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,
WILLIAM AND ELLEN B. THOMAS Appellants.
BRIEF OF APPELLANTS
Mark A. Venuti, Esquire
3600 M Street, N.W.
Washington, D.C. 20007
Counsel, Appointed by the Court, for William and Ellen B. Thomas
Professor Burton D. Wecheler
Washington College of Law
Washington, D.C. 20015
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED
A. Parties and Amici
The following parties, intervenors, and amici appeared
Ellen B. Thomas
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 See unpublished Memorandum and Order dated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 AUTHORITIES||v|
|STATEMENT OF ISSUES PRESENTED FOR REVIEW||vii|
|STATUTES AND REGULATIONS||ix|
|STATEMENT OF THE CASE||ix|
|STATEMENT OF FACTS||3|
|A The Vigil||3|
|B. December 22, 1986||5|
|SUMMARY OF ARGUMENT||9|
|A. THE DEFENDANTS WERE NOT CAMPING, AND THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN CONVICTIONS FOR CAMPING||9|
|1. What Is Camping?||9|
|(a) Round One||10|
|(b) Round Two||11|
|(c) Round Three||13|
|2. The Thomases Were Not Camping, And There Is Insufficient Evidence To Support Their Convictions||15|
|(a) The Thomases Were Not Camping||15|
|(b) The Evidence Elicited At The Trial-Is Insufficient To Support The Convictions||17|
|B. IF THE DEFENDANTS WERE CAMPING WITHIN THE MEANING OF THE REGULATION, THE REGULATION IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO THEIR VIGIL||22|
|TABLE OF AUTHORITIES|
|*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.
|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|
|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|
|Higher Authority Cited|
|*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
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). . . .
Appellants were criminal defendants in the District Court
and appeal their convictions to this Court pursuant to 28 U.S.C.
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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
On May 26, 1987, the court denied the government's Motion
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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
Notice of Appeal to this Court was filed on January 28,
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
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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
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,
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
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
Camping Beyond A Reasonable Doubt
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
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
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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Constitutionally Applied To The Thomas Vigil
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.
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
This regulation was later recodified, without change, as
the present 36 C.F.R. §7.96(i)(1).
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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 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.
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
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
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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,
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.
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,
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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
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
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.
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Is Insufficient To Support The Convictions
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.
[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
United States v. Marley, 549 F.2d 561, 563 (8th Cir.
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
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
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."
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
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?
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
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.
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
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.
VAGUE AS APPLIED TO THEIR VIGIL
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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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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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
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.
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
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.
- 25 -
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.,
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
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.
- 26 -
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
- 27 -
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.
//s// Mark A. Venuti
Mark A. Venuti
Counsel for Appellants
Appointed by the Court
September 23, 1988
- 28 -
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
555 - 4th Street, N.W.
Washington, D.C. 20001
//s// Mark A. Venuti
Mark A. Venuti