While under these probation conditions, defendant was arrested on the pending charge
on April 8, 1988. The arresting officer stated that he observed a subject, later identified
as Stephen Semple, laying on the sidewalk with a blanket covering his entire body. The
subject was surrounded by food, blankets, and sleeping bags. The subject was cited for
camping. Violation Notice No. 057782, dated April 8, 1988 (filed June 17, 1988).
 Before any information was filed, [FN2] the defendant moved to dismiss the pending
FN1. These special conditions were adapted from permits issued by the National Park
Service from time to time to defendant and others maintaining the "vigil" in Lafayette
FN2. Fed.R.Crim.P. 7(a) requires all federal offenses to be prosecuted either by
indictment or by information. The Court ruled on October 6, 1988, that the government
could not prosecute this action based on the "Violation Notice," in essence the "ticket"
issued by the arresting officer, filed on June 17, 1988. On October 7, 1988, the
government filed a "superseding" information.
case on grounds, among others, that the regulation allegedly violated by defendant
trenches upon his First Amendment right to maintain a "continuous presence in Lafayette
Park [as] the product of a sincerely held religious belief" and that the "regulation is
unconstitutionally vague as applied." Motion to Dismiss Information (Sept. 23, 1988) at
4-5. In that motion, he necessarily admitted that he was "on probation as a result of an
earlier conviction." Id. at 5. He further claimed that during the interim between that
conviction and this arrest, the defendant "had made earnest attempts to steer from what
is considered unlawful towards what is considered lawful." Id. He pointed out that he
had actually applied for, and received, a permit from the National Park Service to conduct
the very activity for which he was arrested on April 8, 1988. Id. The permit that
defendant cited as authority for this proposition, however, was for a demonstration from
December 26, 1987, to January 1, 1988. Id. at Exhibit C. On November 10, 1988, the
Court denied the motion to dismiss, except as to an allegation of selective prosecution,
which was to be decided after hearing testimony on the merits at trial. Given defendant's
probationary status, the officer's testimony at trial of his awareness of that status and his
prior observations of defendant at "his" site in Lafayette Park, and the paucity of evidence
presented by defendant on this issue at trial, the officer's decision to arrest defendant
without arresting others behaving similarly in the immediate vicinity cannot be said to
constitute selective enforcement. Accordingly, an accompanying Order will deny
defendant's motion to dismiss the information.On October 7, 1988, the United States finally filed an information alleging that on April
8, 1988, the defendant "used park land for living accommodation purposes such as
sleeping activities, making preparations to sleep (including the laying down of bedding for
the purposes of sleeping), and storing personal belongings" in violation of 36 C.F.R. s
The information against defendant came on for trial by the Court without jury on
November 10, 1988. At that trial, defendant represented himself. The United States
called as its only witness the arresting officer, Park Police Private Kevin Fornshill. Officer
Fornshill testified on direct examination that on April 8, 1988, he observed defendant lying
down on a plastic tarp between two signs, with his head and body entirely covered by
blankets. Near the signs were garbage bags filled with French bread. Officer Fornshill
then testified that he asked defendant to identify the property that was his. Defendant
claimed the two signs, two blankets, the tarp, a guitar and a guitar case, and a bookbag.
When defendant was unable to provide some form of identification, Officer Fornshill
arrested him. During direct examination, a series of photographs taken on April 8, 1988,
by Officer Fornshill were also admitted into evidence.
On cross-examination by defendant pro se, Officer Fornshill conceded that he had no
direct evidence attributing to defendant any of the property at the demonstration site other
than the property defendant claimed. The officer conceded that the food, some nearby
blankets not being used by defendant, and some nearby sleeping bags could have
belonged to other individuals. On re- direct examination, Officer Fornshill also conceded
that he never asked any of the other individuals in the area whether this additional
property belonged to them. The only basis for his conclusion that the property belonged
to defendant was its proximity--within seven to ten feet of defendant--and its presence on
the site of "defendant's vigil."
The defense called Eric Christ, who testified that he delivers bags of bread to Lafayette
Park every day to feed the demonstrators and others. Christ also testified that he
observes others leaving food, blankets, and sleeping bags at defendant's vigil, but
asserted that these items were for the use of all people, ranging from the
homeless to wayward travelers, not necessarily for defendant in particular.
Finally, after being informed of his privilege against self-incrimination, defendant waived
the privilege and testified on his own behalf. After submitting into evidence several
passages from a book on the philosophy of Jesus, defendant testified that the extra
blankets, food, and sleeping bags were at his site not for his own use, but for others to
use if needed. He also insisted that he was not sleeping when discovered by Officer
Fornshill on April 8, 1988, and that he was not using Lafayette Park for living
On cross-examination, however, defendant stated that most of the time he sleeps in
Lafayette Park, although he occasionally sleeps elsewhere. Responding to an inquiry from
the Court, defendant stated that he spends at least four hours a day out of the park, but
that this time is usually spent shopping for and cooking food. Defendant did not assert
that the time he spends out of the park is generally spent sleeping.
The defendant and others who are maintaining vigils in Lafayette Park may be eccentric.
But they have stood up day and night for their beliefs in spite of repeated arrests and
convictions and the dangers encountered when sleeping unprotected from the weather
and other perils that lurk in the middle of a city at night. Their protests have been
peaceful. They are not venal criminals, and application of criminal sanctions to them puts
strain on the criminal justice system. That system is designed to protect the public from
crime, to condemn and punish criminals, and to deter others from committing crime. The
justification for condemning and punishing a peaceful protester like defendant is not
immediately apparent. The effectiveness of the criminal sanction as a protection of the
public or as a deterrent to repetition when applied to persons like defendant is also
As was suggested in Thomas, there exists for groups of demonstrators of 25 or more a
judicially reviewable permit process with conditions that are enforceable, if necessary, by
civil injunction. See A Quaker Action Group, supra; cf. Community for Creative
Non-Violence v. Carvino, 660 F.Supp. 744 (D.D.C.1987). It could be extended by the
National Park Service to regulate persons who conduct, alone or in small numbers, a
continuing demonstration such as defendant's so-called "vigil." Such a process, unlike
the blunt instruments of criminal prosecutions, would provide a mechanism for defining
exactly what is required of persons in defendant's situation. [FN3] Indeed, were it not for
the availability of the permit process to clarify the limits of the camping regulation, that
regulation might well be unconstitutionally vague as applied to defendant and others
similarly situated. See Thomas, supra, 696 F.Supp. at 709-11.
FN3. For example, by granting defendant's permit application dated December 23, 1987,
and attached as Exhibit 3 to defendant's Motion to Dismiss Information, the National Park
Service effectively permitted defendant to demonstrate from December 26, 1987, to
January 2, 1988, with 2 signs; one musical instrument per person; one amplifier per
instrument; 1 insulated bag per person (during cold weather, to be removed when not
in use); literature (not to exceed 2,500 pieces at any one time); literature trays; one
piece of 20 mm. plastic per person (10 ft. x 12 ft.); pencils; pens, writing and editing
materials; books (not to exceed 10); one book bag per person; umbrellas (1 per
person); 1 water jug; 1 broom; 2 blankets per person to sit on and/or wrap up with
during cold weather; no more food than might reasonably be consumed during a 24-
 Nevertheless, no permit was sought by or issued to defendant for his demonstration
on April 8, 1988. Furthermore, the Supreme Court has explicitly upheld the
constitutionality of the camping regulation against a First Amendment challenge. See
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d
221 (1984). Thus, Semple's only available defense is on the facts.
 The information charges violation of two "prongs" of the camping regulation:
(1) making preparations to sleep and storing personal belongings and (2) "sleeping activities."
The government did not prove the "storage of property" prong beyond a reasonable
doubt. The only items for which the government adduced direct evidence of possession
by defendant were: two signs, one bookbag, two blankets, two pieces of plastic, a guitar,
and a guitar case. Possession of these materials does not violate the conditions of
defendant's probation. See United States v. Semple, --- F.Supp. ----, Crim. 87-0466-LFO,
Order of June 8, 1988. Nor does possession of these items, in all the circumstances
here, constitute using the park for living accommodation purposes.
While the government sought to prove "storage of property" by inference using evidence
of additional items--large bags of bread, a pile of blankets, and some sleeping bags--in
the immediate vicinity, the government never adequately established that the additional
property belonged to defendant or was controlled by him. Indeed, Officer Fornshill
testified that he never inquired of the other people in defendant's immediate vicinity
whether the property at issue belonged to them. Defendant denied that this property was
his, and there was no proof to the contrary beyond a reasonable doubt. The presence
of all of these items may be evidence of camping by someone. But their presence near
defendant does not establish his criminal responsibility for the storage of the items.
 The "sleeping activities" prong is another matter. The Supreme Court has interpreted
36 C.F.R. s 7.96(i)(1) as including a ban on "overnight sleeping." Clark, supra, 468 U.S.
at 295, 104 S.Ct. at 3070. Discussing that regulation, the Court in Clark held: We have
difficulty, therefore, in understanding why the prohibition against camping, with its ban on
sleeping overnight, is not a reasonable time, place, or manner regulation. Id. at 297, 104
S.Ct. at 3071 (emphasis added).
Obviously, the information does not specifically charge defendant with "sleeping
overnight." It does, however, charge him with, inter alia, using Lafayette Park for living
accommodation purposes such as "sleeping activities" and "making preparations to
sleep." Overnight sleeping is simply the Supreme Court's interpretation--and perhaps
even its implicit limitation on language that might otherwise preclude mere napping on a
sunny afternoon--of the more general regulatory terms. As stated in Thomas, supra, 696
F.Supp. at 709, "casual dozing in a park is a generally accepted American tradition but
for the regulation which forbids use of a national park for living accommodations." By
charging "sleeping activities," the information sufficiently charges defendant with
"overnight sleeping." While the Sixth Amendment requires that a defendant in a criminal
case have notice of the "nature and cause of the accusation" against him, the sufficiency
of an information "depends upon whether it clearly informs the defendant of the precise
offense of which he is accused so that he may prepare his defense." United States v.
Conlon, 628 F.2d 150, 156 (D.C.Cir.1980), cert. denied, 454 U.S. 1149, 102 S.Ct. 1015,
71 L.Ed.2d 304 (1982). Because "sleeping activities" is a somewhat broader term than
"overnight sleeping," the former term plainly encompasses the latter. In any event, its use
in the information provided defendant with sufficient notice of precisely the activity for
which he was being prosecuted. Therefore, if the government has proved beyond a
reasonable doubt that defendant was "sleeping overnight" in Lafayette Park, defendant
must be found guilty. The government has met that burden in this case.
 At least two interpretations of "sleeping overnight" are conceivable. First, the Supreme
Court may have intended its interpretation of the camping regulation to be taken literally:
"sleeping overnight" could mean sleeping from sunset to sunrise without interruption.
Such an interpretation, however, would be excessively technical and could effectively
render the camping regulation a nullity. It is unlikely that either the National Park Service
Supreme Court intended that result. Indeed, the Supreme Court has
identified the government's regulatory interest to be "preserving park lands" and stated
that "[t]here is no gainsaying that preventing overnight sleeping will avoid a measure of
actual or threatened damage to Lafayette Park." Clark, supra, 468 U.S. at 299, 104 S.Ct.
at 3072. The more sensible interpretation relies on common usage. "Overnight
sleeping," while it may mean more, means at least that sleep necessary for a human
being to sustain his or her life over time in reasonably good health.
 Although proving "overnight sleeping" may often be difficult, see Thomas, supra, 696
F.Supp. at 708-9, circumstantial evidence and reasonable inferences therefrom establish
beyond a reasonable doubt that, before and at the time of defendant's arrest, it was his
practice to "sleep overnight" in Lafayette Park and not elsewhere. Defendant testified,
without compulsion, that although he was away from the park for as many as four hours
in a 24 hour day, he did not use that time for sleeping. If he did not sleep outside of the
park, and he needs sleep, as all humans do, to sustain his life over time in reasonably
good health, he must necessarily have been using the park for "overnight sleeping." This
reasonable inference is confirmed by photographs admitted as Government Exhibits 1(b),
(c), (d), (f), (g), (h), (n), (o), (p), (q), (r), (t), (u), and (v), and the testimony of Officer
Fornshill, all of which demonstrate that in the afternoon of April 8, 1988, defendant was
lying on a sidewalk in Lafayette Park with his head and body buried under a blanket.
Defendant is not saved by the fact that he may well have been in substantial compliance
with the conditions of his probation when he was arrested on April 8, 1988. The
probation conditions were established to provide the National Park Service, the United
States Probation Office, the Court, and defendant with some fairly simple, objective tests
for compliance. If defendant violated the conditions of his probation, he had clearly
violated the regulation, and his probation could be revoked without the need for a difficult
revocation hearing focusing on the relatively amorphous question of whether defendant
had used the park for "living accommodation purposes." The inverse, however, is not
true. If defendant complied with the conditions of his probation, he was not necessarily
in compliance with the camping regulation. Conditioning defendant's probation on his
spending at least 35 hours every seven days outside of the park gave defendant an
opportunity to use that time to get elsewhere the sleep he would need to sustain himself
and function over time in reasonably good health. If he had done that, there might well
have been a reasonable doubt as to whether he was guilty of overnight sleeping in
Lafayette Park. But defendant chose to spend his time outside of the park in other ways
and as a result has left the Court no alternative but to find that the government has
proved beyond a reasonable doubt that he was sleeping overnight, and therefore
"camping," in Lafayette Park.
Accordingly, an accompanying Order will find defendant guilty as charged in the
Information and set a date for sentencing.
For the reasons stated in the accompanying Memorandum, it is this 8th day of December,
ORDERED: that defendant's motion to dismiss the information should be, and is hereby,
DENIED; and it is further
ORDERED: that upon consideration of the evidence in this matter, defendant should be,
and is hereby, adjudged GUILTY of the offense charged in the information and shall
appear for sentencing on February 17, 1989, at 9:00 a.m. A presentencing hearing
be held, if necessary, on February 13, 1989, at 1:45 p.m.
Proposition One | Peace Park