases have at their vigil only the food, clothing, and other covering dictated by the weather and necessary to sustain and protect them and their literature during a 24-hour period. Blankets or sleeping bags may be used in the winter for

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warmth. These items are removed from the vigil when not in use. Tr. 111-113, 130-131.

The Thomases have an apartment where they store extra papers, clothes, and food, and where they can shower, wash their clothes, cook, and attend to other personal matters. Ellen Thomas Exhibits 3-8; Tr. 95-102, 108-109, 130.

The Thomases are familiar with the regulation at issue here; they have sought explanations as to its reach and they strive to remain outside of it. They are not scofflaws. William Thomas Exhibits 1, 2, and 3; Tr. 86-87, 109, 130-131. B. December 22, 1986

Officer Peter Ward testified he observed the Thomas vigil (as well as the vigil of the two other defendants tried with the Thomases) on December 22, 1986, from approximately midnight until 2:30 a.m. The Thomases were lying on a blanket and covered with a sleeping bag that was unzipped and opened over them. Tr. 2021.

Although lying down, the Thomases were moving during the period the officer observed them, and Ellen Thomas said "hello" to Officer Ward during some of the several times he walked by the vigil. At the vigil were two signs, a couple of bags of unidentified items, some newspapers, and a bicycle. Tr. 22-25.

At about 2:30 a.m., Officer Ward (with another officer who did not testify) issued camping citations to the defendants. Ellen Thomas was instantly aware when he called to her with the citation, and William Thomas responded within two seconds. Tr.

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29-32. The response of the Thomases was different from the other defendants, who were difficult to arouse. Tr. 28-29.

On cross-examination Officer Ward admitted Ellen Thomas was aware of his presence each time he passed by the vigil, and his written report of the incident states the other defendants, not the Thomases, appeared to be sleeping when he observed them on December 22,1986. The officer also stated December 22 was a cold night, freezing, and because of this only five to ten people passed through the Park between midnight and 4:00 a.m. Tr. 6065.

William Thomas testified he was away from the Park on December 21, 1986, and did not arrive at the vigil until 11:45 p.m. He napped from about midnight until 1:30 a.m. on December 22, but was awake for the rest of the night. He also left the vigil and the Park grounds at one point to urinate; he is careful to never urinate, defecate, copulate, wash or perform other living accommodations in the Park. Tr. 109.

On cross-examination, Mr. Thomas agreed there were blankets and sleeping bags at the vigil, and he pointed out he brought his sleeping bag to the vigil from an alley where it is stored when not being used to protect him from the cold. Although he did sleep for a short period, that was not his intent when laying down the sleeping bag, his intent was to keep from freezing while he lay thinking, praying, or meditating. Tr. 111.

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SUMMARY OF ARGUMENT

This appeal is not a facial challenge to the constitutionality of the camping regulation. That day is done. The camping regulation is a proper exercise of government power, and sleeping in tents in Lafayette Park, even as part of First Amendment activity, is properly prohibited by it. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

This appeal concerns the reach of the camping regulation beyond that decided or contemplated in precedent.

The Thomases Were Not
Camping Beyond A Reasonable Doubt

The defendants, William and Ellen Thomas, maintain a continuous vigil on the sidewalk of Lafayette Park. They are compelled to this vigil by the religious belief that their presence itself makes a necessary statement about materialism, in addition to their spoken message about the danger of nuclear war.

The Thomases use no temporary structure for shelter. Neither do they take part in other traditional camping activities. This significantly distinguishes their case from past
precedent.

Although they may intermittently doze or nap for short periods when no other activity holds their attentions, they do not bed down to sleep at any time at the vigil. They keep at the vigil only the property necessary to sustain them day-to-day, and none of it is prohibited. What other property they own is stored

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at an apartment, which they also use for bathing, washing clothes, and attending other personal matters.

The Thomases are not camping at their vigil, and the camping regulation was not meant to apply to them. There may be situations where a vigil can be camping, but this is not one of them.

The evidence collected by the government and adduced at trial was insufficient to prove the Thomases were camping beyond a reasonable doubt.

The Regulation Cannot Be
Constitutionally Applied To The Thomas Vigil

The Thomases have been aware of the camping regulation and they have made concerted efforts to determine its reach, including researching court cases and regulatory pronouncements that construe it. They have also taken specific actions to stay beyond its reach, including keeping their vigil free of excess property, not going to the restroom in the Park, and not preparing food in the Park. They understood their vigil to be lawful.

It would be fundamentally unfair to now apply the camping regulation to the Thomas vigil. Enforcement of the camping regulation in this situation makes the regulation unconstitutionally vague as applied to the Thomases, and their convictions cannot be upheld.

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ARGUMENT

A. THE DEFENDANTS WERE NOT CAMPING AND THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN CONVICTIONS FOR CAMPING

The stated justification for the camping restriction is to protect certain national parks "from activities for which they are not suited and the impacts of which they cannot sustain." 74 Fed. Reg. 24,304 (1982). The Thomas's vigil on the sidewalk of Lafayette Park is not a campsite nor an activity otherwise falling within the legitimate purview of the regulation. This harmless couple was the victim of either vindictive or bored officials with nothing better to do than arrest and prosecute them for falling asleep at their lawful vigil. This is not a trifle: these people went to jail for allegedly falling asleep.

1. What Is Camping?

Before 36 C.F.R. §7.96(i)(1), everyone knew what camping was. Camping was mingling with tents and campfires and the great outdoors. Even when part of or facilitating First Amendment activities, sleeping in tents in a park is camping subject to reasonable restrictions. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). Not difficult. Now, however, the National Park Service has so expanded and muddied the definition of camping that its contour is unclear and subject to the "moment-to-moment judgment of the policeman on his beat." Smith v. Goguen, 415 U.S. 566, 575 (1974).

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Before discussing the present situation, it is important to understand its evolution.

(a) Round One

The first camping regulation was 36 C.F.R. §50.27(a) (1980): "Camping is permitted only in areas designated by the Superintendent. . . ." Lafayette Park was not so designated.

This regulation was litigated in Community for Creative Non-Violence v. Watt, 670 F.2d 1213 (D.C.Cir. 1982). To call attention to the plight of the homeless, the Community for Creative Non-Violence (CCNV) requested a permit to put up tents, use blankets and sleeping bags, and provide food for homeless people in Lafayette Park. The Park Service denied the permit, and CCNV filed suit. While suit was pending, the Park Service granted a permit to CCNV for nine symbolic tents but the permit did not authorize sleeping.

The Park Service issued an Administrative Policy Statement on the issue: "The National Park Service does permit the use of symbolic campsites reasonably related to First Amendment activities. However, camping primarily for living accommodation
_______________________________

1/ Actually, there was another camping regulation litigated before 36 C.F.R. §50.27(a) that involved Lafayette Park. Stacy Abney, like the Thomases, was conducting a round-the-clock vigil in Lafayette Park, and he was arrested several times for violating 36 C.F.R. §50.25(k) (1975), which prohibited, unless authorized by the Superintendent, sleeping, loitering or camping with the intent to remain for more than four hours. Because there were no standards to guide the Superintendent's discretion (Abney had applied for a permit and been refused), under the standards of Shuttlesworth v. Birminaham, 394 U.S. 147 (1969), this Court reversed Abney's convictions an held the regulation as applied to Abney to contravene the First Amendment. United States v. Abney, 534 F.2d 984 (D.C.Cir. 1976).

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must be confined to designated campsites." 46 Fed. Reg. 55,961 (1981).

The District Court ruled that CCNV participants could sleep in the tents but they were not entitled to engage in camping activities like preparing food.

This Court, interpreting the regulation in light of the policy statement, affirmed the District Court and held the regulation did not ban sleeping in this context because CCNV was not using the Park primarily for living accommodations. CCNV prevailed on regulatory interpretation; no decision was made on Constitutional grounds. Watt, 670 F.2d at 1216-17.

(b) Round Two

The Park Service then amended the camping regulation by adding a definition of camping that would encompass a CCNV-type demonstration.

Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above listed activities constitute camping when it appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.

This regulation was later recodified, without change, as the present 36 C.F.R. §7.96(i)(1).

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This regulation was litigated in Community for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C.Cir. 1983), rev'd, Clark v. Community for Creative Non-Violence., 468 U.S. 288 (1984).

Armed with the new definition of camping, the Park Service granted CCNV a permit to erect twenty symbolic tents in Lafayette Park but denied its request to allow the demonstrators to sleep in the tents. CCNV sued for an injunction and lost in the District Court.

This Court reversed en bane, six to five, holding the regulation violative of the First Amendment.

In the course of the opinion, the "sleeping" aspect of the regulation was interpreted by drawing on past practices of the Park Service in issuing demonstration permits. The Park Service had, under this regulation, previously issued a permit to the Vietnam Veterans Against the War which "authorized at least some participants in the demonstration to 'be asleep in the area at all times during the night." 703 F.2d at 589 n.3. Based on this incident and other indications, this Court concluded the Park Service did not interpret the regulation to ban sleeping in Lafayette Park under all circumstances.

[T]he government's camping regulation also allows for "sleeping activities" that are not deemed to constitute use of the area for living accommodation. . . . According to the Park Services' interpretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible "camping" when it is done within any temnorarv structure erected as part of the demonstration.

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703 F.2d at 588-89 (emphasis added).

The Supreme Court reversed the Constitutional holding of this Court, finding the regulation consistent with the First Amendment. The Supreme Court did agree, however, with this Court's interpretation of the term "sleeping" in the regulation. "The Park Service neither attempts to ban sleeping generally nor to ban it everywhere in the parks." Clark, 468 U.S. at 295; see also 74 Fed. Reg. 24,304 (1982) ("Short-time, casual sleeping which does not occur in the context of using the park for living accommodations will not be affected by these regulations.")

Although sleeping per se is not illegal, both this Court and the Supreme Court agreed that "sleeping in tents for the purpose of expressing the plight of the homeless falls within the regulation's definition of camping." 468 U.S. at 292 n.4 (emphasis added).2

(c) Round Three

The Thomas vigil is round three, and this is where the Park Service oversteps its bounds. The Thomases use no tents or structures for shelter. Their vigil, although technically in Lafayette Park, is on the large public sidewalk that borders the Park and Pennsylvania Avenue, facing the White House. The Thomases do not bed down each night - or any night - to sleep at
____________________

2/ There is no discussion in Clark of vagueness under Fifth Amendment due process probably because it was not raised.

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their vigil; they may, when not talking to visitors or passersby, or when not meditating or reading, intermittently doze or nap.

Attempts were made in the Thomas's criminal trial to elicit the contour of the camping regulation. The Assistant Solicitor of the National Capitol Parks, Richard Robbins, was called to testify by the defendants. Mr. Robbins provides advice to Department of Interior officials and the public regarding the camping regulation; he participated in drafting and editing it.

Mr. Robbins stated there is no prohibition against a continuous vigil, sleeping, or lying on a blanket or in a sleeping bag in Lafayette Park. Tr. 85-86. He also stated he knew of three instances where Mr. Thomas, to avoid violating the camping regulation, attempted to clarify with him what was allowed regarding sleeping, storing property, and demonstrating in the Park. Tr. 86-87.

In William Thomas Exhibit 2, a letter from Mr. Robbins to a demonstrator, Mr. Robbins stated:

Of course, the Park Service has not banned 24-hour vigils in Lafayette Park at this time. Further, the camping regulations do not prohibit short-term casual sleep during vigils. However, once casual sleep becomes overnight sleeping, or sleeping for large portions of the night or day, or is coupled with the other indicia of camping, then that conduct violates the camping regulations. See Tr. 89-92.

More to the point, it would be possible for a person to remain in Lafayette Park for five years if they slept intermittently and they carried on all the other activities which would

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constitute -- reasonably constitute living accommodations, such as showering, storing property, doing laundry, taking showers, preparing food -- if a person conducted all of those activities, going to the bathroom out of the Park, and was only sleeping intermittently in the Park, then it would be conceivable that he could maintain a five-year presence without violating the camping regulations? (This was a description of the Thomas vigil.) Answer by Mr. Robbins: "Yes." Tr. 92.

Judge Richey believes the principal element of camping to be sleeping. Tr. 65, 134.

2. The Thomases Were Not Camping,
And There Is Insufficient Evidence
To Support Their Convictions

Based on what can reasonably be derived from the regulation, court opinions, the available interpretations of the regulation, and the evidence elicited during the trial, the Thomases were not camping at their vigil and there is insufficient evidence to support their convictions.

(a) The Thomases Were Not Camping

Under the reported cases and Park Service interpretations described in rounds one and two above, the Thomas vigil does not violate the camping regulation. The Thomases do not use a tent or any temporary structure. To the extent they sleep during their vigil, it is not camping because it is not "done within any temporary structure erected as part of the demonstration." Community for Creative Non-Violence v. Watt, 703 F.2d 586, 589

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(D.C.Cir. 1983), rev'd on other grounds, Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

Even under the interpretations of camping described by the government partisan Mr. Robbins, the Thomas vigil is not a campsite. Long term vigils are permissible, as are using sleeping bags and blankets. Sleep, without other indicia of camping, is permissible unless it is for long periods.

Taking the government's best case, the Thomases were not observed lying down for more than an hour or two, and Mr. Thomas admitted to sleeping for one and one-half hours. Indeed, Officer Ward, the government's witness, admitted that the Thomases, especially Ellen, were awake and aware even during the observation period, and he distinguished them on this point from the others who were ticketed that night.

The only other "camping" indicia was, during this freezing night, the use of blankets and sleeping bags for warmth. These items are permissible, and they are removed from the vigil when not in use.

The Thomases were doing their best to survive and conduct their vigil based on the circumstances at the time. They were not camping even under the government's interpretations of the regulation. And the most telling of these was Mr. Robbins's answer to the long hypothetical given him by Mr. Thomas, supra, because Mr. Thomas described his vigil and Mr. Robbins stated it did not violate the camping regulation. Tr. 92.

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There is another reason why the camping regulation should not be applied to the Thomas vigil. The camping restriction is supposedly necessary to protect certain national parks "from activities for which they are not suited and the impacts of which they cannot sustain." 74 Fed. Reg. 24,304 (1982). As discussed earlier, pitching tents in Lafayette Park and sleeping in them, i.e., CCNV, is clearly camping and the type of impact from which Lafayette Park is legitimately to be protected.

On the other hand, the Thomas vigil is on the large public sidewalk bordering the Park and Pennsylvania Avenue, and it does not create any impact on the Park land that is the focus of the regulation. The government may not "transform the character" of the bordering public sidewalk, which it has no more interest in, vis-a-vis camping, than any other public sidewalk, "by the expedient of including it within the statutory definition" of Lafayette Park, which it does have an interest in protecting from camping. United States v. Grace, 461 U.S. 171, 180 (1983).

The Court should construe the camping regulation to cover the Park land and its contents, not the bordering public sidewalk.

(b) The Evidence Elicited At The Trial
Is Insufficient To Support The Convictions

The verdict of the trial court cannot stand unless supported by evidence sufficient to support guilt beyond a reasonable doubt.

In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an

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opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. Fed.R.Crim.P. 23(c).

Here, the court did not make specific findings or file an opinion or memorandum. The court made a general finding at the close of the trial, concluding beyond a reasonable doubt that each of the four defendants violated the camping regulation. Tr. 133-134.

[I]n criminal cases tried to the court, factual findings made by the trial judge must stand unless determined to be clearly erroneous, at least where such findings concern matters other than the ultimate question of guilt. . . . When the determination of a question of fact is also determinative of the ultimate question of guilt, it is the duty of this court to determine whether or not there is substantial evidence, taking the view most favorable to the government, to support the fact determination by the trial court.

United States v. Marley, 549 F.2d 561, 563 (8th Cir. 1977).

In evaluating a claim of insufficient evidence, to sustain a verdict of guilt the evidence must be "sufficient to permit a reasonable juror to find guilt beyond a reasonable doubt." United States v. Lewis, 626 F.2d 940, 951 (D.C.Cir. 1980) (jury trial); accord Jackson v. Virginia, 443 U.S. 307 (1979).

Here, the court's conclusions are not supported by substantial evidence or evidence sufficient to find guilt beyond a reasonable doubt; they reveal an understandable social bias that made it inconceivable to the court that the Thomases could wholly

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dedicate themselves to their vigil and also not be using it for living accommodations.

1. The court stated that each of the defendants had items, such as blankets or sleeping bags, that would facilitate sleep. Tr. 134. That is not disputed. However, those items are not prohibited and cannot, by themselves, support camping convic-tions.

2. The court went on to state that whether the defendants were sleeping was not the issue. The issue was, according to the court, "whether you, in fact, slept in some instances, which could be the cause of an arrest and the charge, or whether you were using the Park for the purpose of making preparation to sleep. And in either event in this particular case, all of you were doing either one or both." Tr. 134. This statement shows a misunderstanding or misapplication of the regulation.

Sleeping and, what normally comes before sleeping, making preparations to sleep, are not illegal in Lafayette Park. They are illegal if the person involved is using the Park as a campsite, for living accommodations. Here, the only evidence was a one to two hour observation of a well-known vigil on a freezing night during which the participants were lying down and covered from the cold with blankets and sleeping bags. They were obviously and admittedly awake at least intermittently during the observation period, and they had an apartment they used for living accommodations. This is not proof beyond a reasonable doubt that the Thomas vigil was a campsite or that the Thomases

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were using the Park for living accommodations. See section A.2.(a) above.

3. The court concluded its verdict by stating that it "finds it reasonable to conclude . . . that you were on the day in question . . . using the Lafayette Park area as a living accommodation." Tr. 134-135.

However, once again, it is undisputed that the vigil is permissible, that blankets and sleeping bags are permissible, and that sleeping using such items is permissible. It is arguably impermissible if the items are used, not to sustain the participants in a 24-hour vigil, but to maintain a "campsite" and support the occupants of a "campsite" in using the site as their home. Sleep arguably becomes impermissible if it is for long periods, through the night, as when one turns-in after the day is done. The Thomases don't do that, and there is no evidence in this record that they did so on the night in question.

Is the problem, the obvious conceptual problem, that the Thomases had blankets and sleeping bags? Would it have been better if, instead, they wore several layers of clothing or piled extra coats over themselves to keep from freezing? Yes, is the only logical answer, and this Court cannot allow such arbitrary convictions to stand.

One final point needs to be made concerning the evidence in this case: there wasn't much, and the question is, why? There were no admissible pictures, property list, or detailed records made of this one brief observation. Was it because, had a proper

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police investigation occurred, it would have shown the Thomases do not sleep through the night or for long periods at their vigil, and they do not store property there or otherwise maintain a campsite? 3/

Based on meager and conclusory testimony, and unsupported by the type of evidence generally compiled in a criminal case, the Thomases were found guilty and sent to jail.

It is axiomatic that a Constitutional question should be avoided if there is some other ground upon which the case may be disposed of, such as statutory construction. United States v. Grace, 461 U.S. 171, 175-176 (1983). In addition, "penal laws are to be construed strictly," and where more than one meaning is possible, be accorded the most narrow one. Yates v. United States, 354 U.S. 298, 304, 310 (1957); accord Dunn v. United States, 442 U.S. 100, 112 (1979) (questions concerning the ambit of a criminal statute should be resolved in favor of lenity); Zaimi v. United States, 476 F.2d 511, 523-525 (D.C.Cir. 1973).

This Court should strictly construe the camping regulation to cover, as the Park Service has previously represented, situations where a temporary structure is used or where other true indicia of camping are present, unlike here. Alternatively,
__________________

3/ It must be noted that the evidence presented by the defense, although not required, was also scant. The Thomases went to this trial directly after completion of the trial in a related case. See United States of American v. William and Ellen B. Thomas, Appeal Nos. 88-3034 and 88-3035. The trial judge in this case was impatient, rushing the defendants and generally creating the impression, once he heard from the government, that he heard all he needed. See e.g., Tr. 94.

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the Court should limit the camping restriction to the Park land and not allow its enforcement on the surrounding public sidewalk.

The Court can also avoid the Constitutional question by finding the sparse evidence in this case insufficient to prove guilt - camping - beyond a reasonable doubt.

B. IF THE DEFENDANTS WERE CAMPING WITHIN THE MEANING OF THE REGULATION, THE REGULATION IS UNCONSTITUTIONALLY
VAGUE AS APPLIED TO THEIR VIGIL

If this Court upholds these convictions, it will in effect be declaring that the camping regulation only permits a vigil which lasts for a day or two or where a presence is maintained only during daylight hours. That the regulation does not state or intimate this rule will not matter. The Park Service will have succeeded in closing the Park to long-term vigils by the few without the necessity of rule-making or publicly acknowledging it.

Should the Thomases have known that the camping regulation made their vigil illegal? The Thomases have made several attempts, they thought, successful, to discover from the government what was allowed under the regulation. They have even researched the issue for guidance. Mr. Thomas sums it up in his closing.

I have stated that my intention is to attempt to illustrate living without accommodations. However, in order not to be unreasonable, I have tried to accommodate myself to the regulations and I have compromised my principles to a degree in trying to maintain living accommodations outside of the Park in

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Miss Gallant's apartment. And that is where I performed all the functions which accommo-date my body and accommodate my living.

And further attempting to ascertain what I can do and can't do and check the laws, I have found that this is recorded in . . . 702 F.2d 589, that it says, "the only apparent distinction between the sleeping in the veteran's demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground and not in a shelter."
According to the Park Service's inter-pretation of these regulations, participation in a demonstration as a sleeper is impermiss-ible camping when it is done in a temporary structure that is part of a demonstration.
The regulation says that camping is "when it reasonably appears, in light of all the circumstances, that the participants are using the area for living accommodations."
I can't think of any other way to live with less accommodations. I think the fact that . . . CCNV dealt with 20 tents and damage to park lands, there is no indication at all that we have caused damage.
The police officer testified that in a four hour period perhaps ten people passed through the Park. There was no reason for us to be standing up waiting for people who were not coming to talk to. There was every reason to believe that we were just using the sleeping bags to keep warm on a freezing night. Tr. 130-131.

The Thomases have tried to ascertain the scope of the camping regulation and they thought - insist - that they had modified their vigil to stay within the law. They do not use a structure, they do not store property, they do not use the Park restroom or bathe or prepare food at their vigil. They use an apartment for these and other living accommodations. These

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personal rules, among others, are followed by the Thomases specifically to accommodate the regulation.

The vigil is two things: their presence as modern intelligent people who have given up worldly pursuits and possessions, and their written and spoken message for peace. They do not work during the day and sleep at night. They speak to people at all hours, and when they sleep at the vigil, it is intermittent, involuntary, when it overtakes them and there is no one to talk to.

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful con-duct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . Second, if arbitrary and discriminatory enforcement is to be prevented, law must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abut[s] upon sensitive areas of basic First Amendment freedoms, it 'operates to inhibit the exercise of [those] freedoms.'

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) (footnotes omitted); accord City of Mesquite v. Aladdin's Castle Inc., 455 U.S. 283, 289-290 (1982); Big Mama Rag, Inc. v. United
States, 631 F.2d 1030, 1035 (D.C.Cir. 1980).

"[S]tricter standards of permissible statutory vagueness may be applied to

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a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." Smith v. California, 361 U.S. 147, 151 (1959); accord Smith v. Goguen, 415 U.S. 566, 573 (1974); Big Mama Rag, Inc., supra.

The Thomases have taken the Park Service at its word concerning the ambit of the camping regulation and have earnestly tried to steer between what is lawful and unlawful. Surely, based on the record here the regulation is unconstitutionally vague as applied to their vigil. A true camper or person using the Park as a home would know the regulation applied to him or her, not the Thomases. See Keeffe v. Library of Congress, 777 F.2d 1573, 1582 (D.C.Cir. 1985) (regulation unconstitutional as applied because of failure to warn of new interpretation).

The Thomases were arrested because it was winter and a sleeping bag connotes camping. However, using a sleeping bag also happens to be an excellent way to keep warm while maintaining a vigil in the cold. Why weren't they charged in the summer? They were there. In the summer they do not need blankets or a sleeping bag, and that is the only constant difference between the vigil in the winter, when they were charged, and the summer.

Surely the Court can see how unfair, and constitutionally infirm, it is to apply this regulation to the Thomas vigil.

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CONCLUSION

This case is not about camping in Lafayette Park. It is not about homeless people taking up residence in Lafayette Park. It is, whether one agrees with their message or their method, about a man and woman who have dedicated themselves to making a better world. Their method, a round-the-clock vigil, forsaking living accommodations, is what they have been called to by sincerely held religious beliefs.

The Thomases have made themselves available - witnesses day and night. Although it is hard to fathom such dedication, that two sane people would choose this path and are able to persevere in it without sleep through the night and the comforts of home, this lack of affinity must not turn into disbelief.

The facts of this case show that the Thomases are engaged in a 24-hour vigil, not a campout. They do not use the sidewalk of Lafayette Park for living accommodations. What living accommodations they have are at their apartment. This apartment, and, among other things, not using the restroom facilities in the Park and not storing property at the vigil, are compromises they have made to make clear they are not camping or using the Park for living accommodation purposes.

The government's case showed very little sleeping at the vigil, very little property (and none of it prohibited), and it did not contradict the fact that the Thomases are engaged in an open vigil and use no temporary structures for shelter.

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The Thomases were not camping according to the common understanding of the word and according to past interpretations by the Park Service. And in any event, there was insufficient evidence of "camping" elicited at the trial to prove guilt beyond a reasonable doubt.

Finally, the Thomases efforts to define the camping regulation and stay outside of its strictures are undisputed. As far as they could reasonably see, their vigil in 1987, like in 1985, 1986 and now 1988, was and is lawful.

It is a fundamental precept of a democracy that criminal laws are to be strictly construed and questions concerning their reach to be resolved in favor of lenity. For similar reasons, enforcement of a law in a particular case offends the Constitution if it is not reasonably clear that it applies to that case. It is assumed that if the application of the law to the defendant were clear, the defendant would not violate the law. The Thomases are not at the vigil in civil disobedience. They act to avoid violating the camping regulation as they have been led to understand it. Enforcement of the camping regulation against the Thomases under these circumstances is unconstitutional.

Why are we here? Do the Park Service, the lawyers, and the courts have nothing better to do? Does the Park Service believe that jailing the Thomases has preserved Lafayette Park from hordes of others waiting to spend winter nights armed with leaflets but without shelter?

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One final point needs to be made. It has been suggested that the Park Service need not allow 24-hour vigils in Lafayette Park and could impose more restrictions than now exist. That may be. But if that is what the Park Service wants, that is what it should say. The Park Service knows how to make regulations, and it ought to know that using the camping regulation for purposes for which it was not intended and is not suited is wrong and unfair.

Either because the Thomases were not camping as that term has been defined (using a temporary structure on park land), or because there was insufficient evidence of camping at their trial to support guilt beyond a reasonable doubt, or because the camping regulation cannot be constitutionally applied to them, this Court should reverse the convictions.

Respectfully submitted,

//s// Mark A. Venuti

Mark A. Venuti
Counsel for Appellants
Appointed by the Court

September 23, 1988

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Brief of Appellants was delivered, this 23rd day of September, 1988, to:

U.S. Attorney's Office
Appellate Division
555 - 4th Street, N.W.
Washington, D.C. 20001

//s// Mark A. Venuti
Mark A. Venuti