United States v. Thomas CR 87-0231

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES                              FILED FEB 9 1988
                                      CLERK, U.S. DISTRICT COURT
     v.                                  DISTRICT OF COLUMBIA

WILLIAM THOMAS,                             Cr. No. 87-0231
ELLEN THOMAS,
     Defendants

MEMORANDUM

This matter came before the court for a bench trial. Defendants William Thomas and Ellen Thomas are charged with camping in Lafayette Park, in violation of 36 C.F.R, 8 7.96(i) (1), between March 22 and March 29, 1987. Camping is defined by the regulation as:
the use of park land for living accommodation purposes such as sleeping activities, or making preparatians 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 inient of the participants or the nature of any other activities in

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which they may'also be engaging.

36 C.F.R. § 3.96(1)(1),

At trial, the governmentcalled three witnesses--the United States Park Police officers who had issued camping citations to defendants on fodr. occasions between March 22 and Harch 29, 1987.

March 25/26. 1987

The first witness, patrol officer Daniel DeLullo, testified that he issued a camping citation to each defendant just after midnight on March 26th, Officer T)eLullo stated that he observed defendants three times before issuing the ticket.

According to Officer DeLullo, at 10:00 p.m. on March 25, he observed them sitting on one or two sleeping bags at their demonstration site, which is located on the sidewalk that forms thesouthernmost border of the park, across from the White House, on the 1600 block of Pennsylvania Avenue, N.W. in the District of Columbia. In addition to defendants, present at the site were folne bottles of liquid, papers, plastic covering the signs, and Ellen Thomas' bicycle. At 11:00 a,m., DeLullo observed that defendants appeared to be sleepingi as they were laying down in the sleeping bag(s). Plastic was all over the site, according to the officer. Officer DeLullo reported that by this time he lifted the plastic and told defendants that they were in violation of the camping regulation,

Officer DeLullo returned to defendants' site again at 12:10 a.m., according to his testimony, and found defendants in the

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same place hnd posture; Standing one foot away from'defendants and detecting no movement, Oificer DeLullo concluded that they were asleep. He wrote out citations for violating the.camping regulation, lifted the plastic and gave a ticket to each defendant.

Under cross-examination bycounsel for defendant Ellen Thomas, Officer DeLullo testifi$d that defendants did not break ground, had no tent or fire, and did na cooking, DeLullo also conceded that his criminal incident report did not mention Ellen Thomas' bicycle, nor that he had warned defendants before issuing the citation,

During cross-examination by defendant William Thomas, proceeding pro se, Officer DeLullo acknowledged that sleeping in the park, by itself, is not prohibited, DeLullo stated that there were at least three bags of clothing also present at the site. The officer agreed with Wiliiam Thomas' suggestion that it was possible that the bags he saw at defendants site could have been left there by other people whd frequent the park. DeLullo added, however, that the bags were right next to defendants' site and that he did not recall seeing anyone within 15 to 20 feet of their site. DeLullo agreed with defendants characterization of the 1600 block of Pennsylvania Avenue as busy, with cars passing and ambulances going to George Washington Hospital.

In her defense to these aliegatians, Ellen Thomas testified that on March 25 at 11:00 p.m. she was sitting at her s'igns on the south sidewalk of Lafayette Park. She testified that she had

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a blanket but did recall hav having a sleeping bag with her. Ms. Thomas stated that she did not sleep between the hours of 11:00 that nlght to 8:00 the the next morning. On cross-examination she acknowledged that she was lying prone at 12:10. Ms. Thomas stated further that she had with her a backpack and some literature but no plastic bags with clothes in them.

William Thomas testified in his defense that on March 25, 1987, he had been gone from the park most of the day; Mr. Thomas was not sure exactly when he returned, Thomas agreed that he was lying on bedding and was covered with plastic at his demonstration site when Officer DeLullo came on duty the night of the 25th, and that DeLullo warned demonstrators at other sites that they were in violation of the camping regulations. Mr. Thomas also acknowledged that there was a bicycle at the site, and agreed that his backpack and literature in plastic bags may also have been present. Defendant acknowledged that he was lying down when DeLullo came by the second time and that DeLullo warned him that he was violating the regulations. Mr. Thomas agreed that DeLullo gave out citations to defendants the third time the officer returned, at about 12:10 the next morning. March 22 and March 27, 1987

Park Police officer Richard DeRiso testified that he issued camping citations to both defendants on March 22 and on March 27, 1987. Officer Deaiso testified 'that on March 22, 1987 at approximately 6:00 a.m. he observed the defendants at their demonstration site on the south sidewalk of Lafayatte Park.

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Defendants were in sleeping bags and lying on blankets, according to the officer. He also reported seeing clothes at the site, strewn about in heaps within several feet of defendants. DeRiso reported standinq next to defendants, whose heads were covered, and hearing snoring. DeRiso then woke defendants up and told them they were in violation of park regulations. Officer DeRiso reported again observing the defendants asleep at their site, which was in the same condition, on March 27, 1987 at approximately 6:00 a.m. The officer woke defendants and issued citations,

On cross-examination by counsel for Ellen Thomas, Officer DeRiso agreed that it was possible that on March 22, 1987, he may not have issued the ticket until 7:30 that morning. DeRiso acknowledged that his incident report for March 27, 1987 did not state that defendant was sleeping, because he could not tell for sure. The officer testified also that it was not prohibited, under the proper circumstances, to have a 24-hour vigil in the park, even for 365 days, nor to have a blanket, or coffee, or leaflets, or clothing fopr reasonable use in a 24-hour period.

On cross-examination by William Thomas, DeRiso agreed that sleeping in the park, by itself, was not unlawful. He stated it was possible that on March 27, 1987 he did not issue the ticket until 9:30 a.m. DeRiso acknowledged that he did not know to whom the personal property around the demonstration site belonged.

In her defense, Ellen Thomas testified tbat on March 22, 1987 she was at her demonstration site, where she had a sleeping

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bag and perhaps a blanket, at 6:20 a.m; Also at hersite, she stated, were a backpack she keeps with her at all times, at most two bottles (one water bottle and one with juice) and a bicycle she takes wherever she goes, She denied having any clothes stored in bags there,

Ellen Thomas testified also that on March 27th, 1987 at 6:00 a.m., she was sitting at her signs talking to William Thomas, She had a sleeping bag and a plastic covering to keep warm. She had no plastic bags with clothes in them, but stated that she and William Thomas wrap their backpacks up in plastic to keep them from getting wet, Ms. Thomas testified that William Thomas had arrived at the park at 5:55 a.m. and that Officer DeRiso warned defendants that they were violating the camping regulations. She stated that she left a little while later to take the sleeping bags out of the park and did not receive a citation that day.

William Thomas testified in his defense that at approximately 4:00 a.m. on the morning of March 22nd, he slept for about an hour and half, He was not sure if he had slept for any other time that night. Thomas also testified that he took the sleeping bags out of the park at approximately 6:30 a,m. and spent the morning doing errands outside of the park. He stated that when he returned to the park at about noon on March 22, Ellen Thomas gave him a ticket that Officer DeRiso had made out in William Thomas' name and given to her.

Mr. Thomas testified also that on Msrch 23, 1987, he was gone from the park for most of the early morning, arriving just

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before 6:00 a.m. Mr.. Thomas testified that he and Ellen Thomas were lying down in their sleeping bags talking when he observed Officer DeRiso park his car and approach them, Officer DeRiso told defendants they were violating the camping regulation. Ellen Thomas then got up and took the one sleeping bag they had out of the park,

William Thomas testified that on that morning he was slouched against his sign and DeRiso toid him to sit up because it looked like he was camping. When defendant refused, DeRiso gave him a ticket. DeRiso also tried to give a ticket for Ellen Thomas to William Thomas but he refused to take it. Mr. Thomas reported that he did not sleep in the park at all that day.

Robert Dorrough was called as a witness by defendants and testified that he was present on the morning of March 27, 1987 when Officer DeRiso was issuing camping tickets, one of which Dorrough received. Dorrough stated that DeRiso first came by around 6:30 a.m. and later returned at approximately 9:00 a.m. at which time he gave tickets to Dorrough and William Thomas, but not to Ellen Thomas, who was not in the park then. March 29. 1983

Park Police Officer William Doerrler testified that he issued camping citations to defendants an March 29, 1987. Officer Doerrler reported that he observed defendants at 6:15 a.m. on March 29th at their demonstration site on the southern sidewalk of Lafayette Park. Ellen Thomas was sitting, leaning against a sign, William Thomas was prone, lying on matting, with

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a blanket over him. Doerrler reported seeing clothes in heaps, bundles and bags around the site, The officer stated that he warned defendants they were in violatian of the regulations.

When the officer returned with violation tickets, William Thomas had left. When Mr Thomas returned to the park later in the day, Officer Doerrler gave the tickets to him.

On cross-exaination by counsel for Ellen Thomas, Officer Doerrler acknowledged that although he believed both defendants were asleep when he observed them, he could not be sure. Doerrler also conceded that his incident report did not mention the presence of bags around the site, and that he didn't know to whom such personal property belonged. Under re-direct questioning by the government the officer explained that he had seen no one else around defendants' site, On cross-examination by William Thomas, Doerrler agreed that there was no prohibition against using a blanket to cover yourself in the park.

In defense, Ellen Thomas testified that on March 29, 1987 at 6:15 a.m. she was leaning against her sign talking to Park Police Officer Ferbee. Ms. Thomas stated that she did not have a sleeping bag, buta blanket was pulled up over her legs, Ms. Thomas stated that there were no plastic bags at the demonstration site.

William Thomas testified in his defense that in the early morning of March 29, 1987, he napped from 3:00 to 5:00 or 5:30 a.m. Thomas stated that Officer Doerrler came on duty at 6:00 a.m. but that neither he nor Ellen Thomas received a ticket from

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Doerrler that day, He testified furtber that defendants had no sleeping bags in the park on that date but may have used a blanket because it was chilly,

The court denied defendants' motions for judgment of acquittal. William Thomas renewed his motion to subpoena Richard Robbins and Patricia Bangert, Assistant Solicitors in the Department of the Interior. The court granted defendant motion with regard to Richard Robbins and denied the motion with regard to Patricia Bangert.

Robert Dorraugh testified on behalf of defendants. Mr. Dorrough stated that he was in the park during the period March 22 to March 29, 1987 and observed Ellen Thomas maintaining vigils, leafleting, and speaking tc passersby about the elimination of nuclear weapons. He testified that Ellen Thomas' actions were motivated by her belief in God, her vow of poverty and her religious duty to communicate and demonstrate. Dorrough stated that defendants moved their night-time coverings away from the park during the day, and that he has never seen them store at their demonstration site any clothing or literature greater than an amount they would use within a 24-hour period.

Dorrough also stated that other people leave their belongings around Ellen Thomas' site. Mr. Dorrough testified that homeless people, some of whom are alcoholics, congregate at some benches to the north of defendants' demonstration site. These people, he noted, have all of their personal belongings with them, and sometimes leave them behind for a period of time.

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Dorrough stated that Ellen Thomas removes from her site any property left there by others. Dorrough testified also that he has never seen Ellen Thomas sleep continuously during -the night. He noted that she talks to passersby, and that the po~icepolice wake up people in the park at night.

Philip Joseph testified for the defendants regarding his observations of their activities in Lafayette Park, Mr, Joseph stated that Ellen Thomas removes her sleeping bag and blanket from the park everyday at sunrise. Joseph stated that he has seen other people, such as homeless peaple and alcoholics, leave things around her demonstration site but that she keeps no extra literature, clothing or food there beyond what she would use in a 24-hour period. He also testified that the police often confiscate as abandoned such personal property that is left unattended.

Memorandum Continued
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