UNITED STATES OF AMERICA, Appellee, v. WILLIAM THOMAS and ELLEN B. THOMAS, Appellants.
1/ Lafayette Park, a roughly seven acre square located across Pennsylvania Avenue from the White House, is a Memorial-core area park -- "a garden park with ... formal landscaping of flowers and trees, with fountains, walks and benches." Clark v. CCNV, 468 U.S. 288, 290 (1984) (quotations and citations omitted).
§ 7.96(i). 2/ Appellants moved to dismiss the informations
based on alleged violation of their First Amendment rights to
free exercise of religion; the District Court granted the
2/ The United States Department of the Interior, through the National Park Service, has been assigned responsibility for the management and maintenance of all National Parks. The National Park Service is required to
promote and regulate the use of the ... national parks ... by such means and measures as conform to the fundamental purpose of said parks ..., which purpose is to conserve the scenery and the national an historic objects and the wildlife therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.
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.
Id. The regulation further provides:
The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these
motion by Order of April 23, 1987. Following the government's unsuccessful motion to reconsider the April 23 Order (see Order of May 26, 1987, denying Motion to Reconsider), the government appealed the District Court's ruling to this Court, and moved for summary reversal. In an unpublished Memorandum and Order of September 22, 1987, this Court summarily reversed the District Court's judgment and remanded the case for further proceedings (united States of America v. Scott Michael Galindez, and consolidated case, No. 87-3041). Following a bench trial before the Honorable Charles R. Richey on December 15, 1987, the District Court from the bench found the appellants guilty as charged (Tr. 134). 3/
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1987. 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 engaged.
3/ "Tr." refers to the 141 page transcript of trial proceedings In this case on December 15, 1987.
living accommodation within the meaning of the "camping" regulation (Tr. 134-135). In so ruling, the Court expressly noted that, under the explicit language of that regulation, the nature of the activities in which appellants were engaged when they violated the regulation - no matter how laudable or noble those activities might be -- made no difference in the inquiry as to whether their conduct had violated the law (Tr. 135).
4/ Two co-defendants of the appellants, Mr. Stephen Semple and Mr. Philip Joseph, were also tried for and convicted of camping violations in the proceedings below, but have not appealed. A third co-defendant, Michael Galindez, had initially been charged, but was not brought to trial (Tr. 39-40).
been unzipped, spread open, and placed on top of the appellants so as to cover them both (Id.). Ward further testified that during the period of his observations the appellants' heads were covered by their "blankets" -- except for occasional moments when Mrs. Thomas stuck her head out as the Officer passed by (Tr. 22). In the same vicinity as the appellants, within a 10 yard radius of their location, Ward also observed appellants' co-defendants lying apparently asleep (Tr. 21, 25-27).
5/ Ward did not see Thomas get up or otherwise indicate that he was awake during this period of time (Tr. 22); nor did the Officer recollect hearing Mr. Thomas say anything (Tr. 33-34).
6/ Ward testified that be believed he and Mrs. Thomas might have exchanged "Hello's," at some point (Tr.23). He did not, however, see her sit up; she remained lying down (Tr. 61).
7/ The bicycle was leaning up against one of the Thomases' signs, and the small red bag was within their reach. The two plastic bags were sufficiently close to the appellants that if they had sat up and rolled over, they would have gained access to the bags (Tr. 23).
8/ Ward's continuous observation was interrupted when
magistrate's violation notices for camping in undesignated areas to the appellants and their co-defendants (Tr. 27-28). When Ward called out to the appellants, Mrs. Thomas lifted her head up and responded (Tr. 29-30, 32). Mr. Thomas responded shortly thereafter, perhaps after being "nudged" by his wife (Tr. 3031).
(footnote continued from previous page) inside at about 2:05 a.m. to start writing citations. He returned to the appellants' site at approximately 2:26 a.m. (Tr. 33) to find that the appellants' situations had not changed since his departure beyond -- perhaps --that they might have rolled over onto their backs (Tr. 33).
[T]heoretically then, in [Robbing'] opinion, 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 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 regulation? (Emphasis supplied) (Tr. 92).
9/ Gallant testified that she knew Mrs. Thomas "from the peace (footnote continued)
(footnote continued from previous page) park anti-nuclear vigil in the park" (Tr. 95), and in the past had frequently joined the appellants on the vigil -- at one time on a daily basis (Tr. 105).
10/ Gallant estimated that such persons number "about ten or twelve from time to time" (Tr. 99).
11/ Gallant also uses the telephone, particularly for outgoing calls (Tr. 102-103).
12/ Gallant also identified photographs of file cabinets containing the Thomases' records of the vigil, which are kept in Gallant's home (Tr. 97, 100), as well as of a trunk containing clothes and other possessions of the appellants (Tr. 100).
(footnote continued from previous page) at 7), and only engage in sleeping that is "unplanned, intermittent, and for short periods" (Appellants' brief at 3); or that appellants "do not work during the day and sleep at night" but instead "speak to people at all hours," sleeping only intermittently, involuntarily, and when sleep "overtakes them and there is no one to talk to" (Appellants.' brief at 24). Neither did any evidence adduced at trial describe or establish the character, extent, or duration of the "vigil" referred to by appellants' in their brief.
15/ No legal distinction exists, moreover, between circumstantial and direct evidence. United States v. Sutton, 801 F.2d at 1358, citing Holland v. United States, 348 U.S. 121, 139-40 (1954).
16/ We also note that there was some evidence of an additional indicator of prohibited camping, i.e. the storage of personal property on park land (see Tr. 23).
[i]f the evidence reasonably permits a verdict of acquittal or a verdict of quilt, the decision is for the [factfinder] to make. Id; see also United States v. Sutton, supra, 801 F.2d at 1358.
17/ In fact, appellants' contentions that they use these articles to keep warm and not to sleep amount to little more than a game of semantics. The primary purpose of sleeping bags and blankets when used as bedding materials is generally to provide warmth for a sleeping individual. The purposes of keeping warm and facilitating sleep, we submit, cannot realistically be kept distinct when a tired individual lies down and pulls up the "covers" on a chilly evening.
18/ It is of no significance here that Park Service Assistant Solicitor Robbins agreed that "theoretically" 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 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 regulation." This hypothetical did not include the information that the involved person engaged in conduct expressly identified as indicia of camping in the regulation, i.e. making preparation for sleep by laying down bedding material for the purpose of sleep, nor did it establish any necessary agreement between Thomas in posing the hypothetical and Robbins in responding to it as to precisely what is meant by "sleeping intermittently".
19/ It is not clear that the appellants' "unconstitutionally vague as applied" argument was ever raised in the District Court. Although some of Mr. Thomas' arguments and the substance of some of his questions posed to trial witnesses in the Court below suggest the contention, appellate counsel has found no explicit reference to this issue in the record of proceedings before the District Court. Consequently, the constitutional issue does not appear to be properly before this Court on appeal. District of Columbia v. Air Florida, 750 F.2d 1027, 1084-85 (D.C. Cir. 1984); Miller v. Avirom, 384 F.2d 319, 321-22 (D.C. Cir. 1967).
20/ In Clark, the Supreme Court upheld the camping regulation against a facial attack on constitutional grounds, holding that the regulation represented a valid time, place, and manner restriction upon First Amendment activity, as applied to a demonstration in which the Center for Creative Non-Violence (CCNV) sought to have demonstrators sleep in tents in Lafayette Park and on the Mall to illustrate the plight of the homeless. The decision of this Court, which was before the Supreme Court for review, had expressly rejected a vagueness challenge to the camping regulation because the CCNV's conduct was "clearly proscribed by the regulations." Community for Creative Non-Violence v. Watt, 703 F.2d 586, 591 n.6 (D.C. Cir. 1983). Although the Supreme Court did not expressly discuss the vagueness issue in its opinion, it did take cognizance of the fact that a void-for-vagueness argument had been raised below. 486 U.S. at 292. Therefore, the Court's decision upholding the regulation against constitutional attack is, at least, an implicit determination that the regulation at issue here was not vague as applied to the Clark v. CCNV case, and is thus not unconstitutionally vague on its face. See Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982)(Successful challenge to legal prohibition as unconstitutionally vague on its face must demonstrate that law is impermissibly vague in all its applications).
[v]ague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws 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 applications. Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972)(footnotes omitted).
21/ The constitutional analysis applicable to allegedly
vague statutory prohibitions applies with equal force to regulations.
See Big Mama Rag v. United States, 631 F.2d 1030 (D.C.
22/ Appellants' contention that they did not have fair warning of the camping regulation to their activities on or about December 22 is also contradicted by the fact, of which we submit this Court may take judicial notice, that they had received citations for camping under similar circumstances on March 22, 26, 27, and 29, 1986. See Record on Appeal in William Thomas and Ellen B. Thomas v. United States of America, Nos. 88-3034 and 88-3035 (scheduled for Oral Argument on November 8, 1988).
23/ Appellants appear to assert, for example, that they reasonably understood the definition of sleeping activities constituting prohibited camping to be limited to sleeping within a structure, such as a tent. (See Appellants' Brief at 9, 12, 15, 23). This construction is apparently based upon an entirely out-of-context reading of portions of this Court's opinion in CCNV v. Watt, and the Supreme Court's subsequent decision in the same case in Clark v. CCNV. Since the facts of that case concerned application of the camping regulation to individuals sleeping in tents, the reviewing courts did not need to go any further than to observe that, both under the Park Service reading of its regulations and in reality, sleeping within the shelter of a tent plainly crossed the threshold of prohibited camping. Such observations in the context of the CCNV case, however, neither intimate that the regulation prohibits sleeping exclusively when it occurs under a tent-like structure, nor obscure the express language of the regulation itself, providing a broader definition of camping.
24/ Thus, in effect, appellants raise a contention of vagueness based on facts other than those of their own case. Unconstitutional vagueness, however (as distinguished from overbreadth implicating First Amendment freedoms) must be demonstrated with specific reference to the facts at hand, and not in the abstract. See e.g. United States. of America v. Jim A. Brown, No. 88-3010 (October 21, 1988), slip op. at 3.
25/ Appellants also raise, apparently for the first time on [-is appeal, on argument that in light of the purposes of the camping regulation the rule should not be interpreted to apply to the sidewalk bordering Lafayette Park -- an area which, as appellants concede (see Appellants brief at 4) falls within the
JAY B. STEPHENS
United States Attorney
JOHN D. BATES
R. CRAIG LAWRENCE
EDITH S. MARSHALL
Assistant United States Attorneys
(footnote continued from previous page) physical confines of the Park. See Appellants' brief at 17. Since this contention was not raised before the District Court, it cannot now properly be argued on appeal. See District of Columbia v. Air Florida, 750 F.2d 1084-85; Miller v. Avirom, 384 F.2d 321-22.