The "Camping" Regulation

This law of semantics began with the "camping" regulation. Written by an Interior Department lawyer named Richard Robbins, it was published by the government on June 4, 1982. To convince the courts that the "camping" regulation was "constitutional," the government explicitly claimed this regulation "was not intended to stifle First Amendment expression." [1] The government stated a clear enforcement policy to distinguish "permissible sleep" during the course of a vigil from "impermissible camping." [2] On June 17, 1982, the government's first application of the camping regulation was targeted at the ("permissible") sleep of the vigilers. Contrary to the government's representations of "constitutional" concern, in fact the "camping" regulation has been enforced to criminalize a "vigil."

In 1984 Justices Marshall and Brennan pinpointed the major ploy utilized by the Reagan/Bush bureaucracy to whittle away at the bedrock of constitutional protection: "The political dynamics likely to lead officials to a disproportionate sensitivity to regulatory as opposed to First Amendment interest can be discerned in the background of this case.... (T)here are facts in the record of this case that raise a substantial possibility that the impetus behind the revision may have derived less from concerns about wear and tear on the park facilities, than from other, more 'political' concerns.... there was evidence readily available that should have impelled the court to subject the government's restrictive policy to something more than minimal scrutiny." [3]

In 1988 Judge Louis Oberdorfer noted that "(t)he Park regulations furnish ... a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure ... and confers on police a virtually unrestrained power to arrest and charge persons with a violation." [4]

In l989 Judge Oberdorfer pointed out, "(o)ver the course of their vigil, plaintiffs and federal law enforcement officials have engaged in an ongoing confrontation arising from plaintiffs' exercise of First Amendment rights." [5]

Judge Oberdorfer found that the people "who are maintaining vigils in Lafayette Park .... have stood up day and night for their beliefs in spite of repeated arrests, (a few) convictions, and the dangers encountered when sleeping unprotected from the weather and other perils that lurk in the middle of the 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, condemn and punish criminals.... 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 questionable." [6]

Sadly, Judge Oberdorfer's clear discernment was not sufficient to keep him from sentencing the peaceful protestant to prison.
"We strongly believe in certain principles. We harmlessly dedicate our lives to communicating our beliefs," says William Thomas, who has been vigiling in the Park since 1981. "Now, I believe, that dedication has revealed a judicial 'problem'."
A few federal judges, like William B. Bryant in 1983, comprehend the problem: "Let me ask you this ... hasn't it been one of those things where he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z.' In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them and as he gets arrested for them ... wherever you say do he'll do."

"He plays games," the government parried.

"Well, I don't know who is playing a game really." [7]

Judge Bryant tried to explain why the government's application of the camping regulation was troubling his conscience: "If I follow the government and find (Thomas) guilty what am I supposed to do with him? He doesn't have any money. If I put him on probation, he's going to be right out there doing the same thing. The criminal penalty isn't enough to deter him. Point 1. Point 2. I have a hard time sleeping putting him in jail, actually, for what he did.... I kind of tend to agree with him. He is such a minimal harm to anybody in the world."

Judge Bryant's reasoning did not deter the US Attorney from urging the maximum period of imprisonment, or the telling alternative of sending the vigilers "to Sacramento to demonstrate in front of the state capitol out there." [8]

Judge Bryant wasn't the only federal judge to be troubled by unanswered questions about governmental application of regulatory force. For example, in 1984 Judge Joyce Hens Green scolded the government prosecutors, ruling "(t)o continue with this trial would transform the trial from a prosecution into a persecution, and, accordingly, the respective motions for judgment of acquittal are, as to each of the defendants, granted. It has ... become unnecessary," she added, "in light of this ruling, to reach the several most significant constitutional questions that some day, some way ... will be addressed." [9]

Unfortunately, those questions have yet to be addressed, and some other judges display no compunction in ignoring significant constitutional questions and condoning the government's use of force.

The vigilers' first encounter with Judge Charles Richey came in 1987 after years of repeated prosecution -- but very few convictions -- under the "camping" regulation. Initially, Judge Richey dismissed the criminal case on the grounds that the vigil was a sincere exercise of religious belief. [10] But the Court of Appeals, citing Clark v. Community for Creative Non-Violence, sent the case back down to trial. On January 15, 1988 Judge Richey -- together with Judge Thomas Flannery -- conducted two piggybacked trials, convicted and immediately sentenced William and Ellen Thomas to a total of three months in federal prison. Two other vigilers, Philip Joseph and Sunrise Harmony, were sentenced to two months under the "camping" regulation. Before passing sentence, Judge Richey explained the prison sentences as an attempt "to deter others from adopting your lifestyle."

The most recent example of how "camping" can be used to stifle "expression" was displayed by the Bureau of Land Management when it published a "camping" regulation to restrict demonstrations at the nuclear weapons test site in Mercury, Nevada in 57 Federal Register 9427 on March 18, 1992.

[1] 47 Federal Register 24304, June 4, 1982.]

[2] Op cite, 730 F.2d at 588, 589.]

[3] E.g. Clark v. Community for Creative Non-Violence , 468 U.S. 299 at 315, dissenting opinion of Brennan and Marshall.]

[4] Thomas, et al v. United States, et al, 696 F.Supp. 702 at 709.]

[5] United States v. Sunrise, 702 F.Supp. 295, 297 (l988), citing Thomas v. United States, 696 F. Supp 702 at 704.]

[6] Id, (parentheses added).]

[7] USA v. Thomas, USDC, Crim. 82-0358, July 7, 1983. Appendix pgs. 7-10.]

[8] USA v. Thomas, USDC, Crim. 82-0358, July 5, 1983. Appendix pgs. 4-6.]

[9] United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 84-0255, September 25, 1984. Appendix, pgs. 11-13.]

[10] United States v. Galindez, et. al., USDC, Cr. 87-0061-0065, April 23, 1987, Appendix, pgs. 14-16.]