Nos. 88-3034 and 88-3035, Consolidated

UNITED STATES OF AMERICA,
Appellee,

v.

WILLIAM AND ELLEN B. THOMAS
Appellants.

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

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

Of Counsel:

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

A. Parties and Amici The following parties, intervenors, and amici appeared below:

William Thomas

Ellen B. Thomas

B. Rulings Under Review

The rulings appealed from are:

(1) Memorandum and Order of District Court Judge Thomas A. Flannery, dated February 5, 1988, and contained in the Record References.

(2) Denial by District Court Judge Thomas A. Flannery of defendants' motions to dismiss on First Amendment grounds and for unconstitutional application of the regulation. Trial transcript, December 15, 1987, at 270-274; Memorandum of District Judge Thomas A. Flannery, February 5, 1988, at 15.

C. Related Cases

These cases are related to the consolidated appeals entitled United States of America v. William and Ellen B. Thomas, Appeal Nos. 88-3015 and 88-3023, which are scheduled for oral argument before this Court on December 2, 1988.

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . V

STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . VII

STATUTES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . IX

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Vigil . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. The Days Tickets Were Issued For Regulation Violations. . . . . . 5

1. March 25/26, 1987 . . . . . . . . . . . . . . . . . . . . . . . . 5

2. March 22, 1987 . . . . . . . . . . . . . . . . . . . . . . . . . .7

3. March 27, 1987 . . . . . . . . . . . . . . . . . . . . . . . . . .8

4. March 29 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . .11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. THE DEFENDANTS WERE NOT CAMPING,

AND THERE IS INSUFFICIENT EVIDENCE

TO SUSTAIN CONVICTIONS FOR CAMPING. . . . . . . . . . . . . . . . . .13

1. What Is Camping? . . . . . . . . . . . . . . . . . . . . . . . . .13

(a) Round One . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

(b) Round Two . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

(c) Round Three . . . . . . . . . . . . . . . . . . . . . . . . . . .18

The Thomases Were Not Camping,

And There Is Insufficient Evidence

To support Their Convictions . . . . . . . . . . . . . . . . . . . . 21

(A) The Thomases Were Not Camping. . . . . . . . . . . . . . . . . 21

(b) The Evidence Elicited At

The Trial Is Insufficient

To support The Convictions. . . . . . . . . . . . . . . . . . . 22

B. IF THE DEFENDANTS WERE CAMPING WITHIN

THE MEANING OF THE REGULATION, THE

REGULATION IS UNCONSTITUTIONALLY

VAGUE AS APPLIED TO THEIR VIGIL . . . . . . . . . . . . . . . . .28

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

TABLE OF AUTHORITIES

Cases Cited

Ashwander v. Tennessee Valley Authority,

297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . 27

City of Mesquite v. Aladdin's Castle, Inc.,

455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . . 32

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) . . . . . . . . . . . . . . . . . . . 11, 14, 16, 17, 21

*Community for Creative Non-Violence v. Watt,

703 F.2d 586 (D.C.Cir. 1983) . . . . . . . . . . . . . . .16, 17, 21

Community for Creative Non-Violence v. Watt,

670 F.2d 1213 (D.C.Cir. 1982) . . . . . . . . . . . . . . 14, 15

Dunn v. United States, 442 U.S. 100 (1979) . . . . . . . .27

*Grayed v. City of Rockford, 408 U.S. 104

(1972) . . . . . . . . . . . . . . . . . . . . . . . . . .32

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . .23

Shuttlesworth v. Birminaham, 394 U.S. 147

(1969) . . . . . . . . . . . . . . . . . . . . . . . . . .14

Smith v. California, 361 U.S. 147 (1959) . . . . . . . . .32

*Smith v. Goguen, 415 U.S. 566 (1974) . . . . . . . . . . 14, 32

United States v. AbneYy, 534 F.2d 984

(D.C.Cir. 1976) . . . . . . . . . . . . . . . . . . . . . 14

United States v. Lewis, 626 F.2d 940

(D.C.Cir. 1980) . . . . . . . . . . . . . . . . . . . . . 23

United States v. Marley, 549 F.2d 561

(8^th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . .23

Yates v. United States, 354 U.S. 298

(1957) . . . . . . . . . . . . . . . . . . . . . . . . . .27

Regulations Cited

36 C.F.R. §7.96(i)(1) . . . . . . . . . . . . . . . . . . 1, 13, 16, 25

36 C.F.R. §50.25(k) (1975) . . . . . . . . . . . . . . . .14

36 C.F.R. §50.27(a) (1980) . . . . . . . . . . . . . . . .14

46 Fed. Reg. 55,961 (1981) . . . . . . . . . . . . . . . .15

*74 Fed. Reg. 24,304 (1982) . . . . . . . . . . . . . . . 13

Federal Rule Cited

Fed.R.Crim.P. 23(c) . . . . . . . . . . . . . . . . . . . 23

Higher Authority, Cited

*John 17:14-19. . . . . . . . . . . . . . . . . . . . . . 2

Authorities chiefly relied upon are marked with an asterisk.

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

STATUTES AND REGULATIONS

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

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

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

JURISDICTION

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

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.

From March 22 to 29, 1987, United States Park Police Officers issued three or four citations to the defendants for violations of the camping regulation, 36 C.F.R. §7.96(i)(1).

On May 20, 1987, the government filed Informations against the defendants charging each with one count of violating the camping regulation.

On June 8, 1987, the defendants were arraigned and each entered a plea of not guilty.

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

The defendants filed several pre-trial motions, including motions to dismiss the informations on First Amendment grounds, which were denied. See Memoranda and Orders of District Judge Thomas A. Flannery, filed August 12, 1987, and October 13, 1987.

The case was tried before District Judge Thomas A. Flannery, without a jury, on December 14 and 15, 1987; the court took the matter under advisement at the close of the trial.

On February 5, 1988, Judge Flannery entered judgments of guilty against both defendants.

On March 2, 1988, Judge Flannery sentenced both defendants to 30 days in jail, to run consecutively to any sentence then being served, and a Special Assessment of $25.00.

On March 4, 1988, the defendants filed Notices of Appeal and a joint Motion for a Stay of Execution of the Sentence Pending Appeal. The government opposed the motion for a stay on March 9, 1988, and on March 10, 1988, the Motion for a Stay of Execution of the Sentence Pending Appeal was denied by Judge Flannery.

STATEMENT OF FACTS

A. The Vigil

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

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

It is not rare for the Thomases to speak to people and be actively engaged in the work of the vigil in the middle of the night. What sleeping they do is unplanned, intermittent, and for short periods; they have given up "a good night's rest" along with most other living accommodations because their cause is the 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 14-15, 1987, (hereinafter Tr.) 115-117, 119, 128-129, 197-198, 218-224, 227-230, 251-252, 254, 301-302; Declaration of Defendant Ellen Thomas's Religious Belief, filed August 31, 1987; Declaration of Defendant William Thomas in Support of the Various Pre-Trial Motions, filed June 22, 1987; Second Declaration of Defendant William Thomas Concerning the Establishment of His Religion, etc., filed August 31, 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. Ellen Thomas Exhibits 8 and 9; Tr. 115-117, 202-203.

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, and plastic may be used to wrap literature, and sometime them, when it is raining or snowing. These items are removed from the vigil when not in use. Tr. 117-118, 203-205, 221, 224225, 254.

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. William Thomas Exhibits 11-15; Tr. 182-184, 195-196, 253. Their vigil does not violate the restriction against storing property in the Park. Tr. 141, 253.

Neither does this presence impede the flow of traffic on the sidewalk nor damage the sidewalk; if it did, regulations and laws not at issue here could be brought to bear. Tr. 26, 65, 94-95, 106-108.

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. Ellen Thomas Exhibits 6 and 7; Tr. 200, 237, 243-244, 253, 301, 304-306.

B. The Days Tickets Were Issued For Regulation Violations

Officers of the United States Park Police issued three or four Tickets in the name of the defendants for violations of the camping regulation from March 22 to 29, 1987.

1. March 25/26, 1987

Officer Daniel DeLullo observed the defendants at their vigil site at 10:00 p.m. on March 25, 1987. According to Officer DeLullo, they were sitting on sleeping bags and had with them a couple of bottles and some papers; one of their signs was covered with plastic, and a bicycle was leaning against a sign; it was damp and cold. Tr. 16-17.

The officer returned to the site at 11:00 a.m. and the defendants; were then lying down inside sleeping bags and their site was covered with a clear plastic-type covering; they appeared to be sleeping, and the officer lifted up the plastic and told them they were in violation of the camping regulation; Ellen Thomas responded, William did not. Tr. 17-18.

Officer DeLullo returned again at 12:10 a.m. (it was now March 26, 1987) and observed the defendants in the same position, and he wrote out citations for camping and handed one to each defendant. According to the officer, Ellen Thomas responded by stating, "we were not sleeping," and William Thomas did not respond. Tr. 18-19.

On cross-examination Officer DeLullo admitted he did not know for certain whether the defendants were sleeping, he did not confiscate any property or take any photographs of the scene, and the defendants were on the sidewalk and not engaged in camping or living activities like using a tent, building a fire, cooking or bathing. The officer also admitted that sleeping is permitted in the Park.1/ Tr. 21-22, 26, 28-29, 32.

Ellen Thomas testified that on the night in question at 11:00 p.m. she was sitting at her signs, probably with a blanket for warmth, and she was not sleeping between 11:00 p.m. and 12:10 a.m. She had a backpack and literature, and it was cold and rainy. Tr. 208-210.

On cross-examination Ms. Thomas repeated she was not asleep when the officer approached, and she added that she never lays down bedding materials for the purpose of sleep; she admitted she was covered with plastic, and she and government counsel debated whether plastic is permitted in the Park. Tr. 218-220.

On redirect Ms. Thomas clarified that she uses a wrapping like a blanket or sleeping bag only for warmth, not for the purpose of going to sleep, and she never drapes plastic over the signs or herself in a tent configuration but may wrap literature and herself in plastic for protection. Further, she was not

_______________________

1/ There is also disputed testimony from this witness and others concerning whether bags of clothing were also at the vigil site. The Court made no finding on this issue and did not rely upon it in holding the defendants guilty, and references and citations to it are generally omitted from the Statement of Facts.

continuously at the vigil during the period in question here. Tr. 221-2,22, 224-225.

William Thomas testified he was gone from the vigil during most of the day of March 25, 1987, working on a case. When Officer DeLullo came to the Park at 10:00 p.m., Mr. Thomas observed him warning other demonstrators that they were violating the camping regulation; when the officer returned at 11:00 p.m., he then also warned the Thomases; finally, at around 12:10 a.m. (the morning of the 26^th), the officer issued the Thomases tickets, and, when Ellen asked him why, he responded that it was just a warning. Tr. 235-237. On questioning from the Court, Mr. Thomas explained that he visited his friend's apartment twice from March 21 to 26, 1987, to shower, change clothes, and pick up papers. Tr. 238-239.

On cross-examination Mr. Thomas stated he was not sleeping when the officer gave out the tickets, but he did sleep for a period after the officer left; he also admitted that he and Ms. Thomas were covered with plastic. Tr. 257.

2. March 22, 1987

Officer Richard Deriso testified he observed the defendants at their vigil on March 22, 1987, at 6:00 a.m., lying on blankets, wrapped in sleeping bags, with a large amount of personal property about them, and they appeared to be sleeping; he then issued each defendant a citation for violating the camping regulation,. Tr. 44-46.

On cross-examination the officer stated he went on duty on March 22 shortly before issuing the citations to the Thomases, he did not know how long the Thomases or their property had been in the position he briefly observed, and he may not have issued the citations until 7:30 a.m. Tr. 49-50, 59-60, 76.

Ellen Thomas testified she had a sleeping bag for warmth on March 22 but it was gone from the vigil by 6:30 a.m. Tr. 203-204.

William Thomas testified that from about 10:00 p.m. on March 21 to about 4:00 a.m. on March 22 he was at the vigil listening to an Officer Doerrler talk to a man at a demonstration sign; when Officer Doerrler left at about 4:00 a.m., Mr. Thomas napped for about an hour and a half. At about 6:30 a.m., Mr. Thomas removed the sleeping bags from the vigil; at about noon, Mr. Thomas returned to the vigil and Ellen gave him the ticket for camping which Officer Deriso had given her. Tr. 230-231,

3. March 27, 1987

Officer Deriso testified that on March 27, 1987, he observed the defendants at the same place and time and in the same condition as on March 22, and he again issued citations. Tr. 47.

On cross-examination the officer again admitted he went on duty shortly before issuing the citations to the Thomases, he did not know how long they or their property had been in the position he briefly observed, and he may not have issued the citations until 9:30 a.m. Tr. 59-60, 76.

Robert Dorrough was called by defendant Ellen Thomas and he testified that on March 27 Officer Deriso walked by Lafayette Park at about 6:20 a.m. but did not return and issue citations until about 9:00 a.m., and at that time Ellen Thomas was not at the vigil. Also, Mr. Dorrough asked Officer Deriso why he was giving out tickets and the officer told him he had received orders at roll call that morning to hand them out. Tr. 127, 129. Finally, Mr. Dorrough pointed out that it is not rare for Ms. Thomas to be engaged in conversations with visitors and passersby in the middle of the night. Tr. 119.

Ellen Thomas testified that on March 27 at about 6:00 a.m. she was sitting at the vigil talking to her husband who had just arrived from working elsewhere all night. Shortly thereafter, Officer Deriso came up to the vigil and told the Thomases he was warning them they were camping; Mr. Thomas told him he had just been there for twenty minutes; Officer Deriso left without issuing a citation, and Ms. Thomas took her sleeping bag, left, and was gone from the vigil for most of the morning. Tr. 210-212.

William Thomas stated he was away from the vigil for most of the morning of March 26 and he was gone again from about 10:00 p.m. on the 26^th until about 5:55 a.m. on the 27^th. Upon arriving at: the vigil he began talking with his wife about his work during the night, and he saw Officer Deriso drive by and park his car. The officer then came by the vigil and stated that the Thomases were Violating the camping regulation; almost immediately, Ellen picked up her sleeping bag, which was the only one there, left the vigil with it and was gone until the afternoon. Tr. 245.

At about 9:30 or 10:00 a.m., Mr. Thomas was slouched against a sign and Officer Deriso came up and told him to "sit up." After Mr. Thomas protested this command, the officer gave him a citation for camping and attempted to leave one also for Ms. Thomas, but Mr. Thomas refused to accept it for her. Mr. Thomas did no sleeping at the vigil that day; he had napped (or, "fallen out") at his word-processing station for a while the night before. Tr. 245-246.

4. March 29, 1987

Officer William Doerrler testified that on March 29, 1987, at about 6:15 a.m. he observed the Thomases between their signs; Mr. Thomas was lying on top of matting and under a blanket, and Ms. Thomas was sitting next to him with the same blanket over her legs. The officer left the area, obtained his citation book, and returned to find Mr. Thomas gone. At about 9:45 a.m., Mr. Thomas had returned and the officer issued both of the Thomases citations for camping. Tr. 87-89.

On cross-examination Officer Doerrler admitted he had just come on duty before observing the Thomases and he did not know for certain if they were sleeping nor how long they had been in the position he observed. Tr. 90-91.

Ellen Thomas confirmed she was sitting up with a blanket over her legs at about 6:15 a.m. on March 29, and she was not sleeping and there were no sleeping bags at the vigil nor any plastic. Tr. 213-214.

William Thomas testified he had talked to an officer for quite a while during the morning of March 29, but then he napped from about: 3:00 to 5:00 a.m. An officer came by between 5:00 to 5:30 a.m. and Mr. Thomas was alerted by sounds from the police radio. He was conversing with this officer about the Bible when Officer Doerrler came on duty at 6:00 a.m., and the officer who was talking to Mr. Thomas, and Officer Doerrler, left the vigil site together. Mr. Thomas did not receive a ticket from Office: Doerrler. Tr. 246-247.

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 actitivity, is properly prohibited by it. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

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

The Thomases Were Not

Camping Beyond A Reasonable Doubt

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

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

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

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

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

The Regulation Cannot Be

Constitutionally Applied To The Thomas Vigil

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

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

ARGUMENT

A. THE DEFENDANTS WERE NOT CAMPING AND

THERE IS INSUFFICIENT EVIDENCE

TO SUSTAIN CONVICTIONS FOR CAMPING

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

1. What Is Camping?

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

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.2/

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

_______________________

2/ 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 (Abbey had applied for a permit and been refused), under the standards of Shuttlesworth v. Birmingham, 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).

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

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

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

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

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

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

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

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

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

In the course of the opinion, the "sleeping" aspect of the regulation was interpreted by drawing on past practices of the Park Service in issuing demonstration permits. The Park Service had, under this regulation, previously issued a permit to the Vietnam Veterans Against the War which "authorized at least some participants in the demonstration to 'be asleep in the area at all times during the night."' 703 F.2d at 589 n.3. Based on this incident and other indications, this Court concluded that 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 temporary structure erected as part of the demonstration. 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).1/

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

(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 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.

Arresting Officer Deriso stated that, based on his understanding of the regulations, it is permissible to engage in a 24-hour vigil in Lafayette Park for seven consecutive days or 365 days, and it is permissible to have a blanket, a thermos of coffee, and a jacket or other clothing needed during a 24-hour period. Tr. 63-64. He also stated that sleeping in the Park was allowed, but it was an element of camping and he had been told by a supervisor that demonstrators should not be arrested for camping unless they have been asleep for four hours. Tr. 68-69. However, in Officer Deriso's opinion the four hours of sleep is not necessary if other elements such as bedding are present. Tr. 71, 80. Finally, in an apparent reversal, the officer opined that even if the Thomases only had blankets and were lying down, they would be camping. Tr. 82.4/

Arresting Officer William Doerrler stated that sleeping in the Park is allowed and that covering oneself with a blanket is also allowed. Tr. 98.

The Assistant Solicitor of the National Capitol Parks, Richard Robbins, stated that using plastic to cover papers or to wrap around oneself like a raincoat is permitted in the Park. Tr. 147. Sleeping and 24-hour vigils are permitted in Lafayette Park, as is lying on or covering oneself with a sleeping bag or blanket. Tr. 151-152.5

Mr. Robbins stated that sleeping is one indication of camping and his office had not met a specific time for deciding when permissible sleep becomes impermissible camping. However, his office had apparently given the Park Police guidelines on the documentation it would like for a camping charge, including the sleeping aspect, but, unfortunately, government counsel objected and the guidelines were not elicited. Tr. 153-156.5/

Mr. Robbins read from a letter he wrote to a different Lafayette Park vigiler that "once casual sleeping becomes

_____________________

4/ Earlier in his testimony and apparently also in another trial, Officer Deriso testified that people regularly bring blankets to the Park and sleep on them at lunch-time and other times without incident. Tr. 28-29.

5/ During his testimony, Mr. Robbins also discussed certain permit conditions that may affect Lafayette Park demonstrators. However, the defendants were not charged with a violation of these conditions and they were never entered into evidence.

overnight sleeping or sleeping for large portions of the night or day or is coupled with other indicia of camping, then that conduct violates the camping regulation." Tr. 163. He also opined that he did not believe it conceivably possible for a single person to conduct a vigil for 365 days without using the Park as a living accommodation, irrespective of the time spent sleeping. However, a person could engage in a continuous vigil for a week, with intermittent sleep and no other indicia of camping, and not violate the regulation. Tr. 165-168.

A person "sound asleep under a plastic tarp or piece of plastic in the middle of the night, covered with sleeping materials and on top of bedding materials could very well be in violation of the camping regulation." Tr. 169. However,

if a person, for example, changes their clothes outside of the park, goes to the bathroom out of the park, takes a shower out of the park, stores their extra clothes out of the park, washes their clothes out of the park, takes their showers out of the park, prepares their food out of the park, and yet maintains a continuous presence to the best of their ability, having to go out of the park to perform all of these other functions, maintains a continuous presence by only engaging in the intermittent sleep, would that be . . . a violation of the regulation?

(This was a description of the Thomas vigil.) Answer by Mr. Robbins: "Under the hypothetical you describe, no." Tr. 171-172.

Judge Flannery believes the principal element of camping to be sleeping. Tr. 111.

2. The Thomases Were Not Camping,

And There Is Insufficient Evidence

To Support Their Convictions

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

(A)The Thomases Were Not Camping

Under the reported cases and Park Service interpretations described in rounds one and two above, the Thomas vigil does not violate the camping regulation. The Thomases do not use a tent or any temporary structure. If they use plastic, it is to wrap their papers and themselves only when it is raining and protection is needed. To the extent they sleep during their vigil, it is not camping because it is not "done within any temporary structure erected as part of the demonstration." community for Creative Non-Violence v. Watt, 703 F.2d 586, 589 (D.C.Cir. 1983), rev'd on other ground", Clark v. Community for Creative Non Violence, 468 U.S. 288 (1984).

Even under the various interpretations of camping described by the government partisans in round three above, 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 or at least four hours.

Taking the government's best case, the Thomases were not observed sleeping for more than a few minutes in three of the four incidents and in the fourth it may have been an hour. Mr. Thomas admitted to sleeping for one or two hours on two of the occasions.

The only other "camping" indicia were plastic on one occasion covering a sign and the Thomases (not rigged like a tent), and, during this cold and damp period, the use of blankets on three of the occasions and sleeping bags on three of the occasions. On two of the occasions (recounted by Officer Deriso as identical) there was also mention of two or three bags of unidentified property in the vicinity of the vigil.

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. 171-172.

(b) The Evidence Elicited At The Trial

Is Insufficient To Support The Convictions

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

In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an 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 but filed a memorandum recounting certain facts elicited at the trial, deciding only one of the disputed facts. The court made a general finding, concluding beyond a reasonable doubt that during the week of March 22 through 29, 1987, the defendants used Lafayette Park for living accommodation purposes in violation of the regulation against camping.

Memorandum of February 5, 1988, (Mem.) at 15.

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

United States v. Marley, 549 F.2d 561, 563 (8th Cir. 1977). In evaluating a claim of insufficient evidence, to sustain a verdict of guilt the evidence must be "sufficient to permit a reasonable juror to find guilt beyond a reasonable doubt." United States v. Lewis, 626 F.2d 940, 951 (D.C.Cir. 1980) (jury trial); accord Jackson v. Virginia, 443 U.S. 307 (1979)

Here, the court's finding and 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 defendants could wholly dedicate themselves to their vigil and also not be using it for living accommodations.

1. The court noted that both defendants testified they spent most of their time in the Park and, with occasional exceptions, spent every night there, that William Thomas acknowledged, with the exception of "involuntary" naps taken out of the Park, whatever sleeping he did was done in the Park, and that Ellen Thomas testified she had the night shift at the vigil and she did not testify she slept anywhere else. Id.

However, the defendants were charged with camping based on four discrete incidents and the evidence of what occurred on those four occasions has already been shown to be insufficient to support a charge of camping. See section A.2.(a) above. Mr. Thomas's statements about sleeping in general cannot support this specific charge, and, more to the point, his statements about sleeping during the incidents in question show at most a total of four to six hours of sleep at the vigil for all four nights. That Ms. Thomas did not testify to sleeping elsewhere (she was not asked) does not support an inference that she only slept at the vigil, nor for how long, and her testimony on the subject contradicted the officers who, it must be remembered, only observed the vigil for short periods.

2. The court noted that the Park Police officers established that the defendants were observed at numerous times late at night and in the early morning to be lying prone, on bedding materials, with their eyes closed. Id. The court made one disputed finding:

Despite defendants' assertions that they were not in fact sleeping on the specific occasions alleged by the government, the court concludes beyond a reasonable doubt that defendants laid down bedding for the purpose of sleeping and slept in the park with such frequency and for such periods of time as to constitute camping in violation of 36 C.F.R. 7.96(i)(1).

Mem. at 15-16.

Again, the court loses its proper focus and extrapolates to its belief about the long-term practice of the defendants. It is undisputed that the vigil is permissible, that blankets, sleeping bags, and plastic are permissible when appropriate, 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. And 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 to support the court's conclusion to the contrary - certainly not sufficient evidence, concerning the four incidents in question, to find so beyond a reasonable doubt.

3. Finally, after admitting that it was not possible to define the point at which A legal vigil will in all circumstances become use of the Park for living accommodations, the court found "that lying on top and within bedding materials throughout the night, for a one-week period, without evidence of any other sleeping quarters, is sufficient evidence of the use of the park for living accommodations." Mem. at 17.

Again, there was not sufficient evidence that the Thomases were on top of and within bedding throughout any of the four nights in question, and, if they were, that would not support a camping conviction in light of their undisputed right to be at their vigil with the items allegedly in their possession.

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 pictures, property list, or detailed records made of these limited observations. Tr. 24, 26, 70, 76-78, 91-92, 94, 98. The testimony of the officers is scanty and conclusory, at times incredible, and convincingly disputed by the Thomases on significant points. For example, Officer Deriso testified, in conclusory terms, that on both of the occasions he briefly observed the Thomases - separated in time by five days - the scene was identical. His cross-examination and the Thomases recount of the two days makes his direct examination rendition unlikely. And Officer DeLullo's quite different description of the vigil on intervening days makes Officer Deriso's testimony incredible.

Why weren't pictures of the scenes taken, or property seized or catalogued, or longer observations conducted? Because had a proper police investigation occurred, it would have shown that the Thomases do not sleep through the night or for long periods at their vigil, and that they do not store property there or otherwise maintain a campsite.

Based on meager and conclusory testimony, disputed, 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. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936), and its progeny. 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).

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

B. IF THE DEFENDANTS WERE CAMPING WITHIN

THE MEANING OF THE REGULATION, THE

REGULATION IS UNCONSTITUTIONALLY

VAGUE AS APPLIED TO THEIR VIGIL

If this Court upholds these convictions, it will in effect be declaring, as the court below believes, that the "regulation against camping . . . permit[s] . . . a vigil which last[s] for only a day or two . . . or where a presence was maintained only during daylight hours." (Mem.) at 16. 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? William Thomas, pro se, attempted to show the Assistant Solicitor for the National Capitol Parks, Mr. Robbins, and the trial court, that, as best as he could understand precedent, his vigil could not be considered camping because he did not use any temporary structure. It went like this:

The Witness [Mr. Robbins]: Your honor, these are the regulations that are in effect. . .

The Court: All right.

* * *

By Defendant William Thomas: Could you read the words in the circled portion there?

[Mr. Robbins:] Certainly. The regulations banning the use of parks for living accommodations are designed not to stifle first amendment expression, but to protect undesignated parks from activities for which they are not suited and the impact of which they cannot sustain. 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.

[William Thomas:] Let me ask, were you involved in the court process that grew out of these regulations?

Mr. Mina [the prosecutor]: Objection.

The Court: Objection sustained.

Defendant William Thomas: I'm sorry. Could I ask the ground?

The Court: No. Next question. It's immaterial, that's why.

By Defendant William Thomas: Isn't it a fact, Mr. Robbins, that the park service represented that "one's participation in a demonstration as a sleeper becomes impermissible camping when it is done with any temporary structure erected as part of the demonstration"? [sic]

[Mr. Robbins:] I don't recall that precise language.

[William Thomas:] Well, assuming that the Park Service made that representation, would that -- has there been any subsequent representations to change that interpretation of when one's participation in a demonstration as a sleeper becomes impermissible camping?

[Mr. Robbins:] I'm afraid I missed what you read.

The Court: What are you reading?

Defendant William Thomas: I am reading from the Community for Creative Non-Violence v. Watt, 703 F.2d, page 589, where it says that according to the Park Service's interpretation of the new regulations, and that refers to the specific regulation that Mr. Robbins has, Defendant's Exhibit 4, according to the Park Service's interpretation 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.

The Court: Well, so what? That's one instance when it may be --

Defendant William Thomas: This is the representation. It also says that the only apparent distinction between the sleeping and the veterans' demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground without any shelter.

The Court: Well, I don't see what relevance this has. You are quoting from isolated bits and pieces of that opinion of the Court of Appeals.

Defendant William Thomas: I am going to try and convince the court that I have been trying to accommodate myself to this regulation and that to the best of my understanding --

The Court: You are not helping the court by quoting bits and pieces from an opinion of the Court of Appeals and asking the witness his opinion on those bits and pieces. All right. I'll sustain the objection to the pending question. Ask your next question. Let's move on.

Tr. 159-162; see also Tr. 162-163.

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 personal rules, among others, are followed by the Thomases specifically to accommodate the regulation. Tr. 200, 237, 243244, 253, 301, 303, 305.

In addition to prior representations in the Federal Register about the scope of the camping regulation, court cases, and letters, the Thomases knew about the Park Police policy that one was not to be charged with camping if not observed sleeping for four hours. Tr. 69. This did not avail them either.

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 conduct, 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 vague statute 'abut[s] upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of [those] freedoms.'

Grayed 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).

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

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 that the regulation applied to him or her, not the Thomases.

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 arrested 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 arrested, and the summer.

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

CONCLUSION

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

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

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

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

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

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

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

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

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), or because there was insufficient evidence of camping at their trial to support guilt beyond a reasonable doubt, or because the camping regulation cannot be constitutionally applied to them, this Court should reverse the convictions.

- Respectfully submitted,

/s/Mark A. Venuti .

Mark A. Venuti

Counsel for Appellants

Appointed by the Court

September 1, 1988

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Brief of Appellants was delivered, this 1^st day of September, 1988, to:

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

/s/Mark A. Vemuti
Mark A. Venuti