Nos. 88-3015 and 88-3023, Consolidated





Appellee's brief in opposition to appellants' brief merits a short reply.


The Thomases were tried with two co-defendants, and the government in its brief, and the district court in its decision, wrongly lump all the defendants together to draw the conclusion or create the inference that the observing police officer believed the Thomases to be sleeping. See Brief of Appellee at 4-6, 12-13. However, the officer never testified that he believed the Thomases to be asleep during his observation, and, moreover, his criminal incident report on all of the defendants states specifically that the other defendants, not the Thomases, appeared to be sleeping during his observation of December 22, 1986. Transcript at 61-62.


The Thomases do not use a tent or tent-like structure for shelter at their vigil. They have no camping or living accommodation articles at the vigil other than the clothing or covering necessary to sustain them depending on the weather, and there is no evidence to the contrary in this case.

According to the Park Service's inter-pretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible "camping" when it is done within any temporary structure erected as part of the demonstration.

Community for Creative Non-Violence v. Watt, 703 F.2d 586, 589


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

According to the government (Brief of Appellee at 11-13) and the district court (Tr. 65, 134), the real issue in this case and in applying the camping regulation to demonstrators is sleep (and
making preparations to sleep). However, under the "Park Service's interpretation" of the camping regulation, reported by this Court in Watt, any sleeping done by the Thomases at their vigil would not violate the camping regulation. 1/

Of course, it may be possible to camp without a tent or structure, if one takes part in other camping activities such as building a fire, preparing food, or otherwise preparing an area
and using it as a campsite. But the Thomases were not engaged in those activities. They were and are conducting a vigil, and their camping convictions rest solely on sleeping or preparing to sleep (laying down bedding), and, absent a structure or other non-sleep indicia of camping, this conduct simply does not come under the regulation.

Furthermore, the government's desire to make the "reasonable inference" that one who lies down with a sleeping bag at night in

1/ The government criticizes our use of this Court's description in Watt of the Park Service's policy on sleeping as part of a 24-hour demonstration. Brief of Appellee, 20 n.23. The Watt description of this policy was based on undisputed facts and past practices of the Park Service, and it was not limited to that case or any particular set of facts or time period. The government does not deny this was the Park Service's policy, nor does it argue or come forth with any proof that this policy has been changed or disavowed in a legally operative manner.


the cold is sleeping or preparing to sleep (Brief of Appellee at 12-13) is a reasonable inference when applied to a camper or in the normal situation, but not when applied to persons indisputably conducting a long-term continuous vigil well known to the authorities.

The Thomas vigil is on the sidewalk bordering Pennsylvania Avenue and Lafayette Park; it is not in what the lay observer would call Lafayette Park. This violates the principle set out in United States v. Grace, 461 U.S. 171, 180 (1983), that the government may not "transform the character" of a sidewalk bordering a dedicated enclave or grounds "by the expedient of including it within the statutory definition" of that dedicated area.

The government treats this point in a footnote (Brief of Appellee at 21-22 n.25), claiming that it is not properly before the Court, and also by claiming a particular interest in the public sidewalk. Although the precise point was not made in the District Court, the Thomases have claimed throughout the case that their vigil does no damage to the Park and their activities do not come under the legitimate purview of the regulation. See Motion to Dismiss for Lack of an Offense (filed March 13, 1987); Tr. 131.

Furthermore, the government's citation on this point is incomplete. The rule is that issues not asserted in the district court are ordinarily not heard on appeal, especially when there is a need to determine a question of fact. However, "in exceptional


circumstances, where injustice might otherwise result, we have the discretion to consider questions of law that were neither raised below nor passed upon by the District Court." District of Columbia v. Air Florida, 750 F.2d 1077, 1085 (D.C.Cir. 1984).

Here, there is no open fact question. The question presented on this issue is the same legal question presented in Grace: can the government change the character of a public sidewalk that is not different from any other public sidewalk by simply including it in the statutory definition of bordering property. The answer is the same as in Grace, no, and the government's feeble effort to state some special interest in Pennsylvania Avenue's northern public sidewalk is nonsense.

This case presents exceptional circumstances: it is a criminal case in which an injustice has been worked that this Court can and should remedy.


We have argued, if the Thomases were camping within the meaning of the regulation, the regulation is unconstitutionally vague as applied to their vigil. Brief of Appellants, 22-25. 2/

2/ The government states it is not clear that this argument was raised in the district court, although it notes that Mr. Thomas made arguments and posed questions suggesting the contention. Brief of Appellee at 15 n.l9. Mr. Thomas may not have precisely named the issue, but it was clearly raised and before the district court. See Motion to Dismiss for Lack of an Offense (filed March 13, 1987); Transcript at 86-87, 109, 130-131; William Thomas Exhibits 1, 2, and 3. Also, for the reasons stated above regarding the sidewalk issue, the Court can and should decide this issue.


The camping regulation lists several potential indicia of camping, but goes on to state that 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." 36 C.F.R. 7.96(i)(1). The problem is that living accommodation is never defined, and that leaves this crucial component up to the predilections of officers and judges. What to one officer or judge may be a living accommodation is to another a vigil where the participants fell asleep or bundled-up to protect themselves from the cold. There is nothing in the regulation to guide the Thomases or officers or judges as to when a legal vigil crosses the line into a living accommodation, and that violates vagueness doctrine. See Kolender v. Lawson, 461 U.S. 352 (1983).

The government argues that laying down bedding, which it invites the Court to infer was for the purpose of sleep, is alone enough to sustain a conviction under the regulation (Brief of Appellee at 17 and 15 n.18), but that misreads the regulation. None of the potential indicia of camping listed in the regulation constitute camping unless the finder of fact also believes, after looking at all of the circumstances, that the participants are in fact using the area as a living accommodation (which is undefined). The Thomas vigil is well known to the authorities; there is no dispute that all of the circumstances show that a


vigil was being conducted. On the other hand, whether the sidewalk was the Thomases' living accommodation is hotly contested and a matter of opinion. 3/

The truth is that the Thomases have limited their activities and the property they have at the vigil solely to avoid violating the applicable regulations, and it would be difficult to remain alive at the vigil with less. To call their vigil a "living accommodation" is a distortion of any normal understanding of the phrase.

The government's claim that the Thomases were given adequate notice of the new interpretation of the regulation, and that their conduct violated the regulation, by camping citations received in related cases (Appeal Nos. 88-3034 and 88-3035) is wrong. The government states that the related citations preceded the citation in this case (Brief of Appellee at 18 n.22), but they did not. The citation in this case was given on December 22, 1986, and in the related cases in March, 1987.

Furthermore, even if the Thomases had been cited for camping before the time at issue here, that would not provide the required notice. After three years of similar conduct without incident, the government would have the Thomases accept the citation of the officer on the beat as notice that their conduct

3/ The "significance here that Park Service Assistant Solicitor Robbins agreed that 'theoretically"' (Brief of Appellee at 15 n.18) the Thomas vigil does not violate the camping regulation is, among other things, that it shows that whether one is in violation of the regulation (under the government's interpretation) is a matter of opinion.


was suddenly unlawful. The warning or opinion of a police officer, or a formal charge by prosecuting authorities, for that matter, does not provide sufficient notice or cure regulatory vagueness. Under the government's theory, mere warning of an impending arrest would immediately remedy all Constitutional defects.

If the point of the camping regulation is to protect park land and not to inhibit speech activities, the limiting constructions advanced by the appellants (and, regarding sleeping without structures, by the Park Service in the past) not only make practical sense but are also necessary to protect the unwary from arbitrary enforcement. Many things and activities accommodate living, but they are not all indicia of camping. The regulation must be defined to separate campers from demonstrators like the Thomases (or even people with blankets sleeping in the Park on their lunch-hours).

It is necessary to look at intent and "all the circumstances." 35 C.F.R. §7.96(i)(1). The Thomases are conducting a 24-hour vigil and that is not prohibited. They speak with their continuous presence and are committed to being available at any time of the day or night to communicate with visitors and passersby. Because there are few visitors and passersby late on cold winter nights, they are not active then and must protect themselves from the weather to survive. This has meant using blankets and sleeping bags.

Yes, when not talking or reading or meditating they may doze


off, usually to be soon awakened by any one of many normal occurrences which make undisturbed sleep impossible for two people conducting a 24-hour vigil on the sidewalk bordering Pennsylvania Avenue. Because they are human and must sleep some time, must they, to avoid jail, play cat and mouse with the police or give up the vigil they have been conducting for years?

This camping arrest was the first in three years. Should they have anticipated the arrests, and, failing that, have then assumed the officers were right in citing them for camping? Not according to the record in this case.

The Park Service wants this Court to write it a new policy statement on the reach of the camping regulation. It wants the Court to state that the camping regulation prohibits a continuous
presence on the sidewalk bordering the Park for more than a day or two because no one can stay awake longer than that.

Not so? There is more to it than sleep? Then the camping regulation is a foul weather regulation. In the summer there are no arrests of the Thomases because they do not need coats or
blankets or sleeping bags for warmth. It is in the winter, or the rain, that they violate the regulation because they must have protection for their literature and themselves.

The choice is between a regulation that applies to campers who potentially threaten to damage protected park land, or one that applies arbitrarily to a large class of persons who pose no


threat or potential threat to park resources. 4/

The Court must resist the temptation to ignore what the Thomases are actually doing, their purpose and the meaning of their presence on the sidewalk; it must resist the temptation to see past them and merely tally arguable indicia of living accommodations, as if they were squatters looking for a place to live.

Instead, the Court must see the Thomases for what they are, and this prosecution for what it is. There are separate regulations which, among other things, protect government property from damage, restrict storage of property in Lafayette Park, and limit the size and number of signs allowed by demonstrators in the Park. These regulations keep demonstrations and vigils like the Thomas vigil within clear limits.

The camping regulation has no legitimate bearing on the Thomas vigil. Its legitimate focus is on campers and those who threaten park land by using it for living accommodations, i.e., breaking ground, pitching tents, building fires, storing property, preparing food, eliminating wastes, etc. The Thomases are not campers and they do not use the Park as a living accommodation. They are participants in a 24-hour vigil, who, according

4/ The interpretation of the camping regulation currently sought by the Park Service would subject a homeless person or family to arrest for sleeping in the Park. We are not aware of any citations for camping given to homeless people who frequent and sleep in the Park. At this time, at least, it appears the camping regulation is applied in Lafayette Park to demonstrators only.


to the government's best evidence, bundled themselves from the cold on a Winter's night and fell asleep. For this they spent fifty and sixty days in jail.

This Court should bring reason to this shameful situation and reverse the convictions.

Respectfully submitted,

(signed Mark A. Venuti)
Mark A. Venuti
Suite 710
2001 S Street, N.W.
Washington, D.C. 20009
(202) 797-8366

Counsel for Appellants, Appointed
by the Court


I certify that a copy of the foregoing Reply Brief of Appellants was mailed, this 14th day of November, 1988, to:

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

(signed Mark A. Venuti)
Mark A. Venuti