U.S. v THOMAS
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NOV 2 1983
JAMES F. DAVEY,
Clerk, U.S. DISTRICT COURT
UNITED STATES OF AMERICA
V. Criminal Action No. 82-0295
ARTHUR LEE HARRIS
UNITED STATES OF AMERICA
V. Criminal Action No. 82-0296
These consolidated criminal cases are before the Court on
appeal from findings rendered by United States Magistrate Arthur
Burnett. On September 20, 1982, Magistrate Burnett found Arthur Lee
Harris and William Thomas guilty of violating United States
Government Regulations which prohibit camping on parkland, 36 C.F.R.
§§ 50.51 50.27. Appellants raise factual and constitutional
challenges to their convictions.
The essential details concerning the arrest of Harris and
Thomas are undisputed. Two park police officers found both men
sleeping on the sidewalk directly in front of the White House at
approximately 4:00 a.m. on June 17, 1982. One of the officers
stated at trial that he had seen the men sleeping in front of the
White House on prior occasions. The officers read three separate
warnings to Harris and Thomas over a half-hour period on the
morning of June 17th, indicating that they were violating anti-camping regulations and would be arrested unless they left the
parkland. The two men refused to leave and the officers made the
The scope of appeal from a Magistrate's verdict is the same as
on appeal from a judgment of a district court to a court of appeals.
Rules of Procedure for the Trial of Minor Offenses before United
States Magistrates, Rule 8(d), 18 U.S.C. (1970). Thus, the Court's
function is not to retry the case, weigh the evidence or adjudge the
credibility of witnesses. It is instead, to determine whether there
is substantial evidence on the record to support the Magistrate's
verdict. See United States v. Anderson, 509 F.2d 312 (D.C. Cir.
1974)1 cert. denied, 420 U.S. 991 (1974).
The anti-camping regulation at issue in this case states:
(a) 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 belongingsr 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. Camping is permitted
only in areas designated by the Superintendent who may
establish limitations of time allowed for camping in any
public camping ground, Upon the posting of such limitations in the campground no person shall camp for a period
longer than specified for the particular campground.
36 C.F.R. § 50.27(a).
Appellanes argue that they did not violate this regulation
because they were not using the parkland for "living accommodation
purposes." The evidence adduced at trial, however, indicates
that both men had been maintaining a constant presence on the
parkland for many days, including sleeping overnight on the White
House sidewalk. They were using bedding materials, had personal
belongings in the area, and were using plyboard signs and other
objects to protect them from the elements. The Magistrate's
finding that the men were using the parkland for living accommodations is supported by substantial evidence and will be upheld.
Harris and Thomas also raise several constitutional challenges
to the anti-camping regulation and their convictions pursuant to the
regulation. The majority of appellants' arguments must be rejected.
Appellants claim that the relevant regulation is unconstitutionally
vague and overbroad has been previously addressed and dismissed by
the Court of Appeals for this Circuit. See Commnunity for Creative
Non-Violence v. Watt, 703F.2d 586, 591 n.6 (D.C. Cir. 1983), cert.
granted, 52 U.S.L.W. 3262 (Oct. 3r 1983). In addition, the
Magistrate's factual finding that the regulation has not been
improperly selectively enforced is supported by the record, and,
thus, will not be overturned. See United States v. Mangierir, 694
F.Zd 1270 (D.C. Cir. 1982); see also Community for Creative
Non-Violence v. Watt, 703 F.2d at 611. Appellants'
final challenge to their convictions, based on the First
Amendment, however, presents a more difficult issue.
At the time of their arrest, Harris and Thomas were conducting
constant vigils to protest certain government activities. Such
protests have historically been given First Amendment protection
regardless of content. See, e.g., Consolidated Edison Co. v.
Public Service Commission, 447 U.S. 530,536 (1980). To maintain
their constant vigils in front of the white House, the men
necessarily slept on parkland. Since sleeping on parkland vas
necessary to continue their protests, they argue that the
regulation prohibiting them from "camping" on parkland violates
their First Amendment rights.
Appellants rely heavily on the recent decision by the Court of
Appeals for this Circuit in Community for Creative Non-Violence v.
Watt, supra. In CCNV, the Court of Appeals stated that the
anti-camping regulations could not be applied to prevent protesters
from sleeping in tents which the government had allowed them to
erect as symbols of the plight of the homeless. By a 6-5 majority,
the CCNV court found that under those circumstances sleeping was
communicative conduct protected by the First Amendment.
The Court of Appeals noted in the CCNV opinion that under
the circumstances of that case sleeping was used as expressive
conduct. The importance of the communicative nature of the
sleeping to the majority decision is illustrated by the caveat in
the concurring opinion of Judges Wright and Robinson, which
states: (w)e intimate no view as to whether sleeping would
implicate the First Amendment were it not to add its own
communicative value to the demonstration." 703 F.2d at 600.
Harris and Thomas do not claim that their sleeping added its
own "communicative value" to their protests. Rather, they claim
that sleeping facilitated their "inescapable night-and-day"
presence. Appellants' brief at 21. The expressive nature of the
sleeping, therefore, is absent in this case.
The Supreme Court in Spence v. Washington, 418 U.S. 405 (1974)
(per curiam), established the guidelines for determining whether
conduct qualifies as protected speech under the First Amendment.
The Court stated that conduct will merit First Amendment protection
when it is intended to convey a "particularized message" and under
the circumstances it is likely the message will be understood.
418 U.S. at 410-411. By sleeping, Harris and Thomas did not intend
to convey a particularized message. Sleeping on parkland was for
the men simply necessary to maintain the stamina to sustain a
constant vigil. In view of the lack of a "particularized message"
in the conduct of sleeping which led to the appellants' arrest, the
Court finds that the First Amendment is not implicated in
For the foregoing reasons, the Magistrate's decision in
these consolidated cases is affirmed.
An appropriate Order follows.
(signed) John Lewis Smith Jr.
United States District Judge
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